Donna Peterson v Injury Treatment Pty Ltd T/A Injury Treatment Occupational Injury Management

[2016] FWC 7643

[2016] FWC 7643

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donna Peterson
v
Injury Treatment Pty Ltd T/A Injury Treatment Occupational Injury Management
(U2016/11208)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 20 OCTOBER 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Ms Peterson and the respondent ended on 12 April 2016. Ms Peterson lodged her application at the Fair Work Commission on 8 September 2016. Ms Peterson’s application was lodged 97 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Peterson.

[4] At paragraph 1.4 of her application Ms Peterson set out the reasons for the late lodgement of her application. This is extracted below.

“Please accept my explanation for the delay in submission of the dispute and accept my application out of time.

1. I was unclear that a dismissal had taken place. I had initially discussed resignation but had not formally submitted a resignation. I thought initially that as I had initiated the discussion regarding resignation that I did not have any reason to claim unfair dismissal. This was despite feeling uneasy and shameful over what had occurred.
2. I received an employee termination payment advice on 19 August 2016 and questioned this with the employer representatives. Advised on 22 August 2016 by the Human Resources Department that it was a payment due to termination of employment.
3. From the time of cessation of my employment, I have attempted contact with Mr Fred Cicchini and Ms Renee Thornton of Injury Treatment multiple times to clarify the circumstances of my departure with no response from either party to date.
4. On 25 August 2016, I was advised informally by the receptionist of the Wollongong branch of Injury Treatment that the team had been advised that my employment had been terminated and that was the reason for my sudden departure.
5. Since being terminated from my employment I have experienced a re-exacerbation of Depression (previously diagnosed in 1996 however well managed until 12 April 2016) and the onset of anxiety and panic attacks since cessation of employment culminating in an episode involving over medicating of prescription medication and alcohol in May 2016 and attending subsequent Psychologist and Psychiatric consultations and a period of not leaving the house. I have also commenced a new medication to stabilize my condition and this has resulted in a period of adjustment. The re-exacerbation of Depression and the onset of anxiety and panic attacks have resulted in a complete loss of self-confidence and self-esteem, an inability to concentrate, sleep disturbance and ongoing suicidal ideation. I have difficulty attending to self-care and just getting out of bed in the morning.
6. I have also been grieving the death of a close relative – my dear father on 2 May 2016 and the death of a close friend after a long battle with cancer on 26 August 2016.
7. In addition, I have been forced to sell my property as I do not have the financial means to sustain the ongoing payments of a mortgage and no clear direction or hope for the future.

Currently, I am unable to secure employment despite attempts as have no confidence and no references despite 14 years in the Vocational Rehabilitation and in Workplace Injury Management industry.”

[5] I wrote to Ms Peterson on 23 September 2016 outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days. Ms Peterson provided a comprehensive statement on 7 October 2016. This is extracted below.

“The reason for the delay.

Exacerbation of Depression, Anxiety and Panic Attacks.
Following the incidents of 12 April 2016, I have experienced an exacerbation of the symptoms of Depression, and for the first time, I commenced experiencing intense and significant symptoms of Anxiety and Panic Attacks. These symptoms included feelings of intense distress and hopelessness for the future, feelings of grief and of being lost, crying, thoughts of suicide, loss of self-confidence and self-esteem, an inability to concentrate, sleep disturbance and an inability to breath and panic attacks.
For these symptoms, I sought assistance with Dr Vaughan Turnbull on 15 April 2016 and was referred by Dr Turnbull to Mr Neil Gaff of Calm Consultants and attended for psychological assistance for the first available appointment on 22 April 2016. A report from Mr Neil Gaff is attached. This condition impacted on my ability to process the circumstances around by cessation of employment and to submit an unfair dismissal claim and in fact impacted on my ability to complete the activities of daily living and impacted greatly on mine and my family’s quality of life.

The passing of my Father on 2 May 2016.
Following a long decline of my dear Dad’s health where he experienced Alzheimer’s Disease, was taken from the family home and placed in a nursing home, he experienced 2 further strokes which culminated in his passing on 2 May 2016. My father’s passing has exacerbated my symptoms, has impacted on my ability for reflection, has left me with little clarity and unable to cope with the every day requirements of life.

The passing of a close friend on 26 August 2016.
Mr Alan Thompson had been my lifelong friend from the age of 5 years old. We commenced school at Bulli Public School together. He passed away from bowel and stomach cancer at the age of 56 years following a short illness. I was privileged to be with him in his last hours
– and his last breaths. However, this event has taken a toll on my symptoms and psychological health and left me unable to think clearly.

Financial consideration due to the cessation of my employment and the consequential sale of my property culminating in settlement on 15 July 2016.
Unfortunately, I had to place my property on the market due to significant financial concerns of no longer being in employment. This commenced in early May 2016 (first advertised 5 May 2016) with significant negotiation throughout May and settlement occurred on 15 July 2016.

Changes to medication regime
I have had increases of the current medication, additions of medication and changes of medication since 15 April 2016 until 30 September 2016. This has included anti-anxiety, anti-depressant and mood stabilising medication. To date none have been significantly beneficial.”

[6] I considered that statement. I issued an Order refusing her application for an extension of time and dismissed her application on 12 October 2016.

[7] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

[8] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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]

[9] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[10] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[11] The reasons Ms Peterson provided for her delay in lodgement were:

1. exacerbation of depression, anxiety and panic attacks;
2. the death of her father on 2 May 2016;
3. the death of a close friend on 26 August 2016;
4. financial considerations arising from the termination of her employment including the sale of her house;
5. changes to her medication regime, and
6. uncertainty regarding the circumstances surrounding the cessation of her employment.

[12] While sympathetic to these circumstances I was not persuaded that Ms Peterson’s difficulties were out of the ordinary, unusual or uncommon.

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

[13] Ms Peterson became aware of the end of her relationship with the respondent on 12 April 2016, although the circumstances were confusing for her.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[14] Ms Peterson attempted to clarify the situation with her employer by email on 13 April 2016 and by telephone on 14 September 2016 and by lodging this application.

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

[15] I was satisfied that there would be no greater prejudice to the respondent caused by Ms Peterson’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[16] Merit was a neutral issue in my consideration of this application.

fairness as between Ms Peterson and other persons in a similar position-S.394(3)(f)

[17] There was no issue of fairness in relation to any other person in a similar position.

[18] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Ms Peterson’s circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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