Inge Sulistyowati v Australian Unity Home Care Services Pty Ltd T/A Australian Unity

[2021] FWC 3401

[2021] FWC 3401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Inge Sulistyowati
v
Australian Unity Home Care Services Pty Ltd T/A Australian Unity
(U2021/3187)

DEPUTY PRESIDENT EASTON SYDNEY, 11 JUNE 2021

Unfair dismissal application filed out of time – exceptional circumstances – distress and depression – medical evidence – circumstances not exceptional on the evidence provided – application dismissed.

[1] Ms Sulistyowati was dismissed by Australian Unity Home Care Services Pty Ltd (“Australian Unity”) in March 2021. Ms Sulistyowati had been off work due to illness since January 2019. Australian Unity dismissed Ms Sulistyowati by way of a letter dated 15 March 2021 on the basis of frustration of contract. The letter dated 15 March 2021 was sent by registered mail and followed two earlier letters also sent by registered mail to Ms Sulistyowati in March 2021. Ms Sulistyowati says she received the termination letter on 24 March 2021 and did not receive either of the two earlier letters.

[2] There is a small contest about the date the dismissal was effective, however that contest is of little significance to the present matter. If the dismissal was effective 15 March 2021 then s.394 of the Fair Work Act 2009 (“the Act”) required Ms Sulistyowati to commence her unfair dismissal remedy application by 5 April 2021. If the dismissal was not effective until Ms Sulistyowati received the letter on 24 March 2021 then s.394 required Ms Sulistyowati to make her application by 14 April 2021. Ms Sulistyowati made her unfair dismissal remedy application on 15 April 2021 and therefore requires an extension of time.

Section 394 – Exceptional Circumstances

[3] An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the Commission allows (per s.394(3)). The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances” (per s.394(3)). The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

…

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[4] In considering whether there are exceptional circumstances, s.394(3) specifically requires the Commission to take into account the following:

“(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.”

[5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 the Full Bench found that:

(a) generally the assessment of whether exceptional circumstances exist will require the consideration of all the relevant circumstances because even though no one factor may be exceptional, the factors considered in combination might support such a finding (at [17] and [38]);

(b) the obligation to "take into account" the matters set out in the statute means that each of those matters must be treated as a matter of significance in the decision-making process insofar as they are relevant (at [19]);

(c) no one factor need be exceptional in order to enliven the discretion to extend time (at [38]); and

(d) individual matters might not be particularly significant when viewed in isolation, but it is necessary to consider the matters collectively and to ask whether, collectively, the matters disclose exceptional circumstances (at [39]).

Reason for the delay (s.394(3)(a))

[6] When taking into account the reason for the delay the Commission invariably assesses whether the applicant has a credible or reasonable explanation for the delay. The Commission does so as part of the process of firstly determining whether exceptional circumstances exist, and if they do, whether to exercise a discretion to allow further time for commencing the application.

[7] A credible explanation for the whole of the period of the delay is not a condition precedent to finding exceptional circumstances exist - it is but one factor for the Commission to take into account. In other words, it is not essential that an applicant provide a credible explanation for the delay.¹

[8] That said, if an applicant does not have a credible explanation for the some or all of the delay the Commission is generally less likely to find that exceptional circumstances exist. Conversely a credible explanation for the entirety of the delay will usually support a finding of exceptional circumstances.

[9] The Commission must consider the reason for the delay over the whole of the period between the dismissal and the commencement of the proceedings, rather than just the period after time limit has expired. 2

[10] Ms Sulistyowati’s explanation for the delay is that her poor mental health in 2021 meant that it took longer for her to prepare her application.

[11] Ms Sulistyowati says that her dismissal in 2021 enlivened the detrimental psychological responses that she says she suffered in 2019. In an email to the Respondent on 24 March 2021 Ms Sulistyowati said “I will be referring this termination to [the Fair Work Commission] as it is not acceptable that after 2 years of stress leave due to bullying at Australian Unity and with no contact from anyone during a highly stressful pandemic that your office [terminates] my employment.”

[12] Ms Sulistyowati did not provide any medical evidence of her condition in 2021. She provided extensive documentation relating to her illness and absences from work in 2019. This information is of limited relevance to the question at hand. Ms Sulistyowati relies on the 2019 material in support of the proposition that she continued to suffer illness in 2021.

[13] In her oral submissions to the Commission, Ms Sulistyowati said that between the time of her dismissal and the commencement of the proceedings her mental state went up and down as she thought of the events of 2019, tried to “come up” from “this situation” and to minimise her feelings but it “comes back again”. She said that she had been so depressed and so down and that every time she went to “do it”, meaning commence the proceedings, she would just “be sad [and so] I just can’t [make the application] at all [because] it just shuts down on me again and then I have to support myself and I have to be strong [and] so that’s why this application take longer for me.”

[14] Depression, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual. 3

[15] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found exceptional circumstances connected to an applicant’s mental illness 4 and in other cases the Commission has not found exceptional circumstances.5

[16] In Glyn Roberts v Westech IT Solutions Pty Ltd[2014] FWC 4226 Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.

[17] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[2015] FWCFB 3435 at [15]-[16] the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame. In that matter the Applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the Applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the Applicant told her about his self assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period”.

[18] Similarly, in Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human Services)[2020] FWCFB 3523 the Full Bench assessed evidence from an applicant’s treating psychologist concerning “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder”, primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. 6

[19] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.

[20] On any proper analysis of the evidence before me, Ms Sulistyowati’s reasons for delay weigh against a finding that there were exceptional circumstances. It is not possible to come to a different conclusion without having a proper evidentiary foundation. I accept that Ms Sulistyowati has been genuine and forthright in presenting her materials and submissions to the Commission, but Ms Sulistyowati’s evidence and submissions do not contain a clinical diagnosis or any kind of assessment from a medical practitioner. I therefore can only view the evidence and material before me as Ms Sulistyowati’s genuinely stated self-assessment of her mental health in 2021.

[21] Ms Sulistyowati’s explanation for her delay does not point towards there being exceptional circumstances.

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

[22] Ms Sulistyowati sent an email to the Respondent on 24 March 2021 that referred to the dismissal. She was therefore aware that the dismissal had taken effect by at least 24 March 2021. The application was lodged 22 days after this date. This is a neutral consideration.

Action taken to dispute the dismissal (s.394(3)(c))

[23] Save for the above email, Ms Sulistyowati took no other steps to dispute her dismissal prior to making her unfair dismissal remedy application. This is not a factor that supports the existence of any exceptional circumstances.

Prejudice to the employer (s.394(3)(d))

[24] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. Given that the delay is very short, it is unsurprising that there is a lack of prejudice to the employer. In these circumstances the absence of prejudice to the Respondent does not weigh in favour of a finding of exceptional circumstances. 7

Merits of the application (s.394(3)(e))

[25] The Act requires me to take into account the merits of the application in considering whether there are exceptional circumstances.

[26] Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice. 8

[27] In this context it is sufficient that an applicant establish that their claim is not without merit. 9

[28] By the time of her dismissal Ms Sulistyowati had been absent from the workplace for more than two years. The stated reason for dismissal was that Ms Sulistyowati had failed to resume work and had not provided an explanation for her absence. From material provided by Ms Sulistyowati it seems that by at least May 2019 the Respondent, through iCare, was trying to implement an injury management plan. The stated injury on iCare documentation provided by Ms Sulistyowati was “anxiety disorder, unspecified.”

[29] There is no evidence at all of what occurred between May 2019 and March 2021. In March 2021 the Respondent decided that she’d been away too long and wrote to Ms Sulistyowati asserting, amongst other things that “we have received no explanation for your absence [from work].” Clearly something changed that caused the Respondent to write to Ms Sulistyowati in this way and to ask her why she wasn’t attending work.

[30] Two years is a long period to be away from the workplace, which does not help Ms Sulistyowati’s case. However, if the Respondent ought reasonably to have known that Ms Sulistyowati continued to be unfit because of mental illness, then writing to Ms Sulistyowati in this fashion does not help its case.

[31] I cannot conclude, nor should I conclude at this stage, that Ms Sulistyowati’s claim is strong, but I cannot find on the materials before me that it is without merit. I consider the merits to be a neutral consideration.

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

[32] 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. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Sulistyowati and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[33] Considering the above matters individually and collectively I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms I Sulistyowati, Applicant
Mr Y Lin, for the Respondent

Hearing details:

2021.
Sydney:
9 June.

Printed by authority of the Commonwealth Government Printer

<PR730687>

1 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36].

 2   Diotti v Lenswood Cold Stores Co-op Society (t/as Lenswood Organic) (2016) 258 IR 110, [2016] FWCFB 349 at [31].

 3   Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287 at [15].

 4   Glyn Roberts v Westech IT Solutions Pty Ltd[2014] FWC 4226, as cited with approval in Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[2015] FWCFB 3435 at [15].

 5   Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[2015] FWCFB 3435.

 6   Linda Merhi v Commonwealth of Australia, represented by Services Australia (formerly the Department of Human Services)[2020] FWCFB 3523 at [8], [37]-[39].

 7   Miller v DPV Health Ltd [2019] FWCFB 6890 at [21] citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149at [38].

 8   Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [72].

 9   Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168 at