Glenys Mills v Silly Yak Foods Pty Ltd

[2015] FWC 3110

[2015] FWC 3110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glenys Mills
v
Silly Yak Foods Pty Ltd
(U2015/3637)

COMMISSIONER RYAN MELBOURNE, 5 MAY 2015

Application for relief from unfair dismissal - extension of time granted.

[1] Termination of the Applicant’s employment with the Respondent took effect on 3 February 2015 and the Applicant applied to the Fair Work Commission on 3 March 2015 for an Unfair Dismissal Remedy. The application was made outside the 21 day time limit specified by s.394(2)(a) of the Act. The Applicant has sought an extension of time in which to file her application in this matter.

[2] Directions were issued in this matter which required both the Applicant and the Respondent to file and serve their respective submissions and evidence in relation to the application for an extension of time and the matter was listed for Conference/Hearing before the Commission on 1 May 2015. Prior to the hearing date both parties advised the Commission that they would agree with the Commission determining the extension of time application on the papers and without the need for a hearing.

[3] The Applicant commenced her employment with the Respondent in June 2004 in the capacity of a Bookkeeper and was promoted to the position of Financial Controller in 2007.

In March 2014 the Applicant sustained an injury to her right shoulder in an accident which occurred at her home. The Applicant tendered her resignation at that time but was dissuaded from doing so and remained in employment.

[4] Mr Pears, Managing Director of the Respondent described the injury and the effect on the Applicant’s ability to perform her work as follows:

“5. In early 2014, Glenys sustained an injury to her right shoulder in an accident which occurred at her home. This accident was quite serious, in that whilst no bones were broken, she sustained significant soft tissue damage. It was clear from the time of the accident that the injury that she had sustained had significantly affected her ability to perform her daily duties. 6. In the period immediately following the accident, Glenys attended a number of medical appointments and was absent from work as a result on a number of occasions. Naturally, we made allowances for this, as is the normal course of business.

7. During this period a variety of therapies for the shoulder injury were tried, including the following:

a. Physiotherapy, which appeared to give some relief and improvement;
b. Cortisone injections, which appeared ineffective; and
c. A variety of prescription pain relief medications, which appeared to be effective to some degree.

8. During the period between the initial injury and 2”d February 2015, we made extensive adjustments to Glenys’ working conditions and responsibilities as we attempted to find a combination of reduced hours of work and reduced and adjusted responsibilities which would allow her to continue to work.

9. These adjustments included the following:

a. We immediately moved to a regime of extreme flexibility in working hours, where
Glenys was allowed to vary her start and finish times as it suited her, to ensure that she was able to accommodate the restrictions imposed upon her by her injury;
b. Adjustments were made to her office workstation in order to reduce the impact of her working hours on her injury;
c. Large areas of her former responsibilities were reallocated to other staff members, to allow her to reduce her workload to accommodate her injury; and
d. In September 2015 she was allowed to reduce her working hours from 18 per week to 8 per week in order to accommodate her injury.

10. During this period, I maintained a close communication with Glenys, having regular verbal discussions with her regarding the state of her health, her capacity for work and the effect that attending work was having on her mental and physical health.

11. Eventually, a diagnosis of tendon damage was made and Glenys informed me by email on the 8th of October 2015 that shoulder surgery was her only option for possible recovery.

12. Despite all of these adjustments to her working hours, conditions and responsibilities, it was clear that Glenys was not capable of performing her duties effectively and without unacceptable risk of further damage to her own physical and mental health, and in October 2015 she was given an open-ended medical certificate by Doctor Daniel Lipson, her general practitioner.

13. Glenys commenced extended sick leave on 14th October 2015.

14. During the period of her sick leave, I was in regular contact with Glenys both by phone and email, to discuss the state of her health and the possibility that she might return to work. During these conversations she expressed a genuine desire to return to work, but also expressed her frustration and despair with the chronic pain in her shoulder and the extent to which it rendered her unable to sleep or to undertake day to day tasks.

15. In one email sent during this period (on 17th December 2015), she expressed her anguish as follows: “getting dressed and undressed, showering, washing my hair, making food, even wiping my bum causes pain. Also, still have the issue of sleepless nights caused by rolling onto my right side which is my natural sleeping position. Despite pain medication and sleeping tablets, I wake up crying in pain; it’s a cycle that [is] very hard to break.”

16. In this same email, she informed me that she had received medical clearance to return to work:

‘I have spoken to Danny and although he’s not all that happy about me returning to work he wrote the certificate- conditional- anyway.”

17. We agreed that she could return to work on a trial basis, initially no more than two hours per week, commencing in January.

18. Glenys returned to work on Monday the 12th of January 2015.

19. On her return to work, it was immediately obvious that attending our offices, even for a short period, was taking a severe toll on both her physical and mental health:

a. As we were allowing her the maximum flexibility possible in starting and finishing times, she would often arrive several hours after the time that I had expected her to start, explaining that the pain in her shoulder was so crippling in the mornings that she was unable to leave the house, and that she had to wait for her morning’s painkillers to take effect before she could contemplate making the journey to work;
b. She would arrive at our business premises pale and shaking, taking several minutes to ascend the short stairs to the administration area and pass my office;
c. In conversations and discussions, she would often wince suddenly or grimace in pain as some small movement of her body caused shooting pains from her shoulder down her arm; and
d. She was quite· open about the fact that using the mouse on her computer caused her considerable pain.

20. As a result of this, I became very concerned that allowing Glenys to return to work was adversely affecting her physical and mental health and that it was possible that continuing with the return to work process would not be in her best interests. I was becoming increasingly concerned that by allowing the return to work process to continue, the company would be violating its duty of care. By the end of January 2015 I had formed the view that the return to work process was not working.”

[5] The employment relationship ended on 3 February 2015.

[6] On 3 February 2015 the Applicant drove herself to work as she had a doctor’s appointment later that day. As the Applicant described it, she “was experiencing a great deal of pain” on arrival at work.

[7] Mr Pears for the Respondent gives a more graphic account of events on 3 February 2015:

“21. On Tuesday the 3rd of February 2015, Glenys arrived at our business premises much later than expected and with a disturbing demeanour. She was pale, shaking like a leaf, and unable to walk without leaning on walls, door frames, etc., for assistance. I was very concerned for her immediate wellbeing and invited her into my office and asked her to sit down. I asked her whether she needed a glass of water, or if I could make her a cup of coffee. She declined. 1 then initiated the conversation that I felt had to be had about the return to work process with the words “This is not working. It’s not working for you and it’s not working for me.”

22. She responded by bursting into tears and saying to me “You’re right. I should have resigned in December so that I could have finished up at the Christmas party.” She then told me that it was her intention to resign on the spot.

23. I stood up from my desk and came around to where she was sitting to give her a hug. She winced in pain as I hugged her shoulder and I pulled away. She smiled sadly.

24. After this we had a short discussion about her intention to resign, during which I told her that the company couldn’t accept a verbal resignation and that if her intention to resign was genuine, I would need to her to confirm that in writing.

25. She said that she would do so and excused herself, going down the hall to her office and letting herself in.

26. It seemed to me that she required some time alone to compose herself and to reflect. I left her to it and went downstairs to the factory floor, where I had a series of discussions with my shift leaders about the day’s priorities. I gave instructions to all staff to leave Glenys alone, as I felt that she would require some time to herself.

27. Approximately thirty minutes later I returned to my office. Fifteen minutes after that Glenys knocked on my door, entered and presented me with a rather fulsome letter of resignation (six paragraphs in all), thanking me for my friendship, support and compassion.

28. Knowing that she had been upset when she announced her intention to resign, and knowing that she was in pain and on medication, I engaged in a further discussion with her to attempt to gauge her mental state and intentions. I noted that she was now calm and composed and that she seemed quite resolute in her intentions. She told me “Now that I’ve resigned, I feel quite relieved- it’s as if a great weight has been lifted from me.”

[8] The Applicant’s account of the events on 3 February 2015 differ from Mr Pears in several important aspects and is repeated below:

“9. When I dropped in to announce my arrival, the manager called me in and after offering me a coffee said to me words to the effect of “This arrangement is not working for me”. I said words to the effect of “Am I being fired?” to which he replied “No”.

10. He then said he had worked out my entitlements and proceeded to outline them to me. I was in such a highly emotional state receiving this news and also suffering considerable pain after the 30km drive from my home that I was unable to fully comprehend the impact of what was happening and felt tears pouring down my face. It was so unexpected.

11. He then handed me the documents and we went through them although I was unable to take in the information due to the state I was in. I asked him what it all meant and he replied with words to the effect of “I am asking you to write a letter of resignation”. Shocked, emotionally unable to comprehend what was happening, I went to my office and wrote a letter of resignation. I believe that had I been fully cognizant of what was going on I would never have written and signed that resignation letter.”

[9] After the Applicant handed her resignation letter to Mr Pears some further discussion took place over the details of termination. At the end of this conversation Mr Pears describes the following:

“33. She then said to me “I’m too wrung out to do anything now. May I go home, and come back to clear my office out later?” to which I replied “Of course, mate. You just let me know when it’s convenient and we will arrange it. If you can let me know in advance, though, that would be great, as I’d like to have a morning tea to give everyone a chance to say goodbye.” She agreed, and left to go home.”

[10] The Applicant returned to the workplace on 9 February 2015 to clean out her desk and to say good bye to her fellow workers. Mr Pears recounts that on 4 or 5 February 2015 that in a telephone conversation between the Applicant and Mr Pears “we agreed that she would come in to our business premises on Monday the 9th of February to clear out her office. She said “I’ll be in around eleven am.”

[11] The Applicant arrived at the workplace “around 1:00 p.m. on Monday the 9th of February, explaining that she had been in too much pain to come in any earlier.

[12] The Applicant and Mr Pears had a brief discussion around treatment of long service leave payments.

[13] Mr Pears then recounts what happened next:

“42. After Glenys had cleared her office, we held an afternoon tea to celebrate her contribution to the company, to mark her resignation and to wish her well. I had purchased cakes and a large card, which everyone signed, and I gave a short speech about Glenys’ history with the company, how I couldn’t have built the company to what it is today without her support and assistance and how grateful I am.

43. Glenys then gave a short and tearful speech in which she said “I’m sorry to have to leave you all, but I simply can’t keep working any more. It’s time for me to retire.” She spoke of what a wonderful experience her working life at Silly Yaks had been, how much she appreciated the friendship and support of myself, Fil Kindblad and Mark Mitchem and how much she would miss us all.

44. At the end of her speech she hugged me, then Fil and then Mark. I said to her “Don’tforget just because you’ve resigned doesn’t mean you can’tcome back and visit us. You’ll always be welcome here any time.”

Relevant Legislation

[14] Section 394 of the Fair Work Act both deals with the time limit for making an application for an unfair dismissal remedy as well as the requirements placed on the Commission when considering an application for an extension of time to make an application for an unfair dismissal remedy. The section is as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

Consideration

[15] The first issue raised by s.394(2) is to determine the date on which the dismissal took effect as the Applicant has to make an application for an unfair dismissal remedy within 21 days of this date.

[16] The Commission as currently constituted is not dealing with the Respondent’s challenge to the application on the basis that the Applicant was not dismissed from her employment within the meaning of s.386 of the Act. For the purpose of considering the application for an extension of time in which to make an unfair dismissal application the Commission is proceeding on the basis that the Applicant was dismissed, although in doing so the Commission is not making any formal finding that the Applicant was dismissed.

[17] On the basis of the material before the Commission is clear that, on any objective basis, the dismissal of the Applicant took effect on 3 February 2015.

[18] On 3 February 2015 the employment relationship existing between the Applicant and the Respondent came to an end. If there was a dismissal, as the Applicant contends, because the Applicant resigned her employment but was forced to do so because of the conduct or a course of conduct engaged in by the Respondent then such dismissal took effect on 3 February when the Respondent accepted the resignation of the Applicant and waived any notice period required to be given by the Applicant.

[19] The Applicant in her written submissions, filed with the Commission on 13 April 2015, contended that the dismissal did not take effect on 3 February 2015 but rather took effect on 28 April 2015. In support of this contention the Applicant filed a document which the Applicant identified as having been prepared by the Respondent. The document was titled “Payments upon Resignation: Glenys Mills”. The document was undated and unsigned.

[20] The document contains the following:

“Long Service Leave

Glenys has elected to take her Long Service prior to final departure. She is entitled to 17.17 hours wages per week for a period of 9.12 weeks.

Long Service Leave will then commence on Wednesday the 18/2/2015, with her last pay period being the pay week ending 28/4/2015.

Final Date of Employment

The date on which Glenys Mills ceases to be employed by Silly Yak Foods Pty Ltd will be Tuesday the 28/4/2015.”

[21] The document was not challenged in the written submissions and witness statements filed on behalf of the Respondent on 27 April 2015.

[22] The Applicant in her Unfair Dismissal Application, Form F2, does not refer to the document or to the termination date being 28 April 2015.

[23] The Applicant prepared her written submissions, which were filed on 13 April 2015, by using the template document “Applicant’s Outline of argument: objections” which is available on the Commission’s website.

[24] The following questions and answers from the filed “Applicant’s Outline of argument: objections” are relevant:

1a. When were you notified of the dismissal?

(i.e. what date were you told?)

I was directed by my employer to prepare a letter of resignation on 3 February 2015. I prepared a letter on that day but I did not specify a finishing date as I was required to give two weeks’ notice. I then received a document from the employer stating that I would cease to be employed on 28 April 2015.

1c. What date did your dismissal take effect?

Either 17 February, 2015 or 28 April, 2015.

1d. Did you make your unfair dismissal application within 21 days of when the dismissal took effect?

Yes

I noted in my application that I had not applied within 21 days but as I had only consulted solicitors on 24 February, 2015 I did not have advice based on all the facts. As I had a notice period and/or the employer had specified a termination date in April, we did not realise we were within the time allowed by the Act.

[25] I note and consider it relevant that the Applicant’s Unfair Dismissal Application was filed by her solicitors on 3 March 2015 under cover of an email which contained the following:

“I have been consulted by Ms Mills who attempted to lodge the attached documents on 24 February, 2015. Our enquiry reveals that they were not received. She was able to send them to us and we forward them on her behalf.

Whilst it is far from clear the precise status of her employment the earliest termination date would be the 3 February, 2015. However, we would also submit that the employer forcing the employee to write out their own resignation does not terminate the contract at that time. If the contract is ended then a period of notice prior to the contract ending is the minimum time that should be taken into account.”

[26] The Unfair Dismissal Application filed by the Applicant’s solicitors was dated 25/02/2015 which suggests that the Applicant did not try to file it on 24 February 2015.

[27] In order for the Commission to exercise its discretion under s.394(2)(b) the Commission must be satisfied that there are “exceptional circumstances” present. In considering whether or not there are “exceptional circumstances” the Commission must take into account the matters enumerated in subsection 394(3).

[28] A clear explanation as to what constitutes “exceptional circumstances” was given by a Full Bench in Nulty v Blue Star Group P/L 1, and I have applied that decision in this matter.

[29] I now consider each of the specific matters that the Commission is required to take into account under s.394(3).

The reason for the delay - s.394(3)(a)

[30] The Applicant first sought legal advice in relation to the termination of her employment relationship with the Respondent on 24 February 2015. The Applicant’s solicitors identify that the Applicant attempted to file an Unfair Dismissal Application on 24 February 2015 (although the application filed by the Applicant’s solicitors was dated 25 February 2015).

[31] The Commission is satisfied that the Applicant attempted to file an Unfair Dismissal Application with the Commission about the time that the Applicant first sought legal advice. The Commission cannot, on the basis of the material before it, be satisfied that the Applicant attempted to file an Unfair Dismissal Application on 24 February 2015 which would have been within the time limit specified by s.394(2)(a).

[32] The Commission accepts that the documentation given to the Applicant by the Respondent identified that the Applicant “ceases to be employed by Silly Yak Foods Pty Ltd” on 28 April 2015. Although the document given to the Applicant by the Respondent does not alter the date that the dismissal took effect for the purpose of s.394(2)(a) the document is relevant in considering the reason for the delay by the Applicant in making her Unfair Dismissal Application.

[33] The Respondent’s material before the Commission clearly identifies that the Applicant was in significant pain on both 3 February 2015 and 9 February 2015 and this material is consistent with the medical state of the Applicant following her shoulder injury in March 2014. The medical state of the Applicant at the time of the dismissal and thereafter is a relevant consideration of the reason for delay.

[34] Each of the reasons for delay weigh in favour of a finding that exceptional circumstances exist.

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

[35] It is clear that the Applicant first became aware of the dismissal on the day that the dismissal took effect. This criteria weighs against a finding that exceptional circumstances exist.

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

[36] The material before the Commission does not disclose that the Applicant took any action to dispute the dismissal at any time within the period of 21 days after the dismissal took effect. This criteria weighs against a finding that exceptional circumstances exist.

Prejudice to the employer (including prejudice caused by the delay) - s.394(3)(d)

[37] The Respondent does not contend that it will suffer any prejudice if an extension of time is granted to the Applicant to file her unfair dismissal application. The lack of prejudice to the Respondent means that this criteria does not weigh against a finding as to the existence of exceptional circumstances.

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

[38] In Dundas-Taylor v The Cuisine Group P/L 2 a Full Bench clearly stated the way in which the Commission must approach consideration of the merits of the substantive unfair dismissal application when considering an application for an extension of time.

[39] Whilst both the Applicant and the Respondent have filed material which addresses the respective positions of the Applicant and the Respondent in relation to the reason for the employment relationship ending on 3 February 2015 the Commission has not been able to test any of the that material. The most that could be said at the present in relation to the respective positions of the Applicant and the Respondent is that each has an arguable case.

[40] Consistent with the authorities the Commission will treat the merits of the substantive application as being neutral in relation to the application for an extension of time.

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

[41] This criteria is not relevant in the present matter.

Conclusion

[42] Having taken into account each of the matters set out in paragraphs (a) to (f) of s.394(3) of the Act the Commission is satisfied that there are exceptional circumstances in relation to the present matter and the Commission determines that the Applicant be allowed to file her Unfair Dismissal Application by close of business on 3 March 2015.

[43] As the Unfair Dismissal Application in this matter has been filed within such further period as the Commission has allowed under s.394(3) of the Act the file in this matter will be returned to the Panel Head of the Unfair Dismissals Panel for further allocation.

COMMISSIONER

 1   [2011] FWAFB 975 at pn [13].

 2   [2011] FWAFB 6008.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567069>