Bunnathea Tiv v Liberty Medical

[2015] FWC 6160

[2015] FWC 6160

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bunnathea Tiv
v
Liberty Medical
(U2015/8838)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 SEPTEMBER 2015

Application for unfair dismissal remedy.

[1] Ms Tiv Bunnathea alleged that the termination of her employment by Liberty Medical on 30 March 2015 was unfair.

[2] Her unfair dismissal application lodged on 25 June 2015 was not made within 21 days of the date of the dismissal.

[3] At the hearing I gave permission for Liberty Medical to be represented by a legal practitioner because I determined that Liberty Medical could not adequately represent itself. Liberty Medical did not have any dedicated human resources personnel as Ms Claire Vickery who had been involved in this matter had resigned her employment. While Ms Vickery was in attendance as a witness she was no longer a representative of Liberty Medical. Ms Tiv did not oppose the application by Liberty Medical.

[4] At the conclusion of the hearing I advised that I was not satisfied that there were exceptional circumstances and dismissed Ms Tiv’s application. These are my reasons.

[5] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]

(a) the reason for the delay;

[7] Ms Tiv did not file any material in compliance with directions issued by the Commission and advised that she relied upon her application in which she stated that she was unaware that she could lodge an application. She stated that she was forced to resign and suffered stress.

[8] On 30 March 2015 Ms Tiv tendered her resignation and gave four weeks’ notice. By agreement Ms Tiv finished work that day and was given four weeks’ pay in lieu of notice.

[9] Ms Tiv did not provide any medical evidence that any medical condition prevented her from making her application.

[10] Ms Tiv completed an exit interview questionnaire. In that questionnaire she advised that she left because she had ongoing issues with her supervisor.

[11] Liberty Medical gave evidence that on 15 April 2015, Ms Tiv advised Ms Vickery that she was contacting Fair Work Australia in relation to her employment yet she did not lodge an application at this time. Ms Tiv gave evidence that she did review the Commission’s website but it was not clear that she was able to make an application because she had resigned her employment. Ms Tiv submitted that one week after she resigned she sought the assistance of legal aid to recover monies owed to her by her supervisor but she was not advised she could make an unfair dismissal claim.

[12] That Ms Tiv was unaware that she could lodge an unfair dismissal application is not unusual. There was no submission that this was a case of representational error.

[13] That she was stressed at the time she resigned her employment is also not unusual.

[14] Ms Tiv’s application was signed on 20 June 2015 yet it was not lodged for another five days. No explanation for this delay was provided.

[15] Ms Tiv has not provided a reasonable explanation for the delay in lodging her application. This weighs against extending time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[16] Ms Tiv was aware of the resignation when it took effect. She had 21 days to lodge her application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[17] Ms Tiv completed an exit interview form and advised that she had been forced to resign. However she did not prior to lodging her application advise that she had been dismissed. This weighs against extending time.

(d) prejudice to the employer (including prejudice caused by the delay);

[18] It was submitted that there would be prejudice to Liberty Medical because it was not notified of Ms Tiv’s allegations about her supervisor until after her resignation took effect and because she was not available to be interviewed in person. It further submitted that it would be prejudiced because the supervisor resigned his employment in June 2015 and it will be difficult to procure his assistance with this matter. No evidence was called to support this latter claim. I accept that there will be prejudice to Liberty Medical but I do not consider that the prejudice would be such as to weigh against a finding that there are exceptional circumstance.

(e) the merits of the application;

[19] Ms Tiv resigned her employment. At the substantive hearing she will be required to prove that she was forced to resign because of conduct or a course of conduct engaged in by Liberty Medical. Liberty Medical tendered an email sent by Ms Tiv to Ms Vickery on 17 April 2015. In that email Ms Tiv advised that she had spoken to her supervisor on the day before she resigned. He told Ms Tiv that he could no longer work with her and that if she did not resign he would. Ms Tiv then said “because I knew hes (sic) been experiencing financial issues, I opt (sic) to resign.” This is consistent with the record tendered of the conversation between Ms Tiv and her supervisor on 29 March 2015.

[20] While I am not able to make a final assessment of the merits it does not appear on the material before me that Ms Tiv could establish that she was forced to resign. This weighs against a finding that there are exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[21] Liberty Medical submitted that Ms Tiv was not required to work out her four weeks’ notice and she was provided with an opportunity to complete the exit interview form. It was submitted that she was treated the same way any other employee who was given notice of resignation would be treated. It is not clear how this submission addresses this criterion. I consider this criterion to be neutral.

Conclusion

[22] I am not satisfied that there are exceptional circumstances. Ms Tiv has not provided a reasonable explanation for the whole of the delay. Further this is not a case where the merits of the claim outweigh the other criteria.

DEPUTY PRESIDENT

Appearances:

T. Bunnathea on her own behalf.

L. Lozina for the Respondent.

Hearing details:

2015.

Melbourne:

4 September.

 1   [2011] FWAFB 975

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