Judith Pace v Machine Technology Pty Ltd t/as FountainLine

[2015] FWC 1942

[2015] FWC 1942

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Judith Pace
v
Machine Technology Pty Ltd t/as FountainLine
(U2014/15750)

DEPUTY PRESIDENT SAMS SYDNEY, 13 APRIL 2015

Application for relief from unfair dismissal - dismissal or resignation - application lodged at least seven days out of time - consideration of ‘exceptional circumstances’ - legal advice - consultation with psychologist - anxiety, depression and stress - whether applicant was dismissed - resignation -‘exceptional circumstances’ not made out - application dismissed.

INTRODUCTION

[1] This decision arises from an application for relief from unfair dismissal, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Ms Judith Anne Pace (the ‘applicant’) claimed she was dismissed from her employment with Machine Technology Pty Ltd t/as FountainLine (the ‘respondent’) on 5 November 2014. The respondent claimed that the applicant resigned from her employment on 31 October 2014. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 3 December 2014. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. Accepting either of the two dates claimed to be the date of the termination of the applicant’s employment, the application was lodged at least seven or twelve days outside the statutory time limit set out in s 394(2)(a) of the Act. The applicant seeks an extension of time for the filing of her application, pursuant to s 394(3) of the Act.

[2] The Commission wrote to the applicant on 12 December 2014 outlining the matters I am required to consider under s 394(3) of the Act, and asking her to provide a statement addressing these matters within 14 days. The applicant provided a one page statement via email, and requested that her matter be dealt with by way of a hearing.

[3] On Friday 13 February 2015, I conducted a hearing on the extension of time application. The applicant appeared with the assistance of a pro bono solicitor, Ms L Saunders under the Commission’s pro bono arrangements with the Law Society of New South Wales. I granted permission, pursuant to s 596 of the Act, for Ms Watson, Solicitor, to appear on behalf of the respondent. In determining the application, the Commission has had regard to the Form F2 Application for Unfair Dismissal and the Form F3 Employer’s Response. The Commission has also had regard to the submissions filed by both parties and the evidence adduced in the proceedings. Having considered this material, I issued an order refusing an extension of time and dismissed the application on 4 March 2015. What follows are my reasons for doing so.

STATUTORY PROVISIONS AND PRINCIPLES

[4] The relevant legislative framework, governing the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘394 Application for unfair dismissal 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 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] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, a Full Bench of the Commission said:

‘[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[6] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3), must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application. In other words, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission’s decision making process under s 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I turn now to each of the criteria set out under s 394(3) of the Act.

CONSIDERATION

Reasons for the delay (s 394(3)(a))

[7] The applicant outlined a chronology of events which followed her alleged dismissal. I have extracted this chronology below:

‘Below is my application for an extension of time to lodge.

1) 5/11 - received email saying that my position has been terminated however no specific date was given to the date this was to take effect. I understood from this that I was employed until 19/12/14. Then when I received payslips I was paid as a normal working week for week ending 9/1/15, so does this mean that I am still employed until this date?
The dates are very confusing.

2) 5/11 - I sent a text to Terence Ibrahim asking for him to call me as I was confused - no reply.

3) 8/11 - contacted consultant of Fountainline for advice.
4) 17/11 - contacted consultant again and waited for response
5) 20/11 - I missed a call from consultant and called back and left message
6) 23/11 - called consultant again and was told I would get a return call by 26/11
7) 26/11 - sent consultant message asking if they had spoken to Terence Ibrahim as yet.
8) 1/12 -  consultant called and told me that they could no longer help me as Terence Ibrahim had finally responded to messages saying no correspondence will be entered into and that as far as he was concerned matter is closed. Advised to contact FWC.

9) 1/12 - contacted Marrickville Legal centre for advice
10) 2/12 - Lawyer called back
11) 3/12 - lodged application.’

[8] At the hearing of the matter on 13 February 2015, the applicant stated that she believed her employment actually terminated on 9 January 2015, notwithstanding that her application for a remedy from unfair dismissal had nominated 5 November 2014 as being the date her termination of employment became effective. In any event, an application for an unfair dismissal remedy cannot be made before the date of dismissal. As this application was filed on 3 December 2014, the applicant’s belief that she may have not been dismissed until either 19 December 2014 or 9 January 2015 is misconceived and, in both instances, would be premature; See: Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070.

[9] The applicant acknowledged that she had read an email sent from the respondent’s Director, Mr Ibrahim, dated 5 November 2014. The email was sent following a meeting which occurred between himself, Mr Harris and the applicant on 31 October 2014. It is at this meeting that the respondent claimed the applicant resigned from her employment. The email states:

‘You and the Company agreed that your employment will terminate by agreement on the basis that the Company will provide payment until 19 December 2014 and you are not required to work out your notice period.

The breakdown of your payment until 19 December 2014 is:
1. All accrued annual leave entitlements (10 Days)
2. Notice (4 Weeks)
3. An ex gratia payment of [5 remainder of days until 19 December] to assist you whilst you are looking for alternative employment. This payment is above your entitlements under the legislation governing your employment.

I understand you have already returned all company property and confidential information to the office. Please confirm if this is correct.’

[10] Under further questioning, the applicant clarified that this email had caused her to be confused and upset. She explained that she was ‘confused as to why he was terminating [her] employment.’ The applicant then proceeded to concede that she understood her employment was terminated effective from 5 November 2014. The applicant admitted that she spoke to Mr Ibrahim on or around 14 November 2014 and requested that her annual leave be paid out as a lump sum. I accept that the applicant understood that her employment was terminated effective from 5 November 2014.

[11] The applicant sought to rely on a psychologist’s report which disclosed that she suffered from depression, anxiety and stress. She had earlier been referred to a psychologist and had a number of counselling sessions, the last being on 20 August 2014, where she had reported ‘doing well’. The next assessment of the applicant’s psychological state was conducted on 9 December 2014; some 6 days after she lodged her unfair dismissal application and 34 days after her dismissal. There was no evidence of the applicant being prescribed any medication, although I accept that in her last session (16 December 2014), her depression, anxiety and stress levels were recorded as ‘extremely severe’.

[12] While I am sympathetic to the applicant’s condition, depression, anxiety or stress do not positively demonstrate that she was incapable of lodging her application within the 21 day timeframe. Indeed, many dismissed employees suffer from elevated levels of stress and anxiety following termination of their employment. On one view, this is unexceptional, rather than exceptional. In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, the Full Bench, by majority (Watson VP and Smith DP) said at para [15]:

‘[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.’

[13] The psychologist’s report does not disclose that the applicant’s psychological state was such as to prevent her from filing her application within the required 21 day timeframe or that she was incapable of conducting normal day to day activities. It would also appear that her earlier reports of depression were, in part, triggered by personal and not exclusively work related issues. Importantly, the report does not assess the applicant’s condition during the relevant period, being 21 days after 5 November 2014. The position might well be different if the applicant was so severely debilitated as to have been hospitalised, or so heavily medicated that normal functioning was not possible.

[14] In any event, in my view, the actions of the applicant after 5 November 2014, demonstrate that she was not incapable of lodging her application. She advised that on or around 8 November 2014, she had called Work Health and Safety to discuss the circumstances of her termination in light of the email she had received from Mr Ibrahim on 5 November 2014. She described this conversation as her ‘venting’ her frustration over the meeting that had occurred some days earlier between herself, Mr Harris and Mr Ibrahim. The applicant also acknowledged that approximately two weeks later, she attempted to obtain employment advice from a Mr Phil Martin from Work Health and Safety. Even more starkly, the applicant disclosed that, prior to lodging her application, she ‘went up to the Fair Work Commission’s website and found the Marrickville Legal Centre...’. The applicant conceded that she had contacted the Marrickville Legal Centre for legal advice. While legal assistance or representation is not required to file an application for a remedy for unfair dismissal, the actions of the applicant in the days immediately following her alleged dismissal plainly disclose that she was capable of lodging her application within time. Moreover, her actions indicate she was well aware of her legal rights, and had sought information as to how those rights might be enforced.

[15] The applicant’s evidence also disclosed that she had access to a variety of means of communication which would have enabled her to lodge her application within time. The Commission’s website provides extensive information and guidance as to both workplace rights and the process of filing an unfair dismissal application. In addition to electronic lodgement, an unfair dismissal application may be filed in person at the Commission’s registry or by post. An unfair dismissal application can also be made by phone; See: Fair Work Commission Rules 2013 Rule 9.

[16] I am not satisfied that any of the applicant’s reasons, either singularly, or collectively, for the delay in lodging her unfair dismissal application, constitute an ‘exceptional circumstance’, within the meaning of the Act.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[17] I am satisfied that the applicant was aware her employment was terminated from 5 November 2014. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[18] The applicant did not indicate any action taken by her to dispute her alleged dismissal apart from attempting to contact the Director of the respondent, Mr Ibrahim and contacting Work, Health and Safety to ‘vent her frustration’. An assessment of this criterion weighs against the grant of an extension of time.

Prejudice to the employer (s 394(3)(d))

[19] Given that the application was lodged at least seven days outside of the statutory time limit, I do not consider there is any significant prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This factor is a neutral one in this case.

The merits of the application (s 394(3)(e))

[20] It is important for applicants to understand that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November 2000. The applicant submitted that she was dismissed from her employment, without prior warning. By contrast, the respondent asserted that the applicant resigned from her employment following the meeting which occurred on 31 October 2014. I outline the respondent’s submissions in relation to the applicant’s termination of employment below:

‘8. The Respondent and the Applicant agreed to terminate the employment civilly in person in the meeting on 31 October 2014. The Respondent provided evidence of the meeting in the Employer’s Response.

9. The Applicant was not unilaterally terminated by the Respondent.

10. The termination was not required to be in writing in accordance with section 117(1). This provision does not prevent termination by agreement or by the employee, orally.’

[21] It was not a matter of dispute that the meeting held on 31 October 2014 was convened for the purpose of addressing the applicant’s unauthorised use of a mobile phone in contravention of Company policy. The applicant conceded she had been invited to the meeting by Mr Ibrahim to discuss her unauthorised use of her mobile phone whilst at work. It appears that at this meeting the applicant expressed her dissatisfaction with working with the Company and ultimately chose to resign. While I make no conclusive finding on the issue of whether the applicant was dismissed, fairly or otherwise, a prima facie assessment of the material filed and the submissions at the hearing, suggests that the applicant’s prospects of success are negligible.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[22] The applicant did not specifically address this criterion. There was nothing to indicate that there were other persons in a similar position to that of the applicant. This is an irrelevant factor in this case.

CONCLUSION
[23] Having considered and balanced all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 4 March 2015.

DEPUTY PRESIDENT

Appearances:

Ms L Saunders, Solicitor, for the Applicant

Ms C Watson, Solicitor, for the Respondent

Hearing details:

2015

Sydney

February 13

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