Gaelene, Manson v Marthakal Homeland Resource Centre Inc

[2015] FWC 2880

[2015] FWC 2880

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gaelene Manson
v
Marthakal Homeland Resource Centre Inc
(U2015/2860)

COMMISSIONER BISSETT MELBOURNE, 29 APRIL 2015

Application for relief from unfair dismissal - Extension of Time.

[1] Mrs Gaelene Manson has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Mrs Manson was dismissed from her employment with Marthakal Homeland Resource Centre Inc (the Respondent) on 15 January 2015. She lodged her application for relief from unfair dismissal on 6 February 2015.

[3] Section 394(2) of the Act requires that an application for unfair dismissal must be made within 21 days after the dismissal took effect. Mrs Manson made her application 22 days after the date the dismissal took effect meaning her application was made one day out of time.

[4] The Commission has the power, pursuant to s.394(3), to extend the time within which an application can be made if it 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.

Reason for the delay

[5] Mrs Manson says that her application was late due to the whole process being so stressful, and causing her much anxiety. She says she was overwhelmed by the process, found it difficult to comprehend the situation she found herself in and now wishes to pursue the application.

[6] Mrs Manson, in her evidence, says she has been under the care of psychologist/psychiatrist who she only sees occasionally. She says that the medication she is on makes her lose track of time.

[7] Mrs Manson submitted a doctor’s report from her general practitioner, Dr Hummelstad. That report is dated 20 March 2015 says that Mrs Manson has been under the care of the doctor since September 2014 and that she suffered extreme anxiety as a result of the circumstances surrounding her dismissal including her suspension from employment.

[8] Mrs Manson’s evidence is that she had not visited her doctor specifically at the time of the termination of her employment. She is unclear as to when she did visit her doctor although it can be reasonably inferred that the doctor’s report was not written prior to its date.

[9] The Respondent says that the medical report should not be given much weight as it was written for the purpose of obtaining the extension of time and there is no evidence Mrs Manson was seeing her doctor at the time her employment was terminated or that she was suffering from any illness at the time such that she could not make her application for unfair dismissal within the time limit specified.

[10] Further, the Respondent says that the Mrs Manson was assisted by Mr Manson who is her named representative in her application for unfair dismissal and no reason is given as to why she could not have made the application in time with his assistance.

[11] I accept the medical report does indicate that Mrs Manson was under some general stress at the time of her dismissal. That report however does not provide any direct evidence of Mrs Manson’s anxiety specifically at the time her employment was terminated. Nothing in that report indicates that Mrs Manson state at that time was such that it would adversely affect her ability to make an application for unfair dismissal within the 21 day period.

[12] Even if I accept Mrs Manson evidence (and Mr Manson’s submissions on behalf of his wife) that the medication she was on made her lose track of time there is no evidence to support a finding that it made her lose track of time for the entire period she had within which to make the application.

[13] It is not unusual for a person to suffer anxiety following a dismissal. The circumstances surrounding the cessation of her husband’s employment with the Respondent and the reasons given for standing her down undoubtedly added to this anxiety. It is also not unusual for a person to be under the care of a doctor for that anxiety. In this case however, there is no evidence that Mrs Manson’s medical condition (which she had been suffering from since at least September 2014) totally incapacitated her such that she was unable to make her application for the period from the receipt of the notice of termination and the date she did make the application.

[14] Further, Mrs Manson gives evidence that she was aware of the 21 day time limit for making an application. She says that she wanted to lodge the application on her own as her husband was dealing with his own issues (relating to the cessation of his employment with the Respondent) at this time although she did get some help from him.

[15] I therefore find that there is no satisfactory explanation has been given for the totality of the period of the delay.

Aware of the dismissal

[16] Mrs Manson understood, by letter of 15 January 2015, that her position had been made redundant. I am satisfied that she became aware of the dismissal on 15 January 2015.

Action to dispute the dismissal

[17] Mrs Manson says that she did not contact the Respondent after she was advised that she had been made redundant as attempts to contact it while she had been stood down with pay were futile.

[18] Beyond making an application to the Commission Mrs Mason has taken no other action to dispute her dismissal.

Prejudice to the Respondent

[19] The application for unfair dismissal was made one day late. While there has been some delay in having the extension of time matter dealt with this was caused by major storms in the Northern Territory and a delay by the Respondent in responding to a request for submissions from the Commission.

[20] Any prejudice arising from the delay in hearing the extension of time application should not be held against Mrs Manson. In any event no evidence of prejudice to the employer in granting the extension has been given.

[21] I am satisfied that there is no prejudice to the employer.

Merits of the application

[22] The merits of the application have not been fully canvassed before me. There is a substantial factual dispute in respect of many of the matters associated with Mrs Manson’s redundancy. There are also contested facts in respect of the work previously done by Mrs Manson and who performs it now. Intertwined with this is a decision of the Federal Government to assume responsibility for a Government funded program previously administered by the Respondent because of some concerns about that administration. The Applicant apparently had some involvement in the administration. I note however that the Respondent maintains that the position was made redundant.

[23] Given the factual dispute between the parties it is difficult to make an assessment as to the merits of the case. The lack of any submissions on the point makes it difficult to assess if the dismissal was a genuine redundancy. I have therefore treated this matter as neutral.

Fairness between the Applicant and like employees

[24] No submissions were made as to this matter.

Conclusion

[25] I have considered the evidence of Mrs Manson and the submissions made on this matter.

[26] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Start Group Pty Ltd where the Full Bench found:

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. 1

[27] In considering the circumstances of this matter I am not satisfied that the material put before more amounts to exceptional circumstances, particularly when there is no satisfactory explanation for the delay in making the application.

[28] Having found there are no exceptional circumstances the application or an extension of time is denied.

[29] The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order will be issued with this decision.

COMMISSIONER

Appearances:

R. Manson for the Applicant.

T. Wong of Bowden McCormack with Y.Sutherland for the Respondent.

Hearing details:

2015.

Melbourne and Darwin (telephone hearing):

April 24.

 1   [2011] FWAFB 975, [13].

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