Julieanne Lee v Broadspectrum Australia Pty Ltd

[2018] FWC 6726

[2018] FWC 6726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julieanne Lee
v
Broadspectrum Australia Pty Ltd
(U2018/9131)

DEPUTY PRESIDENT BEAUMONT PERTH, 1 NOVEMBER 2018

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – application dismissed.

[1] This decision concerns an application made by Ms Julianne Lee (Ms Lee) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). The respondent, Broadspectrum Australia Pty Ltd (Broadspectrum), objected to the application on the basis that it was filed outside the 21 day period prescribed by s 394(2).

[2] A hearing concerning Broadspectrum’s objection was listed on 30 October 2018 and the matter proceeded by way of a telephone hearing. Neither party was represented, and Ms Lee gave evidence on her behalf and Ms Saskia Kate Verity (Ms Verity) gave evidence on behalf of Broadspectrum.

[3] Section 396 of the Act provides that the Commission must decide four matters before considering the merits of an unfair dismissal application. One of the four preliminary (initial) matters that the Commission must decide before considering the merits of an application is whether the application was made within 21 days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[4] Having heard the matter, I have declined to grant an extension of time under s 394(3). Accordingly, Ms Lee’s application for an unfair dismissal remedy is dismissed. The reasons for my decision follow.

Background

[5] Ms Lee started work with Broadspectrum on 27 February 2017, she worked as an Orderly in the courts.

[6] By letter of 27 April 2018, Ms Lee was instructed that she was to attend a meeting on 30 April 2018 regarding her alleged breach of the ‘Broadspectrum House Rules and Broadspectrum’s Anti-Discrimination/Harassment/Bullying and Equal Opportunity Handbook’ (Notification Letter). The Notification Letter set out the various allegations:

a) Refusal to perform alternate duties on the morning of Wednesday 18^th April 2018.

b) Being overheard by four (4) BRS employees making threatening comments about your CSM and 2 other officers employed at Armadale Court on the afternoon of Wednesday 18^th April 2018.

c) Claiming working hours during periods of absence when medical certificates were supplied. 1

[7] There had been a delay in scheduling the meeting as Ms Lee had provided to Broadspectrum medical certificates certifying her unfit up until 30 April 2018. 2 A further delay occurred due to the unavailability of Ms Lee’s support person so the meeting was eventually held on 2 May 2018.3

[8] Immediately prior to the meeting to discuss the allegations, Ms Lee gave evidence that she had an incident with her hand, which was eventually assessed as being fractured. 4 Ms Lee bandaged the hand and consumed some analgesic prior to attending the meeting.5 Ms Lee was of the view that she was not in a fit state mentally and physically to attend the meeting, but nevertheless she did.6 The next day, on 3 May 2018, she returned to meet with Ms Verity and Mr Grand Adams, Court Manager (Mr Adams) and was informed she was dismissed.7

[9] Ms Verity’s account was that at the first meeting on 2 May 2018 she observed that as the meeting progressed Ms Lee appeared tired, vague and stated that she had hurt her hand. 8 Several times Ms Verity enquired whether Ms Lee was well enough to continue, to which Ms Verity said, Ms Lee confirmed she was. However, concern for Ms Lee grew and a decision was made to halt the meeting and reconvene the next day if Ms Lee was fit to do so. A taxi was organised to take Ms Lee home, but she declined the taxi and as a consequence Ms Verity issued a duty of care letter.9

[10] After ascertaining that Ms Lee was fit to continue on from the meeting on 2 May 2018 (Ms Lee confirmed at the meeting she was), on 3 May 2018 the details of the meeting on 2 May 2018 were recapped and the discussion continued. Ms Verity said that following a break to consider the response Ms Lee gave verbally and in writing, it was decided that Ms Lee’s employment was to be terminated and Ms Lee was accordingly advised. 10 The dismissal took effect on 3 May 2018.

[11] Ms Lee gave evidence that she received medical treatment for her broken hand and on 11 May 2018 she had the hand operated on at Fremantle Hospital. 11 Ms Lee’s daughter was said to have provided care to Ms Lee as she required help with daily living activities for a period, and in addition Ms Lee reports she was cognitively impaired by the medication she was on.12 While evidence was tendered of documents obtained from internet sites concerning the medication that was said to have caused cognitive impairment, it cannot be said that such evidence constitutes expert opinion or for that matter carries weight.

[12] Attached to Exhibit A2 was a Centrelink Medical Certificate that certified Ms Lee as unfit from 2 May 2018 until 2 August 2018. There was no evidence before me that Broadspectrum had been provided with this Centrelink Medical Certificate on 2 or 3 May 2018.

[13] On 28 May 2018, Mr Adams received a letter from Cox Legal that responded to the reasons for Ms Lee’s termination of employment and requested that substantive responses be provided in seven days (Cox Legal Letter). 13 Further, the Cox Legal Letter set out that Ms Lee reserved her rights to pursue the matter for unfair dismissal.14

[14] Ms Verity gave evidence that the Cox Legal Letter was received on 12 September 2018, and as the seven day period had expired no response from Broadspectrum was provided. 15

[15] Attached to Exhibit A3 (Ms Lee’s F2 Unfair Dismissal Application) was correspondence between Cox Legal and Ms Lee, it read:

19/06 5:26pm

Hi Julie

I have today reviewed your matter and note I have not received any response from Broadspectrum.

Can you please confirm if you have received any correspondence direct you.

I look forward to hearing from you.

Michelle Cox

Lawyer

Cox Legal

…

Monday, 20 August 2018 3:08PM

To: [email protected]

Subject: Unfair dismissal

Good Afternoon

Michelle Cox

I’m of the opinion that for some time now you did not wish to escalate my situation any further

Could you please send me all paperwork I had left with you as the TWU wish to speak to me regarding the high number of officers that have been stood down recently Kind regards Julieanne Lee

Sent from my iPhone

Cox Legal <[email protected].

Tue 21/08/2018, 10:20AM

You

Good Morning Julie

I confirm receipt of your email and not the contents. I do not agree. I advised you to take the matter further as Broadspectrum refused to correspond. I can not[si] make the company respond but I could have issued formal proceedings to force their engagement. This required your permission and involvement which was not forthcoming.

Any papers on the file will be reviewed and returned to you as part of the file closure process.

Michelle Cox

Cox Legal….

[16] When Ms Lee was cross examined about the communication with Cox Legal her evidence was that her daughter had made the appointment, and she, meaning Ms Lee had just sat at the appointment with Cox Legal and gave answers. Ms Lee said that because her daughter was looking after her it did not occur to her daughter to follow up with Cox Legal, and as for Ms Lee herself, she was medicated, her house was in disarray and she had periods of forgetfulness. While an email was sent from Ms Lee’s iPhone to Cox Legal concerning the TWU, Ms Lee said that she did not have her iPhone on that occasion and she was just sitting in her room. Ms Lee’s daughter was not called to give evidence.

[17] At hearing, there was no submission or evidence tendered to show that the delay in making the unfair dismissal application was attributable to representative error.

[18] Ms Lee made her application for an unfair dismissal remedy on 6 September 2018.

Ms Lee’s submissions

[19] Ms Lee submits that she knew that she was out of time to make the application for an unfair dismissal remedy, but the breaking of her hand, the termination of her employment and her temporary cognitive impairment arising from prescribed medication gave rise to exceptional circumstances. These exceptional circumstances were said to warrant an extension under the s 394(3).

Broadspectrum’s submissions

[20] Broadspectrum submitted that while it understood there were circumstances where an extension of time would be understandable it did not believe in the circumstances of this matter, based on the reasons Ms Lee had put forward, that it would be fair and reasonable to extend the time. It was the case that the delay was long and while Ms Lee was certified unfit until 2 August 2018, the application was not made until 6 September 2018.

Extension of the 21 day period

[21] Consideration now turns to whether to extend the 21 day period within which Ms Lee’s unfair dismissal application was to be brought.

[22] In order for Ms Lee’s unfair dismissal application to proceed, it is necessary for her to obtain an extension of time to make the application under s 394(3). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

[23] It has been said that proceedings not commenced in time should not be entertained. 16 However, the Act has given the Commission discretion to extend the prescribed period for the making of an unfair dismissal application. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.17

[24] In decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd 18 (Nulty) the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.19 While considering the general protection provisions of the Act, the reasoning in Nulty is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[25] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 20 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 can be considered exceptional.21

[26] In the recent decision of the Full Bench in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 22 clarification was provided regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1) the observation remains relevant here:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[27] At the commencement of the Hearing, the parties, who were unrepresented, were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

Reason for the delay

[28] In Aaron Pottenger v Department of Caffiene T/A Two Feet First, the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable 23 or a reasonable explanation.24 However, it is not the case that the applicant ‘needs to provide’ an acceptable, reasonable or for that matter credible explanation.25

[29] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 26 Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. 27

[30] It is apparent that Ms Lee had a most credible explanation for the initial part of her delay and most certainly experienced a terrible time contending with a fractured and painful hand for a period. Faced with impending surgery for her hand, which was later immobilised, she was surely incapacitated for a period. It was not contested that initially Ms Lee was incapacitated.

[31] However, the delay extended from 24 May 2018 until the making of her application on 6 September 2018. Now it is true that until 3 August 2018, Ms Lee was certified as unfit and that must be taken into consideration. Ms Lee’s evidence at hearing was that she was unfit up until the making of the application albeit she was not ‘fried out’. Ms Lee did not provide any further medical certificates for the period post 3 August 2018 on the basis that she did not know she had to.

[32] However, it remains that case that come 28 May 2018, Ms Lee had been sufficiently fit to instruct solicitors to issue a letter to Broadspectrum that reserved her rights concerning unfair dismissal. Subsequently, there had been correspondence between Ms Lee and Cox Legal in mid-August 2018 (sometime after the expiry of the Centrelink Medical Certificate) but a couple of weeks preceding the making of her application.

[33] It did seem during the course of the telephone Hearing that Ms Lee was placing on her daughter’s shoulders the responsibility for legal correspondence and the provision of instructions. However, I am not so convinced and consider that content of the type that ‘the TWU wish to speak to me regarding the high number of officers that have been stood down recently’ was information that came from Ms Lee. While it may have been the case that her daughter could have typed the email, clearly it was Ms Lee who was directing matters, and who had received legal advice concerning her termination of employment and potential claim as after all there was no evidence before me to say that she was not the client. Ms Lee’s daughter was not called to give evidence. However, neither party asked me to draw an inference concerning this. Given the inexperience of Ms Lee within the jurisdiction my appetite for doing so is nil.

[34] While I consider that Ms Lee’s fitness, or lack thereof, was a reason for the delay up until 3 August 2018, it does not provide adequate explanation for the whole period of the delay which extended to the time of making of the application. Further, it cannot be said that it was the case that Ms Lee was unaware of her legal rights concerning unfair dismissal having engaged legal representation and noting of course that ignorance is not a plausible reason. As observed there was no evidence before me to attribute the delay to representative error.

Whether the person first became aware of the dismissal after it had taken effect

[35] While it appears that Ms Lee had a Centrelink Medical Certificate that certified her unfit from 2 August 2018, it is not the case that Ms Lee was unaware of her dismissal. However, given her medical procedure on 11 May 2018, it would be fair to observe that she did not have the full benefit of the 21 day period for making an unfair dismissal application.

Action taken to dispute the dismissal

[36] It is not evident that Ms Lee initially contested her dismissal. A series of emails from Ms Lee during May concerning her separation certificate, return of uniforms, final pay, did not indicate the dismissal was in dispute. 28 However, the Cox Legal Letter informed Broadspectrum that there was denial of some of the allegations made and that Ms Lee was reserving her rights. Ms Lee took at least some action to dispute her dismissal and this has been considered.

Prejudice to the employer

[37] I cannot identify any particular prejudice that Broadspectrum would accrue if an extension of time were to be granted and at the Hearing, Broadspectrum’s submissions did not touch on this point. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[38] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[39] Concerning the substantive application, the merits have not been fully tested. The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded.

[40] However, in my view, there are difficulties with the application given the evidence filed to date by Ms Lee and the submissions made. There appears to me to be a reasonable prima facie case that there was a valid reason for dismissal given alleged breaches of Broadspectrum’s House Rules and Broadspectrum’s Anti-Discrimination/Harassment/Bullying and Equal Opportunity Handbook, and that procedural fairness appears to have been afforded.

[41] Ms Lee while having perhaps a potentially arguable case, is nonetheless faced with an application where in my view the merits of her application on its face are not convincing and I consider the merits tell against an extension of time.

Fairness as between the applicant and other persons in a similar position

[42] Broadspectrum referred this Commission to a case within the ‘Bench Book’ but did not provide the citation at Hearing. However, within the witness statement of Ms Verity reference was made to the Full Bench decision in Muir McMeeken v Action Industrial Catering Pty Ltd (Muir McMeeken). 29 In that case the applicant referred to her incapacitation due to ill health and hospitalisation as attributing to the delay in making the unfair dismissal application. However, the Commissioner at first instance determined that while there was an acceptable explanation for some of the delay in making the application there was no such explanation for the majority of the delay period. On appeal the Full Bench upheld the decision of the Commissioner.

[43] Having considered the Full Bench decision in Muir McMeeken it can be appreciated that the fact scenarios while not the same they are not markedly dissimilar. However, perhaps more important was the proposition that a factor to be taken into account is whether the reason(s) provided for the delay are an adequate explanation for the whole of the delay period, not just part. As observed, the absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 30 Where an explanation provided for part of the delay is found to be implausible this equally weighs against granting an extension in such assessment.

Conclusion

[44] The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found it must be determined whether it is fair and equitable that time should be extended.

[45] Having regard to all of the matters that I am required to take into account under s 394(3), I am not satisfied that the requisite exceptional circumstances exist. Whilst I agree there is an acceptable explanation for some of the delay in making this application there is no such acceptable explanation for the remainder of the delay post 3 August 2018. It is the case that I consider the reasons for this part of the delay implausible.

[46] It was the case that Ms Lee had access to, and in fact engaged, legal representation to obtain legal advice concerning her termination of employment. There was no evidence before me or submission made indicative of representative error. Further, it was apparent that during the course of the delay Ms Lee was sufficiently capable to apparently liaise with the TWU and to have followed up concerning the progress of her matter with her advisor.

[47] There will, in my view, be difficulties with Ms Lee progressing her case on the materials currently before the Commission, and as observed there appears to be a prima facie case that there was a valid reason for dismissal and procedural fairness was afforded.

[48] The other factors do not weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional when considered together and I have not concluded that it is fair and equitable that an extension should be granted.

[49] I decline to grant an extension of time under s 394(3). Accordingly, Ms Lee’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms J Lee, on her own behalf.

Ms S Verity, for the Respondent.

Hearing details:

2018

October 31.

Printed by authority of the Commonwealth Government Printer

<PR701923>

 1   Exhibit A3.

 2 Exhibit R1 [2].

 3 Ibid [3].

 4   Exhibit A1.

 5   Ibid.

 6   Ibid.

 7   Ibid.

 8 Exhibit R1 [4].

 9   Exhibit R1, Annexure 1.

 10 Exhibit R1 [6].

 11   Exhibit A1.

 12   Exhibit A1.

 13   Exhibit A3.

 14   Ibid.

 15 Exhibit R1 [15].

 16   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 17   Ibid.

 18   [2011] FWAFB 975.

 19   Ibid[15].

 20 Ibid [13].

 21   Ibid.

 22   [2018] FWCFB 901.

 23   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9].

 24   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64 [16].

 25   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWFB 901.

 26 Ibid [39].

 27   Ibid.

 28   Exhibit R1.

 29   [2012] FWAFB 5933.

 30   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWFB 901[39].