Hannah Hellwich v Florey Institute for Neuroscience and Mental Health

[2024] FWC 1535

[2024] FWC 1535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hannah Hellwich
v

Florey Institute for Neuroscience and Mental Health

(U2024/3520)

DEPUTY PRESIDENT COLMAN MELBOURNE, 13 JUNE 2024

Application for an unfair dismissal remedy – whether to extend time – application dismissed

1. Hannah Hellwich has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). The Florey Institute for Neuroscience and Mental Health (the Florey) objects to the application on the basis that it was filed out of time. Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). Ms Hellwich contends that her employment was terminated on 8 March 2024, and that her application, which was lodged on 26 March 2024, was made within time. The Florey submits that Ms Hellwich was dismissed on 4 March 2024. If that is the case, the application was filed one day late. I heard the jurisdictional objection earlier today.

1. The Florey filed witness statements made by Sharyn Mitten and Steward Denmead from its human resources department, as well as by Jacqueline Munro-Smith, all of whom attended a meeting with Ms Hellwich on 4 March 2024 concerning the outcome of an investigation into her conduct. According to these statements, Mr Denmead told Ms Hellwich that the Florey had concluded that she had shouted at her direct report and harassed him by repeatedly calling and texting him. Mr Denmead then told Ms Hellwich that her employment was terminated with immediate effect. Ms Hellwich was upset. There was a ten minute break. Mr Denmead told Ms Hellwich that she would receive four weeks’ pay in lieu of notice, despite being dismissed for serious misconduct. At this point, Ms Mitten then said that the Florey would be prepared to recharacterise the dismissal as a resignation effective from 8 March 2024, subject to Ms Hellwich signing a deed of release, under which she would also receive six weeks’ pay. Ms Mitten gave Ms Hellwich a copy of the deed and said that she would schedule a meeting on 6 March 2024. Ms Hellwich said that she was concerned that a resignation would delay her unemployment benefits, but that she might consider it in order to save face.

1. Ms Hellwich did not dispute the Florey’s account of what was said at the meeting on 4 March 2024 but said that she felt pressured to sign the deed, and that she believed that the Florey wanted her to do so in order to ‘shut her up’. After the meeting, she sought legal advice about the deed. She could not recall what she told her lawyer about what had been said at the meeting on 4 March 2024. The lawyer told her that the dismissal could not be backdated.

1. On 6 March 2024, Ms Hellwich sent Ms Mitten an email stating that she was seeking legal advice. Ms Mitten replied, stating that she would organise a meeting for the next day. She also stated: ‘If you have any proposed changes to the agreement please let us know asap, otherwise I look forward to seeing you tomorrow. As verbally agreed your last day of work with the Florey will be the 8 March 2024.’ Ms Hellwich said that she understood from this that her employment would end on 8 March 2024. Ms Hellwich did not attend the meeting on 7 March 2024. Instead, she emailed Ms Mitten stating that she was still seeking legal advice. Ultimately, she decided not to sign the deed. On 8 March 2024, Ms Hellwich received a letter dated 4 March 2024 recording the termination of her employment.

1. Based on the information before the Commission, including the statements of the Florey’s witnesses, which were detailed and convincing, I find that Ms Hellwich was dismissed at the meeting on 4 March 2024. Mr Denmead told Ms Hellwich that her employment was terminated with immediate effect that day. She was then offered an alternative that would see her deemed to have resigned with effect from 8 March 2024, if she signed the deed. But she did not sign it. I do not accept that Ms Hellwich understood Ms Mitten’s email of 6 March 2024 to mean that her employment would end on 8 March 2024. The email stated that ‘as verbally agreed your last day of work with the Florey will be 8 March 2024’. But plainly this was a reference to the proposed agreement (that is, the deed) that had been offered to Ms Mitten on 4 March 2024. The email of 6 March 2024 was poorly worded. But its objective and contextual meaning was that, as discussed at the meeting on 4 March 2024, the last day of employment would be 8 March 2024, in the event that Ms Hellwich signed the deed. That Ms Hellwich understood this is clear from her email to Ms Mitten on 7 March 2024, in which she stated that although the Florey had ‘punished me and terminated my employment, I hold no ill grudge..’; and that ‘even though I am no longer an employee, I am still gravely concerned that the florey could eventually be shut down…’. I find that Ms Hellwich understood that her dismissal was effective from 4 March 2024 and that it would only be recharacterised as a resignation effective from 8 March 2024 if she signed the deed, which she did not do.

1. I find that the dismissal took effect on 4 March 2024. The 21-day period ended on 25 March 2024. The application was lodged one day late. For her application to proceed, Ms Hellwich requires an extension of time. The Commission does not have a general discretion to extend time. It can extend time only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression found in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in subparagraphs (a) to (f), and I proceed to do so.

1. As to the reason for the delay (s 394(3)(a)), I infer that Ms Hellwich contends that the delay was caused by confusion regarding the date her employment ended. But again, the date of termination was objectively clear. There was no confusion, as evidenced by Ms Hellwich’s email on 7 March 2024. Ms Hellwich appeared to suggest that her lawyer may have misadvised her by stating that the employer could not backdate the dismissal. But no representative error has been established here. The lawyer was right to say that a dismissal cannot be backdated. But there was no backdating. Ms Hellwich was dismissed on 4 March 2024. The fact that she received a copy of the termination letter dated 4 March 2024 only on 8 March 2024 did not amount to backdating. It was a subsequent written confirmation of an earlier dismissal. I consider that there was no good or acceptable reason for Ms Hellwich’s delay in lodging the application. This weighs against an extension of time in this case.

1. Sections 394(3)(b), (c), (d) and (f) are neutral matters: I find that the applicant was aware of her dismissal when it took effect; she disputed the dismissal by lodging the application; there is no prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people. As to the merits (s 394(3)(e)), Ms Hellwich submitted that her dismissal was unfair because she was dismissed in connection with having made serious allegations against another employee which were rejected and instead the employee’s complaints against her were wrongly upheld. The Florey submitted that Ms Hellwich’s employment was terminated following investigations that substantiated allegations of serious misconduct involving the harassment of another employee. The merits of the application would depend on factual findings made by the Commission at a final hearing. Based on the information before me, I consider the merits to be a neutral consideration.

1. More generally, Ms Hellwich contended that there were exceptional circumstances in this case because she was harassed and bullied and because her allegations were ignored by the Florey and that it just wanted to get rid of her. But this is denied by the Florey, and the facts would need to be determined at a hearing if the matter proceeded. Allegations of this kind are not exceptional. After the proceeding had concluded, Ms Hellwich sent to my chambers an email setting out other circumstances that she claimed to be relevant or exceptional. None of these matters affects my conclusion in this matter. Among other things, Ms Hellwich said that she had been in a state of mental and emotional stress, however I am not persuaded that this prevented or seriously impeded the timely lodgement of her application. The matters referred to by Ms Hellwich in her application and in her email are not exceptional matters, either individually or when taken together.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are such circumstances in this case. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

H. Hellwich for herself
L. Anaf for the respondent

Hearing details:

2024
Melbourne (by telephone)
13 June

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