Brigitta Voros v Woolworths Group Limited
[2022] FWC 353
•18 FEBRUARY 2022
| [2022] FWC 353 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brigitta Voros
v
Woolworths Group Limited
(U2021/11883)
| COMMISSIONER P RYAN | SYDNEY, 18 FEBRUARY 2022 |
Application for an unfair dismissal remedy - unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.
Introduction
This decision concerns an application by Ms Brigitta Voros (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).
The Applicant’s employment with Woolworths Group Limited (Respondent) was terminated with effect from 28 October 2021[1]. The unfair dismissal application was lodged on 20 December 2021.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 18 November 2021. The Application was therefore filed 32 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.
In accordance with directions issued by my chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
Neither party tendered any evidence, in chief or in reply, and the matter proceeded on the basis of the written submissions filed, supplemented by oral submissions during the hearing.
I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2) (a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr O Fagir.
The matter proceeded as a hearing[2] via Microsoft Teams on 10 February 2022. The Application and materials filed by the parties were consolidated by my Chambers into a Digital Hearing Book (DHB) which was distributed to the parties for reference during the hearing of the matter.
For the reasons that follow, I decline to grant an extension of time under s.394(3).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[4]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[5]
I now consider these matters in the context of the application.
Reason for the delay
The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[6]
Applicant’s Submissions
In summary, the Applicant submitted that the delay in filing the Application was attributable to the anxiety and stress she experienced following her dismissal and the realisation that her employment had been terminated by the Respondent.[7]
The Applicant did not provide any medical evidence in support of her explanation for the delay. In this respect the Applicant submitted, “As for medical certificates for my mental health decrease, like I previously mentioned, I didn’t even realise my mental health was on the decline”.[8]
The Applicant also filed a letter of support from her father which traversed matters that occurred throughout the course of her employment, which were unrelated to the application for an extension of time.[9]
Respondent’s Submissions
The Respondent submitted that the Applicant’s reasons for the delay in filing the Application are not supported by any evidence, medical or otherwise.[10]
The Respondent submitted that stress and grief associated with job loss is a common experience, and in the absence of evidence of incapacity, there are no exceptional circumstances justifying an extension of time.[11]
Applicant’s Submissions in Reply
In reply, the Applicant referred to matters that had occurred up to 5 years prior to the termination of her employment and requested an adjournment, which was refused, for the purposes of acquiring and filing a medical certificate.
Consideration – Reason for delay
Prior to the allocation of this matter to my Chambers, the Chambers of Vice-President Catanzariti sent correspondence to the Applicant on 7 January 2022 advising her that the Application appeared to be out of time and inviting her to provide any preliminary submissions.
That correspondence informed the Applicant, amongst other matters, as follows:
…if you rely on a medical condition as the reason for your delay, you should supply a medical certificate or report which specifically explains why your medical condition prevent you from, making your application within time.”[12]
In response to that correspondence the Applicant filed two short submissions which are summarised at [16]-[17] above.
Upon the allocation of this matter to my Chambers, the Applicant was given further opportunities pursuant to directions issued by my Chambers to file any evidence (including medical evidence) or submissions upon which she sought to rely by 24 January (in chief) and 7 February (in reply). The Applicant failed to file any further materials.
Despite her attention being specifically drawn to the matter of medical evidence, and being given multiple opportunities to file evidence, the Applicant failed to file any evidence, medical or otherwise, that she was incapacitated such to prevent her filing the Application within the 21 day time frame.
In Victor Blanco v White Bathroom[13] (Blanco), Easton DP set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
“[44] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.
[51] In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii) the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).”[Footnotes omitted]
I agree with the summary of principles set out by Easton DP in Blanco, that if a medical condition is relied on, there should be supporting evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit.
While I accept the Applicant was upset and shocked at the termination of her employment, in the absence of medical evidence supporting incapacity such to prevent the filing of the Application, I do not consider the Applicant has an acceptable or reasonable explanation for the delay.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making the application on 20 December 2021. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The Respondent did not submit that it would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The FW Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3).
Accordingly, the Application must be dismissed. An order to that effect will issue with this decision.
COMMISSIONER
Appearances:
B Voros, Applicant.
O Fagir, solicitor for the Respondent.
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
9 February.
[1] The Form F2 Application states the date of dismissal as 7 November 2021. During the proceedings, the Applicant accepted
her employment was terminated on 28 October 2021.
[2] See s.397 and s.399 of the FW Act.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid.
[5] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[7] DHB at pages [6], [27] and [30].
[8] Ibid at page [30].
[9] Ibid at pages [25]-[26].
[10] Ibid, page [34] at [14].
[11] Ibid.
[12] DHB at [27]-[32].
[13] [2021] FWC 4694 at [44]-[51].
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