Chantel Smith v The Trustee for Mangrid Unit Trust
[2023] FWC 3330
•29 DECEMBER 2023
| [2023] FWC 3330 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chantel Smith
v
The Trustee for Mangrid Unit Trust
(U2023/11165)
| COMMISSIONER LIM | PERTH, 29 DECEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed
This decision concerns Ms Chantel Smith’s application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).
The Trustee for Mangrid Unit Trust (Respondent) employed Ms Smith as a Dental Assistant/Receptionist at its premises, Southlands Dental. The termination of the employment relationship took effect on 19 October 2023. Ms Smith lodged her application with the Fair Work Commission on 13 November 2023.
Section 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows.
In Ms Smith’s case, the period of 21 days ended at midnight on 9 November 2023. Her application is four days out of time.
Ms Smith seeks a further period for her application to be made under s 394(3). The Respondent opposes this request. For completeness, I also note that the Respondent objects to Ms Smith’s application on the basis that she was not dismissed.
The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 394(3)(a)–(f) of the Act.
I conducted a hearing via MS Teams on 20 December 2023. Both parties were self-represented. Ms Smith and her partner Mr Joshua Fry gave evidence in support of her case. The Respondent called Ms Kirsty Mills, Ms Pauline Jecks, Ms Stella Morrogh, Dr Darryl Watkins and Dr Mark Leahy, who are all employees of the Respondent.
Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.
Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and accordingly there is no basis to grant an extension of time. Consequently, Ms Smith’s application is dismissed.
The detailed reasons for my decision follow.
Observations on the evidence
Almost all the evidence from both parties focused on matters relevant to the merits of Ms Smith’s unfair dismissal application. It was clear that both parties felt strongly about disputed events. In particular, Ms Smith was strongly affected by her employment with the Respondent. However, with respect to both parties, much of the evidence was of limited relevance to the question of whether exceptional circumstances exist.
Accordingly, though I acknowledge the significance of the evidence to the parties, I do not traverse most of it in this decision.
Should an extension of time be granted?
Under s 394(2) and (3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.
It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not 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 are of no particular significance, when taken together can be considered exceptional.[2]
In determining whether there are exceptional circumstances, I must take into account the criteria in s 394(3):
(a)the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c)any action taken by the person to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay); and
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For Ms Smith’s application to have been made within 21 days after the dismissal took effect, Ms Smith needed to lodge by midnight on 9 November 2023. The delay is the period commencing immediately after that time until 13 November 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]
Ms Smith’s evidence is that she resigned from her employment with the Respondent due to a drastic decline in her mental health caused by workplace bullying. She felt that she had no choice but to resign, which culminated in her giving her notice on 5 October. Ms Smith’s last day at the Respondent’s premises was 11 October. Ms Smith did not attend work for the last week of her notice period and sent the below message to Ms Mills:[7]
“Hey Kirsty, unfortunately I am writing to inform you that I will not be able to complete my last week at work as planned. Over the past few weeks, the mental toll of the workplace has become increasingly overwhelming for me, making it difficult to continue in my current role.
I want to express how much I have valued working with each and every one of you. Your dedication, hard work, and support have been instrumental in our collective success, and it has been a privilege to be part of this team.
Please understand that this decision was not made lightly, and I apologise for any inconvenience caused by my sudden departure. However, prioritising my mental health is essential at this point, and taking this step back is necessary for my well-being.
I have already booked a doctors appointment for tomorrow morning to get a medical certificate for the remainder of this week and next.
Once again, I thank you for your understanding and support throughout my time here. It has been an honour being part of this team, and I sincerely wish you all the best moving forward.”
Ms Smith’s resignation took effect on 19 October 2023.
Ms Smith submits that, “the reason for the delay in lodging this claim was primarily due to my intention to move on from the toxic environment…at Southlands Dental. Despite the constructive dismissal, I wanted to put the negative experience behind me and focus on finding a healthier work environment”.[8] Ms Smith commenced employment with a new employer on 23 October 2023. Her evidence is that she wanted to “leave on good terms to avoid any negative repercussions and move on with [her] life”.[9] However, her new employment came to an end on 6 November. Ms Smith’s evidence is that her new job was affected by her mental health, which had been compromised by her experience working for the Respondent.
Ms Smith further relies on her mental health issues as a reason for the delay in filing her application. In support of this, Ms Smith filed a medical certificate from her treating GP. The medical certificate attests that Ms Smith is a regular patient and that Ms Smith first presented for assistance with her mental health on 27 September 2023. Further, that her GP had seen Ms Smith several times to treat her mental health and that her employment with the Respondent triggered her mental health issues.
Ms Smith gave evidence that she also sees a psychologist for treatment. However, she did not tender any supporting evidence from her treating psychologist.
Ms Smith’s partner, Mr Joshua Fry, also gave evidence as to how Ms Smith’s mental health issues have impacted her life. I accept Ms Smith’s and Mr Fry’s evidence in this regard.
In addition to her mental health issues, Ms Smith’s evidence is that part of why her application was filed out of time is because she was afraid to confront her former employer. I accept this evidence.
The Respondent does not contest the validity of Ms Smith’s mental health issues or how they have impacted her. However, the Respondent submits that they are not exceptional circumstances.
The Respondent made submissions during the hearing that Mr Fry should have assisted Ms Smith with making her application within the statutory timeframe. In Mr Fry’s cross-examination, the Respondent seemed to cast aspersions on his professional competency as he is employed as a manager in his workplace. I indicated during the hearing that I do not consider such arguments relevant or appropriate to the matter at hand. I maintain that position in this decision.
Considering the above, I find that the substantive reason for Ms Smith’s delay in filing her application is a combination of her desire to move on from her experience with the Respondent; her mental health issues; and her reluctance to make an application for fear of dealing with her former employer again.
An applicant’s emotional state or mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances, that evidence must be cogent and inform the context and explanation as to why the application was delayed. Anger, distress and anxiety may not of themselves be sufficient.[10]
I find that Ms Smith’s personal circumstances were genuine, and I have great sympathy for her mental health struggles.
However, I do not find that Ms Smith’s personal circumstances, when considered as a whole and in context, satisfactorily explain the delay in filing. In reaching this finding, I note the following:
Ms Smith’s evidence that she was able to repeatedly access medical assistance for her mental health after the employment relationship ended.
Though I acknowledge that Ms Smith’s mental health affected the longevity of her new job after the Respondent, Ms Smith had the presence of mind to apply for, and start, a new job.
Ms Smith’s employment with her new employer ended on 6 November 2023, three days before the 21-day time limit for an unfair dismissal application came to an end.
Accordingly, I find that the Applicant has not provided a satisfactory explanation for the majority of the period of the delay in making the unfair dismissal. This is a factor that weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect.
Ms Smith confirmed during the hearing that she was aware that her resignation took effect on 19 October 2023. This is a factor that weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
Ms Smith’s evidence is that she did not dispute the end of her employment. I agree with Ms Smith. This is a factor that weighs against a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
Ms Smith submits that the delay in filing her unfair dismissal application has not caused any disadvantage or unfairness to the Respondent. The Respondent did not make any submissions on this point.
The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. This is a neutral factor in this case.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[11] Further, the primary consideration is whether Ms Smith has an arguable case.[12]
Ms Smith’s case in summary is that she resigned due to a history of bullying behaviour from Dr Watkins and Ms Mills, as well as a toxic work environment created by other staff members. The Respondent strongly denies all allegations of bullying and negative behaviour. Further, the Respondent submits that Ms Smith was not dismissed and was not forced to resign.
Though the parties gave considerable evidence on the allegations of bullying, there were limited submissions on whether the end of the employment relationship was at the employer’s initiative within the meaning of s 386(1).
I find that this is a neutral factor in assessing whether there are exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position
Neither party made submissions on this point. I find that this is a neutral factor in assessing whether there are exceptional circumstances.
Conclusion
I have found that the considerations in s 394(3) of the Act in this matter are either neutral or do not support a finding of exceptional circumstances.
Having considered all the circumstances of this matter and the factors in s 394(3), I am not satisfied that there are exceptional circumstances.
As Ms Smith’s application was lodged beyond the initial period provided by s 394(2)(a) of the Act and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis Ms Smith’s application must be dismissed and an Order[13] to this effect will be issued with this Decision.
COMMISSIONER
Appearances:
C Smith, Applicant
K Mills, Respondent
Hearing details:
2023.
Perth (via Microsoft Teams):
December 20.
[1] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Digital Court Book, pp 117-118.
[8] Ibid, p 11.
[9] Ibid, p 10.
[10] See Underwood v Terra Firma Pty Ltd t/a Terra Firma Business Consulting[2015] FWCFB 3435 at [15] and [16]; Mathew Oliver v Bunnings Group Limited[2021] FWCFB 3496.
[11] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[12] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].
[13] PR769874.
Printed by authority of the Commonwealth Government Printer
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