Deborah Stockton v EPIs Incorporated

[2020] FWC 3829

[2020] FWC 3829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Stockton
v
EPIS Incorporated
(U2020/5900)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 JULY 2020

Unfair dismissal application filed out of time was second application made - 244 day delay -representational error alleged on basis that initial representative advised Applicant to discontinue first application – second application made based on advice from new representative obtained seven months later –advice of first representative found neither to have caused the delay nor to have led to a finding of exceptional circumstances - application dismissed.

[1] This decision concerns an application by Ms Deborah Stockton for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is EPIS Incorporated (EPIS).

[2] This is the second of two unfair dismissal applications that Ms Stockton has filed with the Commission in response to the termination of her employment by EPIS. The position of EPIS is that it notified Ms Stockton of her termination via a letter of termination sent to Ms Stockton’s email address on 19 July 2019. If that is the case, Ms Stockton had until midnight on 9 August 2019 to make an application for unfair dismissal remedy within the 21-day time period prescribed in s.394(2)(a) of the Act. Flowing from this, her application in this matter filed on 29 April 2020 (the Application) was made 264 days late.

[3] Ms Stockton has a different position regarding the date her dismissal took effect. Ms Stockton says she had blocked her telephone and email accounts from receiving communications from EPIS on 19 July 2019 and in two separate Form F2 – Unfair dismissal application forms filed in respect of Commission matter U2019/9118 (the First Unfair Dismissal application), Ms Stockton says she became aware that her employment had been terminated by her psychologist on 7 August 2019. If this is accepted, the Application was made 244 days late.

[4] Section 394(2)(b) of the Act provides that where an application for an unfair dismissal remedy is not made within 21 days after the dismissal took effect, it may nonetheless be made within such further period as the Commission allows pursuant to s.394(3). The Full Bench of the Commission made clear in Chandra Gupta Narayan v MW Engineers Pty Ltd 1that Ms Stockton is at liberty to file another unfair dismissal application in relation to the termination of her employment with EPIS but the Application will be subject to the time periods specified in the Act. Ms Stockton is asking the Commission to grant a further period for the Application to be made pursuant to s.394(3) and EPIS opposes this request.

[5] In either scenario, the Application is significantly out of time. However, for the purposes of determining Ms Stockton’s request, I have determined that I will put her request at its highest and consider whether I will extend the period within which the Application may be made by 244 days, to 29 April 2020.

Background

[6] Ms Stockton commenced employment with EPIS in 2014 as Chief Executive Officer. EPIS is a provider of aged care respite and disability services in the East Pilbara region of Western Australia with its head office in Newman, WA.

[7] The following series of events appear to have culminated in the termination of Ms Stockton’s employment:

•  On 10 May 2019, the Chair of the Board of EPIS raised with Ms Stockton some workplace issues about a food safety breach and staffing and sought her response.

•  On 16 May 2019, Ms Stockton lodged a workers’ compensation claim and her treating doctor issued her a worker’s compensation certificate that outlined a diagnosis of reactive anxiety/depression and certified that Ms Stockton had no capacity for work from 16 May 2019 until 30 May 2019.

•  On Monday 20 May 2019, Ms Stockton delivered the certificate to the Chair and had no further contact with him after 22 May 2019. The Chair apparently resigned in early June 2020.

•  On 14 June 2019, Ms Stockton left Newman.

•  Ms Stockton continued to submit Workcover certificates while her claim was being assessed.

•  On 2 July 2019, the Board of EPIS notified Ms Stockton that she was required to attend a meeting with an external investigator due to allegations of misconduct. The allegations were outlined in an annexure attached to the letter.

•  In response, Ms Stockton advised the Board that she was unfit for work and was unable to attend such a meeting.

•  On 9 July 2019, Ms Stockton’s treating doctor advised EPIS via a Workcover certificate that it was not to have any contact with Ms Stockton unless it pertained to the workers’ compensation claim.

•  On 11 July 2019, Ms Stockton made a request to EPIS that it stop contacting her and advised she was willing to participate in any interviews once she was medically fit to do so.

•  On 17 July 2019, the Board of EPIS wrote to Ms Stockton again seeking her response and stating that the matters it was investigating were so serious that her response was urgently required by 4pm on 19 July 2020.

•  At 3.07pm on 19 July 2019, Ms Stockton advised Ms Brenda Miller from Suncorp that she had been advised by her lawyer and Workcover to block any further emails from EPIS and that all correspondence for any matter was to be directed to Ms Stockton via Ms Miller/Suncorp.

•  Ms Stockton says she emailed the same advice to the EPIS Board and blocked various EPIS email addresses on 19 July 2019.

[8] As outlined above, EPIS asserts that it notified Ms Stockton of her dismissal on 19 July 2019 via email to her email address while Ms Stockton says she became aware via her psychologist on 7 August 2019.

[9] On 16 August 2019 Ms Debbie Brittain, a friend of Ms Stockton’s, lodged the First Unfair Dismissal application and subsequently purported to amend it on 21 August 2019.

[10] Ms Stockton says that on 28 August 2019, she engaged Mr Stephen Edwards from Fair Work Legal Advice to act on her behalf in respect of the First Unfair Dismissal application.

[11] In its Form F3-Employer response to unfair dismissal application (Form F3) filed on 29 August 2019, EPIS objected to the First Unfair Dismissal application on the grounds that it was made out of time and that with earnings of $174,094, Ms Stockton earned more than the relevant high income threshold of $148,700. The Form F3 also asserted that no enterprise agreement or Award applied to Ms Stockton.

[12] In an email sent on 30 August 2019, Ms Stockton raised with Mr Edwards some concerns about matters raised in the Form F3 filed by EPIS regarding the calculation of entitlements and the high-income threshold and the non-payment of entitlements. She says she sought his comments in response. Ms Stockton asserts that at that time she was not aware of the significance of the award coverage issue to the question of whether a person is protected from unfair dismissal.

[13] Ms Stockton says that Mr Edwards responded in a telephone discussion on 2 September 2019. She says Mr Edwards told her that she should have filed for unlawful dismissal as opposed to unfair dismissal and that it was now too late to do so. Ms Stockton says Mr Edwards told her it was clear from the Form F3 that she was above the “salary cap” and beyond the unfair dismissal jurisdiction of the Commission.

[14] By this time, EPIS had advised the Commission that it wanted its jurisdictional objections dealt with before any conciliation. Ms Stockton asserts that Mr Edwards suggested that cancelling the telephone conciliation and the proposal to go to the jurisdictional hearing was wise, given the information in the Form F3, and therefore discontinuing the First Unfair Dismissal application was his best advice. She says Mr Edwards told her to take a couple of days to think about things.

[15] On 4 September 2019, Commissioner Williams listed the First Unfair Dismissal application for a directions conference to take place on 13 September 2020. Ms Stockton sent an email to Mr Edwards on that day, stating:

“Hi Stephen

Thank you for the chat on Monday. Happy not to proceed with the unfair dismissal as per your advice. Do you notify them or do I?

I will be in touch re the Industrial Commission for entitlements payment. We are Perth bound so will have limited service.”

[16] Mr Edwards replied later that day, stating that because he was not yet on the record in relation to the First Unfair Dismissal application, Ms Stockton would need to file and serve a Form F50 Notice of Discontinuance on the lawyers for EPIS.

[17] Ms Stockton says Ms Brittain filed the Notice of Discontinuance on her behalf. The Commission’s records indicate the Notice of Discontinuance was filed on 12 September 2019 and was signed by Ms Stockton. It stated that Ms Stockton wholly discontinued the First Unfair Dismissal application “to pursue an alternate application”.

[18] Ms Stockton says she relocated from Western Australia to her farm in New South Wales on 24 September 2019 and now has access to stable ongoing medical care from her general practitioner, her psychologist and her psychiatrist. Ms Stockton says that by January 2020 her health had improved with assistance of new medication and on the advice of her psychologist, she decided to put together a detailed response to the allegations of misconduct that had been made by EPIS. Ms Stockton says she did this with the assistance of Ms Brittain despite a temporary health setback, and that on 9 February 2020, she submitted her response to the EPIS investigator and Board.

[19] Ms Stockton says that despite her ongoing fragile state of health, she continues to receive the assistance of her psychiatrist, general practitioner and psychologist.

[20] Ms Stockton says that in mid-April 2020 she contacted a friend, Mr Gerard Butler, in relation to an ongoing Recovery of Entitlements case that she had in the Western Australian Industrial Relations Commission (WAIRC). This had been lodged by Mr Edwards on 2 December 2019. Ms Stockton says that she sent Mr Butler the files of everything that had transpired since 16 May 2019, which included her workers compensation matter, her termination, the First Unfair Dismissal application and the denial of her contractual benefits.

[21] Ms Stockton says that on 25 April 2020, Mr Butler told her that in his opinion, there were some serious anomalies in regard to the advice she had been given and the Form F3 lodged by EPIS in the First Unfair Dismissal application. Ms Stockton says that having become aware of this information the Application was prepared, following further discussion with Mr Butler and Ms Brittain. Late on 27 April 2020, Mr Butler wrote to the Commission seeking to have the Notice of Discontinuance set aside. Having been advised by Commissioner Williams on 28 April 2020 that the Notice of Discontinuance could only be set aside on application to a Court, the Application was filed with the Commission on 29 April 2020.

Extension of time – Should an extension of time be granted?

[22] As outlined in [5] above, Ms Stockton seeks a 244-day extension of time.

[23] 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. 2 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.3

[24] 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.

[25] 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)

[26] Ms Stockton submits that the extreme and serious nature of her mental and other health conditions, including diagnosis by expert practitioners of PTSD combined with her previous life-threatening cancer treatment, hip replacement and ongoing reduced renal function, warrant recognition as an exceptional circumstance. She submits this is particularly so, when combined with the circumstances surrounding vandalism of her house in Newman by the partner of an employee of EPIS on 4 July 2020 and the social ostracism she experienced in what she described as a small, remote and isolated community.

[27] Ms Stockton produced a medical report dated 20 August 2019 from Dr Lawrence Terace, a consultant forensic psychiatrist whom she consulted on 29 July 2019 for a medico-legal assessment. The diagnosis of Dr Terace at that time was of a major depressive disorder, moderate severity, with anxious distress that would require further treatment. Dr Terace could not identify any imminent suicidal planning but recommended Ms Stockton appoint a General Practitioner due to a self-harm risk.

[28] Dr Terace was of the opinion that Ms Stockton’s employment was the real and direct contributing factor behind her condition and that the most substantial or predominant contributor appeared to have been her perception of the administrative conduct of the EPIS Board from May 2019 and its written advice to her in July 2019, which then culminated in the termination of her employment. It was also noted that the break-in at her home in Newman was a significant contributing factor to her then mental state.

[29] Dr Terace assessed Ms Stockton as being unfit for work at that time and stated the priority was treatment, for which he recommended fortnightly consultations with a psychiatrist for six months and referral to a clinical psychologist. He noted Ms Stockton was taking the anti-depressant escitalopram Lexapro 20mg in the morning and 25mg agomelatine at night and that she had been prescribed diazepam for anxiety.

[30] Although he assessed Ms Stockton’s level of functioning at the time of his assessment as “poor”, Dr Terace stated Ms Stockton’s prognosis for recovery and a return to work was good, noting that 50% of patients with major depressive disorder achieve significant recovery within one year and at least 88% within five years. Dr Terace also noted that the commencement of a graduated return to work was possible within six months, ideally with some clinical recovery.

[31] Ms Stockton also produced a report dated 25 May 2020 from her psychologist, Ms Michelle Hanratty. It was stated by Ms Hanratty that Ms Stockton was referred to her on a ‘without prejudice’ basis by Suncorp Metway on 7 August 2019 for 3 sessions on 7, 15 and 23 August 2019. As a result of Ms Stockton’s presentation at that time, a further two sessions were completed on 29 August 2019 and 11 September 2019. Ms Hanratty stated that Ms Stockton presented with “strong suicidal ideation, lowered mood, teariness, intrusive thoughts around her employer and the legal wrangling attached with same, rumination and preoccupation, lowered motivation, difficulty sleeping and anxiety with Panic”. Ms Stockton received further care from Ms Hanratty under the Medicare Better Access programme on 24 December 2019, 16 April 2020 and 11 May 2020. Ms Hanratty also made the following observations:

“Ms Stockton had attempted to navigate legal avenues initially however reported she had been stymied in these processes and didn’t feel she had achieved a desired outcome and as a result, had foregone taking matters further given rise to feelings of helplessness and hopelessness. Over the space of time and with the additional assistance from her support network, she has reengaged the legal aspects however is again finding these efforts tiring, consuming and difficult and it has been difficult to assist her with Psychological interventions given her current immersement in the legal wranglings. It is considered her mental state will be greatly through resolution of her claim.”

[32] Ms Stockton also relies on a referral from Dr Deborah Martin of the Echuca Moama Family Medical Practice dated 29 May 2020 to “Psych 2 U”. In this referral a diagnosis of “anxiety and stress/PTSD” is noted, as were current medications of one Belsomra (Suvorexant) 15mg strength tablet per night, Diazepam 5mg and two Valdoxan (Agomelatine) 25mg tablets per night.

[33] In addition to this medical evidence, Ms Brittain, stating she was a trained nurse and Ms Stockton’s carer, gave evidence as to her observations of Ms Stockton’s capacity. Ms Brittain said Ms Stockton was not strong enough, mentally or emotionally, to handle her workers’ compensation or dismissal claims by herself.

[34] On Ms Stockton’s behalf, Mr Butler appears to have alleged EPIS provided false, incorrect or misleading information to the Commission when defending the First Unfair Dismissal application and further asserts that there was representative error by Mr Edwards on the basis that Mr Edwards:

•  Failed to advise Ms Stockton that her employment was award-covered;

•  Failed to question the figures put forward by EPIS in relation to Ms Stockton’s earnings or remuneration; and

•  Advised Ms Stockton that she had lodged an incorrect application and was effectively out of time.

[35] Mr Butler submitted that Ms Stockton was capable of falling within the coverage of the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award). Specifically, he submitted that Chief Executive Officer roles are not excluded by clause 4 of the Award and that the work and role performed by Ms Stockton is encompassed in the classification descriptor for a Social and community services employee level 8 employee in Schedule B of the Award. Further, Mr Butler submitted that Ms Stockton can rely on:

•  A reference in the Offer of Employment signed by Ms Stockton on 23 October 2014, describing the Award as a key condition of employment;

•  A reference in Schedule 1 of the Employment Agreement dated 4 November 2014 stating that Ms Stockton’s Salary package was “an above award rate under of the Social, Community, Home Care and Disability Services Industry Award 2010.”

•  Pay slips, which included a reference to the Award.

[36] It was submitted by Ms Stockton that it was only on 25 April 2020 that she first became aware that the Form F3 filed by EPIS in the First Unfair Dismissal application allegedly contained false and incorrect information and that there had been representative error by Mr Edwards.

[37] Ms Stockton submits that the position of EPIS in relation to award coverage in the Form F3 and the representative error of Mr Edwards are both positive factors of substantial weight in regard to any assessment of exceptional circumstances.

[38] The reasons given for the delay by Ms Stockton are disputed by EPIS. It argues that while the Application is based on advice Ms Stockton has received from her current agent, neither EPIS nor Mr Edwards reached the same conclusion as Mr Butler that Ms Stockton’s employment as Chief Executive Officer was covered by the Award and therefore she is not jurisdictionally barred. EPIS submits that Ms Stockton has no basis upon which to make the serious allegation that it and its representative made a false statement in the Form F3 filed in the First Unfair Dismissal application.

[39] EPIS further submits that whether or not Ms Stockton’s employment as Chief Executive Officer with the Respondent was covered by the Award or a common law contract was, and remains, a matter in dispute. It says it is hardly unusual, let alone exceptional, for opposing parties and their representatives to have a different view of matters.

[40] EPIS argues that the fact that Ms Stockton has now obtained advice from Mr Butler that is different to the advice she received from Mr Edwards does not constitute exceptional circumstances. It submits obtaining and electing to act on alternative advice some seven months after acting on the original advice cannot amount to exceptional circumstances. EPIS also asserts Ms Stockton has not provided any explanation as to why she did not seek to obtain a ‘second opinion’ prior to filing the Notice of Discontinuance in the First Unfair Dismissal application and nor has she provided any explanation as to why she waited seven months after filing the Notice of Discontinuance to obtain the further advice she eventually received from Mr Butler.

[41] Finally, as to Ms Stockton’s health, EPIS says she has not been hospitalised and that she was able to continue to pursue both her workers’ compensation claim and her separate contractual entitlement claim. EPIS submits this counts against a claim of exceptional circumstances.

[42] 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. 4

[43] Ms Stockton has experienced stress, shock and trauma as a result of her dismissal, but this is not of itself unusual. While I accept the diagnosis that Ms Stockton has suffered from major depressive disorder of moderate severity, with anxious distress since the termination of her employment, I note that there was a fifteen week break between consultations with Ms Hanratty in late 2019, followed by a subsequent break of twelve weeks between 24 December 2019 and 16 April 2020. Further, the basis upon which the diagnosis of “Anxiety/Depression ? PTSD” was made by Dr Martin after an assessment on 17 November 2019, is not apparent on the material before me. Such a diagnosis has not at any stage been raised by any other medical practitioner. Nor is it apparent how many times Ms Stockton consulted Dr Martin either before 17 November 2019 or between 17 November 2019 and 29 May 2020, when Dr Martin completed the referral to “Psych 2 U”.

[44] Based on the medical evidence before me, I am not persuaded Ms Stockton’s condition post-termination had the effect of rendering her incapable of lodging the Application throughout the 244-day delay. Ms Stockton’s medical evidence did not provide an insight into the extent to which she was incapacitated during that entire period, 5 a period during which I note she was otherwise able, with assistance, to:

a) lodge the First Unfair Dismissal application;

b) engage Mr Edwards for the First Unfair Dismissal application;

c) engage lawyers for the agitation and settlement of her workers’ compensation claim;

d) engage Mr Edwards for the employment entitlement claim at the WAIRC and then terminate his services;

e) participate in the conduct of the employment entitlement claim; and

f) complete a detailed response to the allegations of misconduct that had been made by EPIS.

[45] Ms Stockton filed the Application on 29 April 2020 not because she was finally medically capable of doing so. Ms Stockton filed the Application at this time because she was advised by Mr Butler to do so, having discussed her circumstances with him for the first time in mid-April 2020. I do not consider that Ms Stockton’s health issues constitute an acceptable reason for the delay.

[46] I also do not accept the submission that there are exceptional circumstances in this matter because of representational error. Mr Edwards did not cause a delay in the lodgement of the Application. He gave advice in relation to the First Unfair Dismissal application based on his assessment of Ms Stockton’s case. Ms Stockton elected to take that advice and discontinue the First Unfair Dismissal application and then continued to retain Mr Edwards’ services for a further four months in the prosecution of an alternate claim against EPIS at the WAIRC. True it is that Ms Stockton was given a second opinion seven months after she filed the Notice of Discontinuance in the First Unfair Dismissal application, but this does not constitute exceptional circumstances. Parties and advisors routinely adopt differing views about the merits and jurisdictional basis of unfair dismissal applications before the Commission. These views are invariably contestable and the Commission is often asked to make a determination one way or the other.

[47] That Mr Butler has formed a view about the status of Ms Stockton’s employment with EPIS which simply differs from the views adopted by EPIS and Mr Edwards is not out of the ordinary course, unusual, special or uncommon. It is not exceptional.

[48] I am not required to resolve the question as to whether Ms Stockton was covered by the Award for the purposes of deciding whether to extend time, but I make the following observations:

a) It seems highly doubtful that the definition of a Social and community services employee level 8 employee in Schedule B of the Award covers a Chief Executive Officer of a social and community services sector employer or that any other classification definition in any of Schedules B – E of the Award does so either.

b) As at 4 November 2014, Ms Stockton’s base salary was $27,662.40 per annum higher than the highest pay point for a Social and community services employee level 8 employee.

c) At the time of her termination, Ms Stockton’s base salary was $35,239.60 per annum higher than the highest pay point for a Social and community services employee level 8 employee.

d) While Ms Stockton signed the Offer of Employment on 23 October 2014, this was superseded by the Employment Agreement signed by both parties on 4 November 2014 and indeed, the Employment Agreement specifically stated that it constituted the entire agreement between the parties and superseded any prior Agreement.

[49] I do not consider the matters Ms Stockton has raised, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

[50] Ms Stockton says that she became aware of the dismissal on 7 August 2019 and since a dismissal may not take effect prior to it being communicated to the employee, she therefore had the full period of 21 days to lodge an unfair dismissal application. This is a neutral consideration.

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

[51] Other than lodging the First Unfair Dismissal Application on 16 August 2019, the only other action taken by Ms Stockton to dispute the dismissal was on 9 February 2020, when she sent a detailed response to the allegations of misconduct that had been made by EPIS. However, a further eleven weeks then passed before Ms Stockton next took action to dispute her dismissal by lodging the Application.

[52] I consider the action taken by Ms Stockton only slightly weighs in favour of a conclusion that there are exceptional circumstances, given the length of the delay.

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

[53] EPIS submits that the longer the delay in bringing the proceedings, the greater the prejudice to it and says that key witnesses are no longer involved with its organisation. That key witnesses may have moved on in circumstances involving a long delay is not unusual. EPIS also submits that the mere absence of prejudice to an employer is an insufficient basis for the Commission to exercise its discretion under s.394(3) of the Act to grant an extension of time.

[54] Ms Stockton says she is unaware of any prejudice to EPIS and that the lack of prejudice is a positive indicator in favour of an exceptional circumstance finding.

[55] I cannot identify any prejudice that would accrue to EPIS if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances in this matter.

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

[56] I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, I must decide whether the Application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the Application.

[57] The competing contentions of the parties in relation to whether Ms Stockton was a person protected from unfair dismissal are set out above and I do not repeat them. The determination of that issue will turn on contested points of fact, the interpretation of Ms Stockton’s contractual arrangements and the terms of the Award. These matters would need to be fully tested if an extension of time were granted and the matter was to proceed, as would the question of whether Ms Stockton earned more than the high-income threshold.

[58] The merits of the Application will also turn on questions of evidence that would need to be tested, including under cross-examination, if an extension of time were granted and Ms Stockton was subsequently found to be a person protected from unfair dismissal by earning less than the high income threshold. Again, much would depend on findings of fact.

[59] Ms Stockton did not substantively engage with the reasons for her termination beyond saying she put in a detailed response to the allegations of misconduct and responded to the allegations “around the Silver Chain audit”. Instead, Ms Stockton focussed on the actions of EPIS in seeking to bring matters to a head and requiring her to participate in an investigation while under a medical certificate. EPIS included in its material the letters it sent to Ms Stockton outlining the allegations against her and submits it conducted a procedurally fair investigation and termination process.

[60] The weight to be given to the merits consideration is dependent on the extent to which there is merit in the substantive application. 6 While the Respondent purported to terminate Ms Stockton’s employment due to a failure to meet the stipulated duties as a Chief Executive Officer and a failure to meet her obligations under the EPIS policies and procedures, the termination occurred while Ms Stockton was under a medical certificate and despite her then treating doctor having advised EPIS not to have any contact with her, except in relation to her workers’ compensation claim.

[61] Ultimately, while I am satisfied that Ms Stockton’s unfair dismissal application is of sufficient merit so as to weigh in favour of a finding of exceptional circumstances due to the manner in which her termination was effected, the merits of the Application will only fall for determination if Ms Stockton is found to be a person protected from unfair dismissal and I consider this latter proposition, while contestable, is doubtful.

Fairness as between the person and other persons in a similar position

[62] 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.

[63] Ms Stockton says there are no other EPIS employees for her to be compared to and neither party brought to my attention any relevant matter concerning this consideration. Nor am I aware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[64] 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) 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.

[65] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms Stockton, 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. 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:

Mr G. Butler for the Applicant
Mr A. Talbert for EPIS Incorporated.

Hearing details:

2020
Melbourne (by telephone)
June 17.

Printed by authority of the Commonwealth Government Printer

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 1   [2013] FWCFB 2530 at [30].

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

 3   Ibid.

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

 5   Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285 at [22].

 6   Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].