Jessica Hamilton v I Seek Blinds Pty Ltd T/A I Seek Blinds

[2014] FWC 7982

[2014] FWC 7982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessica Hamilton
v
I Seek Blinds Pty Ltd T/A I Seek Blinds
(U2014/12260)

COMMISSIONER CRIBB MELBOURNE, 11 NOVEMBER 2014

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] Miss Jessica Hamilton (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in respect of her dismissal by I Seek Blinds Pty Ltd t/a I Seek Blinds (the Respondent, the company).

[2] The company has raised a jurisdictional objection on the basis that Ms Hamilton’s application was lodged outside the statutory framework by two days. Ms Hamilton was dismissed on 11 August 2014 and her application was lodged on 3 September 2014.

[3] There was a conciliation conference on 10 October 2014 but no settlement was reached between the parties. The parties then agreed that the extension of time application be dealt with on the papers. On 7 October 2014, on behalf of the Applicant, an Outline of Submissions, Witness Statement for Ms Hamilton and a Psychologist’s Report were lodged. The Respondent filed a response to the Applicant’s submissions on 23 October 2014.

1. Statutory requirements

[4] Section 394(3) of the Act empowers the Commission to allow a further period of time for an application to be validly made, as set out below:

“(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 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.”

[5] I will deal with each of the considerations set out in s.394(3) in turn.

Reasons for the delay - section 394(3)(a)

[6] There were two reasons provided by the Applicant for the delay. The first was that Ms Hamilton was unaware of the 21 day time limit for filing an unfair dismissal application until she made the application. 1

[7] Secondly, it was submitted that the other reasons for delay included that Ms Hamilton was suffering from a range of health issues at the time the unfair dismissal application was due. This included difficulty making a rational decision about whether or not to make the application partly because Ms Hamilton was suffering from depression. In addition, knowing that the matter may go to court and that she had previously had a bad experience with the court system, Ms Hamilton was hesitant about whether or not to go through with it. Finally, Ms Hamilton was also preoccupied with other health issues including pending surgery scheduled for late September 2014. In addition, due to her financial situation, Ms Hamilton was actively trying to find another job. 2

[8] The Respondent submitted that the company cared for Ms Hamilton and gave her every opportunity to work on her mental and physical health. As well, it was stated that Ms Hamilton sent Mr Gubby, the General Manager, a text message crying for help on the day the application was lodged. As he was in China, he was unable to reply but, on his return, Mr Gubby called Ms Hamilton to arrange for her to come into the company so that he could help rewrite her resume and give her interview coaching. It was submitted that this was out of good faith on the company’s part as the termination was mutually decided. The company objected to the Commission granting an extension of time application. However, Mr Gubby indicated that he is still willing to help Ms Hamilton. 3

Conclusions

[9] Taking into account all of the material before me, I accept Ms Hamilton’s explanations for the delay in lodging her application. In normal circumstances, ignorance of the statutory time limit does not constitute an acceptable reason for a delay in lodging an application. A Psychologist’s Report was provided by the Applicant which sets out Ms Hamilton’s mental and emotional state, particularly from July 2014 onwards. The Report outlined the impact of the loss of her job on Ms Hamilton and also the consequences of her impending surgery. The Report is accepted as providing a clinical basis for Ms Hamilton’s reasons for the delay in lodging the application.

[10] It is apparent from the Psychologist’s Report that, even if Ms Hamilton had been aware of the 21 day time limit, this would have not assisted her in lodging an application within time. This is because Ms Hamilton was not in a mental state whereby she could make a rational and clear decision that that was what she wanted to do.

(b) Aware of the dismissal - section 394(3)(b)

[11] It was acknowledged by the Applicant that she was aware of the dismissal on the day, namely 11 August 2014. 4

(c) Any action taken - section 394(3)(c)

[12] The Applicant submitted that she has not taken any specific action to dispute the dismissal. It was stated that Ms Hamilton did not protest about her treatment on the day as she was overwhelmed by the circumstances. 5

[13] It was the Respondent’s contention that the Applicant’s lack of action was due to the dismissal being mutually agreed. Ms Hamilton was stated to have said that she knew it was coming. Further, it was indicated that Ms Hamilton had been looking for a new job prior to her dismissal which she had informed Mr Gubby about. 6

Conclusions

[14] On the basis of the material before me, it is apparent that, apart from lodging the application, Ms Hamilton did not challenge her dismissal. The reasons for this (being overwhelmed on the day and Ms Hamilton's mental state) are accepted, taking into account the Psychologist’s Report.

(d) Prejudice to the employer - section 394(3)(d)

[15] It was contended by the Applicant that there is no evidence of prejudice to the Respondent arising from the two day delay. It was indicated that this should be regarded as a neutral factor.

[16] No submissions were made by the Respondent on this aspect of the matter.

Conclusions

[17] I have not been persuaded that there is any other prejudice to the Respondent other than the usual prejudice which accompanies a granting of an extension of time.

(e) Merits of the application - section 394(3)(e)

[18] The Applicant submitted that there is a strong case that the dismissal was harsh, unjust or unreasonable. This was said to be on the basis that the Respondent does not have a valid reason for the dismissal nor did it follow a fair process. 7 It was argued that the real reason for Ms Hamilton’s dismissal was the fact that she was suffering from depression. Mr Gubby was said to have told Ms Hamilton that he needed to let her go and that she needed time to work on herself. Ms Hamilton contended that she was spoken to by Mr Gubby, on 27 June 2014, about mistakes she had been making over the previous six months. It was recalled that she was given two weeks to improve. After that, the Applicant explained that she had no further warnings and that, whenever she asked for feedback, it was positive.8

[19] Further, the Applicant argued that she was never given the opportunity to respond to the proposed termination on the grounds of her depression as it was never clarified as to what she needed to do to improve her performance. It was also stated that Ms Hamilton did not request a person to assist her in discussions related to her dismissal. Therefore, this was said to be a neutral factor. 9

[20] Mr Gubby stated that the company spoke to Ms Hamilton weeks before the dismissal about her performance and that she needed to lift and take more responsibility, show more initiative and motivation. This process was said to be fair and not unreasonable. It was explained that the real reason for Ms Hamilton’s dismissal was that she was not able to perform her given tasks on a day-to-day basis in a timely and professional manner. Ms Hamilton’s depression and mental state was recalled to have only added to her problems. The company stated that it also tried to be fair and to work with Ms Hamilton to help her both professionally and mentally. 10

[21] Further, it was agreed by the Respondent that Ms Hamilton’s performance did improve following the meeting on 27 October 2014. However, this was only for a couple of days as Ms Hamilton then continued to struggle with the day-to-day tasks of the business. It was recalled that Ms Hamilton’s motivation also deteriorated. 11 The Respondent submitted that he had had numerous talks to Ms Hamilton about her performance and attitude (verbal warnings) but it did not improve. Therefore, at the point of dismissal, Mr Gubby did not feel the need to further express his views regarding Ms Hamilton's lack of performance. Rather, he tried to help her into the future and care for herself. Mr Gubby also stated that Ms Hamilton was given every opportunity to work with the company and not to burn any bridges or his support into the future.12

Conclusions

[22] I have considered carefully the submissions of the parties. Given the disparity between the parties with respect to the facts of this matter, it is not possible to say that Ms Hamilton’s application is without merit.

(f) Fairness as between the applicant and other persons in a similar position - section 394(3)(f)

[23] In the context of this matter, it is my view that this factor is not relevant.

Are there exceptional circumstances – section 394(3)

[24] It was submitted, on behalf of the Applicant, that there are exceptional circumstances warranting the exercise of the Commission’s discretion to extend time. The exceptional circumstances were said to relate to the fact that the Applicant was unaware of the timeframe and also that she had difficulties making a decision within the required timeframe given her mental state at the relevant time. This was also said to have been further complicated by Ms Hamilton’s physical health problems and pending surgery as well as her reservations about being involved in a court-like process based on her previous negative experience. Further, it was contended that the application has substantial merit and that there is no real prejudice to the Respondent if the extension of time is granted. 13

[25] On the other hand, it was argued by the Respondent that it had acted in good faith and as a reflection of Ms Hamilton mental and physical state. Mr Gubby submitted that the company had to put the best interests of Ms Hamilton and the business as top of mind. It was further stated that the company is still willing to help Ms Hamilton subject to the termination of her unfair dismissal claim. 14

Conclusions

[26] The basis on which it is decided if an extension of time should be granted is whether there are exceptional circumstances taking into account those matters considered above.

[27] The term “exceptional circumstances” has been considered in a number of decisions of the Fair Work Commission and its predecessor bodies. A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 15summarised various decisions which dealt with the meaning of “exceptional circumstances”. The Full Bench found that:

“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.” 16

[28] I respectfully adopt this approach.

[29] In this matter, I have come to the view that, on balance, there are exceptional circumstances such that I should exercise my discretion and extend time. The emotional and mental state of Ms Hamilton, as attested to in the Psychologist’s Report, together with the other issues at the time, provide a reasonable explanation for the delay. Ms Hamilton was aware of her dismissal at the time it took place. Other than filing this application, for the reasons given, Ms Hamilton took no other action to dispute her dismissal. There is no additional prejudice to the employer as a result of the delay of two days, other than the usual prejudice that accompanies the granting of an extension of time. Because of there being two different pictures of the one set of events, it is not possible to say that Ms Hamilton’s application is without merit.

[30] Balancing all of these different factors, I have formed the view that this results in a situation which, when viewed together, can be reasonably described as “out of the ordinary course, unusual, special or uncommon”. I am therefore satisfied that there are exceptional circumstances in this matter.

[31] Accordingly, I am prepared to exercise my discretion to extend the period for lodgement of the application to 3 September 2014. An order 17 to this effect will be issued separately.

[32] The matter will be referred for conciliation/arbitration.

 1   Outline of Submissions on behalf of the Applicant, dated 7 October 2014, at paragraph 3.1 and Witness Statement of

Jessica Elizabeth Hamilton, dated 7 October 2014, at paragraph 31

 2   Ibid, ibid at paragraphs 31 - 35 and Psychologist’s Report, dated 3 October 2014

 3   Response to the Applicant’s Submissions by Mr Michael Gubby, dated 23 October 2014, at paragraph 3.1

 4   Outline of Submissions on behalf of the Applicant, dated 7 October 2014, at paragraph 3.2

 5   Ibid at paragraph 3.3

 6   Response to the Applicant’s Submissions by Mr Michael Gubby, dated 23 October 2014, at paragraph 3.3

 7   Outline of Submissions on behalf of the Applicant, dated 7 October 2014, at paragraph 3.5 and Witness Statement of Jessica

Elizabeth Hamilton, dated 7 October 2014, at paragraph 36

 8   Ibid and ibid at paragraphs 36 - 39

 9   Ibid at paragraph 3.5

 10   Response to the Applicant’s Submissions by Mr Michael Gubby, dated 23 October 2014, at paragraph 3.5

 11   Ibid

 12   Ibid

 13   Outline of Submissions on behalf of the Applicant, dated 7 October 2014, at paragraph 4

 14   Response to the Applicant’s Submissions by Mr Michael Gubby, dated 23 October 2014, at paragraph 4

 15   [2011] FWAFB 975

 16   Ibid at paragraph 13

 17   PR557595

Printed by authority of the Commonwealth Government Printer

<Price code C, PR557586>