Joanne Newcombe v Commonwealth of Australia as represented by the Department of the Prime Minister and Cabinet
[2022] FWC 2503
•23 SEPTEMBER 2022
| [2022] FWC 2503 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joanne Newcombe
v
Commonwealth of Australia as represented by the Department of the Prime Minister and Cabinet
(U2022/8101)
| DEPUTY PRESIDENT DEAN | CANBERRA, 23 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Ms Joanne Newcombe (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of her employment with Commonwealth of Australia as represented by the Department of the Prime Minister and Cabinet (the Respondent).
The Applicant commenced employment with the Respondent in January 2014. The Applicant does not dispute that she resigned from her employment but claims that she was forced to do so. The last day she performed work was 20 August 2021. Her unfair dismissal application was lodged on 5 August 2022.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The Applicant filed her application some 327 days outside the 21 day period and can only proceed if the Commission grants a further period for the application to be made.
The matter was listed for hearing by telephone on 20 September 2022. The Applicant appeared and gave evidence on her own behalf. The Respondent was represented with permission by Ms Louise Nixon of Turks Legal and called evidence from Mr Scott Mischke, Director, Professional Standards and Wellbeing, People Branch, of the Respondent.
Background
Briefly, it is not disputed that the Applicant resigned her employment on 19 August 2021, and the last day she performed work was 20 August 2021. She says that her decision to resign was a result of an investigation commenced by the Respondent in which allegations of a breach of the Respondent’s Code of Conduct were made against her. She confirmed that she resigned to avoid being dismissed, as she had decided that a resignation would look better on her employment record than a dismissal. As a result, she thought she had no option but to resign.
Extension of time
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.
Reason for the delay
The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[3]
The main reason the Applicant gave for the delay in making her application was that “I have only very recently found out that this was an option”, that being a reference to claiming she was constructively dismissal. She said that at the time of her resignation, she did not believe she had been dismissed and was unaware there was “such a thing as constructive dismissal”.
She submitted that the other relevant facts included mental health issues and “other things that were going on in my life”. This included that her father was ill and that she had received counselling as she was depressed and suffering extreme anxiety at the time.
Further, the Applicant said she was unable to afford a lawyer.
The Applicant filed medical certificates and a letter from her medical practitioner covering a period leading up to her resignation. There was no medical evidence before the Commission of any incapacity for the period following her resignation.
In cross examination, the Applicant confirmed that she had contacted the Commission prior to her resignation. She also confirmed she had taken advantage of the Commission’s Workplace Advice Service which provided her with one hour of free legal advice.
In the circumstances I am not satisfied that the Applicant has provided an acceptable reason for the delay in making her application for the following reasons:
a.it is not uncommon that distress is experienced by a person who considered that they had been forced to resign;
b.while the Applicant may have suffered from depression and anxiety, there is no evidence before the Commission which would support a finding that it debilitated her to such an extent that she was unable to lodge her application earlier. This is further reinforced by the fact that the Applicant found alternative employment approximately one month after her resignation and has worked since that time;
c.lawyers are not required to pursue an unfair dismissal application in the Commission;
d.the Applicant had access to free legal advice prior to making her decision to resign.
In summary, there is nothing in the Applicant’s explanation which could be considered exceptional. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
There is no dispute that the Applicant resigned in writing on 19 August 2021 and her last day of employment was 20 August 2021.
The Applicant had the full 21-day period to lodge her unfair dismissal application based on her claim that she was forced to resign. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant was given notice that the investigation would continue notwithstanding her resignation, and she provided submissions in December 2021 to the Respondent in response to the preliminary finding that she had breached the Code of Conduct. In January 2022 she requested a review be undertaken of the findings and investigation, and the Merit Protection Commission delivered its report in June 2022.
There was no other action taken to dispute the alleged dismissal until her unfair dismissal application was lodged, some twelve months after her employment ceased. This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer
The Respondent submitted that the lengthy delay gives rise to a general presumption of prejudice against the employer.
The Applicant made no submissions as to any prejudice to the Respondent.
I accept the delay is a lengthy one. However, in the absence of any evidence as to what prejudice the Respondent may suffer, I consider this to be a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
There is no dispute that the Applicant resigned. As indicated earlier, she contended that her resignation was brought about by the actions and conduct of the Respondent, including in commencing an investigation which she believed would have resulted in her dismissal regardless of her response. The Applicant contended that the matter the subject of the investigation was “a complete over-reaction to an innocent mistake”.
Further, she said she resigned because she had “reached breaking point and could not mentally and emotionally cope with any more of what she was being put through”.
In circumstances where the Applicant resigned, and had the benefit of legal advice before doing so, I consider that the merits of the application are not strong. There is no evidence to suggest that, even in the case of a finding of a breach of the Code of Conduct, she would have been dismissed. Overall, this weighs against a finding that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
J Newcombe on her own behalf.
L Nixon of Turks Legal for the Respondent.
Hearing details:
2022.
By telephone:
September 20.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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