Coralie Williams v Adelaide Mobile Lunch Service

[2020] FWC 3408

[2020] FWC 3408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Coralie Williams
v
Adelaide Mobile Lunch Service
(U2020/6422)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 JUNE 2020

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

[1] On 8 May 2020, Ms. Coralie Williams (the Applicant) made an application (the Application) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Adelaide Mobile Lunch Service.

[2] The Applicant was dismissed on 27 March 2020.

[3] This decision concerns whether an extension of time for the application for an unfair dismissal remedy should be granted.

Extension of time

[4] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on Friday, 17 April 2020. The application was therefore filed 21 days outside the 21-day period. Ms Williams asks the Commission to grant a further period for the application to be made under s.394(3) of the Act. The Respondent opposes this request.

[5] 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

[6] 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.

[7] 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.

Reason for the delay – s.394(3)(a)

[8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any 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 of the circumstances must be considered. 3

[9] Ms Williams was summarily dismissed on 27 March 2020 for what the Respondent described as misconduct. She says that she had made up her mind straight away that her dismissal was unfair and although unaware of the process, decided to make an unfair dismissal claim. Ms Williams said she made a Google search a week or so later, having spoken to friends who told her she needed to file her claim.

[10] Ms Williams also said her partner, Mr Scott Moodie, also told her she needed to make a claim. Mr Moodie confirmed this, stating that he told Ms Williams from the time she was dismissed that she had been treated unfairly and she should be filing for unfair dismissal. Despite this advice and encouragement, Ms Williams said she kept putting off any action because she was simply incapable of doing anything. She also said she was scared to have to go through the process with Ms Raelene Bird, Managing Director of the Respondent.

[11] While Ms Williams says she was not aware of the 21-day time limit until after she had lodged her application on 8 May 2020, ignorance of the timeframe for lodgment is not an exceptional circumstance. 4 Nonetheless, Ms Williams said that in late-April 2020 she conducted a Google search for information and thinks she may also have made a phone call to the Commission to find out how to make an application. Ms Williams said that when she sat down to try and fill out the application form and it took a whole day to complete, although I note the Form F2 is by no means brimming with detail.

[12] Ms Williams says that since her dismissal she has been suffering from anxiety and depression. She says she had “some type of mental breakdown” 5 on 27 March 2020 and that she spoke to Dr Anthony Todd, her general practitioner, soon after in regard to her mental health. Without being able to recall the date, Ms Williams says she started a mental health plan with Dr Todd in mid-to-late April 2020 via a telephone consultation (due to COVID-19 restrictions). She also thinks it was on or about 1 May 2020 that she started taking prescription medication and says she was then booked in to see a psychologist. Ms Williams says the anxiety and depression meant it took time to see her doctor, be put on medication and be referred to a psychologist.

[13] Having become aware that her application was made out of time and that she would have to address the lateness, Ms Williams sought and then submitted to the Commission a letter dated 1 June 2020 from Dr Todd. 6 Included in this letter are the following statements from Dr Todd:

•  “I understand that she [Ms Williams] did not lodge her complaint to the Fair Work commission within the time frame that is required for the claim to proceed”;

•  “Coralie was suffering a significant medical illness (Severe Depression) at the time of her dismissal”; and

•  “This illness caused her to be unable to launch the claim.”

[14] No information was given by Dr Todd as to the date of the onset of the Severe Depression. Ms Williams’ evidence was that it did not pre-date her dismissal and she had never experienced this sort of “chaos” before. Mr Moodie says that in the weeks following the dismissal, he tried to get Ms Williams to call people but she “was shut down” and he was very concerned that she would take her own life on three or four occasions.

[15] The evidence establishes that Ms Williams almost immediately decided that her dismissal was unfair and that she would make an unfair dismissal claim. Both her partner and her friends told her this is what she should do but Ms Williams has admitted “she kept putting things off”. Despite this, not even a preliminary investigation into her possible rights or the application process, which may have revealed the 21-day time limit, was undertaken.

[16] I consider Dr Todd’s report to be perfunctory and lacking. Timing issues aside, there is no information explaining why Ms Williams, with no prior history, developed Severe Depression. Further, it does not disclose what Ms Williams was specifically incapable of doing. It demonstrates no insight into what lodging an unfair dismissal application involves and yet contains the bald assertion that Ms Williams was unable to do so. It does not describe her symptoms and their specific effect. It may be observed that Ms Williams was not prescribed medication until the delay had already reached nearly 14 days.

[17] I accept Ms Williams has experienced some shock and trauma as a result of her dismissal but this is not of itself unusual. Her failure to prioritise the task of exploring her rights and lodging her unfair dismissal application, having immediately resolved to do so and having received the encouragement and urging of those close to her, has contributed to the three-week delay. The extent to which this failure has a medical basis has not been made clear nor been satisfactorily explained. Therefore, on the material before me, I am not satisfied there is an acceptable or reasonable explanation for the delay and that is a matter that weighs against Ms Williams in this case.

Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)

[18] I am satisfied that Ms Williams was aware she had been dismissed effective 27 March 2020 and had the full period of 21 days to lodge her application. This is therefore a neutral consideration.

Action taken to dispute the dismissal – s.394(3)(c)

[19] As to any action Ms Williams took once she received notification that she was dismissed to dispute it, there is nothing save that she says she sent a text message to Ms Bird on the day of the dismissal stating “You’ve sacked me for misconduct. How about the way you treated your employees?” To the extent this single instance could be regarded as “action taken to dispute the dismissal”, I would attribute it minimal weight.

Prejudice to the employer – s.394(3)(d)

[20] Ms Williams submits there is no prejudice to the Respondent caused by the delay. The Respondent has not made any submissions in this regard. I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period but do not consider this is as a factor that weighs in favour of the grant of an extension of time in the circumstances of this case. It is a neutral factor.

Merits of the application – s.394(3)(e)

[21] The Act requires me to take into account the merits of the application in considering whether to extend time, but not in a substantial way. This is because s.396 of the Act makes clear that the Commission must decide whether an application is made within the period required in s.394(2), which includes deciding whether a further period should be allowed under s.394(3), before considering the merits of the application.

[22] The dismissal took place in the context of a climate of increasing anxiety associated with COVID-19 in the workplace, discussions about staying home and heightened emotions on display during workplace meetings. Ms Williams, who had worked for the Respondent on a casual basis over a 20-year period, claims she was unfairly associated with the actions of a colleague who was challenging the response of the Respondent to COVID-19 and that short of being rebellious, insubordinate and deliberately disruptive, she herself had sought to de-escalate tensions and reach out to Ms Bird. The Respondent alleges that Ms Williams was terminated on the basis of misconduct, which included engaging in disruptive and disrespectful behaviour aimed at shutting the Respondent’s business down. Both parties produced statements from prospective witnesses that they contend support their position. These competing statements and other documents in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here.

[23] Having examined these materials and heard from the parties, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider that Ms Williams has at least an arguable case, and the Respondent a prima facie defence. I do not consider the merits of the present matter to tell for or against an extension of time. I therefore consider this factor to be a neutral consideration.

Fairness as between the person and other persons in a similar position – s.394(3)(f)

[24] 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 will generally turn on their own facts.

[25] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration in the present matter.

Conclusion

[26] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ”fair” to do so.

[27] I have not been persuaded there is an acceptable or reasonable excuse for the delay and while I am prepared to attribute minimal weight to the single act of Ms Williams to dispute the dismissal, the other matters I am required to take into account are neutral. Having regard therefore to the matters I am required to take into account under s.394(3), and all of the matters raised by Ms Williams, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[28] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms C Williams for herself.
Ms R Bird for Adelaide Mobile Lunch Service.

Hearing details:

2020.
Melbourne (by telephone):
June 22.

Printed by authority of the Commonwealth Government Printer

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 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 4   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 5   Exhibit A2 at Q4.

 6   Exhibit A6.