Jackie Grady v Ernst Gabriel de Roux as trustee for the Pearl Rock Trust T/A Savoir Rooms
[2023] FWC 510
•1 MARCH 2023
| [2023] FWC 510 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jackie Grady
v
Ernst Gabriel de Roux as trustee for the Pearl Rock Trust T/A Savoir Rooms
(U2023/774)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 1 MARCH 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Ms Jackie Grady (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Ernst Gabriel de Roux as trustee for the Pearl Rock Trust T/A Savoir Rooms (Respondent).
On her Form F2 – Unfair Dismissal application, the Applicant identified the Respondent’s legal name as Savior Rooms. On their Form F3 – Employer Response form, the Respondent entered their legal name as Ernst Gabriel de Roux as trustee for the Pearl Rock Trust T/A Savoir Rooms. I consider it appropriate to exercise my discretion pursuant to s.586 of the Act to amend the Respondent’s name to “Ernst Gabriel de Roux as trustee for the Pearl Rock Trust T/A Savoir Rooms”.
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application was made out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
I listed the matter for a preliminary conference, including conciliation before me on 13 February 2023. The matter was not able to be resolved and the matter proceeded to a determinative conference.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The determinative conference
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a formal or informal hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the FW Act) on 28 February 2023.
Permission to appear
I heard from both parties on the question of representation before the Commission.
Having considered the submissions of the Applicant and the Respondent, I determined that:
·allowing the Applicant to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter;
·it would be unfair not to allow the Applicant to be represented because the Applicant is unable to represent herself effectively;
·allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; and
·it would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself effectively.
Accordingly, at the conference on Tuesday 28 February 2023, the Applicant attended and was represented by Mr Mitchell Grady of Counsel and the Respondent was represented by Mr Robert Lamb of Hillhouse Legal and Dr Jane Robinson and Mr Ernst de Roux both appeared from the Respondent.
Witnesses
The Applicant gave evidence on her own behalf. Her witness statement and annexure A was admitted as exhibit A1, the Application and accompanying annexures as exhibit A2 and the email sent by the Applicant to Vice President Catanzariti’s Chambers as exhibit A3.
There were no witnesses who gave evidence on behalf of the Respondent.
Submissions
The Respondent filed their Form F3 and accompanying annexures on 8 February 2023.
The Applicant filed formal submissions in the Commission on 16 February 2023. The Respondent chose not to file further submissions other than an oral statement given during the determinative conference.
When did the dismissal take effect?
On 7 February 2023, in response to a letter from the Chambers of Vice President Catanzariti on 2 February 2023, the Applicant initially raised that she believed her application to have been made only 5 days late, rather than 26 days late. The Applicant submitted that the date that her dismissal took effect was on 5 January 2023, being the final date of a period of notice paid in lieu by the Respondent.
Where payment in lieu of notice is made, the dismissal usually takes effect immediately[1]. The Applicant was informed of this during the preliminary conference.
It is no longer in dispute, and I so find, that the dismissal took effect on 15 December 2022.
When was the application made?
It is not in dispute, and I so find, that the application was made on 31 January 2023.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As I found above, the dismissal took effect on 15 December 2023. The final day of the 21 day period was therefore 5 January 2023 and ended at midnight on that day. As I found above, the application was made on 31 January 2023 which was 26 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
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 5 January 2023. The delay is the period commencing immediately after that time until 31 January 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
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.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]
Submissions
The Applicant submitted that the delay was for the following reasons:
· The state of the Applicant’s mental health and depressive illness;
· The impact of her husband’s diagnosis with a terminal illness in mid-June 2022 (the diagnosis);
· A delay in the Applicant’s husband’s chemotherapy treatment just prior to her dismissal that caused her a great deal of stress;
· The time of year being the Christmas period, particularly given her husband’s illness; and
· The Applicant’s leaving Australia to travel abroad for a trip (the trip).
In relation to the reason for the delay, the Respondent submitted that the Applicant had 2 weeks before the trip to make her application, that on her own testimony she had access to modern means of communication such as the internet and mobile phone and again on her own testimony was able to put her mind to it in the second half of the trip. The Respondent submitted that they appreciated the unfortunate set of circumstances surrounding the Applicant around the time of the dismissal.
Evidence
The Applicant’s evidence was that as a result of the diagnosis in June of 2022, the Applicant planned a ‘bucket list’ trip to be taken in January 2023.
The Applicant stated that since the diagnosis, she had been regularly ‘sad and depressed’ and would ‘struggle to focus on things’. The Applicant further stated that she developed a skin condition as a result of the stress. The Applicant stated that her General Practitioner has recommended that she take medication to treat her mental health but that she had made the decision not to do so.
The Applicant stated that a few days before the termination of her employment, that her husband received advice that his treatment would need to be delayed by 7 days due to certain test results and that this caused ‘a very sharp decline in her mental health’.
The Applicant stated that she had left the country on 28 December 2023, and that she had not ‘thought about the termination’ or about ‘taking any action in relation to it (the dismissal) at all’.
The Applicant stated during the conference that she was not involved with the planning of the trip very much at all and had not wanted to go. During the conference the Applicant acknowledged that there are things to organise on a trip such as this but that this was done by her son and her friends. The Applicant gave evidence that her friends arranged hire cars and all the day to day matters that require organisation when travelling. The Applicant gave evidence that during the 4 week trip, the Applicant did not remain in one place but rather toured and moved to multiple locations. The Applicant agreed that she had at all times had access to a mobile phone and the internet.
The Applicant stated that on 22 January 2023, as a result of the positive experiences from the trip, her mental health began to improve. The Applicant stated that upon her return home from the trip on the evening of 28 January 2023, that she started to make enquiries in relation to her dismissal and accessed the ‘Fair Work website’. The Applicant stated that she then compiled her documentation and lodged the application on 31 January 2023.
The Applicant submitted a letter (the letter) from her General Practitioner Dr Sai Siritharan dated 14 February 2023[7]. The letter stated that Dr Siritharan was the Applicant’s General Practitioner since January 2022 and that the doctor is also the Applicant’s husband’s treating practitioner. The letter states that the Applicant:
“… experienced a significant deterioration in her mental health in mid December as a result of the stress caused by a delay to her husband’s chemotherapy. She had significant anxiety for his health. She saw me on the 28th of December and she seemed stressed, anxious and teary. She was also suffering a flare of a skin condition that is usually triggered and worsened by significant levels of stress, anxiety and immunocompromise. Mrs Grady did not mention to me at this appointment that she had been dismissed from her job. During her appointment on the 31st of January my observation was that there was little to no improvement of her mental health and it was only during this appointment that she informed me about her employment termination and this added significant (sic) to her stress.”
The letter further states that in Dr Siritharan’s opinion, due to the Applicant’s mental health, that she was ‘unfit to participate in legal proceedings or make decision in relation to legal proceedings.
Consideration
What was the Reason/s for the delay?
Having regard to the above, I find that the reasons for the delay were a combination of issues that included the Applicant’s mental health, the diagnosis in June 2022, the impact of this on the mental health of the Applicant, the delay of 7 days in the Applicant’s husband’s medical treatment in the week around the same time as the dismissal, the timing of the Applicant’s overseas trip with her husband, the time of the year (being the Christmas period and the importance of spending time with the Applicant’s family given the diagnosis) and the Applicant’s distress in respect of her dismissal.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. This consideration weighs neutrally.
What action was taken by the Applicant to dispute the dismissal?
It is uncontentious that the Applicant did not take steps to dispute the dismissal until she lodged this application. This factor weighs neutrally in respect of the grant of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.7 This consideration weighs neutrally.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[8] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application. Therefore, I consider this a neutral issue in this application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any 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.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being the Applicant’s mental health, the diagnosis of her husband’s ill health earlier in the year and the impact of that on the mental health of the Applicant, the delay of 7 days in the Applicant’s husband’s medical treatment, the timing of the Applicant’s overseas trip with her husband, the time of the year including the Christmas period and the importance of spending time with the Applicant’s family during this period given the diagnosis and the Applicant’s distress in respect of her dismissal;
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[9] 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.[10]
In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”5
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.6
I accept the Applicant’s evidence that she was suffering from a great deal of distress as a result of her husband’s grave health issues. I note that she became aware of this around June 2022 some 6 months before the dismissal.[11] A few days before the dismissal the Applicant became aware that her husband’s treatment would be delayed by a week and then, in the short time before that treatment was to begin, the Applicant’s employment was terminated. I accept this sequence of events together would have impacted on the Applicant’s ability to think clearly and to make a decision to challenge her dismissal for a period of time. This is supported by her Doctor’s evidence in the form of two brief letters resulting from two visits during the relevant period (once on 28 December 2022 (the day the Applicant left for her trip overseas) and again on 31 January 2023.
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[12]
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[13]
Evidence of misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[14]
Whilst I accept the evidence of Dr Siritharan and the Applicant that the circumstances contributed to a period of the delay, I do not accept that it explains the entire period of delay being 26 days. The evidence of Dr Siritharan in respect of the Applicant’s mental health, that she was ‘unfit to participate in legal proceedings or make decision in relation to legal proceedings’ was unqualified in terms of a time frame. Further, the Applicant’s own evidence and actions were at odds with Dr Siritharan.
The Applicant’s evidence during the hearing was that she had access to a mobile phone and the internet in the 4 week trip to the United Kingdom that formed part of the period of delay. Whilst the importance of the trip would have been most heartfelt by the Applicant, the Applicant herself acknowledges that on 22 January 2023, she felt that she was able to consider her termination and that she had started to enjoy herself.[15]
I asked the Applicant how she had gone about planning and organising herself overseas given that travel often requires a degree of organisation. The Applicant explained that her friends had looked after the accommodation and transportation, however the Applicant’s statement says that the friends only joined the Applicant for the last two weeks of the trip.[16] Whilst I note that there was no evidence before the Commission to support this, what is of note is that the Applicant did not have the assistance of her friends in the first two weeks of the trip.
Even if I were to accept that the Applicant was not capable of lodging an unfair dismissal application in that first two week period, I find that during the course of the last two weeks of the trip, the Applicant, on her own evidence, was capable of dealing with her unfortunate circumstances. She acknowledged that she shared the details of the circumstances with her friends.[17]
Whilst I do not find the exceptional circumstances required in this application, I note that even if I were to find otherwise in respect of the last two weeks of her trip, the reasons provided for the further delay on her return are insufficient to satisfy me that exceptional circumstances existed in respect of all of the delay. It was the Applicant’s evidence that on her long flight home, she made the decision to consider her rights in relation to the termination.[18] The Applicant returned to Brisbane on the evening of Saturday the 28th of January 2023 and gave evidence that she spent the remainder of the weekend researching the process for lodging an unfair dismissal application. However, the Applicant failed to lodge the application the next business day and she also did not do so until the afternoon of the 31st of January some 3 days after her return.
I note that lodging an unfair dismissal application is not a complex legal process. The Commission’s resources for self-represented parties are very good and that is evidenced by the large number of self-represented parties that appear regularly in the Commission. I note the application can be lodged by email any time of the day or night or by phone during business hours. These resources were available to the Applicant, and it is this further last delay that is not sufficiently explained.
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
I order that the jurisdictional objection be upheld, and that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr M Grady for the Applicant.
Mr R Lamb for the Respondent.
Hearing details:
28th February 2023 in Brisbane
[1] Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), [(1994) 122 ALR 333 at p. 355]
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Exhibit A1 – Annexure A
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Annexure A to Applicant’s Statement Exhibit A1.
[12] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[13] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[14] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[15] Statement of the Applicant A1, [64] p.52 of the DCB.
[16] Ibid [55], p.50 of the DCB.
[17] Ibid [64].
[18] Ibid [65].
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