Hannah Smeeton v Chaordent Pty Ltd
[2024] FWC 910
•10 APRIL 2024
| [2024] FWC 910 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Hannah Smeeton
v
Chaordent Pty Ltd
(U2023/4261)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 10 APRIL 2024 |
Application for an unfair dismissal remedy
Introduction
This decision concerns an application made by Ms Hannah Smeeton (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant who was employed by Chaordent Pty Ltd (the Respondent) alleges she was dismissed on 6 April 2023. The unfair dismissal application was lodged by the Applicant on 17 May 2023. The Respondent has raised two jurisdictional objections, those being that the Applicant was not dismissed, and that the application was filed outside the 21-day statutory time period. This decision deals only with whether to grant an extension of time for the application to be made under s 394(3) of the Act.
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 Fair Work Commission (the Commission) allows pursuant to s 394(2). If the dismissal took effect on 6 April 2023, the period of 21 days ended at midnight on 27 April 2023. The application was therefore filed 20 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) of the Act.
The application for an extension of time to file the unfair dismissal application was initially set down for determinative conference/hearing on 22 June 2023 in advance of which both parties filed material in accordance with directions issued. The hearing was subsequently adjourned based on medical certificates furnished by the Applicant and then was ultimately relisted for conference/hearing on 8 April 2024. The Applicant appeared and gave evidence at the conference/hearing while Mr Mark Green, who is the owner of the Respondent, also appeared and gave evidence.
Background and evidence
According to Mr Green, the Respondent came into being in 2015 at which point the Applicant was employed by it. Prior to that the Applicant states she commenced employment with a predecessor business entity in September 2011 as a scuba diving instructor/retail assistant/online order clerk and at the time of her dismissal was employed as the Operations Manager for the Respondent[1]. The Respondent specialises in all aspects of scuba diving, including online sales, retail sales, training and snorkelling. Mr Green took over ownership of the business in February 2022 after joining the business in 2021 as General Manager. At the time of the termination of the Applicant’s employment, she was engaged on a full-time basis on a base hourly rate of $40.00 and routinely worked in excess of 50 hours per week, regularly worked weekends and her gross weekly earnings including weekend and overtime was approximately $2600[2]. Mr Green and the Applicant commenced a personal relationship in May 2021.
The Applicant states that in the last quarter of 2022, two full-time employees of the Respondent resigned, and she found herself performing three full-time roles as well as being given extra ‘servicing’ invoice work by Mr Green. She states that the combination of these work pressures led to her being unable to complete the accounts/BAS role that was incorporated into her Operations Manager role. She says she advised Mr Green of this difficulty on several occasions, although she claims she was subsequently accused by Mr Green of being ‘negligent’ and a ‘failure’ in her role[3].
Following the December 2022/January 2023 period, the Applicant says she was suffering ‘high burn-out’ and needed time off in January 2023. She further claims to have advised Mr Green that she regularly found herself in ‘tears and shakes at work’ due to the long hours and stress. She says she agreed with Mr Green that she should take two weeks annual leave following Australia Day and then look at her role beyond that period of leave[4]. She states that she understood that she would be able to return from leave and work from home as she had done for much of her employment with the Respondent. Mr Green disputed such an understanding had existed.
Mr Green states that he and the Applicant had a domestic argument on 23 January 2023 which led to an irreparable breakdown in their personal relationship. He further states that the Applicant came into the office on 28 January 2023, declared that she had had enough and was not coming in to the shop anymore, did not assist with the shop as required in her position and created an uncomfortable environment in the office culminating in her packing some of her possessions and leaving without addressing other staff. Mr Green also claims that the Applicant said words the effect of “this isn’t good for me”, “I’m not doing this anymore” and “I’m not coming back”. On the 29 January 2023, the Applicant returned to the shop according to Mr Green upon which he says she rummaged through many areas of the shop and distributed various documents and work to other staff advising them it was now their problem not hers.
Mr Green says he took the conduct of the Applicant on the 28 & 29 January 2023 as her resigning her employment with the Respondent. When questioned on his evidence, Mr Green conceded that he did not seek to subsequently clarify with the Applicant that she had resigned. Nor did he process the Applicant’s accrued leave entitlements at that point and did not provide a Separation Certificate to her. He explained these failures as due to the complications arising from his dealing with both a breakdown in his and the Applicant’s personal relationship as well the employment relationship.
The Applicant states that on 29 January 2023 at approximately 4.30pm, there was a confrontation between her and Mr Green in the office during which she says Mr Green was angry and accusatory towards her. She states that she could not handle it anymore, packed up and departed the office to commence her annual leave prior to 5.00pm. Following her departure from the office the Applicant says she sought advice to which she was variously told that she was entitled to sick leave or could pursue a Workcover claim. She says she completed a Workcover claim form and provided it to Mr Green on 8 February 2023[5].
On 13 February 2023, a text message exchange occurred between the Applicant and Mr Green. Relevantly, the Applicant requested payment of sick leave to which Mr Green responded that he was seeking advice from both ‘Fairwork and Workcover’[6].
The Applicant states that as of 20 February 2023, Mr Green had not processed her Workcover claim. She resent her certificate of capacity to Mr Green on 22 February 2023. Further certificates of capacity dated 27 February, 14 March and 15 May 2023 were subsequently furnished by the Applicant[7].
On 20 February 2023, Mr Green sent a text message to the Applicant in the following terms;
“Processing 1 x week annual leave and 2 x weeks sick leave, will deposit the balance owing. The payslip should be self evident. I will also sent you a link for Xero Me, this will allow you to get access to your past, current Xero payslip plus submits additional leave requests for now. Cheers”[8]
On 28 February 2023, Mr Green sent an email to the Applicant detailing the payments that had been made to her up to that point since 28 January 2023. The email relevantly stated;
“………
Currently I am/have paid;
The first you went off was paid as annual leave as agreed.
Second- and Third-week Sick pay based on Doctors Certificate,
Work Cover Payment need to be paid via Jacob.
I can pay last week as Annual leave if you want, please advise.”[9]
The Applicant states that the above-referred payment was the last payment she received from the Respondent before her termination took effect on 6 April 2023. The Applicant’s Workcover claim was declined on 20 March 2023, pending completion of an investigation process, following which she states she requested payment of her annual leave or sick leave on 20 March 2023[10]. She sent a text message to Mr Green in the following terms;
“Mark,
My Workcover claim has been denied. My next advised step is to work with my employer to focus on getting back to work – with medications I am on assisting.
Please advise what you would like to do about this?
Does Chaordent still wish my services or does it wish to retrench me from fulltime employment?”[11]
The Applicant states that in response to her request to return to the workplace, Mr Green advised her verbally that he did not necessarily want the Applicant back in the workplace which she initially thought implied that working from home was an option. She further states that Mr Green subsequently made it clear he did not want the Applicant in the business in any capacity[12]. The Applicant says she then asked Mr Green on 28 March 2023 that if he did not want her in the business, he should retrench her to which she says Mr Green replied that she could resign, or he would dismiss her. She says Mr Green also threatened that if she did not resign, he would malign her within what was a small industry[13].
On 5 April 2023, Mr Green sent a text message to the Applicant in the following terms;
“Morning Hannah, I can do you final pay and backdate it to when it happened, I know you say you will not go on CES payments but it is an option till things stabilise. I will consider how we can contract you for work if that is suitable if you are genuinely interested and able. Ok?”[14]
In a text message response, the Applicant replied “OK” and then in a further text message stated the following;
“You just need to choose ‘Payrun Exception’ to choose the date/week you want to place it in.
Then chose ‘final pay’ from the options and ‘voluntarily’ as the reason for ending employment”[15]
The Applicant states that she was coerced into agreeing to the mutual separation in order to obtain payment of her accrued (but unpaid) leave entitlements so that she could pay her mortgage and reduce her stress levels. She also states that at that time she was in a state of “mental incapacity & high anxiety and meds, and the financial stress adding to this causing suicidal thoughts”[16].
On the 6 April 2023, in a further text message exchange with the Applicant, Mr Green confirmed that the final payment had been redone and ‘sorted out’[17]. The Applicant states that she received payment of her accrued annual leave and long service leave on 7 April 2023 and assumed by that payment that her final day of employment was 6 April 2023. She further states that Mr Green requested her to provide a letter of resignation, but she declined to do so. She further states that she did not receive any notice of termination and only resigned because of the high levels of stress and feeling that Mr Green coerced her to leave the business[18].
When questioned on the reason for the delay in filing her application, the Applicant stated during her cross-examination that she had contacted the Commission on 6 April 2023 to seek advice on her options. She stated that she was advised by a Commission staff member that she should seek independent legal advice regarding the termination of her employment and should also consider pursuit of mediation of the matter prior to making an application to the Commission. The Applicant stated that she subsequently took no action in relation to the alleged termination of her employment until May 2023 because of her state of mental health which she said rendered her unable to process and complete her application form. She confirmed that in the period from 6 April-10 May 2023 she was in regular communication with a legal representative she had earlier engaged in relation to her pursuit of a Binding Financial Agreement (BFA) with Mr Green arising from the breakdown of their personal relationship. These communications included participation in teleconferences with her legal representative.
The Applicant was questioned on her capacity to engage with and provide instructions to her legal representative over the BFA while claiming to have been unable to prepare and file an unfair dismissal application in that same period, that is between 6 April -17 May 2023. The Applicant explained that her sister had assisted her in relation to the BFA matter and that she (the Applicant) was unable emotionally to deal with both the BFA matter and her dismissal at the same time during April 2023. She further explained that it was only once her medication had been increased by on or about 10 May 2023 that she felt physically and emotionally capable of pursuing her rights in relation to the termination of her employment. She states she then received further advice from the Commission on or about 12 May 2024 that again encouraged her to pursue mediation with the Respondent regarding the termination of her employment.
Between 9 May and 17 May 2023, the Applicant and Mr Green exchanged a series of emails. In those emails, the Applicant raised matters relating to the breakdown of their personal relationship including settlement of the financial arrangements related to the relationship breakdown. As stated above, the Applicant had engaged legal representation in relation to the personal matters she was seeking to resolve. The Applicant also raised in those various emails the potential resolution of the employment related matters as an alternative to her pursuing a claim in the Commission. This can be seen in the following;
· In an email dated 10 May 2023 the Applicant advised Mr Green of potential escalation of legal proceedings relating to the outstanding BFA and also foreshadowed she would be making an application to the Commission[19].
· In an email at 3.36pm on 11 May 2023, the Applicant referred to advice she had received to contact specialist employment lawyers and ‘Fairwork’ regarding her ‘forced resignation’ and claimed she had been denied a redundancy payment to which she was entitled. She also raised her preference for ‘mediation’ rather than go down the path of litigation and offered to provide all her notes to the relevant parties to take her concerns further if an amicable agreement could not be reached[20].
· In a further email at 10.27pm on 11 May 2023, the Applicant clarified that her employment claims were separate to the unresolved BFA and that she now had the strength and support to pursue her rights in relation to her dismissal. She denied there had ever been any mutual agreement for her to separate from the business. She reaffirmed that she was not ‘threatening’ Mr Green but was giving him an option to mediate an agreed outcome before she escalated the matter[21].
· In an email dated 12 May 2023 to Mr Green, the Applicant proposed a settlement of her unfair dismissal claim on the basis of 10 weeks redundancy pay. In doing so, the Applicant also indicated an openness to mediation of the dispute over her employment separation. Mr Green responded that same day advising that he was seeking advice on the matters raised by the Applicant[22].
· At 11.00am on 13 May 2023, the Applicant again emailed Mr Green seeking an urgent response to her proposal for mediation of the employment matters. Having not received a response from Mr Green that day, the Applicant sent a further email to Mr Green at 6.18pm noting that no response had been received and, on that basis, she would be making an unfair dismissal application the following Monday[23].
· At 6.37am on 17 May 2023, Mark Green responded to the Applicant’s earlier emails stating that he was seeking legal advice that day on the matters she had raised[24].
The Applicant was questioned as to the further delay in filing her application between 10-17 May 2023. She explained that she was unaware of the 21-day filing period requirement at that time although she accepted that her ignorance of the 21-day filing requirement could not be relied upon by her to explain the delay in filing her application. She did however refer to advice she says she received from Commission staff on both the 6 April and 12 May 2023 that she should pursue mediation of her claim before filing her application. She also points to the lack of response by Mr Green to her suggestions of mediation which she says ultimately left her with no choice but to file her application for an unfair dismissal remedy.
In support of her evidence that she had been too unwell to file her application at an earlier time, the Applicant referred to various certificates of capacity filed in support of her workers compensation claim. Certificates were provided for the following periods, 13-27 February 2023, 27 February – 13 March 2023, 14-28 March 2023, 15 May – 12 June 2023. The first three certificates covering the February-March 2023 period state that the Applicant was diagnosed as suffering from ‘Workplace Stress and Anxiety’, that she was being treated with ‘counselling’ and ‘medication’ and was unable to perform any work. The final certificate covering the May-June period indicated that the Applicant had some capacity to undertake ‘Reduced hours’ and a ‘Mix of paid/voluntary work’. The Applicant also referred to confidential medical information supplied to the Commission on and after 28 June 2023 provided in support of her requests for the adjournment of the proceedings that were initially listed for 22 June 2023.
Should an extension of time be granted for the filing of the unfair dismissal application?
As earlier stated, the Applicant filed her application for an unfair dismissal remedy on 17 May 2023. 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 Fair Work Commission (the Commission) allows pursuant to s.394(2). The Applicant states that the dismissal took effect on 6 April 2023 although this is disputed by the Respondent who claims that the termination of employment took effect on 29 January 2023 when the Applicant resigned.
The contest over the termination date must be resolved as the period of 21 days will have ended at midnight on the 27 April 2023 if it is established that the date of termination was 6 April 2023. If, however, if it is established that the date of termination was 29 January 2023 as argued by the Respondent then the 21 days will have ended on 19 February 2023. Of course, it may be the case that the dismissal took effect on another date as well.
While the Respondent contends that the date of termination was on 29 January 2023, there are a number of matters that tell against that date. Firstly, the Respondent processed various annual leave and personal leave requests from the Applicant after that date. Secondly, the Respondent continued to engage with the Applicant in relation to her employment. Thirdly, there is no evidence of the cessation of the Applicant’s employment having occurred prior to 6 April 2023 by way of a letter confirming resignation or dismissal or a Separation Certificate. Finally, the Applicant’s accrued leave entitlements were not processed and paid to the Applicant until 7 April 2023. I am consequently satisfied that the Applicant’s dismissal took effect on 6 April 2023. Having reached this conclusion, it is necessary for me to now consider whether an extension of time for the filing of the application should be granted.
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.[25] 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.[26]
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 now turn to consider these matters in the context of the Application.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 27 April 2023. The delay is the period commencing immediately after that time until 17 May 2023, although circumstances arising prior to that day may be relevant to the reason for the delay.[27]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[28] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[29].
The Applicant submits that she was unable to file her application within the 21-day filing period because of the state of her mental health between the date of her dismissal on 6 April and 10 May 2023 which rendered her unable to prepare and file her application. She relies in part on the above-referred medical evidence and also refers to her attempts to engage Mr Green in mediation of her dismissal claim in the period between 10-17 May 2023. The Respondent submits in reply that the Applicant had access to legal advice prior to and after 6 April 2023, had obtained advice from the Commission on 6 April 2023 and was well enough to progress her BFA claim with her legal representative in the April-May 2023 period.
Turning firstly to the medical evidence. The Certificates of Capacity supplied by the Applicant for the purpose of her workers compensation claim indicate that the Applicant was suffering from workplace stress and anxiety from at least early February to late March 2023 such that she was incapable of performing any work. A further certificate covering the period from 15 May – 12 June 2023 indicated that her condition had improved to the point that she was capable of undertaking part-time paid/unpaid work. This is consistent with the Applicant’s evidence that her mental health had improved sufficiently by early May 2024 such that she was able to progress her unfair dismissal claim. Further support for this submission can be seen in the interactions between the Applicant and Mr Green that occurred between 10-17 May 2023. At least from 10 May 2023, the Applicant accepts that she was well enough to prepare and file her unfair dismissal application although she elected to first pursue mediation with Mr Green, a point to which I will return.
I readily accept the Applicant suffered from a medical condition in the period prior to and following the termination of her employment on 6 April 2023. I also accept that her condition had improved sufficiently by 10 May 2023 such that she was able to pursue a remedy in relation to her termination of employment. She initially did this by engaging directly with Mr Green on and after 10 May 2023 by variously proposing to Mr Green the settlement of her claim on the basis of her receiving 10 weeks redundancy pay or alternately entering into mediation to resolve the matter.
There are no medical certificates in evidence that cover the period from 6 April - 15 May 2023 although it is safe to assume that the Applicant continued to suffer from workplace stress and anxiety in that period given the certificates furnished by the Applicant for both the March and May 2023 periods refer to that condition. What is not in evidence is whether the condition was so severe in that period as to have prevented the Applicant from preparing and filing her application before she did on 17 May 2023. On the Applicant’s evidence she remained incapable of preparing and filing her application up to the point that she engaged with Mr Green on and after 10 May 2023 in relation to her termination of employment. No medical practitioner was called by the Applicant to give evidence in relation to her medical incapacity during the relevant post termination of employment period. Nor do the confidential medical certificates provided by the Applicant from 28 June 2023 onwards assist the Applicant as they go to the Applicant’s capacity to participate in Commission proceedings after that date.
It must be said that the evidence of the Applicant as to her incapacity in the period from 6 April – 10 May 2023 is difficult to reconcile with her engagement with her legal representative during that period in respect of her pursuit of a BFA with Mr Green. The Applicant conceded that her engagement involved both correspondence and participation in teleconferences with her legal representative in the period between 6 April & 10 May 2023. The Applicant claimed however during cross-examination that she was assisted by her sister in her dealings regarding the BFA, although documentation was not put forward to support that evidence and nor was the Applicant’s sister called to give evidence on her role in dealings over the BFA. I also note for completeness that the Applicant had the presence of mind to contact the Commission on 6 April 2023 to seek initial advice regarding her options regarding the termination of her employment and in doing so was encouraged by a Commission staff member to obtain independent legal advice and consider pursuit of direct mediation with the Respondent as a first step.
In considering all the material before me and in the absence of direct medical evidence going to the period from 6 April – 10 May 2023 and also having particular regard to the Applicant’s engagement with her legal representative in that period, I am not satisfied that the Applicant’s medical condition was such as to have prevented her from filing her application at an earlier time than she did. I consequently find that the Applicant has not provided an acceptable reason for the delay between 27 April and 10 May 2023.
Turning to the period between 10-17 May 2023, the Applicant agreed that she sought to resolve her termination of employment claim directly with Mr Green rather than immediately file an application. She said this was because she had been advised by a Commission staff member on both the 6 April & 12 May 2023 that she should pursue direct mediation before filing an application. She states it was only when it became clear to her that Mr Green was unwilling to respond to her settlement proposals or engage in mediation that she resolved to file her unfair dismissal application on 17 May 2023. While I accept that the Applicant may have received initial advice on 6 April 2023 that she should consider pursuing mediation directly with the Respondent I find it inherently unlikely that Commission staff would advise a party to pursue direct mediation of an unfair dismissal claim in circumstances where the 21-day filing period had already passed. It is more likely in my view that a party in these circumstances would be encouraged to file an application without further delay. I find the Applicant’s evidence on advice received from the Commission on 12 May 2024 as unconvincing.
On her own evidence, the Applicant was advised on 6 April 2023 to seek independent legal advice. For reasons that are unclear she chose not to do so and progressed her complaints regarding her dismissal directly with the Respondent up until 17 May 2023. That is despite having engaged a lawyer to deal with personal and financial matters related to the breakdown of her and Mr Green’s personal relationship. The choice made by the Applicant to pursue matters directly with the Respondent up until 17 May 2023 may be explained by the Applicant’s lack of understanding of the statutory time periods. It is well established however that lack of knowledge of the 21-day statutory time frame does not provide an acceptable explanation for a delay in filing an application. In these circumstances I am not satisfied that the Applicant has provided an acceptable explanation for the period of delay from 10-17 May 2023.
I find that the Applicant has failed to provide an acceptable explanation for the delay in filing her unfair dismissal application for the period from 27 April – 17 May 2023. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I find that the Applicant became aware of her dismissal on the same day that it took effect on 6 April 2023 and therefore she had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
I accept that the Applicant sought to engage with the Respondent on her dismissal in the period between 10-17 May 2023, although it was not to contest the dismissal but rather to try and negotiate an agreed settlement. Beyond that step it is not apparent that the Applicant took any action to contest her dismissal after it took effect on 6 April 2023, other than lodging her unfair dismissal application. These circumstances do not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The application was filed 20 days outside of the 21-day period although as noted above, conduct of these proceedings has been subsequently delayed by several months. While the Respondent raised the issues of that delay in proceedings, it is only the delay in the Applicant filing her application that I must consider in assessing the question of prejudice to the Respondent. The Respondent was unable to identify any other prejudice it would suffer and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[30] it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[31] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.
The Applicant claims that she had an unblemished employment record with the Respondent and had never been counselled or warned in relation to her performance. Certainly, there was no documentary evidence before me of any formal performance management or written warnings issued in relation to her conduct. Mr Green gave a different account and stated that there were issues with the Applicant’s performance but acknowledged that managing those issues had been complicated by his being in a personal relationship with the Applicant as well as being her employer.
It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. The Applicant has an arguable case that the Respondent lacked a valid reason for her dismissal while the Respondent raises a prima facie defence. Based on the limited material available at this stage of proceedings I do not consider the merits of the present case tell for or against an extension of time. I consider the merits 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.
The Applicant referred to other dismissal related extension of time applications that had been before the Commission involving applicant mental health issues which she contends tells in favour of her application for an extension of time. I accept that in some circumstances, the mental health of an applicant may tell in favour of exceptional circumstances. However, for the reasons set out above I am not persuaded that the facts of this case are such that the condition of the Applicant explained the delay in filing her application. Neither party brought to my attention any other relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
H Smeeton, Applicant.
M Green for the Respondent.
Hearing details:
2024.
Melbourne (via Microsoft Teams):
April 8.
[1] Exhibit A1, Witness Statement of Hannah Smeeton, at [1]-[2]
[2] Exhibit R5, Assorted Payslips of Hannah Smeeton in period between July 2020 and January 2023
[3] Exhibit A1, at [5]-[9]
[4] Exhibit A1, at [11]-[12]
[5] Ibid at [14]-[17]
[6] Exhibit A8, Text message from Applicant to Mark Green, dated 13 February 2023, at Court Book p.95
[7] Exhibit A1, at [18], Exhibit A3, Certificates of Capacity dated = 27 February 2023, 14 March 2023 and 15 May 2023
[8] Exhibit A8, Text message from Mark Green to Applicant, dated 20 February 2023, at Court Book p.96
[9] Exhibit A4, Email from Mark Green to Applicant, dated 28 February 2023, at Court Book p.70
[10] Exhibit A1, at [22]
[11] Exhibit A8, Text message from Applicant to Mark Green, dated 20 March 2023, at Court Book p.102
[12] Exhibit A1, at [26]-[27]
[13] Ibid at [30]-[31]
[14] Exhibit A8, Court Book p.103
[15] Ibid
[16] Exhibit A1, at [32]-[33]
[17] Exhibit A8, Text message from Mark Green to Applicant, at Court Book p.104
[18] Ibid at [35]-[39]
[19] Exhibit A6, Email from Applicant to Mark Green, dated 10 May 2023, at Court Book p. 83
[20] Ibid, Email from Applicant to Mark Green, dated 11 May 2023 (at 3.36pm), at Court Book p.79
[21] Ibid, Email from Applicant to Mark Green, dated 11 May 2023 (at 10.27pm), at Court Book p.78
[22] Ibid, Email exchange between Applicant and Mark Green, dated 12 May 2023, at Court Book pp.76-77
[23] Ibid, Emails from Applicant to Mark Green, dated 13 May 2023, at Court Book pp. 74-75
[24] Ibid, Email from Mark Green to Applicant, dated 17 May 2023, at Court Book p.74
[25] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[26] Ibid.
[27] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[28] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[29] Ibid at [40].
[30] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[31] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
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