Jeneille Harris v Westpac Banking Corporation

[2016] FWC 2370

[2016] FWC 2370 [Note: An appeal pursuant to s.604 (C2016/3668) was lodged against this decision - refer to Full Bench decision dated 27 July 2016 [[2016] FWCFB 4894] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeneille Harris
v
Westpac Banking Corporation
(U2015/13838)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 14 APRIL 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Ms Jeneille Harris (the Applicant) made an application on 23 October 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Westpac Banking Corporation (Westpac – the Respondent) on 23 September 2015 was unfair.

[2] On 26 October 2015 the Fair Work Commission (the Commission) wrote to Ms Harris indicating that her application appeared to have been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was received nine days outside the 21 day statutory timeframe.

[3] The Commission subsequently issued Directions on 30 November 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Amended Directions were issued by the Commission on 1 December 2015.

[4] The extension of time issue was the subject of a telephone hearing on 9 December 2015. At the telephone hearing, Mr Stefan Banovich appeared with permission for Ms Harris, while Mr Chris Hill appeared for Westpac.

[5] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Ms Harris’ application cannot proceed and will be dismissed.

Background

[6] Ms Harris commenced employment with Westpac on 10 February 2003 and at the time of her dismissal was employed as a Bank Manager.

[7] Westpac in its Form F3 – Employer Response to Unfair Dismissal Application set out the chronology of events leading up to Ms Harris’ dismissal. Specifically, Westpac stated that:

• in June 2011 Ms Harris was informally counselled regarding her performance;



• in 2013 Ms Harris was again informally counselled regarding a number of issues, receiving a formal warning in September 2013 in respect of those issues;



• in November 2014 Ms Harris was assessed as “Needs Development” in her annual performance appraisal;



• in January and February 2015 Ms Harris attended performance counselling meetings and at the latter meeting was advised by Westpac that it expected her performance to improve by 15 April 2015;



• Ms Harris’ performance did not improve to the required level;



• on 15 April 2015 it met with Ms Harris and advised her that, as her performance had not improved to the required level, it was considering the termination of her employment;



• at that meeting Ms Harris was handed a letter confirming this, with the letter asking Ms Harris to provide by close of business on 16 April 2015 any further information in response to Westpac’s notification that it was considering dismissing her;



• Ms Harris never responded to that request;



• on 16 April 2015 Ms Harris requested an extension of the timeframe to respond until 20 April 2015, with that request granted;



• on 19 April 2015 Ms Harris advised that she had visited a doctor who advised that she was unfit for work until 1 May 2015;



• Ms Harris continued to be unfit for work and absent from work until the time of her dismissal;



• on 18 August 2015 Westpac wrote to Ms Harris foreshadowing that it would be sending documents for her to take to her next doctor’s appointment to assist it in seeking further clarification about her illness;



• Ms Harris sought an extension of the timeframe for her doctor to respond, with the extension again granted;



• on 16 September 2015 Ms Harris advised Westpac that her doctor refused to complete the documentation until she had sought legal advice and that this would take another month; and



• on 23 September 2015 it emailed Ms Harris confirming the termination of her employment with effect from that date.

[8] As previously noted, Ms Harris’ application was received by the Commission on 23 October 2015, nine days outside the 21 day statutory timeframe.

The Relevant Legislation

[9] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(2) The 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 (3).

394(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[10] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[11] Ms Harris cited the following as the reasons for the delay in lodging her application:

• her poor health as a result of depression and anxiety from the time of her dismissal to 23 October 2015 and beyond;



• her bad fortune in not being able to obtain the assistance of her preferred legal advisor despite her various efforts to contact him;



• her lack of knowledge of the 21 day time limit for making an unfair dismissal application; and



• having to care for her ill granddaughter for the period 9 to 17 October 2015.

[12] In her submissions, Ms Harris relied on a number of authorities to support her contention that there were exceptional circumstances in this case. Those authorities were Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery 1, Stephens v Australian Postal Corporation2 and Taylor v Shepard & Son Pty Ltd (t/as Capricorn Coast Retravision)3.

[13] In her witness statement 4, Ms Harris largely reiterated her written submissions regarding the reasons for the delay in lodging her application. Key aspects of Ms Harris’ oral evidence were that:

• she did not seek a doctor’s advice regarding her granddaughter’s illness;



• she could not get anything done while she was looking after her granddaughter;



• she agreed that there was nothing in the clinical notes from her doctor saying that she could not file her application;



• she similarly agreed that the medical certificate she provided 5 did not say that she was not able to seek legal advice or visit the Commission;

during the period 23 September to 23 October 2015 she only used the internet to access her emails, adding that she would become nauseous when she tried to do research;

she had problems with her computer during this period; and

no one advised her of the 21 day timeframe for making an unfair dismissal application.

[14] Westpac submitted that:

• Ms Harris had not provided any compelling medical evidence which would support her assertion that she could not make her application within the statutory timeframe as a result of her illness, adding that the WorkCover Progress certificate provided did not certify that Ms Harris’ illness prevented her from preparing and filing her application within 21 day timeframe;



• Ms Harris’ evidence established that her illness did not prevent her from attempting to contact lawyers regarding her dismissal and that as such she would also have not been prevented from making enquiries with the Commission and/or lodging her application;



• Ms Harris could not rely on her ignorance of the rights available to her to contest her dismissal as a valid reason for the delay in lodging her application;



• there was no evidence that Ms Harris had received advice from her solicitor that an unfair dismissal application could be filed and that there was a strict time limit;



• there was no evidence that Ms Harris had instructed her solicitor to make an application;



• it appears that Ms Harris merely made attempts to arrange a consultation with her solicitor; and



• Ms Harris had not provided any medical or other evidence to support her assertion that she was required to care for her granddaughter between 9 and 17 October 2015, adding that even if this period was accepted it did not provide an explanation for the entire period of the delay in lodging her application.

[15] Westpac disputed the relevance of the authorities relied upon by Ms Harris and cited a number of authorities on which it sought to rely, including Ashley Walkom v Mcdonald’s Australia Ltd T/A Mcdonalds 6which it submitted determined that difficulty in obtaining legal advice was not out of the ordinary, unusual or uncommon.

[16] An analysis of the evidentiary material relied upon by Ms Harris indicates that:

• the correspondence 7 from Ms Harris’ treating doctor, Dr Graham Farquhar, does not express a view as to what, if any, extent Ms Harris was incapacitated over the period 23 September to 23 October 2015, though the letter does state “She admitted feeling quite incapacitated by her Depression especially as she was accustomed to living on a daily basis in a High Functioning Profession”;

the medical certificate and consultation notes 8 provided and/or prepared by Dr Farquhar similarly gave no indication as to the extent, if any, of Ms Harris’s incapacity;

Ms Harris contacted her preferred legal advisor, Mr Steve Heathcote – a barrister and solicitor, on 23 September 2015 seeking advice and was advised later that day that he was unable to take any more work at that time;

in responding, Mr Heathcote provided Ms Harris with several names of other legal practitioners who she may wish to contact to seek advice;

following a further exchange of emails with Mr Heathcote on 23 September 2015, Ms Harris responded that she was willing to wait until Mr Heathcote could represent her unless there was a time limit on filing a case on her behalf; and

Mr Heathcote did not advise Ms Harris of the 21 day timeframe.

[17] As noted above, the medical evidence relied upon by Ms Harris does not provide any indication as to the extent of her incapacity or that her illness precluded her from lodging her application within the 21 day timeframe. To the contrary, Ms Harris’ actions in seeking legal advice immediately after her dismissal and in the ensuing days and weeks suggests that she was not totally incapacitated during this period.

[18] As to her granddaughter’s illness, while no medical evidence was provided to support Ms Harris’ submissions and evidence in this regard, I note that even if the period 9 to 17 October 2015 were accepted, it does not provide an explanation as to why Ms Harris could not have lodged her application before 9 October 2015 or the reason for the delay from 17 to 23 October 2015. As noted by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 9, an employee needs to provide a credible reason for the whole of the period that the application was delayed. Based on the material before the Commission, I am not satisfied that Ms Harris has done so.

[19] With regard to Ms Harris’ submission that she was not aware of the 21 day timeframe for making her application, I note that in Cheyne Leanne Nulty v Blue Star Group (Nulty) 10a Full Bench of the then Fair Work Australia determined that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[20] By way of background, the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in similar terms to s.394(2)(a) of the Act.

[21] Taken together, the above considerations do not point to the existence of exceptional circumstances.

(b) Whether the person became aware of the dismissal after it had taken effect

[22] It was not disputed that Ms Harris was aware that her employment had been terminated on 23 September 2015.

[23] I therefore consider this factor to be a neutral consideration.

(c) Any action taken by the person to dispute the dismissal

[24] Ms Harris submitted that she did not dispute her dismissal directly with Westpac but that she diligently sought legal assistance and representation immediately after her dismissal.

[25] Westpac submitted that Ms Harris had not demonstrated that she had taken any other action to contest her termination, other than attempting to arrange a meeting with the solicitor, prior to filing her application. This, Westpac submitted, should favour against the Commission granting an extension of time.

[26] Based on the material before the Commission, it appears that Ms Harris took no action to dispute her dismissal prior to lodging her application. While I note that Ms Harris did seek legal assistance, it is noteworthy that she did not obtain legal advice prior to lodging her application and that her efforts to obtain legal advice did not result in any actions to dispute her dismissal.

[27] The above analysis does not point to the existence of exceptional circumstances.

(d) Prejudice to the employer (including prejudice caused by the delay)

[28] Ms Harris submitted that Westpac had not been disadvantaged by the lateness of her application.

[29] Westpac did not submit that it would be prejudiced were an extension of time granted. However it did submit that the absence of prejudice was not a sufficient basis to grant an extension of time 11.

Against that background, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[30] Ms Harris submitted that she believed her case had prospects of success. In her witness statement, Ms Harris deposed that it was manifestly unfair for Westpac to terminate her while she was on personal leave. As to her performance, Ms Harris deposed that Westpac did not have a valid reason to dismiss her for a number of reasons, including:

• the performance management process conducted between January and April 2015 was undertaken in an unprofessional manner and was neither satisfactorily completed nor carried out impartially;



• the performance management process was governed by unrealistic expectations, with inadequate coaching and support offered to her;



• she was bullied throughout the performance management process and isolated from other staff; and



• any assessment she received did not disclose her business improvements, nor did it take into account the relative performance of the branch she was managing relative to other local branches.

[31] Westpac submitted that were an extension of time to be granted there would be a detailed factual contest in the substantive proceedings regarding various matters, including Ms Harris’ assertions that she was consistently a good performer, that the dismissal was not in accordance with Westpac’s policies and procedures and that she never received a warning. Against that background, Westpac submitted that this factor should be a neutral consideration in determining whether or not there are exceptional circumstances.

[32] From the above, it is clear that a number of key issues in this matter are disputed. Against that background and in the absence of a substantive hearing of all the evidence, I am unable to form a considered view as to the merits of Ms Harris’ application. I therefore consider this factor to be a neutral consideration.

(f) Fairness as between the person and other persons in a similar position

[33] Ms Harris submitted, inter alia, that when compared to other applicants who may be younger, healthier, have a broader employment skill set, possess higher education and have the support of another bread-winner in their immediate family, she was in a disadvantageous position when considering her overall ability to recover from being dismissed. While I note Ms Harris’ submission, it does not draw a comparison with others in a similar situation to her but rather focusses on what she considers to be her disadvantages in the job market.

[34] Westpac submitted that, given the lack of compelling reasons for the delay, it would be unfair to employees in similar positions who had been precluded from filing their applications should Ms Harris be successful.

[35] I consider this factor to be a neutral consideration.

Conclusion

[36] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Nulty in the following way:

“[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.”

[37] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[38] Accordingly, Ms Harris’ application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

S. Banovich for the Applicant.

C. Hill for the Respondent.

Hearing details:

2015.

Sydney and Perth (telephone hearing):

December 9.

 1   [2010] FWA 1394

 2 (2010) 202 IR 437

 3   [2008] AIRC 632

 4   Exhibit B1

 5   Exhibit B3

 6   [2014] FWC 7290

 7   Exhibit B2

 8   Exhibit B4

 9 (2010) 197 IR 403 at 408-409

 10 (2011) 203 IR 1

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

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