Erin Skinner v Amplified Business Solutions Pty Ltd
[2024] FWC 3067
•6 NOVEMBER 2024
| [2024] FWC 3067 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Erin Skinner
v
Amplified Business Solutions Pty Ltd
(U2024/12166)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 6 NOVEMBER 2024 |
Unfair dismissal application filed out of time – circumstances exceptional – extension of time granted
Introduction
This decision concerns an application by Ms Erin Skinner (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, Amplified Business Solutions Pty Ltd (Respondent).
The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).
I conducted a hearing, by telephone, on 4 November 2024 in relation to the Applicant’s request for an extension of time.
The Applicant’s dismissal from her employment with the Respondent took effect on 9 September 2024. The Applicant lodged her unfair dismissal application in the Commission on 13 October 2024.
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 the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 30 September 2024. The application was therefore filed 13 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(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 there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]
Relevant facts and submissions
In her unfair dismissal application, the Applicant gave the following explanation for her application being filed outside the 21 day period provided for in the Act:
“Psychological health and physical health. Extreme anxiety and potentially PTSD as per psychiatrist appointment.
Had to take anxiety specific medication, which exacerbated my chronic fatigue. No sleep many nights, and minimal sleep in general over the first two weeks after dismissal.
The anxiety and other feelings caused extreme fatigue and exacerbated my physical pain conditions.”
In an email to the Commission sent on 23 October 2024, the following further information was provided by the Applicant in relation to the reason for the filing of her late application:
“Between my mental health and medication I was placed on, I did not have the capacity to complete the application. I did attempt the application numerous times during the 21 days, it was too difficult.”
On 30 October 2024, the Applicant provided a further email to the Commission in support of her request for an extension of time, stating, among other things:
“Extreme panic attacks and trauma take an extreme toll on your physical and mental health for extended periods of time, and do not subside simply by leaving the scene. I had numerous nights of no sleep at all, and others only 3-4 hours, exacerbating my health even further. During this I had to parent and continue to function, this was near
impossible. This is why I was prescribed a medicine usually reserved for bipolar and schizophrenic patients, which made me drowsy to the extent that I was not capable of completing the unfair dismissal application within the 21-day time frame.”
The Applicant’s evidence in relation to these matters is supported by the following documentary material:
(a)The Applicant’s general practitioner provided a letter dated 16 October 2024 in the following terms:
“This is to confirm that Erin Skinner continues to suffer from worsening anxiety and depression post being dismissed by her long term employer. She had seen the psychiatrist on the 24th of September and he noted that her mental health was worse and started her on a medication to help. She also had sleep disturbances and issues due to this event in her life and this was noted in her review with the psychiatrist.
The side effects of this medication includes drowsiness and this has hindered her from sending the application to Fair Work in a timely manner.”
(b)The Applicant’s treating psychiatrist provided a letter dated 29 October 2024 in which he explained the Applicant’s diagnosis and conditions and expressed the opinion that the Applicant’s symptoms, combined with the effect of her conditions, “significantly impacted her ability to meet deadlines and manage tasks effectively”.
(c)An ambulance report referring to the fact that an ambulance was called on 9 September 2024 because the Applicant had an anxiety attack whilst at work. This happened on the day that the Applicant was told she was being summarily dismissed.
The Applicant met with the wife of the Managing Director about a week after her dismissal. The Applicant says that she was shaking and “not ok” during this interaction.
I accept the Applicant’s evidence, which is supported by the documentary material summarised in paragraph [15], that she did not have the capacity to complete her unfair dismissal application in the 21 day period immediately following her dismissal. I also accept that the Applicant was not in a mental state to be able to prepare and file her unfair dismissal application until she did so on 13 October 2024. I am therefore satisfied that the Applicant has provided an acceptable and reasonable explanation for the 13 day delay in filing her unfair dismissal application. This weighs in support of the Applicant’s contention that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of her dismissal on the day it took effect and therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute her dismissal, other than filing her unfair dismissal application in the Commission. This is a neutral consideration.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
The Applicant submits that she did not engage in any conduct which could have justified her summary dismissal. The Applicant also contends that her dismissal took place in a procedurally unfair manner.
Although the Respondent has not yet filed its form F3 Response, Mr Rifai, Managing Director of the Respondent, explained during the extension of time hearing that the Applicant bullied both him and his wife. Mr Rifai also submitted that the Applicant wanted to be terminated because her mother had come into some money, but she did not want to resign. Mr Rifai says that the Applicant was refusing to work and the audio recordings which are available will prove the Applicant’s misconduct.
The reasons for dismissal and allegations of unfairness would need to be examined carefully in a final hearing after the giving of evidence by relevant witnesses and the tendering of relevant documents and records, including the audio recordings. I do not consider that it is possible at this early stage of the proceedings to come to an informed view as to the merits of the Applicant’s unfair dismissal case. Having regard to all the circumstances, I consider the merits of the Applicant’s unfair dismissal application to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.
Conclusion
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am satisfied that there are exceptional circumstances in this case. The Applicant has an acceptable and reasonable explanation for the 13 day delay in lodging her unfair dismissal application in the Commission. The other relevant factors are neutral or of little weight. Having regard to all the material before the Commission, I consider the circumstances of this case to be out of the ordinary course, unusual and uncommon because the Applicant’s mental ill health following her dismissal meant that she did not have the capacity to prepare and lodge her unfair dismissal application in the Commission until 13 days after the 21 day period provided for in the Act. It is also for this reason that I consider it to be appropriate to exercise my discretion to extend the time for the Applicant’s unfair dismissal application to be filed in the Commission. An order giving effect to this decision will be issued concurrently with this decision.
This matter is listed for conciliation and directions, by telephone, at 10:30am on 14 November 2024.
DEPUTY PRESIDENT
Appearances:
Ms E. Skinner appeared for herself.
Mr D. Rifai appeared for the Respondent.
Hearing details:
2024.
Newcastle (by telephone):
4 November.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Ibid
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] 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]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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