Elaine Louise Sparrow v The Jewellery Group Pty Ltd
[2022] FWC 3107
•25 NOVEMBER 2022
| [2022] FWC 3107 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Elaine Louise Sparrow
v
The Jewellery Group Pty Ltd
(U2022/10641)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 25 NOVEMBER 2022 |
Application for an unfair dismissal remedy – extension of time – mental health – discretionary considerations – no exceptional circumstances – application dismissed
On 4 November 2022 Elaine Louise Sparrow (Ms Sparrow or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to a termination of employment by The Jewellery Group Pty Ltd (The Jewellery Group or the employer) which took effect on 12 October 2022.
The Jewellery Group filed a response on 8 November 2022. The employer contends that the application should be dismissed because it is out of time and because Ms Sparrow was not dismissed.
Ms Sparrow’s application was made twenty-three days after the alleged dismissal took effect, being two days beyond the twenty-one day statutory time-limit. For the application to proceed it requires an extension of time. Ms Sparrow seeks that extension.
This decision deals with whether an extension should be granted.
I issued directions on 11 November 2022.
Materials were filed by Ms Sparrow on 15 November 2022 and by The Jewellery Group on 17 November 2022.
I heard the extension of time matter by video on 21 November 2022.
Ms Sparrow was self-represented. With permission granted on 11 November 2022 (opposed by Ms Sparrow), The Jewellery Group was represented by a legal practitioner who had formerly been an internal officer of the employer.[1]
Ms Sparrow gave evidence. Both parties made oral submissions.
Following the hearing I reserved my decision.
Facts
I make the following findings.
The Jewellery Group operates retail jewellery stores including stores trading as Zamels Jewellers in Adelaide, South Australia.
Ms Sparrow was employed by The Jewellery Group as a retail employee. She commenced on 22 October 2021 working from the Elizabeth store.
In early September 2022 Ms Sparrow was directed to work at a different store location (at Tea Tree Plaza, later changed to Brickworks). The new store locations were not acceptable to Ms Sparrow as she had a daughter with special needs and considered it convenient to only work at the Elizabeth store.
The Jewellery Group maintained its decision to require Ms Sparrow to work at a different location.
This caused Ms Sparrow stress and anxiety. On 12 September 2022 she saw her general practitioner (Mr Halim). She was prescribed anti-depressants with a psychotherapy review. She was given a medical certificate:[2]
“12/9/2022
THIS IS TO CERTIFY THAT Ms Elaine Sparrow has attended this medical clinic with a medical condition and will be unfit for work from 12/09/2022 to 19/09/2022 inclusive.”
From this date, Ms Sparrow did not work rostered shifts.
On 15 September 2022 Ms Sparrow resigned by email as follows:[3]
“On Thursday 1 September Veronica visited our Elizabeth store in the afternoon. Veronica told me that she was constantly being hauled over the coals by senior management in regard to our store not making budget. Due to this, a decision had been made to move staff around. As I have not received adequate training I was told I was being relocated to Mazzucchelli's in TTP as of 13 September. I was very shocked by this decision to move me out of the Elizabeth store. When I first interviewed for my position I explained to Bernadette that I have a daughter with special needs, which Veronica is aware of, and I would only be available to work at the Elizabeth store as it is only 10 minutes from my home and limits the time that I am away from my daughter. The drive to TTP would add an extra 30 minutes each way of travel time.
On Friday 9 September Veronica phoned me in the afternoon and advised me that my relocation would now be to Brickworks starting on 16 September - adding 45 minutes of travel time each way from my home.
During my conversation with Veronica on 1 September, I asked her if I chose not to travel to another location would I be out of a job and Veronica nodded her head.
Unfortunately, this situation is causing me a lot of stress and anxiety and is impacting my health. As such I wish to resign my position effective immediately to focus on my mental health. I wish to thank you, Bronwyn, for your continued support while I have been employed by The Jewellery Goup. I wish the staff at Zamels Elizabeth all the best for the future. I have already returned my shop key to the ASM of the store.
Kindest regards
Elaine Sparrow”
The Jewellery Group required Ms Sparrow to give four weeks’ notice and to work out her notice from the Brickworks store. It responded on 15 September 2022:[4]
“Hello Elaine
This email is to acknowledge receipt of and to accept your resignation received today via email.
On behalf of the team at TJG we would like to wish you the best in your future endeavours.
Your notice period is 4 weeks with your last working day being the 12th of October 2022.
As you have been transferred to Zamel’s Brickworks your notice period will be carried out at Zamel’s Brickworks.
We have no doubt you will continue to perform your role during your remaining time with the company.
Take care and kind regards
Bronwyn Williams
National Human Resources Manager”
Ms Sparrow continued to experience stress and anxiety including by being required to work out her notice at the Brickworks store. She continued to take anti-depressants and receive psychotherapy treatment.
On 19 September 2022 Ms Sparrow again saw her general practitioner (Mr Halim). She was provided a further medical certificate as follows:[5]
“19/09/2022
THIS IS TO CERTIFY THAT Ms Elaine Sparrow has attended this medical clinic with a medical condition and will be unfit for work from 19/09/2022 to 12/10/2022 inclusive.”
On 12 October 2022 Ms Sparrow’s employment ended upon the expiry of her notice period. Until then, she had remained absent due to illness.
After her employment ceased, Ms Sparrow continued to experience stress and anxiety due to the conflict that had given rise to her resignation. She continued to take anti-depressants and receive psychotherapy treatment.
On 17 October 2022 Ms Sparrow again saw her general practitioner (Mr Halim). She was provided a Centrelink medical certificate.[6] The certificate provided that Ms Sparrow was diagnosed with “anxiety/depression” and that she was incapacitated from 17 October 2022 until 1 January 2023.
Upon ceasing employment, and not being in receipt of income, Ms Sparrow felt that she had been treated unfairly. She spoke to a friend approximately one week later (according to Ms Sparrow’s evidence, it was around two weeks prior to making her claim). She was advised by her friend that a forced resignation was a dismissal and that she could make an unfair dismissal application. She was also advised by the friend that a time limit applied. Ms Sparrow told the friend that she did not feel well enough to make a claim.
Although Ms Sparrow did not specifically calculate when the 21-day period would expire, her evidence was that she knew it was in “early November”.
On 4 November 2022 Ms Sparrow felt well enough to make the claim. That morning, she phoned a legal aid service who suggested she speak to the Working Women’s Centre (WWC). She then phoned the WWC and spoke to a legal adviser. She obtained information about making a claim and was told to do so immediately. The WWC sent Ms Sparrow a link to the application form, together with a past case reference where time had been extended due to mental health issues.
That afternoon (4 November 2022) Ms Sparrow populated the application form and sent it to the Commission by email. When completing the form, Ms Sparrow acknowledged that she was out of time. Ms Sparrow stated:[7]
“My delay is due to mental health issues arising from termination of employment. I have medical certificates as proof of this that I am providing. I am completing this application now as I have just become well enough to seek legal advice today . In the case of Nyssa Kyte v Fire Trucks Australia an employee was allowed to file her claim 64 days late after suffering mental health issues arising from termination of her employment”.
Consideration
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
Being two days out of time, Ms Sparrow’s application can only proceed if she establishes that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[8]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[9] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[10]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[11]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[12]
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[13] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[14]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[15] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[16]
Ms Sparrow’s explanation for the delay is that her mental health precluded her from filing within time, and that it was not until two days after the statutory time limit expired that she felt well enough to take advice and file the claim.
The evidence clearly points to Ms Sparrow suffering poor mental health in the wake of her resignation. She saw Dr Halim twice before her resignation took effect and was certified as suffering from a “medical condition” which in a related Centrelink certificate Dr Halim described as “low mood and motivation; poor sleep”.[17] Ms Sparrow then saw Dr Halim again following her employment ending, when she was certified as unfit to work from 17 October 2022 to 1 January 2023.
I therefore find that during the two day delay period, and in the preceding weeks, Ms Sparrow had been unwell and was being treated for depression and anxiety attacks connected to her employment ending.
However, stress, anxiety or low mood and motivation following employment ending is common, not unusual. Without more, they are not exceptional circumstances.[18]
Relevant in this matter is whether the evidence establishes that more exists such that the delay was relevantly connected to a condition or circumstance which materially compromised or impaired Ms Sparrow from filing within time. Ms Sparrow relies on the supportive letter of Dr Halim of 14 November 2022.
Dr Halim was not called. His letter of 14 November 2022 supports the finding I have made that Ms Sparrow was being treated for anxiety and depression in the two months preceding, including during the delay period and earlier.
However, the issue before the Commission is whether the circumstances giving rise to the late filing were exceptional, not simply whether Ms Sparrow was suffering poor mental health and undergoing treatment. Her poor mental health, at least according to Dr Halim’s letter, existed across the delay period including on the day of filing. As the treating doctor was not called, there is no medical evidence that specifically explains the delay as distinct from validating a general state of ill health; that is, there is no specific explanation as to why Ms Sparrow could not file on 2 November 2022 but could on 4 November 2022.
On this question, the Commission is left with Ms Sparrow’s evidence. Her evidence was straightforward. She said that she didn’t feel well enough until the morning of 4 November 2022.
Considered overall, this explanation for the delay only weighs somewhat in favour of extending time. It entails elements of subjectivity surrounding how Ms Sparrow felt on a given day. Ms Sparrow’s mental health condition somewhat explains the delay but an evidentiary gap exists as to why she was unable to pursue her interests on or by 2 November 2022 but was able to do so on 4 November 2022.
Awareness of the dismissal taking effect (s 394(3)(b))
Ms Sparrow was aware from 15 September 2022 that her employment would end on 12 October 2022.
That Ms Sparrow was well aware of her employment ending and of the reasons for her resignation makes this a neutral consideration and does not weigh in favour of an extension of time.
Action taken to dispute dismissal (s 394(3)(c))
Ms Sparrow’s evidence was that she felt, from the time she was directed to work in other store locations (including being directed to do so whilst serving her notice), that she had been treated unfairly.
Although in the period following her employment ending she was suffering anxiety and being treated for the condition, she was able to discuss the matter with a friend who advised her of the right to claim unfair dismissal for a forced resignation and of a time limit for making claims. At that time, approximately one week after her employment ceased, she was not feeling “up to” making a claim, and the discussion made her upset.
As a result, Ms Sparrow did not take action to dispute her dismissal until after the time period had passed.
This is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[19]
The Jewellery Group submit that it would incur prejudice including by having to defend a late claim.
A claim would have to be responded to, involving time and cost. However, that prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[20]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would concern a further jurisdictional question, whether Ms Sparrow was forced to resign within the meaning of the FW Act such that her resignation was a dismissal.
If and only if she was so dismissed, would the Commission then consider whether the overall circumstances were unfair, including the requirement that she work at different store locations.
Whilst Ms Sparrow’s contention of a forced resignation and general unfairness is not unarguable, this matter will be uniquely decided by the evidence of what occurred between Ms Sparrow and her managers and also contractual rights and obligations. It is not possible to express a provisional view on whether the case will fall within jurisdiction or has merit.
For the purposes of considering the extension of time issue, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
The Jewellery Group submit that granting an extension of time would be unfair to other persons whose extension of time cases have been rejected.
I do not agree. Each case is decided on its own merits. The common measure is simply whether there are exceptional circumstances. More specifically, it is not possible to conclude that because one applicant with mental health conditions succeeds or fails in securing an extension of time, then Ms Sparrow’s application should consequently succeed or fail. Even a cursory perusal of decided matters before the Commission shows that there is no decision-rule about granting or not granting extensions of time in cases of mental health unwellness.[21]
In this respect, Ms Sparrow’s reference in her submission to earlier decided cases is relevant but not decisive. Each is distinguishable on their own facts, both with respect to the contributing conduct of the employer or the relevant mental health condition or treatment.
In these circumstances, this is not a relevant factor.
Conclusion
The period of delay being two days, in the context of a statutory twenty-one day time frame, is not immaterial but not lengthy.
The explanation for delay weighs only somewhat but not clearly in favour of a finding of exceptional circumstances.
Ms Sparrow was aware in general terms of unfair dismissal rights and of a statutory time limit for making claims approximately two weeks prior to filing her application. All other relevant factors are neutral considerations.
Considered overall, and having regard to the statutory requirement that circumstances must be exceptional in order to enliven the discretion to extend time, I am not satisfied that the circumstances are exceptional. Whilst Ms Sparrow is to be given credit for managing her mental health in a difficult pre and post termination environment, and was unwell, she was aware that a time limit applied. It was her self-assessment of feeling well enough to file on 4 November 2022 but not earlier that led to the application being filed that day. That self-assessment, and why her condition precluded her filing two days earlier, is not objectively explained by the medical evidence. It is reliant on Ms Sparrow’s subjective day to day feelings, which bears a relationship to the general medical evidence but is not specifically explained by it.
The statutory time limit cannot be captive to an employee, even one suffering poor mental health, feeling well enough to file one day but not well enough to file on another, unless there is clear and specific medical evidence in support of such incapacity.
Had Dr Halim been called to give evidence in this matter, his evidence may have provided that clarity, but only his certificates and letter expressed in general terms are in evidence. They do not address that critical issue relevant to whether exceptional circumstances existed.
There being no exceptional circumstances, the time for lodging the application cannot be extended.
As Ms Sparrow’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order[22] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Ms E Sparrow, on her own behalf
Ms R Venning, with permission, with Ms B Williams, on behalf of The Jewellery Group Pty Ltd
Hearing details:
2022
Adelaide (by video)
21 November
[1] Reason for decision on representation audio 11 November 2022
[2] A5
[3] A3 and R2
[4] A4
[5] A6
[6] A8
[7] F2 section 1.5
[8] Smith v Canning Division of General Practice[2009] AIRC 959
[9] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[10] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[11] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[12] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[13] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[15] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[16] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[17] A7
[18] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [62]
[19] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[21] Kyte v Fire Trucks Australia[2016] FWC 3523; Hussey v Springmount Australia Pty Ltd[2019] FWC 5010; Lindsay v Cara Inc[2022] FWC 230
[22] PR748221
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