Kate George v Alimak Group Australia Pty Ltd

[2023] FWC 3409

[2023] FWC 3409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kate George
v

Alimak Group Australia Pty Ltd

(U2023/9414)

COMMISSIONER CRAWFORD SYDNEY, 19 DECEMBER 2023

Unfair dismissal application filed out of time – extension granted

Background

1. Kate George (Ms George) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Alimak Group Australia Pty Ltd (Alimak).

1. Ms George resigned from her employment with Alimak as a Project Administrator and Document Controller on the Sydney Harbour Bridge Project effective 6 September 2023. Ms George claims she was forced to resign, which can constitute a “dismissal” under s386(1)(b) of the FW Act. This claim is linked to a dispute about whether Ms George was promoted to a higher role and promised a higher salary in late 2022. Ms George filed an unfair dismissal application on 28 September 2023.

1. Alimak has objected to the application on the grounds that the application is out of time and that Ms George was not dismissed.

1. Before considering the merits of the application, the Commission must determine the jurisdictional issues identified in s.396 of the FW Act, one of which is whether the application was made out of time.[1]

Time limit for an unfair dismissal application

1. Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]

1. Given Ms George resigned effective 6 September 2023, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 27 September 2023. The application was filed on 28 September 2023. There is no dispute between the parties about these dates and hence that the application was filed one day outside the 21-day period. As a result, Ms George needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

1. Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and

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

(c)   any action taken by Ms George 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 Ms George and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

Material filed

1. On 27 November 2023, I issued directions for the filing of material and listed a hearing/determinative conference regarding the extension of time issue for 18 December 2023 via video. Both parties filed material in accordance with the directions.

1. At the commencement of the determinative conference/hearing on 18 December 2023, I indicated my provisional view was that it was appropriate to conduct a determinative conference rather than a hearing,[4] given neither party was seeking permission to be legally represented and Ms George had raised issues about her mental health. Neither party opposed this. I determined the proceeding would be a determinative conference. Ms George represented herself and Tim Goodwin (Projects Director APAC – Façade Access Division) represented Alimak.

1. Ms George relied on the following material in support of her request for an extension of time to file an unfair dismissal application:

·   Form F2 application dated 28 September 2023.

·   A copy of Ms George’s initial resignation email dated 16 June 2023. I marked this letter Exhibit A1.

·   A medical letter from Dr Stella Tang dated 8 August 2023. The letter confirms Ms George has been seeking treatment for worsening anxiety and depression since June 2023. I marked this letter Exhibit A2.

·   An email from Ms George to the Commission dated 24 November 2023 which contains evidence that she missed the filing deadline due to medical issues. I marked this email Exhibit A3.

·   A certificate of capacity/certificate of fitness signed by Dr Tang on 7 November 2023. The certificate states Ms George had no capacity for work from 6 September 2023 to 7 November 2023. I marked this certificate Exhibit A4.

·   A referral letter from Dr Tang to a counsellor dated 7 November 2023. The letter refers to treatment for anxiety and depression. I marked this letter Exhibit A5.

·   A referral letter from Dr Tang to Ramsay Clinic Northside dated 8 August 2023. The letter refers to treatment for eating disorders and depression. I marked this letter Exhibit A6.

·   Ms George’s outline of argument using a Commission form. The outline contains evidence about Ms George’s medical issues. I marked the form Exhibit A7.

·   A statement from Ms George dated 7 December 2023. I marked this statement Exhibit A8.

·   A screen shot of a text message between Ms George and a lawyer dated 5 September 2023. The text message shows Ms George seeking legal assistance about an employment issue. I marked the screen shot Exhibit A9.

·    An email exchange between Ms George and Hall Payne Lawyers dated 27 September 2023. The emails demonstrate Ms George mistakenly thought the due date for her unfair dismissal application was 6 October 2023. I marked the emails Exhibit A10.

·   A medical letter from Dr Tang dated 1 December 2023. The letter confirms Ms George was suffering from significant mental health issues during September 2023. I marked the letter Exhibit A11.

·   A series of K10 assessment scores for Ms George. The assessments indicate Ms George’s mental health has deteriorated significantly from mid-2023 onwards, compared to her score in September 2022. I marked the assessments Exhibit A12.

·    A copy of the certificate of capacity/certificate of fitness signed by Dr Tang on 7 November 2023. This version was signed by Ms George on 16 November 2023. I marked this certificate Exhibit A13.

Ms George was not cross-examined on her evidence. Ms George also provided oral closing submissions at the end of the determinative conference.

1. Alimak relied on the following material in opposition to the granting of an extension of time:

·   Form F3 employer response date 24 October 2023. 

·   An email submission dated 8 December 2023.

·   A series of emails between Ms George and Mr Goodwin concerning her resignation. The emails demonstrate Ms George initially indicated she was resigning effective 14 July 2023. Ms Goodwin then communicated that she wishes to retract her resignation on 5 July 2023. On 11 July 2023, Mr Goodwin indicated Alimak could not accept the retraction of Ms George’s resignation but would agree to delay the end date of her employment for up to eight weeks. Ms George sent an email on 12 July 2023 indicating her preferred end date was 6 September 2023. Mr Goodwin agreed to that date on 13 July 2023. I marked these emails Exhibit R1.

1. Mr Goodwin also made oral submissions at the end of the determinative conference. During these submissions, Mr Goodwin indicated he had not personally been aware of Ms George’s medical issues until he received the evidence filed by Ms George in support of an extension being granted. Mr Goodwin indicated Ms George was an excellent employee and agreed it was out-of-character for Ms George to miss a due date. Mr Goodwin accepted this was likely explained by Ms George’s mental health issues.

Consideration

When did the dismissal take effect?

1. I accept Ms George’s resignation took effect on 6 Septemeber 2023 as specified in the emails filed by Alimak. 

When was the application made?

1. There is no dispute that Ms George filed her unfair dismissal application on 28 September 2023.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 27 September 2023. The delay is the period commencing immediately after that time until 28 September 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[5]

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]

1. Ms George does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Ms George has not provided any reason for any part of the delay.[7]

1. I consider Ms George has conclusively established with medical evidence that she was suffering from severe mental health issues in September 2023 and that this was the reason for her missing the filing deadline.

1. Although Ms George filed some evidence concerning her interactions with lawyers, I do not consider there is sufficient evidence to find that the delay was caused by representative error.

1. I find Ms George has a compelling reason for missing the filing deadline and this weighs strongly in favour of granting an extension of time. 

Did Ms George first become aware of the dismissal after it had taken effect?

1. Ms George was aware her resignation would take effect on 6 September 2023 from when Mr Goodwin sent an email confirming this on 13 July 2023. I consider this to be a neutral factor.

What action was taken by Ms George to dispute the dismissal?

1. It is clear Ms George took steps to seek legal advice about making an unfair dismissal application on at least 5 September 2023 and 27 September 2023.

1. I find this factor weighs marginally in favour of a finding of exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. Alimak did not submit that it suffered any prejudice from Ms George filing her application one day late. I consider this to be a neutral factor.

What are the merits of the application?

1. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[8]

1. Ms George will first need to establish she was forced to resign to meet the definition of a “dismissal” in s.386(1)(b) of the FW Act. It appears she has an arguable case based on her initial resignation letter and her unsuccessful attempt to retract the resignation.

1. On the other hand, the emails demonstrating Alimak agreed to allow her to extend the end date of her employment are likely to weigh against a finding that she was forced to resign.

1. There is understandably limited evidence currently filed concerning Alimak’s alleged reneging on an agreement to award a salary increase to Ms George and whether she received a promotion in late 2022. I consider this evidence would be required to review Ms George’s prospects of establishing she was dismissed in accordance with s.386(1)(b) of the FW Act. Given Mr Goodwin spoke highly of Ms George’s performance, it does appear something significant occurred to upset her and that this may be why she decided to resign from her employment.

1. I consider the merits of the application to be a neutral factor.

Fairness as between Ms George and other persons in a similar position

1. I consider this to be a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

1. 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.[9] 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.[10] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[11]

1. Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.

1. The reasons for this conclusion are that Ms George has a compelling explanation for the very brief delay in the filing of her unfair dismissal application. The application may have merit and Ms George took some steps to dispute her dismissal on the day before her employment ended and the day that the 21-day period lapsed.

Conclusion

1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

1. Having regard to those exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded, I am satisfied that it is appropriate to extend the period for the application to be made to 28 September 2023.

1. The application will proceed for conciliation in accordance with the Commission’s normal processes.

COMMISSIONER

Appearances:

Ms George representing herself.
Mr Goodwin for the Respondent.

Determinative conference details:

2023.
Via video.
18 December 2023.

[1] Section 396 of the FW Act.

[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[4]Section 399 restricts the Commission’s ability to conduct hearings for unfair dismissal applications.

[5] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[11] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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