Jaime Fitzgerald v Ad & SM McLean Pty Ltd T/A St Annes Vineyards
[2024] FWC 847
•3 APRIL 2024
| [2024] FWC 847 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jaime Fitzgerald
v
AD & SM McLean Pty Ltd T/A St Annes Vineyards
(U2024/2035)
| COMMISSIONER YILMAZ | MELBOURNE, 3 APRIL 2024 |
Application for an unfair dismissal remedy – application lodged out of time – application dismissed.
Ms Jaime Fitzgerald (the Applicant) lodged a s.394 application under the Fair Work Act 2009 (the Act) for unfair dismissal remedy in relation to the termination of her employment with AD & SM McLean Pty Ltd T/A St Annes Vineyards (St Annes or the Respondent).
Ms Fitzgerald commenced part-time employment in the position of Business Development Manager on 27 June 2023 and was dismissed in writing on 19 January 2024. The unfair dismissal application was lodged on 24 February 2024, 15 days after the statutory 21-day time limit. The hearing for an extension of time was held on 28 March 2024. Both parties were self-represented, and no witness evidence was called.
Ms Fitzgerald acknowledges that her application is late but seeks an extension of time. St Annes however, submit that there are no exceptional reasons to grant an extension of time.
The Act allows for an extension of time by the Commission if it is satisfied that there are exceptional circumstances. 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.[1] 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.[2]
Section 394(3) of the Act 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; 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.
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 consider these matters in the context of the Application.
Reason for the Delay
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[3]
The period of the delay is from midnight of the 21-day deadline until the date of the application. In this matter the delay is a period of 15 days.
Ms Fitzgerald submits that her application is late because she was unwell, having injured her ankle with her prior employer and allegedly reinjuring on 8 November 2023. She submits that she was prescribed a slow release opioid for which she had a severe reaction rendering her in no state to make an unfair dismissal application.
Evidence in support of the reason for delay tendered was firstly a letter dated 13 March 2024 from Ms Fitzgerald’s clinic advising that her medical practitioner was away and an explanation for why a report could not be provided. The letter states:
“The usual doctor for Jaime Fitzgerald is away on holidays and won’t be back for a week.
I have never consulted Jaime before and I am unable to write the report Jaime is asking for.
As I understand it Jaime has had a severe reaction to opiod medication that she was initially supplied on the 17/1/24 and was unable to attend to paperwork for her court case.
However Dr La Joie, her usual GP, is the only one that can state that, as his case records make no mention of what type of reaction Miss Fitgerald had.”[4]
A medical certificate was tendered in evidence from Ms Fitzgerald’s doctor dated 25 March 2024. This certificate reads:
“MEDICAL CERTIFICATE
THIS IS TO CERTIFY THAT
Miss Jaime Fitzgerald
(address)
is receiving treatment for a medical condition
and was to do nadmin btask
From: Wednesday, 7 February 2024
To: Saturday, 23 March 2024
INCLUSIVE”[5]
(address omitted)
Ms Fitzgerald submits the typographical error should read “no admin task”. Ms Fitzgerald tendered in evidence other medical information including an Allianz report rejecting a workers compensation claim against St Annes, a medical certificate for Centrelink dated 14 February 2024 and a certificate of capacity dated 27 November 2023.
St Annes submits that Ms Fitzgerald was dismissed on 19 January 2024 and received email correspondence from her on the same day. On 6 February 2024 St Annes emailed Ms Fitzgerald to arrange collection of company property. A response was received an hour later proposing collection on 16 February between 2 and 4pm to coincide with a smoke alarm service. Ms Fitzgerald assures St Annes that the company property is safe upstairs, but she cannot take the stairs without assistance and suffers stress migraines.
A signed statement of evidence from a sales executive for St Annes describes attending Ms Fitzgerald’s residence to collect company property. The statement observes that Ms Fitzgerald was wearing a moonboot and struggled to move freely. She notes that she was pointed to the direction of the phone and laptop but was informed that the cases of wine (approximately 10 cases) were no longer available. No other physical limitations were observed.
Ms Fitzgerald last worked 3.08 hours on 9 November 2023. She alleges that she sustained an injury to her ankle on 8 November 2023, I observe she had worked 8.08 hours that day. A WorkCover certificate of capacity was tendered in evidence citing an alleged left ankle injury on 8 November 2023, however the certificate was dated 27 November and covered the period of 27 November to 11 December 2023. This certificate also deemed Ms Fitzgerald totally incapacitated physically and mentally other than an ability to stand/ walk with modifications. This certificate appears to be the only certificate of capacity given to St Annes. A WorkCover claim dated 2 December 2023 was lodged stating that an injury to the left ankle and back was sustained while lifting wine boxes from her car boot. The Allianz letter rejecting the WorkCover claim states that it was reported that a sprained ankle occurred after Ms Fitzgerald’s back spasmed as she was removing boxes from her car boot at home at 11.00am on 8 November causing her to fall to the concrete floor. No ambulance was called nor a report to her employer was made that day. On the following day after waking with pain, it is alleged that Ms Fitzgerald reported in sick to her employer. This report does not align with the hours of work reported and paid for by St Annes. The first medical appointment allegedly occurred on 13 November 2023 where the medical treatment consisted of instructions to wear a moonboot and use crutches.
Ms Fitzgerald submits that she was prescribed a slow release opioid on 17 January 2024, more than 2 months after the alleged work injury, and 2 days before the dismissal. No evidence of an opioid prescription or any side effect from medication was tendered. Further I note that Ms Fitzgerald was capable of communicating with the sales executive on 16 February and used email communication on at least 12 January, twice on 19 January and 7 February and obtained a Centrelink medical certificate on 14 February 2024.[6] The two medical certificates from her medical centre (JF-4 and JF-12) are absent of evidence that Ms Fitzgerald was incapacitated from making an unfair dismissal application within the statutory time frame. Ms Fitzgerald included an undated statement from Marion Fitzgerald, for which she stated she was not relying on. I observe the statement does not provide particulars of an alleged “decline in cognitive function” from the end of January until late February. However, this statement appears inconsistent with the evidence noted above.
I observe that Ms Fitzgerald also states that she was significantly mentally unwell due to prescription medication due to severe stress in the workplace.[7] No evidence of stress or stress medication was tendered. Further I observe that Ms Fitzgerald allegedly sustained an ankle injury on 8 November and her last recorded work day was 9 November 2023. I further observe that throughout her employment she did not make any sales.[8] The submission that Ms Fitzgerald sustained workplace stress and contributed to the delay, is not substantiated and does not weigh in favour of this consideration.
While 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.[9] Having considered the evidence tendered by Ms Fitzgerald and St Annes, I am not satisfied that the reasons for delay are substantiated nor do the reasons, absent any evidence weigh in favour of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
Ms Fitzgerald was dismissed following correspondence initially dated 9 January 2024 which noted her incapacity to perform the inherent requirements of the job as stipulated by her general practitioner, including her absence from 9 November 2023. The letter stated that her employer formed a preliminary view that it was unable to accommodate her continuing absences and sought her response before a final decision is made. Ms Fitzgerald responded on 12 January and on 19 January 2024. St Annes informed her that it determined to dismiss her employment effective immediately with a payment of 2 weeks in lieu of notice. Ms Fitgerald understood the contents of this letter and promptly sent 2 emails on the same day. On this basis Ms Fitzgerald was aware of the dismissal date, and she confirmed this at hearing despite the reference to different dates in her Form F3. Therefore, she had the full benefit of the 21 days to file her application. In these circumstances this consideration does not weigh in Ms Fitzgerald’s favour.
Action taken to dispute the dismissal
Ms Fitzgerald submits that she challenged St Annes’ dismissal of her employment on the basis that her WorkCover claim was still active because an independent medical examination could not be booked.[10] In an email of 19 January 2024 Ms Fitzgerald writes stating that the WorkCover claim is subject to appeal and review and a dismissal for health reasons is not legal. However, I observe the email commences with “that’s all fine” then proceeds with the objection. She concludes her email requesting her payslip and advises that she will inform St Annes of an appropriate time to collect their property including the wine the following week.[11]
The second email on the same day[12] contains requests for information to advance her Worker’s compensation claim, a balance of her annual leave and makes other claims regarding her intention to perform telesales and other comments about her mental health and ankle injury prior to commencing employment. This email does not, nor does the correspondence in the earlier email of 12 January seek retention of her position nor state that she intends to lodge an unfair dismissal application. The correspondence does state that the dismissal was not legal and refers to Fair Work but does not provide any further detail to place St Annes on notice of an unfair dismissal application. At best the correspondence places St Annes on notice that she disagreed with the dismissal. On this basis while the correspondence largely focusses on WorkCover and her final payments I do consider this consideration to sway in her favour somewhat.
Prejudice to the employer
Ms Fitzgerald states that the employer has not suffered any prejudice by the delay in her application as she submits that she informed the Respondent that she was seeking legal advice. I observe no evidence was tendered in support of this submission.
St Annes did not address this consideration. In any event the absence of prejudice does not weigh in favour of an extension of time.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. Ms Fitzgerald contends that the dismissal was unfair because of her absence on a WorkCover claim – however described in her submissions as either active or subject to review, appeal or subject to an independent medical examination.
St Annes submit that the dismissal was not unfair; throughout her employment in a sales position, she made no sales, and when she was due to attend meetings to discuss her performance she called in sick for various reasons and most often without a medical certificate. The allegation that she sustained an ankle injury which subsequently manifested in a back and a mental health injury according to Ms Fitzgerald, was clearly rejected by Allianz after their investigation found inconsistencies in her evidence and finding that no injury arose from employment with St Annes. St Annes did not dismiss Ms Fitzgerald’s employment while on WorkCover. They did dismiss her based on the only certificate submitted which states she has no capacity for employment from 27 November to 11 December 2023 and a continued absence from work since 8 or 9 November 2023. Both parties acknowledge the last day of work was 8 November, although I observe that Ms Fitzgerald claimed 3 hours of work on 9 November for which she was paid. Evidence concerning lack of performance is persuasive, including the phone records tendered on the day of the hearing which evidence a lack of phone usage. On the matter of merit, while there is likely to be contentious evidence, the substantive and persuasive materials tendered by both parties is not in dispute- no sales made or evidence of acceptable performance, each performance meeting scheduled was not attended by Ms Fitzgerald except for 23 October 2023 where performance deficiencies and expectations were clearly articulated. No sales were made after this meeting and Ms Fitzgerald only worked for one more week until her alleged workplace injury. Ms Fitzgerald’s submissions or evidence does not weigh in support of an arguable case on merit, balanced against the uncontested evidence of her lack of performance tendered by St Annes.
Fairness as between the person and other persons in a similar position
Neither party addressed this consideration, therefore it is neutral in the assessment for an extension of time.
Conclusion
Having considered the submissions and material submitted by the parties, I have taken them into account in my assessment of whether I can be satisfied of exceptional circumstances to justify an extension of time. As either a single matter or a combination of the factors, I am required to take into account my findings in relation to the considerations in s.394(3). Having considered the evidence and submissions, there is only one in favour of an extension (action taken to challenge the dismissal) but there is not a combination of considerations that weigh in favour of an extension of time. Therefore, I am not satisfied that there are exceptional circumstances to grant an extension of time.
Accordingly, the application for an unfair dismissal remedy is dismissed.
An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
J Fitzgerald, Applicant
A McLean for the respondent
Hearing details:
2024.
Melbourne (via Microsoft Teams):
March 28.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39]
[4] Applicant’s Outline of Argument, attachment JF- 4.
[5] Applicant’s Outline of Argument, attachment JF-12.
[6] Applicant’s Outline of Argument, attachments JF-3, JF-5, JF-6, JF-9, & JF-11;Witness Statement of Sarah Cutajar; Respondent’s Outline of Argument, attachments 12 & 14.
[7] Applicant’s Outline of Argument: extension of time, at Q4.
[8] Uncontested oral evidence of St Annes.
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[10] Applicant’s Outline of Argument: extension of time, at Q5.
[11] Applicant’s Outline of Argument, attachment JF-6.
[12] Applicant’s Outline of Argument, attachment, JF-11.
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