Hunney Harris v Bendigo and Adelaide Bank Ltd

[2019] FWC 2335

[2019] FWC 2335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Hunney Harris
v
Bendigo and Adelaide Bank Ltd
(C2018/6901)

DEPUTY PRESIDENT LAKE BRISBANE, 5 APRIL 2019

Application to deal with contraventions involving dismissal – application made out of time – request for an extension of time

[1] Ms Hunney Lee Harris (the Applicant) lodged an Application (Application) pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) alleging that she was dismissed by Bendigo and Adelaide Bank Ltd (the Respondent) in contravention of the Act’s general protections provisions.

[2] Section 366(1) of the Act provides that an Application made pursuant to section 365 of the Act must be lodged within 21 days after the dismissal took effect. The 21 day period commences on the day following the date of dismissal.

[3] The Applicant states in Form F8 that her Application that her dismissal took effect on 18 August 2015. 1 However, the Applicant also asserts that she was notified of her dismissal on 19 August 2015.2 In the Applicant’s Outline of argument: Extension of time, the Applicant states that her dismissal took effect on 19 August 2015.3 In any event, the relevant date that the Applicant was required to lodge her Application was either 9 September 2015 or 10 September 2015. The Application was lodged on 6 December 2018 at 11:40am AEST. The Applicant’s Application was therefore made more than 3 years and 2 months outside of the statutory 21 day period.

[4] The Fair Work Commission (FWC) may allow a further period for exceptional circumstances under section 366(2) of the Act.

BACKGROUND

[5] On the evidence led the Applicant commenced permanent ongoing employment with the Respondent on 18 June 2013 as a Customer Relationship Officer. 4 In January of 2015, the Applicant was promoted to the role of Customer Relationship Manager.5

[6] There is a dispute between the parties on the nature of the termination of the employment relationship. The Applicant alleges that due to ongoing bullying and harassment being taken against her by the Respondent she was not able to return to work. This prompted a resignation on 18 or 19 August 2015. In the Applicant’s submission, this amounted to constructive dismissal.

[7] In the Respondent’s submission, the Applicant resigned voluntarily. Despite a lot of material being provided on events both before and after this date, not much was provided by the parties as to the precise nature of the events on 18 or 19 August 2015 leading to the end of the Applicant’s employment. In any event, the predominate issue in question are the factors relevant to allowing an extension of time for the Applicant to lodge her Application.

[8] The correspondence on the FWC’s file indicates that on 16January 2019 the FWC General Protections Team (GPT) advised the Applicant and the Respondent that the Applicant had filed her Application outside of the legislated timeframe, being 21 days.

[9] The GPT sought the consent of the Respondent to progress the matter to a conciliation teleconference to hear the Applicant’s Application.

[10] As it was entitled to do, the Respondent did not consent. Accordingly, a Jurisdictional Objection Hearing (extension of time) (Hearing) was therefore listed before me on 4 March 2019. The Applicant was self-represented at the Hearing. She was supported by her mother, Ms Robin Harris, who also provided evidence to support the Applicant’s position. The Applicant’s partner, Mr Mark Sharp, also provided evidence. The Respondent was represented by Ms Fiona Durham, Employee Relations Manager at the Respondent.

[11] Directions requiring the filing of materials in the Hearing were issued to the parties on 8 January 2019.

[12] By no later than 12:00pm AEST on 15 February 2019 the Applicant was directed to file in the FWC and serve on the Respondent a statement setting out the basis with which she sought a further period to make his application. By no later than 12:00pm AEST on 21 February 2019 the Respondent was directed to file in the FWC and serve on the Applicant, a statement in response to the Applicant’s submissions.

[13] In determining whether the FWC is satisfied that there are exceptional circumstances to allow a further period of time, it refers to the relevant statutory provisions and to matters of precedent before the courts and the FWC to determine whether there are exceptional circumstances in the Applicant’s case.

RELEVANT STATUTORY PROVISIONS

[14] Section 366(1) of the Act provides that an application under section 365 (a general protections 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 (2).”

[15] Section 366(2) of the Act sets out the circumstances in which the FWC may grant an extension of time as follows:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[16] The Full Bench of the then Fair Work Australia (FWAFB) in the matter of Nulty v Blue Star Group considered the meaning of exceptional circumstances as follows:

“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…” 6

[17] 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. 7

[18] It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. 8

[19] The test of exceptional circumstances establishes a ‘high hurdle’ for an applicant to overcome for an extension to be granted. 9

[20] A decision to extend time under section 366(2) involves the exercise of discretion by the FWC. 10

[21] Whether exceptional circumstances exist requires consideration of all the relevant circumstances. 11 I will consider each of these matters in turn.

CONSIDERATION

s.366(2)(a) – The reason for the delay

[22] The Applicant and the Respondent presented evidence that the Applicant’s dismissal took effect on either 18 or 19 August 2015. She was therefore required to lodge her Application on either 9 or 10 September 2015. The Application was therefore lodged over 1100 days after the statutory time limit.

[23] With respect to this factor, the Applicant submitted a number of reasons why her Application was delayed.

[24] Primarily, the Applicant alleged that the reason for the delay in the lodgment of her Application was on medical grounds.

[25] The Applicant submitted evidence at the Hearing that on 15 July 2015 she was diagnosed with depression following a consultation with a Dr John G. Mullett (Dr Mullett) and that this was brought on by bullying and harassment in the workplace, a claim denied by the Respondent.

[26] Mr Mullett, in a report tendered at the Hearing by the Applicant, confirmed his diagnosis of depression on 15 July 2015 and noted that the Applicant had “prior history of depressive illness.”

[27] Progress notes in the Applicant’s evidence from weekly or fortnightly consultations with Dr Mullett further confirmed that the Applicant was medically assessed to be suffering stress from work which was “exacerbating her anxiety”. From 15 July 2015 to 15 August 2015, the Applicant’s symptoms became progressively worse. On 27 July 2015, a progress note from Dr Mullett states that the Applicant “...will seek alternative job (sic).” And on 15 August 2015, a progress note from Dr Mullett states that “…[the Applicant] will hand in resignation on 17 August 2015.”

[28] However, these are all matters which occurred before the date of the Applicant’s resignation. They therefore are only considered persuasive with regard to providing context on the reason for the delay.

[29] The Applicant next saw the Dr Mullett on 8 November 2016, approximately 400 days after her last date of employment with the Respondent. It is this time and the 700 or so days after this which are far more relevant regarding whether to permit an extension of time.

[30] To explain the reasons for the delay the first 400 days or so, Ms Robin Harris and Mr Mark Sharp provided evidence at the Hearing that the Applicant was largely confined to her room and only left the house on less than a dozen occasions during this period.

[31] The Applicant further led evidence to suggest that she was unable to use a computer during this time.

[32] The Applicant further submitted that the time after this was no less difficult from a medical perspective for the Applicant. On 16 June 2017 and 12 June 2018, the Applicant adduced evidence that she was hospitalised for Sepsis from kidney stones, which she submitted was brought about by chronic stress and anxiety. 12 Throughout 2017 and into 2018 it was submitted by the Applicant that she suffered back pain which was treated by a chiropractor and other ailments and that this made it difficult for her to put her Application together.13

[33] In short, the Applicant’s medical condition over this period it was submitted was “debilitating” and this prevented her from lodging her Application. 14

[34] Other factors explaining the reason for the delay in the Applicant’s submissions, include the re-locating of Mr Mark Sharp’s business on the Applicant’s property on 2 September 2016 so that Mr Sharp could care for the Applicant; 15 Mr Mark Sharp attempting suicide in December 2016;16 multiple attempts to contact the FWC and specifically on 24 February 2017 a suggestion from the FWC that they would not accept the Applicant’s Application;17 the pet Rottweiler passing away on 30 April 2018;18 a fire at the Applicant’s home in June 2018 where Mr Sharp’s industrial shed burnt down;19 and a loving pet named ‘Prada’ passing away on 9 November 2018.20

[35] In response, the Respondent also provided submissions on this criterion. Specifically, the Respondent drew the Commission’s attention in its closing submissions to the fact that the Applicant took a holiday overseas on the day after she resigned her employment, leaving on 20 August 2015 and returning back to Australia on 3 September 2015. 21

[36] The Respondent also submitted that the Applicant had the capacity to call the FWC on 24 September 2015, which was already outside of the 21 days, and had a discussion with a representative from the FWC about lodging an Application. This was, in the Respondent’s submission, a demonstration that the Applicant would have been or ought to be “cognisant of the 21 [day] statutory timeframe…”. 22

[37] This submission cannot be proven one way or another.

[38] In any event, the Respondent submitted that the Applicant had the capacity to lodge her Application in the years which passed after her termination.

[39] Specifically, the Respondent stated that the Applicant had experience and knowledge in making claims in relation to her employment and referred to a WorkCover claim which the Applicant made during her employment with the Respondent. 23 As this was an action undertaken during the Applicant’s employment, this is not a persuasive submission in consideration of this factor.

[40] The Respondent further submitted that in or around late 2017 or early 2018 the Applicant commenced a Certificate IV in Government investigations and completed this course on or about 23 October 2018. 24 The Respondent submitted evidence goes to the crux of the issue of Applicant’s capacity and is a strong submission. If the Applicant was capable of completing an online course, then it follows that the Applicant could also have submitted her application in 2017, even when applying to undertake this Certificate IV course. This is a logical submission and was not sufficiently addressed by the Applicant in response at the Hearing.

[41] Finally, the Respondent contended that the Applicant had not denied working since the cessation of her employment, further suggesting that the Applicant possibly had worked because she had only recently applied for Centrelink benefits and had updated her LinkedIn profile during the period of delay. 25 Again, without providing the necessary evidence behind this submission, it cannot be a persuasive one.

[42] To summarise, it is clear that the circumstances of the end of the Applicant’s employment were most unfortunate. On the evidence presented, the Commission cannot doubt that the Applicant has been through a torrid time and has been the victim of chronic misfortune. The evidence submitted by the Applicant is not doubted, save for one inconsistency.

[43] Prior to the Applicant’s dismissal she was diagnosed with anxiety and evidence was tendered from a qualified medical practitioner, Dr Mullett that the Applicant’s anxiety was exacerbated by stress. However, the relevant time under this criterion is what occurred after the dismissal.

[44] Medically, the Commission has been presented with voluminous medical evidence from before the cessation of the Applicant’s employment and from the start of 2017 onwards. 26 However, it was not presented with the requisite evidence it required from the Applicant’s last appointment with Dr Mullett on 17 August 2015 until 8 November 2016 where she next saw Dr Mullett again. This gap relies on the evidence of Ms Robin Harris and Mr Mark Sharp to prove incapacity and on pictures provided for by the Applicant which outline her losing weight and not being able to make it out of the house.27 Whilst Ms Robin Harris has a significant history of practicing in this area as a nurse, based on the symptoms, it is not persuasive that the Applicant would not have been treated by her physician at all during this time.

[45] On this factor, there is critical missing medical evidence for the Applicant in the first 400 or so days. The Commission needs to be satisfied conclusively that there are exceptional circumstances in the reason for the delay. This cannot be determined on the qualified medical evidence before it.

[46] Further, in the next 700 or so days, after 6 November 2016 the Respondent’s submission regarding capacity is strong. It does not appear conceivable that the Applicant could have reasonably enrolled in and completed a Certificate IV course and then enrolled in a Diploma, but not have had the capacity to submit and lodge a Form F8 in this time to lodge her Application. 28 The submission from the Respondent regarding the complexity of filling out a form as compared to completing an entire course is persuasive.

[47] The Commission is there minded on this criterion to say that this a very strong factor against the granting of an extension of time.

s.366(2)(b) – Any action taken by the person to dispute the dismissal

[48] Action taken by an applicant to contest the termination, other than by virtue of the Application, will be relevant and may weight in favour of granting an extension of time. 29

[49] The Applicant took a number of steps to dispute the way in which her employment ended.

[50] Whilst still employed, the Applicant submitted documentary evidence that she raised a complaint with the Retail Operations Manager of the Respondent on 17 July 2015. This was, however, prior to her last date of employment. 30

[51] The Applicant also lodged an enquiry with Workplace Health and Safety Queensland (WHSQ) on or about 24 September 2015 and was emailed an information package relating to her enquiry. 31

[52] In her submissions the Applicant made further enquiries to the FWC and WHSQ on 2 June 2016 and 10 August 2016 respectively, but submitted that she was not able to mentally “compile such an extensive case”. 32

[53] The Applicant also outlined that her mother Ms Robin Harris submitted an enquiry to the FWC on 14 February 2017, but she was similarly unable to complete the application due to her mental health issues. 33

[54] Further, the Applicant made contact with several law firms in 2018. 34

[55] On 24 April 2018, the Applicant made initial enquiries with Slater and Gordon Lawyers who, in the Applicant’s submission, advised the Applicant that “unfair dismissals were not their expertise”. 35

[56] In May the Applicant made enquiries with other law firms, however, was delayed from obtaining specific advice as there was a fire at her home in June. It was submitted that the impact of the fire of the Applicant’s property caused further delay in the Applicant taking steps to lodge her Application. 36

[57] On 7 August 2018, the Applicant submitted that she obtained advice from Ramsden lawyers to assess possible claims she may have against the Respondent. A copy of this advice was included in the Applicant’s submissions, however, was not permitted in the Applicant’s evidence on the basis that it was privileged. The Applicant submitted that she continued to receive advice from Ramsden lawyers until 5 December 2018, wherein she could not afford to obtain any advice going forward. 37

[58] In response, the Respondent outlined that the Applicant resigned and never retracted her resignation. 38

[59] The Respondent also submitted that the Applicant made initial enquiries, but did not follow up on these. There was also a suggestion that the Applicant was or ought to have been aware of the statutory timeframe. 39 This is a submission is not considered persuasive as previously indicated.

[60] On balance, it is clear that some steps were taken by the Applicant to dispute the end of her employment with the Respondent. However, these steps were not communicated to the Respondent. The Respondent could have assumed that the Applicant was aggrieved and therefore resigned against her will. However, on the evidence led this was never sufficiently articulated. On balance, the evidence adduced suggests that the Respondent heard nothing from the Applicant for a considerable period of time after her resignation.

[61] On the basis of the time that passed for the Applicant to take steps and the fact that the Respondent was not aware that the Applicant contested the circumstances which led to the end of her employment, this is a factor which would go against the FWC exercising its discretion to allow an extension of time.

s.366(2)(c) – Prejudice to the employer (including prejudice caused by the delay)

[62] Prejudice to the employer will go against the granting of an extension of time. Mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 40

[63] The delay in filing the application was more than 1100 days.

[64] On this factor, the Respondent indicated that they would be prejudiced if an extension of time were granted.

[65] Specifically, the Respondent submitted that the matter’s key witness, Mr Mark Vigus (former Branch Manager), is no longer employed with the Respondent and is located some distance away from the Respondent’s facility.

[66] The Respondent also provided submissions that other key witnesses have moved on and those who remain may have impacted memories of events due to the time delay. These are persuasive arguments on this criterion.

[67] Therefore, in relation to this matter, there is sufficient evidence before the FWC that there would be undue prejudice to the Respondent should an extension of time be granted. This is therefore a factor against allowing an extension of time.
s.366(2)(d) – The merits of the application
[68] With respect to the merits of an application for an extension of time, the FWC is not generally in a position to make findings of fact on a contested factual matrix and where evidence from both parties is yet to be fully adduced.

[69] The Applicant in this case has provided substantial documentation supporting her claim that adverse action was taken against her by the Respondent.

[70] It was clear on the evidence presented at the Hearing that the Applicant was affected by stress both during and after her employment with the Respondent.

[71] However, on the facts presented and without the Respondent having an opportunity to respond to the merits of arguments as put by the Applicant, this cannot be a determinative factor. It is therefore considered a neutral criterion in determining whether an extension of time should be allowed.

s.366(2)(e) – Fairness as between the person and other persons in a like position

[72] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. 41

[73] Both the Applicant and the Respondent provided evidence and relevant precedents on this point.

[74] The precedents, however, provided by the Applicant do not assist her. This is due to the magnitude of the delay in the Applicant’s case. The cases of Mitchell Curtis v Suncorp Staff Pty Ltd, 42 Rebecca Shannon v Urban WA Real Estate Pty Ltd43, Stephan Glumac v Sea Road Logistics T/A Sea Roads,44 Yu Duo (Lynda) Lin v Woolworths Ltd45and Rachel Penrose v Loral Ipsum (Aust) Pty Ltd T/A Supreme Loral Ipsum46 which the Applicant included in her submissionsdo not aid the Applicant. In all of these cases the maximum extension allowed was 164 days47. The Applicant’s delay is more than 6 times this delay.

[75] The Applicant therefore provided no analogous case law in her submission. In fact, the case law presented an impression contrary to the submission that the Applicant wished to make on this point.

[76] Taking into account the circumstances of this case, based on the evidence that has been presented, the Respondent has demonstrated on this criterion that there would be unfairness between the Applicant and other cases which have been decided before by the FWC should an extension of time be allowed.

Conclusion

[77] On the evidence provided to the FWC, the Applicant’s personal circumstances are most unfortunate. Over the past three years and two months, there is no other conclusion to draw than the Applicant has had a rough time. This is evidenced in problems with her health, issues relating to her partner’s health and his business, beloved pets passing away, an untimely and unwelcome fire at the Applicant’s property and issues with legal representation and finding out answers with the FWC and other statutory bodies. There is no basis not to believe that all of these submissions that the Applicant presented are true and genuine.

[78] Whilst an ordinary person may see the combination of the above events as extraordinary, in determining this matter the FWC can only have regard to the five criteria as specified for in the Act.

[79] A decision of the FWC to allow an extension of time is discretionary. Relevantly, that discretion is exercised on the basis of the on factors which have been duly considered.

[80] On the basis of this, and due to the great time that has passed following the Applicant’s resignation, I have formed the view that the Applicant has failed to establish the high hurdle of exceptional circumstances pursuant to the legislative framework and the applicable case law.

[81] Pursuant to section 366(2) of the Act, the extension of time is denied and the section 365 application is dismissed. I Order accordingly.

DEPUTY PRESIDENT

Appearances:

Ms Hunney Lee Harris for the Applicant

Ms Fiona Durham for the Respondent

Hearing details:

4 March 2019

In Chambers by Telephone

Printed by authority of the Commonwealth Government Printer

<PR706657>

 1   Applicant’s Form F8 – General protections application involving dismissal at [1.3].

 2   Applicant’s Form F8 – General protections application involving dismissal at [1.2].

 3   Applicant’s Outline of argument: Extension of time at [1c.].

 4   Applicant’s Form F8 – General protections application involving dismissal at [3.1, document dated 14 June 2013].

 5   Applicant’s Form F8 – General protections application involving dismissal at [3.1, document dated 15 December 2014].

 6   Nulty v Blue Star Group[2011] FWAFB 975.

 7   Ibid.

 8   Ibid.

 9   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 10   Halls v McCardle and Ors [2014] FCCA 316

 11   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [38].

 12   Applicant’s written /closing submissions dated 14 March 2019 at [11]; Exhibit 1 documents as tendered at the Hearing.

 13 Applicant’s written /closing submissions dated 14 March 2019 at [17].

 14 Ibid at [16].

 15 Ibid at [12].

 16 Ibid at [13].

 17   Ibid at [14, 15 and 17].

 18 Ibid at [19].

 19 Ibid at [20].

 20 Ibid at [21].

 21   Respondent’s written / closing submissions dated 21 March 2019 at [5.3].

 22   Ibid at [5.5].

 23   Ibid at [5.8 (a)].

 24   Ibid at [5.8 (b, c and d)].

 25   Ibid at [5.8 (e)].

 26   Applicant’s written /closing submissions dated 14 March 2019 at [Timeline of Medical Evidence]; Exhibit 1 documents as tendered at the Hearing.

 27   Exhibit 1 documents as tendered at the Hearing.

 28   Respondent’s written / closing submissions dated 21 March 2019 at [5.8 (c)].

 29   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [300].

 30   Applicant’s written /closing submissions dated 14 March 2019 at [Annexure: Re: Doctor’s Certificate].

 31   Exhibit 1 documents as tendered at the Hearing.

 32 Applicant’s written /closing submissions dated 14 March 2019 at [27].

 33 Ibid at [28].

 34   Ibid at [29-30].

 35 Ibid at [29].

 36 Ibid at [30].

 37   Ibid at [31]

 38   Respondent’s written / closing submissions dated 21 March 2019 at [6.1].

 39   Ibid at [6.2-6.3].

 40   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [300].

 41   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

 42   Mitchell Curtis v Suncorp Staff Pty Ltd [2015] FWC 7380.

 43   Rebecca Shannon v Urban WA Real Estate Pty Ltd [2015] FWC 7341.

 44   Stephan Glumac v Sea Road Logistics T/A Sea Roads [2018] FWC 4607.

 45   Yu Duo (Lynda) Lin v Woolworths Ltd [2017] FWC 4298.

 46   Rachel Penrose v Loral Ipsum (Aust) Pty Ltd T/A Supreme Loral Ipsum [2014] FWC 467.

 47   Yu Duo (Lynda) Lin v Woolworths Ltd [2017] FWC 4298.