Jennifer Forlonge v Citywide Service Solutions Pty Ltd T/A Citywide

[2018] FWC 941

[2018] FWC 941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Jennifer Forlonge
v
Citywide Service Solutions Pty Ltd T/A Citywide
(C2017/5825)

COMMISSIONER RIORDAN SYDNEY, 22 FEBRUARY 2018

Application to deal with contraventions involving dismissal – extension of time.

[1] Ms Jennifer Forlonge (the Applicant) filed a general protections application against her former employer Citywide Services Solutions Pty Ltd t/a Citywide (the Respondent) on 20 October 2017. The Applicant was employed by the Respondent on 19 June 2017 and terminated within her probation period on 18 September 2017.

[2] The Respondent has raised a jurisdictional objection to the Applicant’s application on the basis that it is 11 days outside of the statutory timeframe. Section 366 of the Fair Work Act, 2009 (the Act) states:

“Time for application

(1)  An application under section 365 must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (2).

(2)  The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

   (a)  the reason for the delay; and

   (b)  any action taken by the person to dispute the dismissal; and

   (c)  prejudice to the employer (including prejudice caused by the delay); and

   (d)  the merits of the application; and

   (e)  fairness as between the person and other persons in a like position.

[3] Leave was granted in accordance with section 596(2) of the Act to allow the Respondent to be represented by Mr Christopher Charalambous from Maddocks on the basis that his appearances will allow the matter to be dealt with more efficiently.

[4] The Hearing was conducted by telephone on 20 December 2017.

Background

[5] The Applicant submitted that she suffers from anxiety as a result of a recent motor vehicle accident. The Applicant advised that she is under the regular care of a specialist medical practitioner and that she takes prescribed medication for her condition.

[6] The Applicant also advised that she has undertaken her own legal research in relation to this matter, that there was no malicious intent on her part to file her application late and that the lateness of her application has no adverse affect on the Respondent.

[7] The Respondent disputed the Applicant’s alleged incapacity on the basis that her F8 application was actually completed on 12 October 2017 yet not lodged until 20 October 2017. Further, the Applicant has demonstrated a capacity to communicate effectively by contacting the Respondent on a number of occasions and by registering herself at Centrelink.

[8] The Respondent referred me to the Full Bench decision in Ballarat Truck Centre Pty Ltd v Kerr, 1(Ballarat)where it held:

“[15] In our view, such conclusions were not open to the Commissioner. As Mr Follett submitted, the evidence actually pointed to the opposite conclusions, that is, that Ms Kerr was quite capable of acting in her own capacity and could engage in formal dealings relating to her dismissal. For instance, after her employment was terminated, Ms Kerr was able to contact Job Watch and WorkSafe for assistance, write to Mr Smith who was the owner of BTC, meet with a solicitor to complete a WorkCover claim and provide a written summary of events. Further, she was assisted in January 2011 by Mr G. Frances of Saines Lucas Lawyers in respect of a decision on the making of an application under s.365 of the Act.

[16] Accordingly, the Commissioner erred in her findings as to the reason for Ms Kerr’s delay in making her application under s 365 of the Act.” 2

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 3 where the Full bench said:

“[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.”

[10] I now turn to consider the criteria in section 366(2) of the Act.

Section 366(2)(a) – valid reason

[11] It is worth noting that the Applicant had requested that all correspondence be sent to her by post due to the fact that she does not have regular access to the internet. The Applicant confirmed this in her F8 application.

[12] The Applicant stated that she found the task of completing the F8 application to be a very confronting experience which triggered her anxiety.

[13] The Applicant is under the care of Dr George Anasson, a Consultant Psychiatrist. The Applicant had a scheduled appointment with Dr Anasson in the afternoon of the Hearing on 20 December 2017. I suggested to the Applicant that it would be of benefit in explaining her medical condition and limitations if her doctor was able to put this information in a letter. The Applicant emailed my Chambers at 6.48pm that evening advising that Dr Anasson was going on leave the following day but that he would write to the Commission upon his return from leave, which was 8 January 2018.

[14] After failing to hear from Dr Anasson, in accordance with section 590 of the Act, I rang the surgery of Dr Anasson on 6 February 2018 to see if a letter had been sent to the Applicant or to the Commission. I was advised by Dr Anasson’s secretary that a letter had been sent to the Applicant by email the previous day. Relevantly, the letter said:

“…

I have been involved in the treatment of Ms Jennifer Forlonge since May 2016. My role has been as her primary treating psychiatrist…

I do believe the complexity and severity of Ms Forlonge’s psychiatric condition is a key factor in her delay in applying to have a case heard. Ms Forlonge’s suffers from a history of Post Traumatic Stress Disorder, Generalised Anxiety and Attention to Deficit Hyperactivity Disorder.

She has felt very strongly about her case and application to Fair Work Victoria (sic) and has discussed this with me before. As has often occurred with Ms Forlonge, in situations where the process requires the consideration of previous conflict, she endures significant symptoms consistent with PTSD. In writing her application Ms Forlonge felt very strong emotions and felt physically sick with sweating, palpitations and a sense of panic. As a result of the emergence of these symptoms (within the PTSD framework), she had also symptoms of dissociation which led her to significant avoidance. Whilst the simple, process of lodging an application form may seem an administrative one, for patients with a history of traumatisation the idea of visiting a conflictual situation regardless of the simplicity of the administrative task is often overwhelming.

Ms Forlonge continues to see me on a regular basis and is prescribed (deleted for privacy considerations) medication. Having known this lady for the last two years I am comfortable with her explanation of her difficulties around the application. I would urge those involved to consider her situation with understanding and compassion and any discretion that may be available to allow her application to be considered before Fair Work Victoria (sic). I am of course happy to answer any further questions should this be required, and can be contacted at my rooms in Richmond.

Yours sincerely

Dr George Anasson” 4

(my emphasis)

[15] The Full Bench in Ballarat, when discussing a doctor’s report for the Respondent said:

“[11] …The report did not deal with Ms Kerr’s ability to make an application a tribunal”

[16] Relevantly, Dr Anasson’s report has no such deficiency. Dr Anasson explicitly highlights the issues and problems that the Applicant would have experienced in completing her application. As a result, the decision in Ballarat can be distinguished.

[17] I am satisfied that the letter from Dr Anasson supports the evidence from the Applicant that she had difficulty in dealing with her application. I find that this medical based difficulty provides a valid reason for the late lodgement of the Applicant’s application. I have taken this into account.

Section 366(2)(b) – any action taken by the person to dispute the dismissal

[18] The Applicant has lodged a general protections claim. It is obvious that she was not happy with her termination. I note that the Applicant has discussed her termination with Dr Anasson who reported that the Applicant “felt very strongly about her case”. I am satisfied that by filing her application, the Applicant has taken sufficient steps to dispute her dismissal. I have taken this into account.

Section 366(2)(c) – prejudice to the employer

[19] The Respondent has failed to establish that prejudice of any relevant kind would be experienced by the employer if an extension of time was granted. The decision to use legal representation and its associated costs is a decision for the Respondent. These costs would be the same now as if the Applicant had made her application in time. I have taken this into account.

Section 366(2)(d) – the merits of the application

[20] In the matter of Kornicki v Telstra Network Technology Group 5the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission held:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 6

[21] It was held in Kyvelos v Champion Sock Pty Ltd 7, that the Commission cannot make any finding on contested matters without hearing evidence, which is typically not called at this stage of the proceedings. The Full Bench went on to say that:

“The Commission should not embark on a detailed consideration of the substantive case.” 8

[22] Taking into account the obiter in Kornicki, I am satisfied that the Applicant’s case, whilst difficult, is not without merit.

Section 366(2)(e) – fairness as between the person and other persons in a like position

[23] I am not aware of any other employee of the Respondent in this or a like situation. This issue is a neutral consideration in my deliberation.

Conclusion

[24] I find that the medical report from Dr Anasson to be compelling evidence. It was evident during the telephone proceedings that the Applicant’s capacity to deal with issues changed dramatically depending on the subject matter.

[25] I am satisfied and find that the Applicant’s medical condition prevented her from submitting her application on time. I find that the Applicant’s medical condition is “unusual and uncommon”.

[26] As a result, I find that that Applicant’s medical condition satisfies the “exceptional circumstances test” as identified in Nulty.

[27] Accordingly, I grant the Applicant an extension of time to 20 October 2017 to lodge her general protections application.

[28] I so Order.

COMMISSIONER

<PR600365>

 1   [2011] FWAFB 5645

 2   Ibid at [15], [16]

 3 [2011] 203 IR 1

 4   Letter from Dr George Anasson – 20 January 2018

 5   Print P3168, 22 July 1197 per Ross VP, Watson SDP and Gay C

 6   Ibid.

 7   Kyvelos v Champion Socks Pty Ltd, Print T2421, Print T2421

 8   Ibid.

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