Emma Wild v Escala Partners Ltd. T/A Escala Partners
[2018] FWC 3146
•1 JUNE 2018
| [2018] FWC 3146 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Emma Wild
v
Escala Partners Ltd. T/A Escala Partners; Matthew Zanders
(C2018/1284)
COMMISSIONER SAUNDERS | NEWCASTLE, 1 JUNE 2018 |
Application to deal with contraventions involving dismissal – late application – exceptional circumstances – extension of time granted.
Introduction
[1] Following a hearing on 11 May 2018 (11 May Hearing), I published a decision on 17 May 2018 in which I found that the employment relationship between Ms Wild and Escala Partners Ltd (Escala) came to an end on 19 December 2017 (First Decision). 1 Ms Wild filed her general protections application involving an alleged dismissal (Application) on 9 March 2018.
[2] Section 366 of the Fair Work Act (Cth) (Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (Commission) for it to deal with a general protections dispute pursuant to s.365 of the Act must make an application within 21 days after the dismissal took effect. 2 However, the Commission may allow a further period for the application to be made in exceptional circumstances.3
[3] In light of my finding that the employment relationship came to an end on 19 December 2017, the Application was filed 59 days late. 4
[4] This decision concerns whether I should exercise my discretion to allow Ms Wild a further period for her Application to be made.
The Hearing
[5] On 24 May 2018, a hearing was conducted by telephone in relation to Ms Wild’s application for an extension of time (24 May Hearing).
[6] Prior to the 11 May Hearing, Ms Wild filed a witness statement in which she addressed both the date her employment relationship with Escala came to an end and factors relevant to her application for an extension of time. That witness statement was tendered at the 11 May Hearing, 5 as was a witness statement made by Mr Pep Perry.6 Both Ms Wild and Mr Perry were cross examined at the 11 May Hearing in relation to matters relevant to when the employment relationship between Ms Wild and Escala came to an end. There is plainly some overlap between the issues and factors relevant to the question of when the employment relationship came to an end and whether an extension of time should be granted.
[7] I ruled at the commencement of the 24 May Hearing that the evidence adduced in the 11 May Hearing concerning the date on which the employment relationship came to an end would also form part of the evidence before the Commission for the purpose of determining Ms Wild’s application for an extension of time. As a result of that ruling, the witness statements of Ms Wild 7 and Mr Perry,8 together with the oral evidence they gave at the 11 May Hearing, formed part of the evidence before the Commission in relation to Ms Wild’s application for an extension of time.
[8] At the 24 May Hearing, counsel for Escala was given the opportunity, which he took up, to cross examine Ms Wild in relation to matters relevant to her application for an extension of time. Ms Wild’s general practitioner, Dr Rosanne Russell, also gave evidence at the 24 May Hearing and was cross examined by counsel for Escala.
Legislative Scheme
[9] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:
“(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[10] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 9
[11] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 10In that matter the Full Bench held the following in relation to “exceptional circumstances”:11
“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.”
Consideration
Reasons for delay – s.366(2)(a)
[12] It is relevant to consider whether the applicant has provided a credible and acceptable reason for any part of the period that the application was delayed. 12 Ignorance of the 21 day timeframe is not an exceptional circumstance.13
[13] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is an acceptable reason for the delay beyond the 21 day period and ultimately whether that reason constitutes, or contributes to a finding of, exceptional circumstances. 14 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:15
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
Relevant chronology of events and reasons for delay
[14] As stated above, the Application was filed 59 days late.
[15] In accordance with the principles summarised in paragraphs [12] to [13] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging a general protections application. In this case, that is the period from 9 January 2018 to 9 March 2018. However, the circumstances from the time the employment relationship came to an end (19 December 2017) must be considered in order to determine whether there is an acceptable reason for any part of the delay beyond the 21 day period.
[16] In my First Decision I made the following findings in relation to Ms Wild’s understanding and belief concerning the cessation of her employment with Escala:
“[34] … I accept, on the balance of probabilities, Ms Wild’s evidence that she understood and believed from her discussion with Mr Perry on 19 December 2017 that she would remain employed by Escala until she found other employment, but that after receiving the 20 December 2017 letter from Escala she understood and believed her employment with Escala would end on 19 February 2018. Ms Wild stood firm when cross examined about those matters. Further, in my view, it is plausible that a lay person, particularly one in an emotionally distressed state, such as Ms Wild, would believe that they would remain employed by their employer while they were being paid their usual salary, even though their last day in the office was 19 December 2017. Ms Wild’s email of 22 December 2017 to Ms Allamby does not make any reference to her belief that she remained employed by Escala, but it is clear from the email that Ms Wild’s main focus at that time was ensuring that she continued to be paid during the period of time she needed to recover and find another job. I do not consider that email, including the references in it to “severance pay”, “severance time/pay” or Ms Wild’s need to get another job, as inconsistent with Ms Wild’s evidence as to her understanding and belief concerning her ongoing employment with Escala.”
[17] Having carefully considered the evidence adduced at the 24 May Hearing, together with the evidence adduced at the 11 May Hearing, I am satisfied that it is appropriate to adopt the findings set out paragraph [34] of my First Decision in my consideration of Ms Wild’s application for an extension of time pursuant to s.366 of the Act.
[18] Further, in light of the ambiguity in the letter sent by Escala to Ms Wild on 20 December 2017 16 and the facts, matters and circumstances referred to in paragraph [38] of my First Decision, I am satisfied that Ms Wild had reasonable grounds for believing that her employment with Escala would end on 19 February 2018. That is so notwithstanding my conclusion that Ms Wild’s employment relationship with Escala in fact came to an end on 19 December 2017. As was the case in Cruz v Scott’s Transport Industries Pty Ltd,17 the employer’s (Escala’s) conduct contributed to the belief held by Ms Wild.
[19] Ms Wild also relies on her mental and emotional wellbeing in the period leading up to and following her meeting with Mr Perry on 19 December 2017, in support of her contention that her ability to take pro-active steps in relation to her rights was impaired in the period from 19 December 2017 to early February 2018. Escala submits that however distressed Ms Wild was in the period from 19 December 2017, she was in a fit state to make decisions about commencing legal proceedings, with the result that her state of mind is a neutral factor in the Commission’s consideration of this matter.
[20] I accept the following evidence which Ms Wild gave in relation to this issue:
• the way in which Ms Wild believes she was treated during the course of her employment with Escala had a profound impact on her confidence, sense of self, and general health and well-being; 18
• Ms Wild was highly stressed and emotional at the time of her meeting with Mr Perry on 19 December 2017; 19
• although Ms Wild was planning and hoping, at the time she sent her email to Ms Allamby on 22 December 2017, to get back into the workforce as soon as possible, she was not coping very well at that time and, as a result, she could not have taken up alternative employment at that time;
• on 21 December 2017, Ms Wild sought medical treatment from Dr Russell in relation to the symptoms she was experiencing as a result of her employment with Escala. Ms Wild also saw Dr Russell on 15 February 2018 for further treatment. Ms Wild was prescribed medication by her doctor for her symptoms; 20
• during the period between 20 December 2017 and mid-February 2018, Ms Wild rarely left her house, although she did travel out of Sydney on a number of occasions in that period to see her mother and aunt;
• Ms Wild obtained treatment from a psychologist in relation to the symptoms she was experiencing in connection with her employment with Escala. Ms Wild is not sure when she commenced seeing the psychologist, but believes it may have been in about February 2018, after she felt more able to leave her house;
• on 22 December 2017, Ms Wild had a clear recollection of the events which took place on 19 December 2017; and
• at the time of making her witness statement (27 April 2018), Ms Wild stated that she was still “unable to work as a result of the treatment” she suffered during her employment with Escala. 21
[21] Ms Wild knew by at least 22 December 2017 that she was in dispute with Escala about the payments to be made to her. So much is clear from Ms Wild’s email of 22 December 2017 to Ms Allamby. 22 However, I accept Ms Wild’s evidence that she did not think, at the time she sent her email to Ms Allamby on 22 December 2017, that her dispute with Escala may need lawyers to resolve it. Ms Wild knew that she would be paid by Escala until 19 February 2018 and it is clear from her 22 December 2017 email that she was hopeful of working “out an amount of severance time/pay that is mutually beneficial”.23
[22] Dr Russell provided a medical report dated 1 May 2018 in the following terms:
“This is to certify that Emma Wild has attended our surgery since 2009.
I have attended Emma Wild from the period December 2017, and am treating her from this time forward.
Emma Wild presented during this time with tearfulness, inability to sleep, panic attacks and loss of motivation and poor self worth. This occurred following bullying treatment at her work place.
I have never seen Emma Wild in this condition previously.”
[23] Dr Russell also gave oral evidence at the 24 May Hearing. I accept the following oral evidence given by Dr Russell at the 24 May Hearing:
• Dr Russell saw Ms Wild on 21 December 2017 and again on 15 February 2018;
• on 21 December 2017, Dr Russell recommended Ms Wild take leave due to the anxiety she was feeling;
• at no time did Dr Russell encourage Ms Wild to commence legal proceedings or an employment law proceeding, but she did encourage Ms Wild on 21 December 2017 to seek workers’ compensation;
• on 21 December 2017, Dr Russell suggested that Ms Wild seek counselling from a psychologist and that she come back to see her if things did not improve and to see her again in relation to her workers’ compensation claim;
• Ms Wild was able to communicate fluently with Dr Russell on 21 December 2017, even though she was crying;
• Ms Wild understood on 21 December 2017 that she felt bullied and was not able to continue on in her job;
• notwithstanding the emotional state she was in on 21 December 2017, Ms Wild was still understanding of what had happened to her;
• Ms Wild was very anxious on 21 December 2017, so there may have been slight concerns as to her mental fitness to make decisions; and
• Ms Wild told Dr Russell that she was taking her case against Escala to her lawyers.
[24] I find that Dr Russell was a reliable and credible witness. She had a good recollection of relevant events and answered questions put to her in cross examination in a direct and responsive manner.
[25] There is no question that Ms Wild was very upset in the period leading up to and following her meeting with Mr Perry on 19 December 2017. However, in my view, it is telling that Ms Wild did not see Dr Russell at any time in the period between 21 December 2017 and 15 February 2018, notwithstanding Dr Russell’s offer for Ms Wild to see her again if things did not improve, and Ms Wild did not, to the best of her recollection, see a psychologist until about February 2018. In addition, Dr Russell gave evidence that although Ms Wild was very anxious on 21 December 2017, Dr Russell only had a “slight concern” as to Ms Wild’s mental fitness to make decisions. Accordingly, although I accept that Ms Wild remained very upset, anxious and emotional from 19 December 2017 through to at least February 2018, I find that Ms Wild was not incapacitated or otherwise unable to make, a decision in the period from 19 December 2017 to mid-February 2018 about whether to commence legal proceedings against Escala or to seek advice about such proceedings. I also find that Ms Wild was not significantly impaired from making such a decision. It follows, in my view, that Ms Wild’s state of mind was not a credible or acceptable explanation for any part of the delay in making the Application.
[26] In her witness statement, Ms Wild stated that the reason she called her solicitor on 12 February 2018 was because “Dr Russell encouraged me to seek assistance”. 24 One issue with that statement is Dr Russell’s evidence, with which Ms Wild agreed, that she only saw Ms Wild on 21 December 2017 and 15 February 2018. Clearly, Dr Russell could not have encouraged Ms Wild on 15 February 2018 to seek assistance on 12 February 2018. In addition, I accept Dr Russell’s evidence that at no time did she encourage Ms Wild to commence legal proceedings or an employment law proceeding, but she did encourage Ms Wild on 21 December 2017 to seek workers’ compensation.25
[27] Ms Wild ultimately gave evidence that her discussions with Dr Russell did not have any bearing on her decision to seek legal advice from her solicitor in February 2018. Her evidence in that regard was inconsistent with her witness statement and other oral evidence given by her.
[28] Escala submits I should find that on 21 December 2017, Dr Russell encouraged Ms Wild to seek legal assistance or take legal proceedings in relation to her employment dispute with Escala and Ms Wild did nothing about that until 12 February 2018. I do not accept that submission. I accept Dr Russell’s evidence that at no time did she encourage Ms Wild to commence legal proceedings or an employment law proceeding, but she did encourage Ms Wild on 21 December 2017 to seek workers’ compensation.
[29] I accept Ms Wild’s oral evidence that she discussed her dispute concerning Escala with her friends and one or more of them gave her a recommendation in February 2018 to contact Mr Justin Le Blond of Kennedys. I accept that evidence, on the balance of probabilities, because it is consistent with both (a) Dr Russell’s evidence that at no time did she encourage Ms Wild to commence legal proceedings or an employment law proceeding and (b) Ms Wild’s evidence that she met with Mr Le Blond on 14 February 2018, which is likely, in view of the fact that Mr Le Blond’s letter was sent to Escala on 16 February 2018. 26
[30] By sending his letter to Escala on 16 February 2018, Mr Le Blond acted quickly following his initial meeting with Ms Wild on 14 February 2018. There is no evidence about what response, if any, Escala made to the 16 February 2018 letter from Mr Le Blond. Ms Wild’s Application was filed in the Commission on 9 March 2018, which is three days prior to when the 21 day time limit would have expired had the employment relationship between Ms Wild and Escala come to an end on 19 February 2018, as Ms Wild believed to be the case. Accordingly, Ms Wild and Mr Le Blond acted without delay after Ms Wild first made contact with Mr Le Blond on 12 February 2018.
[31] Ms Wild had in the past engaged a law firm to assist her in family law proceedings. As a result, she had some experience in engaging lawyers and with the legal system. Ms Wild has not sought to rely on ignorance of the 21 day timeframe or the legal system to justify her delay. Had she done so, I would not have accepted them as credible or acceptable reasons for the delay in filing the Application.
[32] For the reasons set out in paragraphs [14] to [18] and [26] to [30] above, I am satisfied that Ms Wild has provided a credible and acceptable explanation for the whole of the delay in filing her Application. This factor weighs in favour of a finding of exceptional circumstances and granting Ms Wild an extension of time.
Any action taken by the person to dispute the dismissal – s.366(2)(b)
[33] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 27
[34] On 16 February 2018, Ms Wild’s solicitors wrote a letter to Escala concerning Ms Wild’s allegation that she was bullied, harassed, belittled and intimidated by Mr Zander and the communications between Ms Wild and Mr Perry on 19 and 20 December 2017. 28 In that letter, Ms Wild’s solicitors asserted that the employment relationship between Ms Wild and Escala remained on foot. It could, therefore, be argued that the letter was not action taken by Ms Wild to dispute the dismissal. However, in light of my finding that the employment relationship in fact came to an end on 19 December 2017, the letter from Ms Wild’s solicitors to Escala on 16 February 2018 did, in substance, dispute the alleged dismissal. Accordingly, I am satisfied that Ms Wild took some action on 16 February 2018 to dispute her alleged dismissal before lodging her Application on 9 March 2018, albeit this action was taken well after the 21 day time period came to an end on 9 January 2018.
[35] In the circumstances, this factor (s.366(2)(b)) weighs slightly in favour of a finding of exceptional circumstances and the grant of an extension of time.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
[36] Prejudice to the employer will weigh against granting an extension of time. 29 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.30 The employer must produce evidence to demonstrate prejudice.
[37] A long delay gives rise “to a general presumption of prejudice”. 31 The period of the delay in this matter was reasonably lengthy (59 days).
[38] Escala has not adduced any evidence to establish prejudice.
[39] I am satisfied that there would be no greater prejudice to Escala and Mr Zander caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. In the circumstances, I find that prejudice to Escala (including prejudice caused by the delay) is a neutral consideration.
Merits of the application – s.366(2)(d)
[40] Ms Wild made complaints to Escala during her employment relationship. However, there are significant issues between the parties as to whether Ms Wild was dismissed, and if so, whether she was dismissed because she made one or more complaints. Those issues will not be able to be determined until there is a full hearing on the merits, and relevant witnesses are cross examined. In the circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether there are exceptional circumstances and whether I should extend time for the Application to be made.
Fairness as between the person and other persons in a like position – s.366(2)(e)
[41] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 32 considered this criterion and said (at [41]):
“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.”
[42] I am not satisfied that the issue of fairness as between Ms Wild and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant, I find that this factor it is a neutral consideration in determining whether there are exceptional circumstances and whether to grant an extension of time.
Conclusion
[43] Ms Wild’s circumstances were out of the ordinary course, unusual, special and uncommon, in that she honestly and reasonably believed that she would remain employed by Escala until 19 February 2018. Escala’s conduct contributed to her belief in that regard. Ms Wild acted reasonably and diligently to instruct a solicitor to file her Application within 21 days of 19 February 2018 and the Application was in fact filed within that timeframe. Having considered and taken into account those matters, together with the other factors under s.366(2) of the Act, I am satisfied that there are exceptional circumstances in this case. The exceptional circumstances threshold having been met, I am also satisfied, for the same reasons, that it is appropriate to exercise my discretion to extend time.
[44] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I will issue an order extending time to 9 March 2018 [PR607676].
COMMISSIONER
Appearances:
Ms J Seymour, of counsel, on behalf of the Applicant
Mr A Aleksov, of counsel, on behalf of the Respondent
Hearing details:
2018.
Newcastle:
24 May
Printed by authority of the Commonwealth Government Printer
<PR607677>
1 Wild v Escala Partners[2018] FWC 2777 at [43] (First Decision)
2 Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
3 Section 366(2) of the Act
4 That is, 9 March 2018 is 59 days after 9 January 2018.
5 Ex A1
6 Ex R1
7 Ex A1
8 Ex R1
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 [2011] 203 IR 1
11 Ibid at [13]
12 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
13 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
14 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
15 [2016] FWCFB 349 at [31]
16 First Decision at [39]-[40]
17 [2014] FWC 7178 at [43]-[44] & [49]
18 Ex A1 at [27] and annexure C
19 Ex A1 at [13]
20 Ex A1 at annexure C
21 Ex A1 at [31]
22 Ex A1 at annexure C
23 Ibid
24 Ex A1 at [32]
25 See paragraph [22]
26 Ex R1 at annexure E
27 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
28 Ex R1 at annexure E
29 Ibid
30 Ibid
31 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
32 [2016] FWCFB 6963
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