Jessie Baxter v The Huber Family Trust T/A Swan Veterinary Hospital

[2015] FWC 3247

[2015] FWC 3247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jessie Baxter
v
The Huber Family Trust T/A SWAN VETERINARY HOSPITAL
(U2015/700)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 MAY 2015

Application for relief from unfair dismissal.

[1] Ms Jessie Baxter alleged that the termination of her employment by The Huber Family Trust t/a Swan Veterinary Hospital was unfair.

[2] Ms Baxter said she was never formally dismissed but her last day of work was 10 July 2014.

[3] Keeldem Pty Ltd filed an employer response form and advised that there was a verbal agreement that Ms Baxter’s employment would end on 14 July 2014 and that Ms Baxter’s last day of employment was 10 July 2014.

[4] Ms Baxter’s unfair dismissal application lodged was lodged on 19 February 2015.

[5] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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." [Endnotes not reproduced]

(a) the reason for the delay;

[7] The business of the Swan Veterinary Hospital was transferred to a new vet in July 2014. The new vet continued Ms Baxter’s employment. The previous vet owned the building and was still involved in the business. It appears, for reasons unexplained, that Ms Baxter and the previous operator of the business did not get on. On 10 July 2014, Ms Baxter was told to go home as the previous operator was coming in. Ms Baxter spoke to Ms Tanya Elliott, the Practice Manager, who told her to go home. Ms Baxter explained to Ms Elliott that she could not afford to be without an income and Ms Elliott said she would sort it out.

[8] Ms Baxter said she had been planning to go overseas on a holiday and thought she would return to work after her holiday because the previous operator would be gone and the new operator had no issue with her.

[9] Ms Baxter said she was paid up to the time she was due to leave on her holiday.

[10] Ms Baxter exhibited an employment separation certificate dated 26 September 2014 which had her last day of employment as 27 June 2014 and a further separation certificate which stated that the employment ended on 27 July 2014. It was Ms Baxter’s evidence that she received a copy of her separation certificate on 26 September 2014.

[11] Ms Elliott accepted that there was a problem between Ms Baxter and the previous operator and that when she met with Ms Baxter on 10 July 2014, she clearly could not remain at work as she was upset. Ms Elliott gave evidence that Ms Baxter told her on 10 July 2014 that she was going to resign her employment and gave her two weeks notice. Ms Elliott said she talked her out of resigning because she knew Ms Baxter was planning to have an extended overseas holiday as her leave had already been approved. She told her that she would be paid up until she was due to go on holidays. It was her evidence that Ms Baxter did not intend returning after her holidays. It was her evidence that she completed the separation certificate at Ms Baxter’s request and included “down turn” of work as the reason for the separation because otherwise Ms Baxter would not be entitled to government benefits.

[12] There is some confusion about what date Ms Baxter’s employment ended. I am prepared for the purpose this extension of time application to treat the date she received the separation certificate as the date her employment was terminated.

[13] Ms Baxter, in her application, said she contacted the Fair Trade Ombudsman in October 2014. I assume this was the Fair Work Ombudsman. In her sworn evidence, she said she contacted the Fair Work Ombudsman on 29 January 2015 to get advice about her entitlements as she did not receive termination pay or redundancy pay. On 30 January 2015, the Fair Work Ombudsman told Ms Baxter about her entitlement to redundancy pay. She said she had phone mediation on 13 February 2015 but there was no resolution. Ms Baxter said she did not think about lodging an unfair dismissal.

[14] Ms Baxter said she did not lodge an unfair dismissal application in the time provided by the Fair Work Act 2009 (the Act) because she did not know what her employment status was and she was traumatised by what happened. She said that the hurt and treatment she received was overwhelming and she did not feel like she could proceed with any action as she is suffering from depression and she did not think she could handle the process. Ms Baxter did not provide any medical evidence to explain her failure to lodge her unfair dismissal claim within the time provided for by the Act.

[15] Ms Baxter explained that the delay after taking advice from the Ombudsman was because she decided to pursue her redundancy entitlements.

[16] I do not consider Ms Baxter had a reasonable explanation for the whole of the delay. I accept that Ms Baxter was unsure about her employment status for a period of time but she knew from at least September 2014 that she had been dismissed. It is not unusual for employees to be distressed at the termination of their employment. There is no medical evidence to support a finding that Ms Baxter was incapable of lodging her application for over four months. I accept that Ms Baxter may have been unaware of her unfair dismissal rights but this is not unusual.

[17] This weighs against extending time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[18] Ms Baxter was unsure of her employment status until September 2014. Had Ms Baxter lodged her unfair dismissal claim within 21 days of receiving her employment separation certificate, this would have weighed in favour of extending time. However, she did not and this weighs against extending time.

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

[19] Ms Baxter said she corresponded with Ms Elliott and the new operator about what happened. I consider this criterion to be neutral.

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

[20] There was no evidence of any prejudice to the employer if time were extended. This weighs in favour of extending time.

(e) the merits of the application;

[21] There is conflicting evidence about what happened on 10 July 2014. Ms Baxter says she was sent home while Ms Elliott said that after Ms Baxter gave notice, they reached a mutual agreement that Ms Baxter be paid until her approved leave and not be required to work.

[22] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[23] No submissions were made on this criterion and I consider it to be neutral.

Conclusion

[24] Ms Baxter did not lodge her application until 146 days after she received her separation certificate. This is not a case where the merits of her case outweigh her lack of a reasonable explanation for the whole of the delay. Accordingly, Ms Baxter’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms J Baxter on her own behalf.

Ms T Elliott on behalf of the Respondent.

Hearing details:

2015.

Hearing via telephone:

11 May.

 1   [2011] FWAFB 975.

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