Jia (Kira) Deng v Specialist Diagnostic Services Pty Ltd T/A Laverty Pathology

[2019] FWC 8597

[2019] FWC 8597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jia (Kira) Deng
v
Specialist Diagnostic Services Pty Ltd T/A Laverty Pathology
(U2019/6190)

DEPUTY PRESIDENT KOVACIC CANBERRA, 20 DECEMBER 2019

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 Jia (Kira) Deng (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 5 June 2019 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Specialist Diagnostic Services Pty Ltd T/A Laverty Pathology (the Respondent) on 10 April 2019 was unfair. Ms Deng contends that she was constructively dismissed by the Respondent.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised two jurisdictional objections, the first that the application had been made outside the 21 day timeframe specified in s.394(2) of the Act and the second that Ms Deng had not been dismissed. The application was lodged 35 days outside the 21-day statutory timeframe.

[3] The extension of time issue was heard on 11 December 2019 with the parties appearing by way of video conference. At the hearing, Mr William Mount, Ms Deng’s partner, appeared with Ms Deng, while Ms Louisa Manfre, the Respondent’s Senior Legal Counsel, appeared for the Respondent.

[4] 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 Deng’s application will be dismissed.

Background

[5] Ms Deng commenced employment with the Respondent as a Pathology Collector on 28 October 2002. Ms Deng transferred to Laverty Pathology in the ACT in 2013.

[6] On 8 April 2019 Ms Deng was sent a letter by Ms Megha Saxena, a HR Business Partner with the Respondent, requiring Ms Deng to attend a meeting on 10 April 2019. The purpose of the meeting was set out in the letter as follows:

“The purpose of this meeting is to discuss the following:

•  An alleged breach of the Company’s Employee Behaviour Standards and Collection Procedure manual in relation to a complaint received from a patient on 2 April 2019.

•  An alleged breach of the Company’s Employee Behaviour Standards in relation to your alleged inappropriate behaviour with another employee in the Gungahlin ACC on 8 April 2019.

At the meeting, you will be provided with full details of the above, and given the opportunity to respond to the concerns. Consideration will be given to the information that you provide in response.

You are welcome to bring a support person to the meeting …” 1

[7] On 9 April 2019 Ms Saxena sent Ms Deng a further email adding another topic to the matters to be discussed at the following day’s meeting. That email included the following:

“We have received another email from a patient dated 8 April relating to their unsatisfactory experience at Gungahlin ACC that we would also like to discuss with you in the meeting tomorrow at 10am. As mentioned in your notice of meeting letter, we will provide you all the details in the meeting tomorrow and the meeting is an opportunity for you to respond to these concerns.” 2

[8] While Ms Deng attended the meeting on 10 April 2019 she left the meeting prior to it concluding and later verbally resigned. Shortly after Ms Deng resigned Ms Ann Deniz, the Respondent’s Area Coordinator, sent the following email to Ms Deng:

“Hi Kyra

After our meeting today that we couldn’t finish as you walked out, you came back to my office 15 mins later, very angry saying you resign as of now and walked out.

I will not accept this verbal resignation as you might have said it in anger and want to remind you of our Employee Assistance Program EAP which you can call on …

Also if you decide not to resign we will need to still continue today’s meeting at some time as we still have issues to address.

Please confirm in writing if you still want to resign or what you want to do as i [sic] have your shifts to cover.

Waiting to hear from you” 3

[9] Ms Deng replied to Ms Deniz later that morning as follows:

“my job and life have been destroyed by you and laverty.

now finally you get what you want to kick me out.

i am writing the letter to you to resign this job under your management huge pressure. i wish you very successfully in your job and life.” 4 (Text as per original)

[10] Ms Deng also sent a further email to Ms Deniz at around 9:30pm on 10 April 2019 in which she expressed the view that the meeting earlier that day was unfair to her and also responded to several of the issues discussed in the meeting. Among other things her email stated:

“my 17 years hard working for this company destroyed by the meeting today on purpose. this is really upsetting me and i believe people know my mind weakness under pressure can trigger me make impulsive decision. i feel so depressed.” 5 (Text as per original)

[11] On 11 April 2019 Ms Deng arranged a meeting with Legal Aid ACT for the following day to discuss the cessation of her employment. Ms Deng contends that at that meeting on 12 April 2019 she was advised that as she resigned from her employment there was no recourse available to her in respect of the cessation of her employment.

[12] Also on 12 April 2019 Ms Saxena wrote to Ms Deng confirming the Respondent’s acceptance of her resignation. The letter included the following:

“Dear Kyra

ACCEPTANCE OF RESIGNATION

This letter is to acknowledge receipt of your resignation email dated Wednesday, 10 April 2019.

I would like to confirm that your resignation from the position of Pathology Collector effective immediately from 10 April 2019 with Laverty Pathology has been accepted. Your last day of service with the Company was 10 April 2019.” 6

[13] In subsequent developments, Ms Deng sought a second legal opinion regarding the cessation of her employment in early June 2019 when she contends that she was advised that her circumstances may constitute a constructive dismissal.

[14] As previously noted, Ms Deng’s unfair dismissal application was received by the Commission on 5 June 2019, 35 days outside the 21 day statutory timeframe.

The Relevant Legislation

[15] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

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

(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).

(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)

[16] 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 referring to the parties’ respective submissions in respect of those matters.

(a) The reason for the delay

[17] Ms Deng relied on five grounds as to the reason for the delay in lodging her application – representative error, acute anxiety and depression, alternative efforts made by her, unfamiliarity with Australian legal processes and isolation and difficulty in accessing support from her then former partner (Mr Mount). The key aspects of Ms Deng’s submissions in respect of each of those grounds is set out below.

1. Representative error – Ms Deng submitted that she took timely action to obtain legal advice from Legal Aid ACT but received direct and unambiguous advice that there was no remedy available to her, adding that no recommendation was made as to what course of action may be available to her and any time limits relevant to any such course of action. Ms Deng further submitted that based on that information she did not pursue the matter any further for several weeks when she decided to obtain a second legal opinion from a specialist law firm on the suggestion of Mr Mount. Ms Deng also stated in her submissions that when she contacted Legal Aid ACT on 11 April 2019 she explained that she believed she had been forced out of her job under unfair, unreasonable and harsh circumstances.

2. Acute anxiety and depression – Ms Deng submitted that she was diagnosed with anxiety and depression symptoms by her treating general practitioner on 28 January 2019, that she was subsequently unfit for work for a period of two weeks and that thereafter she was on a graduated return to full-time work. Attached to Ms Deng’s submissions were copies of the relevant medical certificates. Those certificates indicate that Ms Deng was assessed by her doctor as unfit for work for the period 29 January to 11 February 2019, as fit to work three days per week from 12 February to 11 March 2019 and four days per week from 12 March to 8 April 2019.

3. Alternative efforts – Ms Deng submitted that in the months leading up to the cessation of her employment she explored the possibility of transferring to work with Dorevitch Pathology (and associated entity of the Respondent) in Melbourne.

4. Unfamiliarity with Australian legal processes – Ms Deng cited her general unfamiliarity with Australian and Western legal processes as a reason for the delay, adding that due to this unfamiliarity and her reduced English language proficiency it would have been difficult for her to undertake the independent research required to establish the requirements in respect of making an unfair dismissal application. In her submissions, Ms Deng mentioned that she migrated to Australia from China in 1997.

5. Isolation and difficulty in accessing support from her then former partner – Ms Deng separated from Mr Mount in November 2018. At the time of the cessation of her employment in April 2019 Mr Mount was living in Melbourne. Ms Deng contends that she resumed communications with Mr Mount on 9 April 2019 with those communications initially restricted to discussing their financial arrangements and the upkeep of their co-owned property in Canberra. Ms Deng further contends that due to these restrictions it was not possible for Mr Mount to offer her any advice or support in respect of any work-related matters, adding that it was only in early June that Mr Mount suggested that she seek a second legal opinion as to what if any actions may be available to her in respect of the cessation of her employment.

[18] Beyond this, Ms Deng rebutted aspects of the Respondent’s submissions and contended among other things that:

•  it was unrealistic to expect her to know that she may have been able to lodge an unfair dismissal application on the basis of constructive dismissal prior to her seeking a second legal opinion;

•  she did not accept that her greatly elevated levels of stress, anxiety and diagnosed depressive symptoms were unexceptional; and

•  the circumstances of her case were sufficiently exceptional to warrant an extension of time.

[19] In her submissions Ms Deng referred to several authorities, including John Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group 7, Wayne Candy v Structural Cranes Pty Ltd8, Ms Helen Wemyss v Mission Australia Employment Services9 and Clark v Ringwood Private Hospital10.

[20] At the hearing, Ms Deng contended among other things that it did not make sense for her to have delayed making her application for 35 days had she been given the correct advice by Legal Aid ACT. Further, Ms Deng initially responded to a question from the Commission that she had not told Legal Aid ACT that she was forced to resign by the Respondent. However, when probed Ms Deng changed her response to say that she could not recall exactly what she said. Also at the hearing, Ms Deng described herself as having “a very fragile mentality.”

[21] Key aspects of the Respondent’s submissions included that;

•  Ms Deng had not provided any evidence that could reasonably form a basis for a finding that the advice she received from Legal Aid ACT amounted to representative error, adding that Ms Deng had provided no written record of the advice she received from Legal Aid ACT drawn from either her own notes or a record from Legal Aid;

•  it was a well-established principle that ignorance of the timeframe for lodgement of an unfair dismissal application was not an exceptional circumstance;

•  Ms Deng had not provided medical evidence that sufficiently demonstrated that she was suffering from a medical condition that directly contributed to the delay in lodging her application;

•  elevated levels of stress and anxiety following the cessation of employment were not considered to be exceptional circumstances but rather unexceptional as they were commonly experienced by employees in such circumstances;

•  Ms Deng had for a number of years held patient facing positions with the Respondent which required her to liaise with patients daily in English;

•  Ms Deng had sufficient English language proficiency to seek out the required information regarding the avenues open to her in respect of the cessation of employment, noting that the Commission’s website includes a functionality for material to be translated into a number of languages including Chinese;

•  Ms Deng’s separation from Mr Mount was not a relevant factor as it occurred well before the cessation of her employment; and

•  Ms Deng was capable of independently seeking advice from Legal Aid ACT without requiring the assistance of Mr Mount.

[22] The Respondent cited several authorities in support of its submissions, including Mr Enrique Goyeneche v Corporate Cleaning Solutions (Qld) Pty Ltd 11, Yu Duo (Lynda) Lin v Woolworths Ltd 12 and Woolworths Ltd v Yu Duo (Lynda) Lin13.

[23] Having regard to the grounds relied upon by Ms Deng as to the reason for the delay, I make the following observations:

•  there is no probative material before the Commission which indicates either the information provided by Ms Deng to Legal Aid ACT or the advice provided to her by Legal Aid ACT – in those circumstances it is not possible to determine that Ms Deng was provided with inaccurate legal advice by Legal Aid ACT, indeed on the material before the Commission the advice provided to Ms Deng by Legal Aid ACT appears to be reasonably open to it;

•  while Ms Deng provided medical certificates that confirmed she was not well in the period leading up to the cessation of her employment, she provided no medical evidence suggesting that she was incapacitated as a result of her illness such that she was unable to lodge her unfair dismissal application within the 21 day statutory timeframe or prior to her actually lodging her application – indeed Ms Deng arranging her consultation with Legal Aid ACT would suggest otherwise;

•  I note that the Full Bench in Cheyne Leanne Nulty v Blue Star Group (Nulty) 14determined that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...” 15 (The statutory time limit in s.366(1)(a) is also 21 days);

•  Ms Deng’s efforts to secure employment with Dorevitch Pathology in Melbourne are irrelevant in that those efforts all predate the cessation of her employment and therefore could not have been a reason as to why her unfair dismissal application was filed outside the statutory timeframe specified in the Act; and

•  it is not clear to me how Ms Deng’s estrangement from Mr Mount precluded her from seeking information, guidance and/or advice from other sources, including the Commission.

[24] In summary, I am not satisfied that the reasons for the delay relied upon by Ms Deng when considered either individually or collectively point to the existence of exceptional circumstances.

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

[25] Ms Deng submitted that she was not claiming that she became aware of the alleged constructive dismissal after it had taken effect, adding that this factor was not considered exceptional.

[26] The Respondent submitted that Ms Deng was immediately aware that her employment had ended and sought the advice of Legal Aid ACT the next day.

[27] In circumstances where it is not claimed that Ms Deng became aware of the cessation of her employment after it had taken effect, I consider this factor to be a neutral consideration.

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

[28] Ms Deng submitted that the significant length she went to in exploring the possibility of transferring back to work with Dorevitch Pathology in Melbourne constituted exceptional circumstances.

[29] The Respondent submitted that Ms Deng did not raise any constructive dismissal dispute with it prior to submitting her unfair dismissal application in early June 2019.

[30] For the reasons previously outlined, I do not consider Ms Deng’s efforts to relocate to Melbourne to be relevant given that those efforts all predated the cessation of her employment. Beyond that, it appears that the only step taken by Ms Deng to dispute her dismissal prior to lodging her unfair dismissal application was to arrange the consultation with Legal Aid ACT which occurred on 12 April 2019. While in her email to Ms Deniz late on the night of 10 April 2019 Ms Deng expresses the view that the meeting earlier that day was unfair to her and also responds to several of the issues discussed in the meeting, my reading of her email is that Ms Deng does not contend that she was unfairly dismissed. Taken together these factors do not point to the existence of exceptional circumstances.

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

[31] Ms Deng submitted that any difficulties that might be encountered due to elapsed time would apply equally to her and the Respondent, especially in respect of obtaining witness statements and testimony if that became necessary. Specifically, Ms Deng submitted that she did not believe there were any exceptional circumstances in relation to this factor.

[32] The Respondent submitted that the delay in lodging the application gave rise to a general presumption of prejudice. More specifically, the Respondent posited that should an extension of time be granted the delay involved may impact the ability of witnesses to recall events and the availability of such witnesses, adding that Ms Saxena’s maximum term employment with it had ceased at the end of April 2019. The Respondent further submitted that it would be highly prejudiced were an extension of time granted and Ms Deng ultimately reinstated given that her position had since been filled. In the alternative, the Respondent contended that were the Commission to consider that it had not been specifically prejudiced that this factor had generally been held to be a neutral consideration in such cases.

[33] While I note the parties’ respective submissions, I consider that any prejudice caused by the delay is likely to be minimal. Against that background, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[34] Ms Deng submitted among other things that a key part of her substantive case was that the circumstances of the 10 April 2019 meeting were far from normal and that the premise of the meeting was both unfounded and unfair. Ms Deng further submitted that from her perspective the meeting was just the last in a long series of events resulting in an untenable position immediately following her return to full-time duties and that it pre-empted her “heat of the moment” resignation. Beyond that, Ms Deng submitted inter alia that:

•  her experience included excessive disciplinary actions, most notably forced meetings with management and human resources representatives in relation to minor work incidents, without providing details of the purpose of the meeting beforehand and refusing to allow for alternative methods of communication and resolution when specifically requested; and

•  she felt that management unfairly blamed her and other staff for various mistakes and mishaps such as blood samples being misplaced, packaged incorrectly or spoilt.

[35] In summary, Ms Deng submitted that the Respondent’s action was unfair and unreasonable in several respects.

[36] At the hearing, Ms Deng submitted among other things that:

•  she wished to resign from her role with the Respondent in the ACT and transfer to its operations in either Sydney or Melbourne; and

•  she could not work with Ms Deniz, adding that she had not been on good terms with her and that Ms Deniz had given her trouble ever since she became the Respondent’s Area Coordinator.

[37] I note also that in a document received by the Commission on 10 July 2019 Ms Deng contends that her experience at Laverty Pathology in the ACT included being systematically abused, bullied and victimised.

[38] The Respondent submitted that Ms Deng’s application was without merit. Among other things, the Respondent submitted that Ms Deng was invited to a meeting to discuss patient complaints, adding that it always addressed patient complaints with its employees and that it could not provide an acceptable service to the community if it did not do so. The Respondent further submitted that:

•  instead of engaging in this usual process Ms Deng chose to resign;

•  it afforded Ms Deng the opportunity to rethink her resignation; and

•  having further considered the matter Ms Deng proceeded to confirm her resignation in writing.

[39] Without expressing a concluded view on the issue and having regard to the limited material before the Commission, the merits of Ms Deng’s application do not appear compelling. For instance, if Ms Deng’s contention is that her resignation was as a result of a course of conduct by the Respondent it is not clear to me why Ms Deniz would not have immediately accepted her verbal resignation or why she would have given Ms Deng the opportunity to reconsider that resignation. I note also that Ms Deng effectively had up until 12 April 2019 (i.e. when the acceptance of resignation letter was sent to her) to reconsider her resignation. However she did not do so, despite possibly having by then the benefit of the advice provided to her by Legal Aid ACT. Further, the text messages attached to Ms Deng’s submissions 16 do not point to Ms Deniz wanting Ms Deng to leave. For instance, Ms Deniz on 2 April 2019 sent the following text messages to Ms Deng:

“No Kyra I like u in my team, I’ll give you a written reference but I don’t want u to go” 17

and

“I’ll give u a written one but dnt want you to feel u are not wanted enjoy having in our team” 18 (Text as per original)

[40] The above analysis does not support a finding of the existence of exceptional circumstances.

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

[41] Ms Deng submitted that she did not believe that this factor should be a major consideration in part because she considered her situation unique and therefore not likely to be applicable to other persons.

[42] The Respondent submitted inter alia that were Ms Deng to be granted an extension of time that this would be inconsistent with the Commission’s prior treatment of individuals in similar circumstances.

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

Conclusion

[44] The question of exceptional circumstances was dealt with by a Full Bench in 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.”

[45] 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 that there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. In particular, I note that the above consideration of the various factors in s. 394(3) of the Act does not indicate that any of those factors point to the existence of exceptional circumstances, though several factors are neutral considerations.

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

Appearances:

W. Mount and J. Deng for the Applicant.

L. Manfre for the Respondent.

Hearing details:

Canberra, Sydney and Melbourne.

2019

December 11.

Printed by authority of the Commonwealth Government Printer

<PR715453>

 1   Outline of Facts and Evidence Against [sic] Jurisdictional Objections to Application Unfair Dismissal Remedy – Fair Work Commission Case Number U2019/6190 at Annexure H

 2   Ibid

 3   Ibid at Annexure A

 4   Ibid

 5   Ibid

 6   Ibid

 7   [2010] FWA 3863

 8   [2012] FWA 5878

 9   [2010] FWA 1798

 10 (1997) 74 IR 413

 11   [2016] FWC 8387

 12   [2017] FWC 4019

 13   [2018] FWCFB 1643

 14   [2011] FWAFB 975

 15   Ibid at [14]

 16   Outline of Facts and Evidence Against [sic] Jurisdictional Objections to Application Unfair Dismissal Remedy – Fair Work Commission Case Number U2019/6190 at Annexure F

 17   Ibid at 4:58pm

 18   Ibid at 4:59pm