Jaweeria Khan v Leap Software Developments Pty Ltd
[2024] FWC 1218
•9 MAY 2024
| [2024] FWC 1218 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jaweeria Khan
v
Leap Software Developments Pty Ltd
(U2024/3411)
| COMMISSIONER CRAWFORD | SYDNEY, 9 MAY 2024 |
Unfair dismissal application filed out of time – medical evidence – merit to application -exceptional circumstances – extension of time granted
Background
Jaweeria Khan (Mrs Khan) has 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 was unfairly dismissed by Leap Software Developments Pty Ltd (Leap).
Leap is a legal software business. Mrs Khan commenced employment with Leap on 24 May 2022 as a Junior Salesforce Administrator. Mrs Khan’s employment was terminated effective 20 February 2024 on the ground of redundancy.
Mrs Khan’s Form F2 unfair dismissal application was filed on 25 March 2024.
On 11 April 2024, Leap filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mrs Khan’s application was not filed within 21 days of the dismissal taking effect on 20 February 2024 and argued that an extension of time should not be granted. Leap also argued Mrs Khan’s dismissal was a case of genuine redundancy.
I issued directions for the filing of material and listed a determinative conference/hearing regarding whether an extension of time should be granted for Mrs Khan’s application on 3 May 2024.
I granted permission for Mrs Khan to be represented by Ms Yang from Allwell Legal at the determinative conference/hearing on 3 May 2024. I also granted permission for Leap to be represented by Ms Strachan from Kingston Reid. I was satisfied granting permission to both parties would enable the matter to be dealt with more efficiently, taking into account its complexity.
At the start of the proceeding, I indicated my provisional view was that it was appropriate to conduct the proceeding as a hearing, given both parties were legally represented. The parties agreed to this course of action. I decided to conduct a hearing.
Material filed
Mrs Khan
Mrs Khan relied on the following material in support of an extension of time being granted:
· A Form F2 application. I indicated during the hearing that I was considering marking the application as an exhibit given it contains evidence about the delay in filing and the dismissal. In addition, although Mrs Khan filed a significant amount of documentary evidence, she did not attach this evidence to a witness statement. Leap objected to the application form being marked and argued it should be treated as a submission. The content in the application is written in the first person and presents as having been at least reviewed by Mrs Khan. I was satisfied any prejudice to Leap would be mitigated by the ability of Ms Strachan to cross-examine Mrs Khan. After hearing the parties, I decided to mark the application form Exhibit A1.
· A submission filed by Mrs Khan’s lawyers on 11 April 2024 had a series of documents attached. The documents were:
-A NSW Health record regarding Mrs Khan’s pregnancy dated 13 March 2024. The document indicates Mrs Khan’s baby has an expected due date of 13 October 2024 and that her pregnancy is high-risk due to multiple complications.
-A medical attendance certificate which confirms Mrs Khan attended an outpatient group session at Canterbury Hospital on 15 February 2024.
-A series of documents where Mrs Khan recorded her blood glucose and insulin levels starting on 23 February 2024. Mrs Khan was diagnosed with diabetes in 2020.
-A Brief Psychological Report from Hanan Dover (Senior Clinical and Forensic Psychologist) dated 8 April 2024. The report states Mrs Khan was referred by Dr Naim Islam on 28 February 2024 for “assessment and treat her for ‘Adjustment Disorder with anxious mood and stress’.”
-The report identifies Mrs Khan’s employer as Leap and her position as Junior Salesforce Administrator. The report states: “On 20/02/2024 received a zoom conference request from a manager at 2:30pm. Chris Chahinian and Klaudia Kazimierczuk were on the call. She was given bad news and informed that ‘her role has been made redundant at immediate effect.’
-In relation to a diagnosis, the report states:
“It is clear from the clinical observational evidence provided that Mrs Khan has been suffering from:
* Adjustment Disorder with Depression
* Anxiety
* Trauma
* Insomnia
- (DSM-5-TR criteria met) – as detailed above.
Mrs Khan’s presentation meets the criteria of the DSM 5 Adjustment Disorder with Depression and Anxiety with associated trauma and insomnia symptoms. She remains traumatised by the experience and does not have suitable coping skills even though she has very good emotional support from her husband.
Mrs Khan presented as someone whose resilience has been compromised and she has developed psychological responses which have been detrimental to her ability to perform day to day tasks, including completing documentation related to her application via Fair Work.”
I marked these documents collectively Exhibit A2.
· A copy of Mrs Khan’s complete medical records as of 15 April 2024. The records confirm Mrs Khan attended appointments with Dr Islam on 24 and 28 February 2024 regarding her mental health. On 28 February 2024, Dr Islam created a Mental Health Treatment Plan and referred Mrs Khan for treatment with Ms Dover. I marked these records Exhibit A3.
· A birth certificate for Mrs Khan’s son, Maaz Ali Khan, which confirms he was born on 15 April 2024 in India. I marked the certificate Exhibit A4.
· An offer of enrolment for Mrs Khan’s son at Rissalah College dated 10 November 2024. I marked the offer of enrolment Exhibit A5.
· A Patient Health Summary for Mrs Khan from Alameddin Family Practice dated 29 April 2024. I marked the record Exhibit A6.
· Various additional medical records for Mrs Khan primarily concerning her pregnancy. I marked the records Exhibit A7.
· A series of medical attendance certificates which confirm Ms Khan attended medical appointments or sessions on: 15 February 2024, 21 February 2024, 22 February 2024, 28 February 2024, 13 March 2024, 20 March 2024, 3 April 2024, and 17 April 2024. I marked these certificates Exhibit A8.
· A screenshot of emails between Mrs Khan and Leap’s People and Culture team. The emails confirm Mrs Khan notified Leap of her pregnancy on 14 February 2024 and was congratulated and provided with Leap’s Parental Leave Policy and Application form on 19 February 2024. I marked the screenshot Exhibit A9.
Mrs Khan filed additional evidence, including the screenshot marked Exhibit A9, one day prior to the hearing. This was not consistent with the directions I had issued for the filing of material. Leap objected to the admission of all of this additional evidence on the basis that it was filed late, and Leap had insufficient time to review the material prior to the hearing. I declined to admit all the additional evidence given the late filing, except for Exhibit A9. I considered this document to be quite relevant to the issues I needed to determine, and that Leap should not be unduly prejudiced given the documents are internal emails that had been in Leap’s possession at all times.
Mrs Khan was cross-examined on her evidence by Ms Strachan.
Mrs Khan also relied on written submissions dated 11 April 2024 and reply submissions dated 29 April 2024. Ms Yang also made oral closing submissions at the end of the hearing.
Leap
Leap relied on its Form F3 employer response and an outline of submissions dated 22 April 2024.
Ms Strachan made oral closing submissions at the end of the hearing.
Extension of time
Section 394(2) of the FW Act provides that an unfair dismissal application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
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.”[1]
Given the dismissal date of 20 February 2024, the 21-day filing period ended on 12 March 2024. Mrs Khan’s application was filed 13 days late on 25 March 2024. As a result, Mrs Khan needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.
Was the application made within such further period as the Commission allows?
Under s. 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 Mrs Khan first became aware of the dismissal after it had taken effect; and
(c) any action taken by Mrs Khan 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 Mrs Khan and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
Consideration
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 12 March 2024. The delay is the period commencing immediately after that time until 25 March 2024, although circumstances arising prior to that period may be relevant to the reason for the delay.[3]
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.[4]
Mrs Khan 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 Mrs Khan has not provided any reason for any part of the delay.[5]
Leap strongly argued that Mrs Khan has not provided an adequate explanation for the delay in filing. Although Leap acknowledged a significant amount of medical evidence had been filed, Leap argued this evidence did not establish that Mrs Khan was unable to file an unfair dismissal application until 25 March 2024. Leap argued the evidence establishes Mrs Khan was able to attend medical appointments, and complete required medical paperwork at all times after her dismissal. Mrs Khan was also able to attend appointments with a lawyer.
I reject Leap’s submissions concerning the medical evidence relied upon by Mrs Khan. I consider the medical evidence clearly establishes Mrs Khan was experiencing significant mental health issues from when she attended Dr Islam on 24 February 2024. Dr Islam recorded Mrs Khan attending an appointment for “adjustment disorder with anxious mood” on 24 February 2024.[6] On 28 February 2024, Dr Islam created a Mental Health Treatment Plan for Mrs Khan and referred her for treatment with Ms Dover.[7] Mrs Khan attended appointments with Ms Dover on 5 March 2024, 14 March 2024, 6 April 2024, and 8 April 2024. On 8 April 2024, Ms Dover provided a report which states (my emphasis):
“It is clear from the clinical observation evidence provided that Mrs Khan has been suffering from:
· Adjustment Disorder with Depression
· Anxiety
· Trauma
· Insomnia…”
Although the precise date Mrs Khan commenced suffering from these conditions is not entirely clear, I think it is reasonable to assume based on Dr Islam’s referral and Ms Dover’s report that it is likely Mrs Khan was suffering from these conditions from 24 February 2024 and throughout the period leading up to the filing of her unfair dismissal application on 25 March 2024. Ms Dover’s use of the words “has been suffering” is consistent with this assumption. The fact that Mrs Khan is pregnant and that there is a high risk of complications with the pregnancy due to her medical issues undoubtedly would have added to her stress and concern, but I do not consider this in isolation would provide a sufficient reason for not being able to file an unfair dismissal application. I consider the mental health issues to be the primary reason for the delay in filing.
I find that Mrs Khan has a satisfactory explanation for the delay in filing until 18 March 2024. That is the date Mrs Khan instructed Allwell Legal to act on her behalf. Although Mrs Khan first met with her lawyer on 11 March 2024, I consider Mrs Khan’s mental health issues provide a satisfactory explanation for why she needed to go away and consider whether she wished to proceed with paying for legal assistance until 18 March 2024. Mrs Khan presented as a credible witness. I accept her evidence that she was unable to file an unfair dismissal application without assistance due to her mental health issues.
However, the only reason provided for the delay in filing from 18 March to 25 March 2024 is that Allwell Legal was collecting evidence in support of the application. I do not consider that is a satisfactory explanation. Given the 21-day period had already lapsed, the appropriate course of action would have been to urgently file an application based on the available information. It is possible that the delay from 18 March to 25 March 2024 could be explained as representative error, but this argument was not made by Mrs Khan and there is insufficient evidence to establish representative error.
I have found that Mrs Khan has a satisfactory explanation for the delay from 12 March 2024 to 18 March 2024. I have not found that Mrs Khan has a satisfactory explanation from 18 March 2024 to 25 March 2024. However, the evidence establishes Mrs Khan was suffering from significant mental health issues from 18 March 2024 to 25 March 2024. I consider this means she would have largely been reliant on help from her lawyers during this period. After weighing all the evidence, I consider the reason for the delay weighs marginally in favour of a finding of exceptional circumstances. I consider Mrs Khan’s significant mental health issues to be an extraordinary circumstance and that the medical evidence establishes the issues were substantially more than the ordinary stress that will inevitably arise with most dismissals.
Did Mrs Khan first become aware of the dismissal after it had taken effect?
Mrs Khan accepted she became aware of the dismissal on the day it took effect, 20 February 2024. I consider this to be a neutral factor.
What action was taken by Mrs Khan to dispute the dismissal?
Mrs Khan provided oral evidence that was consistent with the submissions filed by her lawyers which confirms she first contacted Allwell Legal on 6 March 2024 and then attended an appointment on 11 March 2024. These were clearly steps Mrs Khan took to dispute her dismissal and they were steps taken within the 21-day filing period. I consider Mrs Khan took actions to dispute her dismissal including during the 21-day period. This factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
Leap did not argue it would be prejudiced if an extension of time was granted. I consider this to be a neutral factor.
What are the merits of the application?
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)”, or in this case, s.394(3)(e).[8]
Although Leap intends to argue Mrs Khan’s dismissal was a case of genuine redundancy as a jurisdictional objection to the unfair dismissal application, I consider Mrs Khan has reasonable prospects of establishing that the definition in s.389 of the FW Act is not satisfied. It was not contested by Leap during the hearing that Mrs Khan was completely unaware of any restructuring process that may impact her job until the date of dismissal, 20 February 2024. Further, Mrs Khan was sent an email by Leap’s People and Culture team the day prior to her dismissal, 19 February 2024, where a parental leave application form was provided. There was no indication whatsoever in that email that the termination of Mrs Khan’s employment was being considered. Given the timeframes involved, I consider there is significant doubt that redeployment was properly considered by Leap. In addition, while Leap argued Mrs Khan’s employment was not covered by a modern award, I doubt that is correct. Mrs Khan was paid a salary of $80,000 to work as a Junior Salesforce Administrator. I would be very surprised if that position is not covered by a modern award. If that is right, it appears arguable that Leap would not have complied with the consultation provisions in the relevant modern award. It was not helpful that I was not assisted by any submissions or evidence from Mrs Khan’s lawyers on this issue.
I could say considerably more about my concerns with the process implemented by Leap to dismiss Mrs Khan, given her circumstances. However, given Ms Strachan’s helpful concessions regarding the relevant timeframes during the hearing, and given there is understandably limited evidence that has been filed by the parties at this early stage, I will not add to the issues identified above.
Although Leap is clearly not required to file substantial evidence regarding the merits of the application at this point of the proceeding, Leap was provided with an opportunity to file evidence about the merits, and it elected to file no material. It would not have been difficult to, for example, provide a brief witness statement directed at the “significant cost cutting program resulting in the redundancy of 138 roles across its group” as referred to in its written submissions. Brief evidence about the process that led to the redundancies could also have been provided to address issues such as redeployment. No evidence was provided by Leap.
I find the merits of the application weigh in favour of a finding of exceptional circumstances and the granting of an extension of time for Mrs Khan.
Fairness as between Mrs Khan and other persons in a similar position
Neither party made any persuasive submissions directed at this factor. I consider this factor is neutral.
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 above.
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] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[11]
Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.
I consider Mrs Khan’s significant mental health issues, the steps Mrs Khan took to dispute her dismissal and the potential merit to her application collectively constitute exceptional circumstances.
Conclusion
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.
Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[12] I am satisfied that it is appropriate to extend the period for the application to be made to 25 March 2024.
The application will proceed to be dealt with in accordance with the Commission’s normal processes.
COMMISSIONER
Appearances:
Ms Yang representing Mrs Khan.
Ms Strachan representing Leap.
Hearing:
3 May.
Via video.
2024.
[1] 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.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Exhibit A3.
[7] Exhibit A3.
[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] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[12] Fair Work Act 2009 (Cth) s 577.
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