Carmen Wilson v Amcal Max Shearwater

[2016] FWC 5262

[2016] FWC 5262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carmen Wilson
v
Amcal Max Shearwater
(U2016/5208)

DEPUTY PRESIDENT CLANCY MELBOURNE, 3 AUGUST 2016

Application for relief from unfair dismissal – extension of time not granted.

[1] Ms Carmen Wilson alleged that the termination of her employment by Amcal Max Shearwater (Amcal) was unfair.

[2] In her Form F2-Unfair Dismissal Application form, Ms Wilson alleged she was notified she was dismissed on 20 January 2016 and the dismissal took effect that day. Amcal says that Ms Wilson was notified her employment was being terminated on 25 January 2016 with immediate effect by letter dated 21 January 2016.

[3] Whichever was the case, in Burns v Aboriginal Legal Service of Western Australia (Inc.), 1 the Full Bench of the Australian Industrial Relations Commission held that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.

[4] The Application was received by the Fair Work Commission (the Commission) on 8 March 2016. Ms Wilson’s unfair dismissal application was therefore not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

Preliminary procedural matters

[5] The hearing of Ms Wilson’s application for an extension of time for the lodgement of her unfair dismissal application was first listed on 12 July 2016 by telephone. On that day, Ms Wilson was attending to a medical emergency and the matter was re-listed for 9.00am on 28 July 2016.

[6] At the hearing by telephone on 28 July 2016, there were four attempts made to contact Ms Wilson by telephone. On the first occasion, a voicemail message was left by my Associate seeking a return call as a matter of urgency.  A further three phone calls were made at intervals after this but there was no answer.

[7] Ms Dearlove for the Respondent submitted that in these circumstances, Ms Wilson’s application for an extension of time should be determined based on the material filed by the parties. 

[8] I subsequently caused correspondence to be sent to Ms Wilson. The correspondence confirmed she had not filed anything other than her Form F2-Unfair Dismissal Application form, despite Directions dated 1 July 2016 that required any evidence upon which she intended to rely to be filed by close of business on 8 July 2016 and correspondence of the same date from the Commission enclosing documents, including an Outline of Argument, for her to complete. 

[9] I requested that Ms Wilson advise me by 4.00pm on Tuesday 2 August 2016 of the reason for her absence from the 28 July 2016 hearing.  If it was the case that she had been unable to attend due to medical reasons, she was asked to provide medical evidence.  Ms Wilson was also advised that in the event no response was received, I would proceed to determine her application for an extension of time on the basis of materials previously filed by her and the Respondent without further notice and that a decision and order would be made in due course.

[10] No reply was received from Ms Wilson by 4.00pm on Tuesday 2 August 2016, so I have considered her application for an extension of time for the lodgement of her unfair dismissal application on the basis of the material that has been filed by her and Amcal.

Extension of Time

[11] The 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.

[12] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 2where 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]

Section 394 (a) the reason for the delay;

[13] There must be an acceptable reason for the delay in making the unfair dismissal application. 3 Ms Wilson must provide a credible reason for the whole of the period that the application was delayed.4

[14] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 5 

[15] The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 6:

"For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."

[16] Ms Wilson gave the following reasons for the delay in her Form F2-Unfair Dismissal Application form:

1. At the start of this process I was mentally beaten down, intimidated and felt worthless [a]fter my termination of employment.

2. My partner and father to my unborn child abused and left me in shambles.

3. My mother Cheryl Botha tried to help and made phone calls to [the] Fair Work Ombudsman, but [d]idn’t get any help and was told to seek legal advice.

4. Financial and emotionally I couldn’t afford legal advice and just coward and excepted [sic] my [f]ait [sic] and defeat.

5. I told my dad and said that I had no ground to stand on and he left for work on [a] remote mine site [i]n WA for a 4 week extended shift. On his return made some more enquiries and convinced [m]e that I do have rights and have been unfairly dismissed.

6. [F]irstly the power in-balance between my employer and myself was significant. They have [m]ultiple sites, multiple employees and have a full working knowledge of the fair work system.

7. I have obtained legal advice from North West Community Legal Centre Inc. 08/03/2016 [a]nd have logged my claim immediately.

8. I beg of you to please give me a chance to regain my dignity and financial status.

[17] Amcal submitted that based on Ms Wilson's own reasons for the delay, the reasons were not exceptional as:  7

● It is extremely unlikely that, if Ms Wilson's mother phoned the Fair Work Ombudsman (FWO) (Ms Wilson asserts that phone calls (plural) were made) that she would have been given information inconsistent with that on the FWO website. The FWO website has a section dealing with "Ending Employment" and within that a section headed "Unfair Dismissal". On that page it clearly states that unfair dismissal applications must be made within 21 days and contains links to the FWC site and other places for more information. Even if it was the case that (on more than one occasion as alleged) the Fair Work Ombudsman did not help and simply told her to get legal advice, Ms Wilson did not make any attempts to get legal advice at that time or within the 21 days of the termination;

● It is not exceptional that Ms Wilson felt "beaten down and worthless" after the termination. It is not unusual for employees to be distressed when their employment is terminated; 8

● It is understandable, but not exceptional, that Ms Wilson felt "emotionally" unwilling to seek legal advice. Ms Wilson seems to have assumed that there would be a financial cost in seeking legal advice about an unfair dismissal claim. There is no basis advanced for that assumption, Ms Wilson does not say that she tried to get advice but was told there would be a cost which was greater than she could afford. Having regard to the fact that she ultimately (although late) got advice from a community legal centre, her assumption was clearly wrong;

● It is to be expected, and not exceptional, that Ms Wilson told her father about her dismissal and listened to his advice. Although Ms Wilson's father was away for work for four weeks, there is nothing to indicate that he was unable to communicate with her by telephone or email during that time.

[18] It was held in Giles v Mandurah Aquatic and Recreation Centre thatit is not unusual for employees to be distressed when their employment is terminated and nor is it unusual for employees to be unaware of their options. 9 Further, it has previously been found, it is common for employees to suffer shock and trauma as a result of dismissal from employment10 and it was said in Casey v Guardian Community Early Learning Centres:

“…stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay.” 11

[19] While I accept that Ms Wilson likely suffered some distress following the termination of her employment and was initially unsure regarding the ways in which she could challenge it, this state of affairs is not unusual. Additionally, she submitted no medical evidence to support a finding that she was incapable of lodging her application before 8 March 2016 and it was not suggested by her that her father could not have been contacted during the time he was away with work.

[20] Having regard to the circumstances in this case and the previous decisions of the Commission I have cited, I am not satisfied that Ms Wilson has provided a reasonable explanation for the delay in lodging her application. This weighs against a finding that there are exceptional circumstances.

Section 394 (b) whether the person first became aware of the dismissal after it had taken effect;

[21] Ms Wilson was notified that her employment was being terminated with immediate effect by letter dated 21 January 2016. 12 In the Form F3-Employer Response to Unfair Dismissal Application, Amcal indicated that Ms Wilson was notified of her dismissal on 25 January 2016 and that it took effect on 21 January 2016. Ms Wilson noted in her Form F2-Unfair Dismissal Application form that she was notified on 20 January 2016 of her dismissal and it took effect the same day. Despite inconsistent dates, I am satisfied that should 25 January 2016 be the true date of termination, Ms Wilson was aware of the dismissal then and had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

Section 394 (c) any action taken by the person to dispute the dismissal;

[22] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 13

[23] Amcal submits that there was no action taken by Ms Wilson to dispute the dismissal prior to filing the Application. It submits the dismissal letter contained the contact details for the Director of Amcal and these could have been used if she had any questions in relation to the termination.

[24] There was no evidence of Ms Wilson making any direct contact with Amcal to dispute her dismissal once having contacted the Fair Work Ombudsman or at any time prior to filing her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

Section 394 (d) prejudice to the employer (including prejudice caused by the delay);

[25] Prejudice to the employer will weigh against granting an extension of time, 14 but Amcal conceded there was little or no prejudice to it caused by Ms Wilson’s delay. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.15

[26] I consider this criterion to be neutral.

Section 394 (e) the merits of the application;

[27] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group 16, it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[28] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case" 17 for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.

[29] Ms Wilson made the following submissions regarding merits when she lodged her Form F2-Unfair Dismissal Application form:

1. The power in-balance between myself and my employer was significant. They have multiple sites in Devonport and Shearwater, multiple employees and have a full working knowledge of the fair work system.
2. The circumstances surrounding the dismissal are significantly unjust. The evidence to the [e]ffect that the dismissal really is a sham termination and that I have been significantly [p]rejudiced.
3. My first meeting on the 20/01/2016 (with no notification and no support person) was [t]o discuss redundancy.
4. Within hours it changed to a serious misconduct allegation and I was terminated after [t]he second meeting, again without a support person being present.
5. These areas that was required of me, to clean could not be performed by me and I brought it to my employers attention.
6. The smells and odours of these areas and chemicals made me in my pregnant state, Very nauseous. The nauseousness didn’t even permit me to use these areas and made [a]lternative arrangements on a daily basis.
7. All other cleaning duties performed daily without fault dusting, vacuuming and empting garbage bins besides these two areas of the kitchen and toilet. (Reason mentioned above)

[30] Amcal submitted:

● It had a valid reason for dismissal, that being Ms Wilson’s refusal to perform certain inherent requirements of her position;

● A fair and proper dismissal process was followed which included meeting with Ms Wilson to discuss the issue and confirm that she was not willing to perform the duties required of a Junior Pharmacy Assistant. Ms Wilson repeated a number of times that she was not willing to perform certain duties of a Junior Pharmacy Assistant;

● Having considered all relevant information, the Respondent made the decision to dismiss Ms Wilson and issued the termination letter dated 21 January 2016. 18

[31] I was not able to make a final assessment of the merits as there are factual disputes between the parties that were not been tested. I consider this criterion to be neutral.

Section 394 (f) fairness as between the person and other persons in a similar position.

[32] The question of fairness as between the Applicant and other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm ,19 as follows:

“cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Ms Wilson and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”

[33] There were no submissions that there were other persons in a similar position to Ms Wilson. I consider this criterion to be neutral.

Conclusion

[34] Having taken into account the matters referred to in paragraphs [13]-[33] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Ms Wilson’s application to be made. Ms Wilson’s circumstances were not out of the ordinary course, unusual, special or uncommon and she has not provided a reasonable explanation for the whole of the delay. None of the other criteria weigh in favour of a finding of exceptional circumstances and a lack of prejudice alone is insufficient to find exceptional circumstances.

[35] Ms Wilson’s application for an extension of time is refused and therefore her unfair dismissal application is dismissed. An order to this effect will be issued with this decision

DEPUTY PRESIDENT

Appearances:

Ms L Dearlove for the Respondent.

 1 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24].

 2   [2011] FWAFB 975.

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 4   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.

 5   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 6   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].

 7 Respondent’s Outline of Argument at [21].

 8   Citing Giles v Mandurah Aquatic and Recreation Centre [2015] FWC 1881 at [8]and Baxter v The Huber Family Trust [2015] FWC 3247 at [16].

 9   [2015] FWC 1881 at [8].

 10   Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [10].

 11   Casey v Guardian Community Early Learning Centres [2014]FWC 4002 at [16].

 12 Respondent’s Outline of Argument at [13].

 13   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 16   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 17   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 18 Respondent’s Outline of Argument at [29].

 19   Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29].

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