Byfield v St Vincent De Paul NT

[2020] FWC 524

[2020] FWC 524

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kate Byfield
v
St Vincent De Paul NT
(C2019/6835)

DEPUTY PRESIDENT CROSS SYDNEY, 5 FEBRUARY 2020

Application to deal with contraventions involving dismissal - jurisdictional objection - consideration of out of time application.

[1] On 7 November 2019, at approximately 2pm Central Standard Time (CST), Ms Kate Byfield (the Applicant) lodged in person a Form F8 general protections application involving dismissal pursuant to s.365 of the Fair Work Act 2009 Cth (the Act) (the Application). The Applicant claims that her employment with St Vincent de Paul Society Northern Territory (the Respondent) was terminated on 16 October 2019.

[2] General Protections Applications involving dismissal must be made within 21 days after a dismissal takes effect or in such further time that the Fair Work Commission (the Commission) allows. As the dismissal took effect on 16 October 2019, the Application should have been lodged by no later than 6 November 2019. The Application was therefore one day late.

[3] Section 366 of the Act determines the permissible time limit for a general protections application, and provides:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).”

[4] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[5] On 4 December 2019, I convened a directions hearing by telephone to outline how the Commission would determine whether the Applicant would be granted a further period to make the Application. The parties agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The parties also agreed the Application would be determined upon the materials filed. The directions timetable was as follows:

“1. The Applicant (Ms Kate Byfield) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing her out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of her application in this matter by no later than 4.00pm on 25 December 2019.

2. The Respondent (St Vincent De Paul NT) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 15 January 2020.

3. The Applicant (Ms Kate Byfield) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 22 January 2020.

4. The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for the hearing of evidence.”

[6] In the directions hearing, I guided both the Applicant and the Respondent to the five factors that must be taken into account pursuant to paragraphs (a) to (e) of subsection 366(2) of the Act as outlined in [4] above.

The Applicant’s submissions in relation to extension of time

[7] The Applicant sent four emails to my Chambers over a nine hour period on Tuesday 10 December 2019, that constituted her submissions in relation to extension of time. The bulk of those emails concerned the alleged circumstances of her termination of employment. Those submissions only addressed the considerations outlined in section 366(2) of the Act in a very limited way. The first email onTuesday 10 December 2019, at 12.34pm stated:

“The reason for delay was an incorrection of 21 days

This is just a mistake by me

I was told by colin bird not to contact ceo Fran

I was told then by Vinnies Brisbane headquarters not to contactt TY any staff member

These people where my friends

Please continue with a date” (Original text retained)

The Respondent’s submissions in relation to extension of time

[8] The Respondent filed a brief submission on 15 January 2020. The totality of that submission was as follows:

“St Vincent de Paul Society Northern Territory (SVdP) appreciates the opportunity to provide a response in relation to Ms Byfield’s extension of time submission. SVdP requests that the following information be taken into consideration prior to any decision being made in relation to this application:

•  General Protections application has failed to demonstrate merits of the extension of time application in accordance with the Fair Work Act 2009

•  No factual evidence supporting reason for the time delay has been provided by the Applicant

•  Ms Byfield has stated that her General Protections application being submitted outside of the Fair Work Act timeframe was a mistake

•  Mistakenly submitting a General Protections application outside of legislative timeframe is not a justified or reasonable explanation

•  Ms Byfield has not provided evidence to support that she occurred exceptional circumstances for her claim to be excepted outside legislative timeframes

•  Ms Byfield has demonstrated she had the capacity to lodge the Application within set timeframes

•  Ms Byfield’s General Protection claim has no merit and no evidence has been provided to support that adverse action occurred in any form during Ms Byfield’s employment with SVdP. Employment relationship concluded in the probation period

In response to Ms Byfield’s submission to President Cross on the 10 December 2019, SVdP states the information is distorted and is strongly rejected. Ms Byfield’s submission is not of a factual or rational nature.

Ms Byfield has continued to send harassing and inappropriate emails to multiple people engaged with SVdP since her employment was ended during probation. Ms Byfield send emails as recent as 26 December 2019. Emails are distressing to the receiver/s. It is requested that Ms Byfield cease sending emails to person/s and all correspondence is to be through the Fair Work Commission and/or SVdP representative.

With consideration to the above, SVdP does not support the extension of time and considers Ms Byfield had the capacity and resources to lodge her application within the required time period.”

The Applicant’s reply submission

[9] On Wednesday 15 January 2020 at 7.42pm, the Applicant sent an email to my chambers, which asked, “When is the fair work case. Kate Byfield vs st Vincent dee paul.” My chambers replied to the Applicant’s email on the same day at 8.24pm, as follows:

“Dear Ms Byfield and Ms Hinchliffe

1. I confirm, with thanks, material filed by the Respondent and served on Ms Byfield on 15 January 2020.

2. Deputy President Cross will review the material per the timetable, after 22 January 2020.

3. In the meantime, it is noted the Respondent has requested (page 2 of submissions) that Ms Byfield ‘cease sending emails to person/s [of her former employer] and all correspondence is to be through the Fair Work Commission and/or SVdP representative.’

4. Ms Byfield, if you have anything you wish to write about that responds to today’s email submission, you must do so by no later than 4pm on Wednesday next week: Wednesday 22 January 2020. If you do not have anything to say in response, you can feel free to email chambers earlier than 22 January 2020. You will need to contain any email you send to the out of time issue: your application was filed out of the 21 days lodgement time, and you will need to express why an extension of time should be granted to you.

5. Deputy President Cross will not be determining, and cannot determine, whether your employment ended in breach of general protections.

6. Deputy President Cross will be reviewing both parties’ written material after 22 January 2020 - he will do this without holding an in-person hearing

7. I have copied information from the Directions document sent to parties dated 4 December 2019 to show the next timetable dates as follows:

Direction 1 This has been done - thank you The Applicant (Ms Kate Byfield) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing her out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of her application in this matter by no later than 4.00pm on 25 December 2019.

Direction 2 This has been done - thank you The Respondent (St Vincent De Paul NT) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 15 January 2020.

Direction 3 The Applicant (Ms Kate Byfield) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 22 January 2020.

Direction 4 [the Fair Work Commission Member to do] The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for the hearing of evidence.

I hope this information confirms the next steps in this application for parties. Please call 02 9308 1916 if you have any questions.” (Emphasis removed)

[10] On Saturday 18 January 2020 at 2.02pm, the Applicant again emailed my chambers (and did not copy the Respondent in her email), as follows:

“When will this be proceeding

Staff have contacted me

Saying really upsetting things regarding the way Colin is saying I quit

That I am not of good character

These are lies

I have proof

I will lodge a claim

When I’d thr fair trade court date” (Original text retained)

[11] My chambers replied to the Applicant’s email on 22 January 2020 at 8.14pm, including a copy to the Respondent. The reply email said:

“Dear Ms Byfield

Your email sent on Saturday 18 January 2020 asks again when your application ‘will be proceeding’.

I ask you to read the email sent to parties from chambers on Wednesday 15 January 2020. I have attached a copy. Also chambers telephone is 02 9308 1816.

Today is 22 January 2020. Today is the day you are required to provide any more information/reply material that you wish to say about our general protections application being ‘one day late’ - filed after the 21 day timeframe.

Please do one of these things:

1. If you want to provide more written material: email to [email protected] and copy your former employer in the email - [name]@svdpqld.org.au with any more information/reply material that you wish to say about our general protections today.

2. If you do not want to provide any more in writing about the out of time issue, you can email chambers and Ms Hinchliffe today to say that.

If you email today, Deputy President Cross will Deputy President Cross will review the written information on the file, and make a decision about whether your general protections application will be allowed to go ahead even though it was filed one day late.

3. Or, if you do not want to provide any more in writing, you can do nothing, and choose to not email at all.

If you do that, it is the same outcome as (2) above: Deputy President Cross will review the written information on the file, and make a decision about whether your general protections application will be allowed to go ahead even though it was filed one day late.”

[12] On Wednesday 29 January 2020 at 1.38pm, the Applicant again emailed my chambers enquiring as to ‘when will the court case be. I have not had any correspondence.’ My chambers did not reply to the Applicant.

[13] The Applicant has not filed any further submissions or material which would assist me in determining the issue of whether to grant an extension time for filing of the Application.

[14] I will now turn to the matters I must consider.

(a) Reasons for the delay

[15] The reason for the delay advanced by the Applicant is that it was her mistake. The Respondent, unremarkably, responds that mistakenly submitting a general protections application outside of the legislative timeframe is not a justified or reasonable explanation. A Full Bench of Fair Work Australia in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 stated at [14]:

“Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

[16] The length of the delay has little to do with the determination of exceptional circumstances. Regarding this, Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[17] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”

[18] The limited nature of the parties submissions, however, belies the actual circumstances of the state of mind of the Applicant following her dismissal. Indeed, in the Respondent’s Form F8A response to a general protections application, the Respondent provided the following detail (with some deletions made to protect the Applicant’s and other’s privacy):

“14. The Applicants employment was terminated in probation on the 16 October 2019 as she was not able to successfully achieve the inherent requirements (per s351, 2(b) of the Fair Work Act 2009) of the role as Store Manager. The background information above demonstrates:

1. SVdP did not treat the Applicant differently to others engaged in similar roles/location

2. Termination within probation was actioned based on the Applicants inability to perform the inherent requirements of the role, including adhering SVdP policies, adhering to SVdP Code of Conduct and WHS requirements.

15. The Applicant contacted Human Resources (hr@ svdpqld.org.au) requesting to know why her employment was not confirmed on probation.

16. On 18 October 2019, Ms Kirstin Hinchliffe General Manager People and Safety emailed the Applicant advising that the Applicant’s employment was not confirmed during probation. Acknowledging the Applicant was aware of the probation period and the concerns raised during the employment period. Including that the probation period is an opportunity for both parties to asses if it the engagement is suitable, unfortunately on this occasion it was found not to be.

17. On 18 Applicant (sic., the original copy of the email refers to October) 2019, the Applicant responded to Ms Hinchliffe email at 2.45pm:

‘…Thanks for listening to me….I feel like [DELETED]…’

18. On receipt of the Applicants email, Ms Hinchliffe immediately phoned the Applicant. Ms Hinchliffe spoke to the Applicant to assess if they were ok and had a support network. Ms Hinchliffe spoke about the Applicant accessing SVdP Employee Assistant Program, which provides free and confidential counselling. During the call the Applicant commenced yelling at Ms Hinchliffe and ended the call.

19. Ms Hinchliffe was worried about the Applicant’s health and wellbeing and contacted the local Darwin police to conduct a welfare check.

20. On 18 December (sic., the original copy of the email refers to October) 2019 at 3.22pm the Applicant emailed Ms Hinchliffe ‘….leave me alone… You have no concern for me and my family….I am no longer an employee so don’t refer me to your work counselling services I will report [MANAGER] assaulting me to the police…Do not contact me….’

21. On 18 December (sic., the original copy of the email refers to October) 2019 at approximately 4.00pm, Darwin Police phoned Ms Hinchliffe to advised that a welfare check had been completed and the Applicant was safe and well.”

[19] It is clear the termination of her employment had a serious impact on the Applicant’s mental health. While the Applicant has not advanced her health as a reason for delay, it is clear that such impact on her health existed for at least part of the 21 day period and that it was a severe enough concern for the Respondent to warrant their requesting the Police to conduct a welfare check on the Applicant, and advise the Applicant that she could access the Respondent’s Employee Assistance Program.

[20] With respect to an Applicant’s mental capability to prosecute a claim, two decisions of Deputy President Sams provide guidance as to whether, and in what circumstances, stress and anxiety that manifests in mental illness can constitute an exceptional circumstance. In Underwood v Terra Firma Pty Ltd[2015] FWC 1387, Deputy President Sams observed at [12]:

“While I am sympathetic to the applicant’s mental condition, elevated levels of stress and anxiety consistent with an adjustment disorder do not positively demonstrate that the applicant was incapable of lodging his application, within the 21 day timeframe. Indeed many dismissed employees suffer from elevated levels of stress and anxiety following termination of their employment. On one view this is unexceptional rather than exceptional.”

[21] In contrast to the above decision, in Scott v Steritech Pty Ltd t/a Steritech [2019] FWC 2970, Deputy President Sams found at [95] – [97]:

“[95] True it is that apart from the consultations on 16, 19 and 23 August 2018 with Dr Ikramova (within the 21 day period) there was no express medical evidence that Mr Scott was unable to undertake normal tasks during this period. In fact, as Steritech submitted, quite to the contrary; he was meeting with a lawyer, speaking by phone to Mr Trotman, had filed a workers’ compensation claim and spoken to Workcover during this period.

[96] However, from the uncontested evidence of Dr Slack, Mr Trotman, Mrs Scott and Mr Smith, and from my observation of Mr Scott when he was describing how he felt at the time, it could not seriously be said that Mr Scott had been functioning normally. To varying degrees, the witnesses (and Dr Slack) refer to a person who was not coping at all with having been dismissed. The fact he was hospitalised for a month in September/October 2018 was obviously the most severe manifestation of a dismissed employee progressively reaching a point of almost total despair. The respondent did not (correctly, in my view) submit, or even speculate, that his deteriorating mental condition was not a direct result of his dismissal.

[97] That being so, I am satisfied that the psychological impact on Mr Scott as a result of his dismissal, after 15 years’ service, was not in the same ‘ball park’ as the usual stress and anxiety experienced by most dismissed employees in the post dismissal period. It follows that I find Mr Scott’s circumstances fell well outside what might objectively be considered to be a person’s usual, ordinary or commonly encountered post dismissal circumstances. This factor tells in favour of a finding of ‘exceptional circumstances’ and the granting of an extension of time.” (Emphasis added)

[22] It is unfortunate the Applicant had an adverse reaction to the termination of her employment, however the manifestation of that illness does not appear to have been for such a period of time, or at such a level of severity, so as to constitute an acceptable reason for the delay. On the materials before me, the Applicant’s reaction to her termination did not reach a level which would objectively be considered unusual, abnormal or uncommon.

[23] As to the reason for delay advanced by the Applicant, being a mere mistake, I do not consider it represents an acceptable reason for the delay, and this weighs in the Respondent’s favour.

(b) Any action taken by the person to dispute the dismissal

[24] The Applicant did not assert that she took action to dispute her dismissal, though clearly from the extracts of the Respondent’s Form F8A outlined above, the Applicant contacted Human Resources requesting to know why her employment was not confirmed on probation, and thereafter had various correspondences with Ms Hinchliffe.

[25] As a result of those actions the Respondent was aware that the Applicant disputed her termination. I accept the Applicant took steps to dispute her dismissal before making this Application, and that weighs in her favour.

(c) Prejudice to the employer (including prejudice caused by the delay)

[26] The period of delay is short. Further, the Respondent does not in its submission contend that there is any prejudice. I consider this factor weighs slightly in favour of the Applicant.

(d) The merits of the application

[27] This is a general protections claim. In order to maintain such a claim, the Applicant must show that an adverse action took place and that this action took place because of a protected reason. There is no dispute that adverse action in the form of a dismissal occurred.

[28] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”

[29] As these matters are contested, I am unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(e) Fairness as between the person and other persons in a like position

[30] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[31] Although the Application was filed only one day after the 21 day timeframe for filing, the Applicant has not established that when viewed holistically the circumstances are out of the ordinary, unusual, special or uncommon. The appropriate weight assigned to each factor, and particularly to the reason for delay, does not elevate the circumstances to the status of exceptional.

[32] Therefore, I am not satisfied that the Commission has jurisdiction to hear the claim and I order that the Application is dismissed.

DEPUTY PRESIDENT

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