Bryony Greaves v Mulberry Group Melbourne Pty Ltd
[2022] FWC 2680
•6 OCTOBER 2022
| [2022] FWC 2680 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bryony Greaves
v
Mulberry Group Melbourne Pty Ltd
(U2022/8535)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 6 OCTOBER 2022 |
Application for an unfair dismissal remedy – extension of time – circumstances not exceptional – application dismissed
This decision concerns an application by Ms Bryony Greaves (Applicant) for an unfair dismissal remedy (Application) pursuant to section 394 of the Fair Work Act 2009 (Act). Section 394(2) of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 394(3).
It is uncontested that Ms Greaves’ employment with Mulberry Group Melbourne Pty Ltd (Respondent) ended on 19 May 2022. The Application was lodged on 19 August 2022. The period of 21 days ended at midnight on 9 June 2022 and the Application was therefore lodged 71 days out of time. Ms Greaves seeks that the Commission allow a further period of time for the Application to be made. The Respondent opposes the grant of an extension of time.
Ms Greaves’ application was the subject of a determinative conference before me on 5 October 2022.
The Applicant appeared on her own behalf and Mr Nathan Toleman, Founder and Executive Chairman of Mulberry Group Melbourne Pty Ltd, appeared on behalf of the Respondent.
Consideration
The 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.[1] 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.[2]
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. I now consider these matters in the context of the Application.
Consideration
Reason for the delay
The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[5] the Full Bench noted that the absence of an 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 the applicant’s favour, however, all the circumstances must be considered.[6] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[7]
As to the reasons for the delay, the Applicant submits that they are manifold. She says that the delay in lodgement was due to her travelling to the United Kingdom (UK) to spend time with her elderly grandmother whom she had not seen since 2018 due to the pandemic,[8] and her priority was on finding new employment so she could provide for her family.[9] She also says that she works full time and is a parent full time, so was time poor.[10] Further, Ms Greaves says that she was shocked by her dismissal and subsequently suffered severe anxiety and an inability to sleep.[11] She says that she was unable to process the gravity of her situation and or bring herself to relive it due to her mental health following her dismissal.[12] At the determinative conference Ms Greaves said that she was unaware of the statutory time frame that applied to unfair dismissal applications.
The Respondent submitted that the reasons do not justify such a lengthy delay in lodgement.
As to Ms Greaves’ travelling to see her elderly grandmother, firstly, I do not consider Ms Greaves choosing to travel rather than submitting her application within time to be an acceptable or reasonable explanation for the delay. Secondly, as a result of the COVID-19 pandemic many people have not seen family members for an extended period of time. This is not unusual, uncommon or special. Thirdly, Ms Greaves’ evidence at the determinative conference was that she travelled overseas from 26 May 2022 and returned to Australia on 11 June 2022. As set out above, the period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. Accordingly, even if Ms Greaves’ travel could provide an acceptable explanation for the delay (which I do not consider it does), it only accounts for 2 days of the 71 day delay. Ms Greaves travel does not provide a reasonable or acceptable explanation for the delay.
As to Ms Greaves prioritising finding new employment, I reject that this provides a reasonable or acceptable explanation for the delay in lodgement. Firstly, this is the case for most employees whose employment has been terminated. There is nothing out of the ordinary, unusual, special or uncommon in the need to seek new employment when one’s prior employment has ended. Most employees have financial commitments which, of necessity, require them to seek new employment. Secondly, Ms Greaves’ evidence at the determinative conference was that she attended a telephone interview for a new role on 19 May 2022, being the afternoon of her dismissal, and a zoom interview the following day. She received the offer of new employment, which she accepted, on 20 May 2022. Accordingly, Ms Greaves had secured new employment well before the expiry of the 21 day lodgement period. Accordingly, this cannot provide an explanation for the delay.
As to Ms Greaves’ submission that as a full time worker and parent she was time poor, this reflects the circumstances of a great many employees. It is neither special, uncommon nor unusual. It does not provide a reasonable or acceptable explanation for the delay in lodgement.
In relation to her mental health, Ms Greaves relies upon a medical certificate dated 14 August 2022. That certificate provides that Ms Greaves consulted a General Practitioner, Dr Loh, on 16 June 2022 and that one of the issues discussed with Ms Greaves was “the presentation of anxiety”.[13] It further provides that Ms Greaves was prescribed Diazepam 5 mg at that time. I accept that Ms Greaves was shocked following her dismissal, however, this is, regrettably, a common reaction to dismissal. I also accept that Ms Greaves suffered some anxiety. However, there is no evidence that this in any way incapacitated Ms Greaves or precluded her from filing the Application in time. There is no evidence that Ms Greaves required further treatment, was referred to a specialist, how long she was required to take medication and whether that is still continuing. Further, Ms Greaves’ evidence was that she booked flights to the UK on 23 May 2022 and commenced working in her new employment on 21 June 2022. It is difficult to see how Ms Greaves had sufficient capacity for these matters but not sufficient capacity to lodge the Application in time. Ms Greaves’ mental health does not provide an acceptable or reasonable explanation for the delay in lodgement.
Finally, as to Ms Greaves being unaware of the statutory time frame for lodging the application, it is well established that ignorance of one’s rights does not provide a reasonable or acceptable explanation for a delay in lodgement. [14]
In light of the above matters, I do not consider that Ms Greaves has provided a reasonable or acceptable explanation for the delay in lodgement. This weighs against the grant of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
It is uncontested that Ms Greaves became aware of the dismissal on 19 May 2022. This weighs against granting an extension of time.
Action taken to dispute the dismissal
There is no evidence that Ms Greaves took any action to dispute her dismissal beyond the lodging of the Application. This weighs against the grant of an extension of time.
Prejudice to the employer
The delay in lodgement is not insignificant. Notwithstanding that, I am unable to identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
The Respondent says that Ms Greaves was terminated for serious misconduct and refusing to follow a lawful and reasonable direction.[15]
Ms Greaves says that she did not engage in misconduct, serious or otherwise.[16] Further, she says that her position was redundant and that she was isolated and ignored due to raising a gender disparity issue in the workplace.[17]
Given the interlocutory nature of these proceedings, and on the insufficient material currently available to the Commission, it is not possible to form a concluded view as to the merits of the Application. The evidence of the Applicant and the Respondent would need to be fully tested under oath. Accordingly, in the present circumstances I consider the merits of the Application to be a neutral consideration.
Fairness as between the person and another person in a like position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind generally turn on their own facts. Neither party drew my attention to any persons or cases that would be relevant in relation to the question of fairness as between Ms Greaves and other persons in a similar position. I consider this to be a neutral consideration in the present matter. I consider this to be a neutral factor in the present matter.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 394 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the parties, I am not satisfied on the evidence before the Commission that exceptional circumstances exist.
Accordingly, I decline to grant an extension of time under section 394(3) of the Act.
Disposition
Ms Greaves’ application under section 394 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
Bryony Greaves for the Applicant.
Nathan Toleman for the Respondent.
Hearing details:
5 October 2022
Melbourne by Microsoft Teams
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13] (‘Nulty’)
[2] Ibid
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[4] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[5] [2018] FWCFB 901
[6] Ibid at [39]
[7] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
[8] Form F2, q.1.6, Applicant’s Outline of Argument at q.4
[9] Ibid
[10] Form F2, q.1.6
[11] Applicant’s Outline of Argument at q.4
[12] Ibid
[13] Applicant’s Documents, Digital Hearing Book p.43
[14] Nulty (n 1) at [14]
[15] Form F3, q.3.1
[16] Applicant’s Outline of Argument, q.7
[17] Form F2, q.3.2
Printed by authority of the Commonwealth Government Printer
<PR746512>
0
0
0