Emily Crafter v Dye & Durham Pty Ltd
[2024] FWC 1314
•20 MAY 2024
| [2024] FWC 1314 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Emily Crafter
v
Dye & Durham Pty Ltd
(U2023/12186)
| COMMISSIONER THORNTON | ADELAIDE, 20 MAY 2024 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time
This decision concerns an application by Ms Emily Crafter (Ms Crafter or the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act).
The Applicant’s employment with Dye & Durham Pty Ltd (the Respondent) concluded on 14 April 2023 when she tendered her resignation.
The Applicant’s application was lodged with the Fair Work Commission (the Commission) on 7 December 2023.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as allowed by the Commission pursuant to s.394(3). In this instance, the period of 21 days concluded on 5 May 2023. The application was not filed until 237 days from the date of the conclusion of the Applicant’s employment, making the application 216 days out of time. It is therefore necessary that the Applicant be granted an extension of time for her application to proceed.
The Applicant requests the Commission grant an extension of time for her application under s.394(3) of the Act. The Respondent objected to the application on the basis that it was filed out of time and has provided submissions opposing the granting of an order to extend the time for filing the application.
I have determined that no exceptional circumstances exist to warrant the making of an order to extend the time for the Applicant to file her unfair dismissal application. I set out my reasons below.
Background
Ms Crafter commenced employment with the Respondent on 30 November 2015 as a Team Member.
The Applicant has claimed that from December 2022 she was subjected to significant bullying in her workplace from colleagues. The Applicant alleges that the bullying included verbal abuse including swearing and threats directed at the Applicant in front of other colleagues, malicious gossip, unfair criticism of her work, and the imposition of rules and requirements on the Applicant that were different to the expectations placed on other employees. The Applicant made complaints about the bullying which she says were not addressed in a fair or reasonable manner and the bullying of her did not stop.
Matters came to a head on 4 April 2023 when the Applicant imitated or mocked an upset colleague. The Applicant had previously complained the same colleague had bullied her. The Applicant was remorseful for the conduct but argued that the conduct occurred in a context where she was a victim of bullying for a prolonged period and that conduct had not been addressed by the Respondent.
On 11 April 2023, the Respondent issued Ms Crafter with a written warning for misconduct that she perceived as unfair given the lack of appropriate action in respect of her complaints.
After she received the warning, the Applicant felt she could no longer work for the Respondent because of the “blatant unfair application of rules and punishments.”[1] On 14 April 2023, Ms Crafter provided the Respondent with a written notice of resignation, advising that she would take annual leave for the balance of her notice period. On 17 April 2023, the Respondent confirmed their acceptance of the Applicant’s resignation but elected to pay her four weeks’ notice in lieu of her working or taking annual leave.
Ms Crafter gave evidence that over the weekend following the tendering of her resignation on Friday, 14 April 2023, she had a number of discussions with her Team Leader and friend, Mr Davidovic, about her next steps and settled on offering the company an ultimatum that if they withdrew the warning issued to her, she would withdraw her resignation. The ultimatum was not accepted by the Respondent and they refused to withdraw the warning.
Ms Crafter recounted in her application and oral evidence that after her resignation she “fell into a deep depression”[2] and was unable to file her unfair dismissal application for some eight months.
On 2 October 2023, the Applicant completed an online review of the Respondent as her employer on a website, recounting her experiences. In response to that review, the Respondent posted: “Thank you for your feedback. These are very serious allegations and we ask that you contact your HR representative.” Ms Crafter has described the Respondent’s post on the website as a request to “bring this matter for investigation”[3]. The Applicant gave evidence that the Respondent’s request that she raise the matter for further investigation, prompted her to file this application.
The Applicant’s unfair dismissal application was filed on 7 December 2023.
The evidence
Much of the evidence filed by the Applicant addresses her experiences at work prior to her resignation and, as such, has limited relevance to this matter.
I was impressed with Ms Crafter as a witness. With respect to her evidence about the period of delay following her resignation, Ms Crafter gave detailed and compelling evidence about the aggravation of her pre-existing mental health issues and the incapacity that her illnesses caused in the months after her resignation. She described her illnesses as “dysthymic”, explaining that she had periods where she was at “rock bottom” and other periods of more mild depression, with her conditions having a persistent nature and “more longevity” than other types of depression.
Ms Crafter was open about her pre-existing anxiety, obsessive compulsive disorder and depression which, prior to her resignation, had been managed with treatment and medication. She explained that she had experienced, in addition to this period of severe depression, another period of serious depression in the past.
After she left employment with the Respondent, Ms Crafter said she had a very low period and gave evidence that she was so affected by her anxiety and depression that her self-care was severely diminished. Ms Crafter gave evidence that she:
(a)Slept for 10 to 12 hours a night and often napped during the day;
(b)Had a “crippling” lack of motivation;
(c)Often only got out of bed to go to the toilet;
(d)Was so unmotivated that she didn’t drink much water and became chronically dehydrated;
(e)Struggled to eat, with her weight decreasing from 48 kilograms to 42 kilograms;
(f)Struggled to shower, including at her lowest point not showering for over a month;
(g)Did not brush her hair for periods of such length that she was at risk of having to cut her long hair;
(h)Did not brush her teeth more than once or twice a week; and
Cut her nails only when they were causing her pain.
Ms Crafter set out in evidence the periods of time when she was most affected by these symptoms, but that she experienced all of these symptoms to varying degrees throughout the period of April to late October 2023.
Ms Crafter explained to the Commission in her evidence that the crippling lack of motivation affected all aspects of her life and resulted in her being unemployed for seven months when she was so ill that she was unable to update her resume or apply for jobs.
Ms Crafter also honestly told the Commission that in July 2023 her step-mother was diagnosed with cancer. Ms Crafter described the diagnosis as devastating for her family, especially considering she lost her mother to cancer when Ms Crafter was a child. She also advised the Commission of her own diagnosis of an auto-immune disease in the same month. Ms Crafter accepts that these events “set me back in my journey out of depression”.[4]
Ms Crafter compellingly explained to the Commission that she did not have the motivation or sufficient level of functioning in the period following her dismissal to engage in the process before the Commission that would follow the filing of an application, even if she were able to file her application, which she submits she was not.
In cross examination Ms Crafter accepted that she engaged in some activities of daily living, including monitoring her financial circumstances, using internet banking, attending medical appointments procedures and treatments of other medical conditions.
Ms Crafter also accepted in cross examination that she did advocate for herself in the days after her resignation when she attempted to negotiate a withdrawal of the warning issued to her in exchange for the withdrawal of her resignation.
However, Ms Crafter clarified her evidence to confirm that experiencing an aggravation of her depression in the weeks and months following her resignation did not render her incapable of doing anything at all. She offered the example of driving her car to appointments as a task she was able to do. Ms Crafter explained that she had to “cherry pick the things she could do” and would prevent aggravating her symptoms further by avoiding things that triggered her mental illnesses, including tasks that were related to her former employment with the Respondent.
In oral evidence, Ms Crafter confirmed she considered that she wanted to take steps to address the circumstances that led to the conclusion of her employment after it occurred but did not seek legal advice because she knew she was not in a state to manage any legal proceedings. She confirmed she researched her options not long after the dismissal, considered an unfair dismissal claim, was aware of the 21 day time limit and on occasions, thought she might not file this application because she was unable to file it within the statutory time limit. She later decided to proceed with her claim.
When questioned about why, in the periods of her illness when she was functioning better she didn’t file her claim, Ms Crafter said it was then that her anxiety, rather than her depression, “inhibited her ability to move forward” in making her application.
Ms Crafter also gave evidence that she consulted with a lawyer sometime in late October 2023, who advised her that she was out of time to file her claim, a matter she accepts she knew from soon after her employment was terminated.
Following the stressors in July 2023, Ms Crafter increased the dose of the medication she was taking to treat her anxiety and depression. She gave evidence that she again increased the dose of her medication in October 2023. Ms Crafter curiously says that she had been granted some freedom from her doctor to decide when to increase her medication given the length of time she has been prescribed the medication. Ms Crafter said that she informed her doctor that she had increased her medication when she later saw him to refresh her prescription.
Ms Crafter’s evidence is that she did not consult with a treating doctor until she was feeling somewhat better in early November 2023. Ms Crafter’s evidence was that from her past experience with a prolonged period of depression, that time was the most significant factor in recovery and she had to allow herself time for her mental health to improve.
The Applicant says in her statement that the increased dose of her medication in October 2023 “counteracted” symptoms of her anxiety, including “deep chest pain and muscle tension”. Ms Crafter’s evidence was that by “November 2023, I began to feel better from both anxiety and depression. I felt capable and that any anxiety I would experience as a result of pursuing an unfair dismissal case would be manageable.”[5]
The Applicant importantly gave evidence that by the end of October 2023 she felt well enough to start “getting the ball rolling” in respect of this claim and made an appointment with her General Practitioner.
Critically, Ms Crafter gave evidence that she was of the understanding that the first step for her in filing this application, because she was out of time, was getting a referral to a psychologist in order to get medical evidence to support an extension of time. Ms Crafter says that after she felt somewhat better she made an appointment with her doctor on 3 November 2023, to both ask for a referral to a psychologist but also “hopefully have him write a letter of his professional opinion of my situation.” However, the evidence showed that Ms Crafter then sought a letter from the psychologist to whom she was referred rather than her General Practitioner. Ms Crafter waited to see the psychologist to obtain the evidence before filing her claim.
Ms Crafter placed into evidence a letter from her treating psychologist, Dr Benjamin Stewart, dated 4 December 2023. In the correspondence, Dr Stewart advised:
(a)The Applicant had requested he write the letter;
(b)She had seen him for therapy on 14 and 21 November 2023;
(c)Ms Crafter had been referred to him for opinion and management of anxiety and depression, noting it had been prominent from April 2023;
(d)The prominent period of her illness had followed a reported period of workplace bullying; and
(e)The Applicant had previously been involved in a protracted civil legal matter, which contributed to her anxiety about litigation against her former employer.
Dr Stewart also listed a number of symptoms the Applicant reported to him that she experienced following her resignation, including anxious and irritable mood, muscle tension, shaking hands, stomach pains, decreased motivation, avoidance of thoughts or situations related to her work, and feelings of being overwhelmed.
Dr Stewart’s certificate says that Ms Crafter “has had brief bouts of depressed mood during this time”. Ms Crafter in her oral evidence agreed with the view expressed by Dr Stewart in his report and confirmed that her depression and anxiety was “undulating” with some severe low points, being immediately after her dismissal and then again in July 2023, but between those points she had “smaller waves of ups and downs.”
Dr Stewart relevantly finds: “it is my opinion that Emily’s poor mental health following her resignation was a barrier to her timely submission of the documents required for her constructive dismissal claim.”
Ms Crafter’s evidence was that she started applying for work in early November 2023 when she felt up to it and started her current role on 30 November 2023.
Ms Crafter also submitted a witness statement from her friend and former Team Leader Mr Davidovic. Mr Davidovic attended the hearing with the Applicant and gave oral evidence on her behalf. The majority of Mr Davidovic’s written evidence was focused on the events leading up to the Applicant’s resignation and his observations of the bullying conduct in the workplace.
Relevant to the matter at hand, Mr Davidovic said that he visited Ms Crafter approximately once a week after her resignation from employment and observed a marked deterioration in her health. He notes that he observed that Ms Crafter lost weight, was “generally listless, bedbound, unkempt” and confirmed his observations of a further deterioration in the Applicant’s presentation from July 2023. He also reported that Ms Crafter did not provide the same level of care as she previously had for her beloved dog following her resignation and would not engage in activities with Mr Davidovic that she previously found interesting.
Mr Davidovic also noted that following Ms Crafter reporting to him that she had increased her medication that she appeared “better able to manage her own affairs.”
The Respondent’s submissions
The Respondent submits there are no exceptional circumstances in this matter that warrant the granting of an extension of time.
With respect to the reasons advanced by the Applicant as reasons for the delay, the Respondent submits that there is no evidence of hospitalisation or inpatient treatment of the Applicant that may constitute a reasonable explanation for the delay on account of her mental illness. They draw attention to the delay in the Applicant seeking medical treatment until 203 days after her resignation.
The Respondent criticises what they describe as a “generalised” report from Dr Stewart that does not “directly deal with the Applicant’s capacity to make an application to the Commission”.[6] The Respondent refers to the matter of O’Shaughnessy v Peter Rowland Group Pty Ltd[7] wherein the Commission noted “The absence of medical evidence, or “generalised” medical evidence, will typically be insufficient to establish a contention that the delay is occasioned by medical incapacity.”[8] The Respondent submits that the report of Dr Stewart relies solely on the Applicant’s self-reporting of her symptoms and that he refers to a diagnosis of anxiety and not one of depression.
The Respondent submits that the Commission cannot rely on the evidence of Mr Davidovic because he is not a medical professional and he only saw the Applicant, at best, once a week.
The Respondent’s questions in cross-examination of the Applicant and their submissions had an emphasis on the capacity of the Applicant in the period following her dismissal until the date of filing the application. The Respondent asserts that the Applicant was not “incapacitated and incapable of filing an unfair dismissal within the statutory time period”.[9] They cite the Applicant’s capacity to leave a review regarding her employment on the internet on 2 October 2023, and her engagement in medical treatment and managing her financial affairs in the period before she filed her claim as evidence of her capacity, which could have extended to filing this claim.
The Respondent notes that to the extent the Applicant relies on her own diagnosis of an autoimmune disease and her step-mother’s cancer diagnosis as reasons for the delay, no evidence regarding resulting incapacity to the Applicant was given.
In summary, the Respondent submits that there is insufficient evidence to accept the three possible reasons given for the delay of the Applicant in filing her claim. They also assert that the reasons advanced are not, on their own or in combination, able “to support a finding of a sufficient explanation for the Applicant’s delay which amounts to exceptional circumstances”.[10]
With respect to the other matters for consideration pursuant to section 394(3) of the Act, the Respondent submits:
(a)There is no argument that the Applicant resigned on 14 April and that resignation was accepted on 17 April 2023, so she was aware her employment had come to an end on the date she resigned;
(b)The Applicant did not withdraw her resignation after she tendered it on 14 April 2023 or after it was expressly accepted by the Respondent on 17 April 2023, and therefore took no action to dispute her dismissal;
(c)The Respondent will be prejudiced if the extension is granted because four employees named in Ms Crafter’s complaints are no longer employed by the Respondent, which will prejudice their ability to respond to the substantive application;
(d)The Applicant’s claim lacks merit because her claim is unlikely to survive the further jurisdictional objection that there was no dismissal at the initiative of the employer, but otherwise the consideration of merit should be considered neutral in my reasoning;
(e)There are no relevant issues of fairness between the Applicant and persons in a similar position and I should also consider this factor as neutral.
Consideration of exceptional circumstances
Section 394(3) of the Act requires that when considering whether to grant an extension of time, the Commission must take into account the following:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether exceptional circumstances exist in the context of this matter.
Reason for the delay
To summarise the Applicant’s evidence, she asserts she was so ill as a result of a mental illness or illnesses that she was unable to file or otherwise engage in an unfair dismissal proceeding in the Fair Work Commission from the time of her resignation on 14 April 2023 until late October 2023. By that time, it is the Applicant’s evidence that she had taken time to recover and increased her medication to such a level that she had the capacity to file and prosecute her claim.
The Applicant accepts that at various time she was made aware of, or otherwise confirmed, her understanding that the statutory time limit to commence an unfair dismissal proceeding was 21 days. The Applicant says in her evidence that she was aware of the time limit from unrelated circumstances dating back to 2013, her friend who supported her after the termination reminding her and her own research undertaken soon after her resignation.
Once the Applicant had determined she was able to commence an unfair dismissal proceeding in late October 2023, she decided that she needed to obtain medical evidence in support of her application to extend time before she filed her claim. She then took the first step to obtain that medical evidence by making an appointment with her General Practitioner on 3 November 2023 and sought a referral to a psychologist. She then consulted with Dr Stewart, a psychologist, on 14 and 21 November 2023. Dr Stewart provided a report on 4 December and the Applicant filed her claim on 7 December 2023.
In the matter of Blanco v White Bathroom Co Pty Ltd,[11] Deputy President Easton considered an application for an extension of time in an unfair dismissal matter where the Applicant advanced as a reason for the delay the “debilitating effects of his anxiety disorder.”[12] In this matter, the Deputy President considered a number of relevant authorities. He noted:
“Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.”[13]
The Deputy President goes on to say:
“It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.”[14]
Dr Stewart consulted with the Applicant many months after the period in which the Applicant describes experiencing a period of depression and anxiety with significant incapacity. As the Applicant did not seek any medical advice or treatment in the approximate five and a half months following her resignation, no medical practitioner could provide contemporaneous observations of her illness and incapacity. In any event, the medical evidence provided does not directly confirm that in Dr Stewart’s medical opinion, the Applicant was unable to file her claim. Dr Stewart rather confirms that Ms Crafter’s “poor mental health” was a “barrier to her timely submission of the documents.”[15] I therefore give the medical evidence submitted by the Applicant little weight in my decision as to whether Ms Crafter’s mental health provides a credible reason for delay.
However, I find Ms Crafter’s evidence with respect to her illness and incapacity so persuasive that I accept she was incapacitated to such a degree that she could not file her unfair dismissal application until late October 2023. Her evidence about her illness was detailed, informed and honest. She explained the effects of her illness in such a way that I understood and believed that she was so impaired that she could not file the application, nor could she engage in any process that followed the filing of her claim that brought her back into conflict with the Respondent.
With respect to the stressors the Applicant experienced in July 2023 that on her evidence caused a greater incapacity, I accept they occurred as the Applicant has reported them. The Applicant was already so unwell and incapacitated from April 2023 until these events in July 2023 that she was unable to file her application. Ms Crafter was likely more incapacitated after the events of July 2023, which she describes as being the worst time for her depression and anxiety. Her capacity to file the application remained unchanged after these events.
I also do not accept the Respondent’s submission that because the Applicant could undertake some activities of daily living during the period she asserts she was unable to file her claim, such as monitoring her finances online, that she had a greater capacity than she claimed and could have filed her application. Ms Crafter articulately explained that her capacity was affected by the nature of the task, and she avoided engaging in matters related to the Respondent and her resignation.
As medical evidence is not a “requirement per se”[16] to establish incapacity, the Applicant’s evidence is sufficient in this matter to persuade me that her illness was a credible reason for her delay until approximately the end of October 2023.
If this were the end of the matter, I would consider the reason for delay a compelling factor in finding that exceptional circumstances exist.
However, on the Applicant’s evidence, when she regained sufficient capacity to file her application she made the strategic decision to delay the filing of her claim further to await a letter of support from a treating psychologist. It seems the Applicant did not seek a letter or certificate from her General Practitioner, but rather obtained a referral to a psychologist, consulted with that psychologist on 14 and 21 November 2023 and then when she received medical evidence from her psychologist on 4 December 2023, filed her claim 3 days later.
The Applicant had approximately five weeks from the time she had the capacity to commence these proceedings to when she obtained the medical evidence and filed her claim. In that period she was well aware that she was already significantly outside of the statutory time frame. The decision to wait was an error on the part of the Applicant as waiting to obtain supporting evidence is not a circumstance that can be described as “out of the ordinary course, or unusual or special, or uncommon”[17] but rather is a circumstance that is “regularly, or routinely, or normally encountered.”[18] Applicants before this Commission either seeking an extension of time or prosecuting a substantive claim, are likely to require evidence, and often medical evidence, to argue their case. A delay for this reason is not an exceptional circumstance.
The Applicant’s evidence of her misunderstanding that she ought to wait until she had medical evidence before filing her claim is supported by the fact she received the letter from her psychologist on 4 December 2023 and filed her application soon thereafter.
Ms Crafter, being aware that she had a 21 day statutory time period in which to file her claim and that she was significantly outside of that time, should have acted with urgency to file her claim as soon as she regained capacity to do so. Her failure to do so and the reason advanced for failing to do so do not provide a credible reason for the delay between the end of October 2023 and 7 December 2023 when she filed the claim.
In the matter of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[19] the Full Bench held:
“It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.”[20] …
and
“if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”[21]
In this case the Applicant has failed to provide a credible explanation for the last five weeks of the delay. Whilst it is not necessary for an extension of time to be granted that there is an explanation for the entirety of the delay, the lack of a credible explanation for a part of the delay must be weighed in determining whether exceptional circumstances exist. The failure of the Applicant to provide a credible explanation for the final part of the delay, from the end of October 2023 onwards, is a factor that in my mind, weighs against a finding of exceptional circumstances.
When the Applicant first became aware of the dismissal
As the Applicant’s employment came to an end by way of her resignation, there is no dispute that she was aware of the conclusion of her employment. The Applicant’s resignation was expressly accepted by the Respondent.
Therefore, Ms Crafter had the balance of the 21 days to file an unfair dismissal claim, asserting that it was a forced resignation and therefore a termination at the initiative of the employer.[22]
Any action taken by the applicant to dispute the dismissal
The Applicant resigned from her employment following receipt of a disciplinary warning from her employer that she says was unfair. Ms Crafter did take steps to raise concerns about the warning and gave evidence that even after her resignation, she offered the Respondent an ultimatum that if they reversed the warning, she would withdraw her resignation.
The Respondent pointed out that the Applicant did not seek to withdraw her resignation after she tendered it on Friday, 14 April 2023, or after the Respondent accepted it on 17 April 2023. However, the Respondent did not call any evidence to contradict the assertion of the Applicant that she continued to negotiate with the Respondent regarding her resignation after she offered it and in doing so, was disputing the circumstances that the Applicant argues led to her forced resignation.
However, after the Respondent accepted the Applicant’s resignation, the Applicant ceased her negotiations with the Respondent. Given the passage of time that elapsed between the resignation and the filing of the application, the Respondent was unlikely to have expected to have to defend this application.
The initial action taken by the Applicant to dispute what she argues was a forced termination weighs in favour of granting an extension of time.
Prejudice to the employer, including prejudice caused by the delay
The Respondent has asserted that they will be prejudiced if the extension of time is granted because four employees previously engaged by them and named by the Applicant as playing a role in the circumstances that led to the end of her employment, no longer work for the Respondent. The Respondent argues that the witnesses’ unavailability to “input into further submissions or to appear as a witness to respond to the veracity of events and allegations included in the Applicant’s submissions will prejudice the ability of the Respondent to respond to the Application.”[23]
There is no evidence or submission before me that the Respondent asked the witnesses to give evidence and they have refused or otherwise advised they are unavailable. Whether the witnesses continue to be employed by the Respondent is not determinative of whether they will give evidence if asked. The fact they have ceased employment with the Respondent could perhaps be said to remove a pressure point on an employee witness to give evidence in a matter, or otherwise affect the capacity of the Respondent to direct or influence an employee to participate in proceedings.
In my view, the fact that an employee witness has left employment with a respondent places that respondent at no greater prejudice than an applicant employee who has resigned or been terminated having to approach and ask former colleagues, clients, customers, managers and the like to give evidence on their behalf.
The issue to my mind is not whether there is prejudice caused by witnesses no longer being employed by the Respondent but rather how the delay may impact the evidence given. For example, the passage of time may have affected the recollection of the witnesses on which each party seeks to rely. I do not accept the Respondent’s submissions with respect to likely prejudice to them, but do not take the consideration any further as no alternative submission has been made by the Respondent.
I consider this factor neutral in my reasoning.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[24] The primary consideration is whether the Applicant has an arguable case.[25]
For the Applicant to succeed in a claim for unfair dismissal it will be necessary for her to establish as a threshold issue that she has been dismissed.[26] Section 386 of the Act provides the meaning of dismissed and says:
“386 Meaning of dismissed
(1)A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
The Applicant said in her oral evidence that after receiving a warning for her conduct at work, when other more serious conduct that she alleges was directed towards her had been left unpunished, that she “had no option but to resign”. She referred to her resignation in her evidence as a “constructive dismissal”.[27]
To overcome the next jurisdictional objection the Applicant will have to persuade the Commission that she was forced to resign because of the conduct, or a course of conduct engaged in by the Respondent. The inclusion of the word ‘forced’ in the Act reflects the high standard that must be met.
The Applicant’s case is not entirely without merit, but it will be difficult for her application to survive the next jurisdictional objection regarding whether she was forced to resign after receiving a disciplinary warning, in the context of her complaints of bullying. This consideration weighs against the extension being granted.
Fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[28] considered this criterion and said:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[29]
Fairness as between the person and another person in a similar position may involve a comparison of cases involving similar facts.[30]
The Applicant makes no submission with respect to this factor and the Respondent says that there are no relevant issues of fairness in this matter.
I have turned my mind to fairness between this Applicant and others in a similar position and considered whether it would be fair if this Applicant were to be granted an extension of time when other applicants with a similar length of delay and similar reasons for that delay have been refused. However, each case turns on its own facts. There have been cases where an extension of time has been granted after a lengthy delay in filing on account of an applicant’s mental health issues, either as a stand-alone reason or combined with other reasons, and many where the extension has been refused.
In these circumstances, where the experience of the Applicant’s illness and incapacity are so particular to her, fairness between the Applicant and others in a similar position cannot be determined by a comparison of cases with similar facts. Therefore, this consideration is neutral in my decision.
Conclusion
The Applicant does not provide a sufficient reason for the notable period of delay from when she had capacity to lodge the claim but delayed in doing so. Whilst an explanation for the entirety of the delay is not necessary to grant an extension, in this case the lack of an adequate explanation for the entire period, weighs against finding exceptional circumstances exist. The reason advanced by the Applicant for the delay in filing the claim at the time the Applicant had capacity to file as seeking medical evidence in support of the application, does not constitute exceptional circumstances.
Weighing the considerations set out in section 394(3) of the Act, including the lack of a sufficient reason for a part of the delay and the merits of the claim, against the steps taken by the Applicant to address the circumstances surrounding the end of her employment, leads me to conclude that no exceptional circumstances exist to warrant an extension of time to file the application.
It follows that the Applicant’s application for a remedy arising from a claim for unfair dismissal must be dismissed.
COMMISSIONER
Appearances:
E Crafter, the Applicant on her own behalf with D Davidovic.
C King and H Maher of DLA Piper Australia with permission, with R Dudas on behalf of the Respondent.
Hearing details:
Adelaide (Hybrid hearing with video via MS Team)
2024
15 January.
[1] Form F2 – Unfair dismissal application.
[2] Ibid.
[3] Applicant’s document list.
[4] Applicant witness statement at page 4.
[5] See Applicant witness statement at page 4.
[6] Outline of submissions for the Respondent at paragraph 16.
[7] [2023] FWC 507.
[8] Ibid at [36].
[9] Outline of submissions for the Respondent at paragraph 23.
[10] Ibid at paragraph 32
[11] [2021] FWC 4694 (‘Blanco’).
[12] Ibid at [2].
[13] Ibid at [44].
[14] Ibid at [50].
[15] See report of Dr Stewart dated 4 December 2023.
[16] As above see Blanco.
[17] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[18] Ibid.
[19] [2018] FWCFB 901.
[20] Ibid at [40].
[21] Ibid at [45].
[22] See section 386(1)(b) of the Act.
[23] Outline of submissions for the Respondent at paragraph 42 with similar submissions set out in paragraphs 39 – 41.
[24] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph [14].
[25] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[26] See section 385 of the Act.
[27] Applicant’s Statement of Evidence at page 5.
[28] [2016] FWCFB 6963.
[29] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] 750.
[30] Croker v Erndit Logistics Pty Ltd[2023] FWCFB 224 at [49].
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