Ellen Houston v Apple Pty Ltd T/A Apple Retail

[2015] FWC 913

[2015] FWC 913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Ellen Houston
v
Apple Pty Ltd T/A Apple Retail
(U2014/14012)

DEPUTY PRESIDENT SAMS SYDNEY, 10 FEBRUARY 2015

Application for relief from unfair dismissal - application lodged ‘out of time’ - whether ‘exceptional circumstances’ established - constructive dismissal - forced resignation - legal advice - no medical evidence relevant to the period after dismissal - no ‘exceptional circumstances’ - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Ms Ellen Houston (the ‘applicant’) claimed she was ‘forced to resign’ from her employment with Apple Pty Ltd (the ‘respondent’) on 23 October 2014 and that she was therefore constructively dismissed. The applicant lodged an application for unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 1 December 2014. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. Her application was therefore lodged at least 18 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] The Commission wrote to the applicant on 5 December 2014 outlining the matters I am required to consider under s 394(3) of the Act and asking her to provide a statement and/or evidence addressing these matters within 14 days. The applicant provided, by way of email, a statement of three pages.

[3] On Friday 6 February 2015, I conducted a hearing of the application. The applicant was self represented. I granted permission, pursuant to s 596 of the Act, for Ms Maher, Solicitor, to appear on behalf of the respondent. In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal and the Form F3 Employers Response. Having considered the applicant’s explanations for not filing her application within the statutory time period, in addition to the evidence adduced in the proceeding, I have formed the view that there are no ‘exceptional circumstances’ within the meaning of s 394(3) of the Act and I decline to grant an extension of time. These are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[4] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission 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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[6] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

CONSIDERATION

Reason for the delay (s 394(3)(a))

[7] It is necessary at this point, to outline an abridged background to the applicant’s alleged ‘forced resignation’. The applicant was the subject of a bullying investigation by the respondent in March 2014. The applicant strenuously denied the allegation of bullying. She said she was extremely distressed by the situation and had obtained a doctor’s certificate in late May 2014. On 28 May 2014, she received a formal written warning. On 29 May 2014 she sought advice from an employment lawyer, Mr Paul Murphy. The applicant submitted a grievance with the respondent on 30 May 2014. She sought further advice from Mr Murphy and attended two mediation meetings in July 2014. A workers’ compensation claim was submitted in September 2014, but the claim was denied on 21 October 2014. In GIO’s letter rejecting the applicant’s claim it was said, inter alia;

‘[10] In any event, in order to investigate your claim, we arranged for you to be assessed by Dr Graham Vickery. Dr Vickery provided a report dated 16 September 2014 following the examination.
[11] In his report, Dr Vickery opined that you described sufficient symptoms to meet DSM-IV criteria for Acute Adjustment Disorder with Anxiety.
[12] However, Dr Vickery indicated that the disciplinary action was the primary contributing factor to the psychiatric disorder.
[13] Based on the above, we determine that your injury was wholly or predominately caused by reasonable action taken by your employer with respect to performance appraisal and/or discipline, and therefore we rely upon Section 11A as a compete defence.
[14] In any event, we note that Dr Vickery indicated that your diagnosable condition has resolved and you are no longer suffering from a work related injury.
[15] Dr Vickery opined that you are fit for your pre-injury duties and do not require any further treatment.
[16] Accordingly, in the alternative, we determine that you are not currently suffering from any work related injury in accordance with Section 4 of the 1987 Act in any event.
[17] On the basis of the above, we decline liability with respect to your claim.’

[8] Three days later the applicant resigned in a letter, the terms of which were as follows:

‘Dear Rob;

Please be advised that I am tendering my resignation as a Genius in the Chatswood Chase Apple Retail Store, effective immediately.

As discussed, the circumstances under which I am tendering this resignation are that over the course of the last four months, with a view to extend for a further three months, I have been subject to unfair and excessive criticism and scrutiny as a result of a harassment claim made against me, resulting in a warning, and three month review period.

Apple Retail have failed me as an employee, and have not treated me fairly throughout the course of the investigation and subsequent disciplinary action. Apple Retail have been in breech [sic] of their own internal policy, and have utilised the opportunity to discipline me for minor actions, that in any other workplace would be considered normal and constructive behaviour, when previously I had an untarnished employment record.

Conveniently, the timing of the initial and instigating matter coincided with the commencement of a global career experience, that was afforded to me on skill, and hard work alone.

Furthermore, having been subject to further investigation by GIO insurance (on the request of Kate Webster) only to find in a statement, Kate lied and therefore perjured herself about the circumstances under which I was applying for workers compensation, forfeiting my right to a fair assessment by GIO. It is in my opinion that management suffer from gross negligence, and will manipulate circumstances to justify their actions.

I previously submitted a grievance, which was ill-addressed by Human Resources, which only compounds the lack of ethical regard the business has, let alone the understanding of its own business policies and practices. You will find this as an attachment to this letter, outlining my concerns prior to this performance review process, and hope you will find that it provides you with the answer to any questions you may have.

Given that this is all resultant of affectionately referring to a colleague as a ‘dag’, it is incredibly disappointing that it has been allowed to go as far as it has, but it has gone far enough. I will not subject myself to any further stress and anxiety on account of a business who so frivolously participate in immoral, unethical and unjust disciplinary practices.

As per my employee agreement, I am expected to work for a further three weeks, however given the circumstances, I don’t feel I should be subject to any further emotional distress.

Please ensure I receive in severance, my pay up until my final completed work day, being the 23rd of October 2014, as well as my accrued annual leave of 18.5 working days.

With regards,

Ellen Houston’

[9] The applicant contends that her reasons for the delay in filing her application were twofold. Firstly, the applicant partly attributes the delay to her state of mind following her dismissal, claiming that she was depressed and anxious. The applicant further attributes delay to her lack of understanding of the unfair dismissal laws, in the context of her resignation. In respect of both these reasons, the applicant said:

‘The time delay occurred partly due to my state of mind and feeling of depression and anxiety brought about by my situation, as well as an initial lack of knowledge or understanding that my resignation was still deemed an unfair dismissal.

After my decision to resign, my mind needed a rest from being consumed by what appeared to be never ending issues surfacing at work. Once I had left Apple, I felt almost instant relief. The pressure had lifted not to have to constantly think about my work situation, and be fearful of reprimand. This was wonderful, but unfortunately the same relief had distracted me from seeking any relevant information of the Fair Work legislation and to seek and form of recourse.’

[10] I am not persuaded that either of the reasons given by the applicant constitute an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. In response to the applicant’s contention that she was suffering from depression and anxiety, the applicant provided no medical evidence of suffering either of these afflictions at the relevant time and at least not from mid September 2014. I find it difficult to reconcile her reasons for delay, when she stated that she was both distressed and anxious, yet then proceeded to acknowledge that she was ‘relieved’ when she resigned on 24 October 2014. Moreover, the applicant goes so far as to say that following her resignation she felt ‘instant relief’ and that the ‘pressure had lifted’. In other words, in the period immediately after her dismissal and with the 21 day time limit having commenced, the applicant no longer was experiencing any sense of anxiety or depression. As was said by the majority in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, (per Watson VPand Smith DP) the relevant period for explanation of the delay is after the 21 days has expired. The majority said at paragraph 12:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

See also: C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149. I do not accept the applicant’s submission that she was suffering from a degree of anxiety or depression such as to prevent her filing an unfair dismissal application within time.

[11] As to the applicant’s second reason, I cannot accept the applicant’s proposition that she was unaware that she had grounds for unfair dismissal and this constituted a basis for the Commission granting an extension of time for the filing of her application. An applicant’s lack of knowledge of their legal rights does not of itself, constitute an ‘exceptional circumstance’; See Nulty at para [14]. It should be emphasised that the 21 day time period for lodging an unfair dismissal application starts from the date of dismissal, not from the date on which the applicant becomes aware of their legal rights.

[12] In any event, in a statement attached to her unfair dismissal application, the applicant acknowledged that, following allegations of bullying at work, she had contacted an employment lawyer and sought his advice. Prior to resigning, she had lodged a grievance and a workers’ compensation claim. It is clear the applicant was aware of her workplace rights and had no hesitation in exercising them. It is therefore curious and inexplicable as to why the applicant (said to be experiencing anxiety and depression) neglected to obtain further legal or other advice following her alleged constructive dismissal. Her resignation letter makes clear that she strongly resented her treatment by the respondent and made serious allegations against the respondent and its officers.

[13] It is also necessary to point out that legal assistance or representation is not required to file an application for a remedy for unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. I note that the relevant form provided by the Commission (Form F2) is simple and straightforward and extensive guidance is provided on the Commission’s website as to the lodgement of such an application, including by making the application over the phone.

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

[14] The unfair dismissal application lodged by the applicant, states that she was constructively dismissed on 23 October 2014 and was aware of her termination of employment on that date. Moreover, I note that the applicant advised that her resignation was ‘effective immediately’, thereby giving the respondent no notice of her termination of employment. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[15] The applicant did not indicate that she took any action to dispute her alleged constructive dismissal, until lodging this application with the Commission on 1 December 2014. As mentioned above, remarkably, prior to her resignation, the applicant sought to dispute internal disciplinary procedures, engage a lawyer, file a grievance and a workers’ compensation claim, yet she failed take any action to dispute her resignation between the date of her alleged constructive dismissal and the of filing her unfair dismissal application. This factor weights against the grant of an extension of time.

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

[16] Given that the application was lodged 18 days outside of the statutory time limit, I do not consider there is any significant prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This factor is a neutral factor in this case.

The merits of the application (s 394(3)(e))

[17] It is important to note that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. The applicant alleged that her resignation was in fact a ‘constructive dismissal’ See: s 386(1)(b) of the Act. She alleged that after being subject to internal disciplinary processes by the respondent, she was being ‘pushed out of the business’. The applicant stated that she felt forced to resign as ‘there was no path for redemption after receiving the warning letter’. The applicant’s claim that she was constructively dismissed arises from her allegation that the respondent engaged in a concentrated and sustained effort to target her through the implementation of disciplinary processes.

[18] In my view, the circumstances enunciated by the applicant do not point to a conclusion that the applicant’s resignation was a ‘constructive dismissal’. There is no evidence to suggest, let alone establish that the applicant was forced to resign. In giving her reasons for delay, the applicant admits that she ‘voluntarily tendered her resignation’ and that her reasons for resigning included the ‘respondent’s conduct’ and the respondent’s ‘detrimental effect on her psyche’. A preliminary assessment of the applicant’s case suggests to me that she freely resigned from her employment due to increasing scrutiny from management following the respondent’s findings as to the applicant’s behaviour. In my view, neither an employee’s perceived loss of reputation, nor the prerogative of management to performance manage an employee form a valid basis for a ‘constructive dismissal’ claim. In any event, the outcome of the bullying investigation, while obviously not accepted by the applicant, was a written warning. Accordingly, a prima facie assessment of the applicant’s material would suggest that the applicant’s prospects of success are negligible.

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

[19] The applicant did not specifically address this criterion. There was no evidence of other persons in a comparative position to that of the applicant. This is a neutral factor in this case.

CONCLUSION

[20] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms E. Houston on her own behalf

Ms B. Maher, Solicitor, for Apple Pty Ltd T/A Apple Retail

Hearing details:

Sydney

2015

6 February.

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