Kerrie O'Connell v Department of Human Services T/A Centrelink Adelaide Smart Centre

[2017] FWC 5002

[2017] FWC 5002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kerrie O’Connell
v
Department of Human Services T/A Centrelink - Adelaide Smart Centre
(C2017/4754)

COMMISSIONER SAUNDERS NEWCASTLE, 28 SEPTEMBER 2017

Application to deal with contraventions involving dismissal – application for extension of time – application dismissed.

[1] On 29 August 2017, Ms Kerrie O’Connell lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was forced to resign from her employment with the Department of Human Services (the Respondent) on 20 July 2017 in contravention of the general protections provisions of the Act (the Application).

[2] Section 366 of the Act provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections dispute pursuant to s.365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[3] This decision concerns whether I should exercise my discretion to allow Ms O’Connell a further period for her Application to be made.

The Hearing

[4] A hearing was conducted by telephone on 28 September 2017 in relation to Ms O’Connell’s application for an extension of time.

[5] Ms O’Connell gave evidence in support of her application for an extension of time. The Respondent did not adduce any evidence, but relied on its written and oral submissions.

Legislative Scheme

[6] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.

[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group Pty Ltd. 3 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“[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.”

Consideration

Reasons for delay – s.366(2)(a)

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4 A dismissal can be communicated orally.5

[10] There must be an acceptable reason for the delay in making the general protections application. 6

[11] The applicant must provide a credible reason for the whole of the period that the application was delayed. 7 Ignorance of the 21 day timeframe is not an exceptional circumstance.8

[12] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 9 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,10the Full Bench explained (at [31]) the correct approach by reference to the following example:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[13] There is an issue between the parties as to whether Ms O’Connell was dismissed, but that is not a matter for me to determine in the context of the present application for an extension of time. 11

[14] The following relevant events took place in the period from 19 July 2017 to 29 August 2017:

(a) on 19 July 2017, Ms O’Connell was walking home at approximately 9pm when she alleges a person passed her on the street and said “Withdraw the complaints. Think of your family”. Ms O’Connell says these comments caused her extreme stress, anxiety and the like;

(b) at 6:12pm on 20 July 2017, Ms O’Connell sent an email to the Commission advising that due to being threatened she was withdrawing her general protections application (not involving dismissal) (C2017/3560) (Previous Application) and tendering her resignation as she was not able to return with the workplace issues unresolved;

(c) at 6:36pm on 20 July 2017, Ms O’Connell sent an email to Ms Eleanor Richardson, Senior Rehabilitation Case Manager of the Respondent, in the following terms:

“Thanks for trying to assist.

Without the work issues being resolved I feel under threat constantly.

I am therefore submitting my resignation effective immediately.”

(d) shortly after, at 6:41pm on 20 July 2017, Ms O’Connell sent an email to Ms Ruth LaBella, Service Support Manager of the Respondent, in the following terms:

“I want to thank you for trying to assist me in my return, I appreciate it very much.

Unfortunately I needed the issues resolving & had hoped this could happen through the FWC.

I have withdrawn my complaint this evening because I have been threatened not to submit it which isn't the first time.

I can’t cope with trying to return under these circumstances & am advising my resignation effective immediately.”

(e) by email sent at 2:43pm on 21 July 2017, Ms LaBella responded to Ms O’Connell as follows:

“Hello Kerrie

Thank you for your email.

I am responding as acknowledgement of your advice of resignation from the department with immediate effect.

I note that you report you have been ‘threatened not to submit’ your complaint. Should you have further information in respect to this that you wish to provide, please do so in writing to me. If there is any departmental involvement, it will be looked into further.

On behalf of the department I would like to take this opportunity to wish you success in your future endeavours and thank you for your service.”

(f) by email sent to the Respondent on 26 July 2017, Ms O’Connell attempted to withdraw her resignation;

(g) on 26 July 2017, Ms O’Connell requested the Commission to reinstate her Previous Application;

(h) on 27 July 2017, the Respondent informed Ms O’Connell that it had made the decision not to accept the withdrawal of her resignation;

(i) on 1 August 2017, the Commission advised Ms O’Connell that the Previous Application would be listed for conference before Commissioner Hampton on 11 August 2017;

(j) on 11 August 2017, Ms O’Connell (together with her parents) and the Respondent participated in a conference before Commissioner Hampton in relation to the Previous Application. The Respondent took the position in that conference that Ms O’Connell’s Previous Application had been discontinued, with the result that she needed to file a fresh application. Ms O’Connell was aware that she had 21 days from her alleged dismissal to make an application in the Commission, but she was hoping to resolve her concerns with the Respondent, including her resignation and her wish to withdraw it, in the conference on 11 August 2017. As a result of the position taken by the Respondent in the conference, it became apparent to Ms O’Connell during the conference that she would need to file another application if she wanted to pursue a claim against the Respondent in connection with what she believed, and continues to believe, was her forced resignation. Ms O’Connell believed during the conference on 11 August 2017 that she had until the end of that day to file a new application against the Respondent in connection with the cessation of her employment. It was understood by Ms O’Connell during that conference that the 21 day time limit expired on 11 August 2017 because her resignation emails were sent after business hours on 20 July 2017 and were not read by the Respondent until 21 July 2017. 11 August 2017 was 21 days after 21 July 2017;

(k) Ms O’Connell wished to see her psychologist before making a decision about filing a further application against the Respondent. Ms O’Connell’s psychologist was away during a period which included 11 August 2017. Ms O’Connell saw her psychologist on 15 August 2017;

(l) on 21 August 2017, Ms O’Connell sent an email to the Commission, requesting an extension of time for an application she had not yet filed. Ms O’Connell was informed that she should lodge her application in the Commission as soon as possible; and

(m) on 29 August 2017, Ms O’Connell filed her Application in the Commission.

[15] Whilst the matters referred to in the previous paragraph relate to the period from 19 July to 29 August 2017, there is also a complicated factual history in relation to Ms O’Connell’s employment with the Respondent and two claims Ms O’Connell made for compensation under the Safety, Rehabilitation and Compensation Act 1988 for ‘severe anxiety’ and ‘stress’ that she attributed to being caused during her employment with the Respondent. On 1 October 2014 and 24 November 2014, Comcare determined that Ms O’Connell was not entitled to compensation in respect of her injuries. On 11 February 2015 and 17 March 2015, Comcare affirmed its decisions on reconsideration. On 23 March 2015 and 15 April 2015, Ms O’Connell applied to the Administrative Appeals Tribunal (the AAT) (2015/1341 and 2015/1762) for a review of Comcare’s decisions denying liability. On 14 February 2017, the AAT made a decision setting aside Comcare’s decisions and finding that Comcare was liable to pay compensation to Ms O’Connell for her adjustment disorder injuries. For the purpose of Ms O’Connell’s application for an extension of time, these matters are only relevant to provide context to the circumstances giving rise to Ms O’Connell’s resignation.

[16] Ms O’Connell explained her delay in lodging her Application in the following way in section 1.4 of her Application:

“A listing was made for 11th August 2017 to discuss my withdrawn general protections application & request to reinstate this.

I had hoped for some resolution regarding my employment status & although I was invited to submit further information for consideration, following discussions regarding this, it was apparant the Department's position remained the same.

This meeting was held on the 21st day of initial resignation & not understanding the process contributed to my late application however my distress & exhaustion from being injured, the processes, 3 years with Comcare & AAT to have no resolution have left me hesitant & confused what to do & whether or not I could go through anymore.

However without these matters being resolved being able to fully recover & move forward will be difficult. I am now unemployed & future opportunities limited given the outcomes remaining current on my file & potential employers are under no obligation to participate in a GRTW.”

[17] In respect of the period from the conference at the Commission on 11 August 2017 to the filing of her Application on 29 August 2017, Ms O’Connell gave evidence that she “was struggling to process everything”, she was in a distressing situation, did not know if she could cope, and her previous AAT issues had not been resolved.

[18] Ms O’Connell tendered (as annexures to her witness statement) two reports from her psychologist, Mr Sandy Litt, in connection with her claim that she was distressed and had difficulties filing her Application. The first report is attached to a letter from Mr Litt dated 16 May 2017. In that report Mr Litt expressed the opinion that “Ms O’Connell no longer suffers from repetitive panic attacks but is suffering from an Adjustment Disorder with mixed anxiety and depressed mood (DSM-V, 309.28). She has suffered significant impairment in both social and occupational functioning.” Mr Litt also expressed the view in that report that Ms O’Connell was fit to return to work in a graduated manner, on limited hours, and “there will be days when Ms O’Connell has difficulty in getting to work”. In Mr Litt’s second report, prepared in the second half of August 2017, he referred to the events leading up to Ms O’Connell’s resignation, including that she had “acted under panic- fear for her own safety as well as her family” and her attempt to withdraw her resignation. Mr Litt also explained in his second report that Ms O’Connell had “battled both panic disorder and adjustment disorder since at least the events of 7 February 2013”. Mr Litt also referred in his second report to his earlier May 2017 report, where he stated that she was “still suffering significant impairment in both social and occupational functioning”.

[19] Mr Litt did not address in either of his two reports why Ms O’Connell was delayed in filing her Application or whether she was incapacitated or otherwise unable to file her Application at any time in the period from 20 July 2017 to 29 August 2017. Indeed, it is not apparent from either of Mr Litt’s reports that he is aware that Ms O’Connell filed her Application outside the 21 day statutory time period.

Consideration of chronology of events and reasons for delay

[20] For the purpose of determining Ms O’Connell’s application for an extension of time, I will proceed on the basis that Ms O’Connell’s alleged dismissal took place on 20 July 2017. However, even if I were to proceed, as suggested in submissions in this case, on the basis that the dismissal took effect on 21 July 2017, because Ms O’Connell’s resignation emails to the Respondent were sent after business hours on 20 July 2017, my conclusion in relation to Ms O’Connell’s application for an extension of time to file her Application would not change.

[21] The 21 day time period for Ms O’Connell to make her Application expired on 10 August 2017. 12 Given that Ms O’Connell filed her Application on 29 August 2017, the Application was filed 19 days late.13

[22] In accordance with the principles summarised in paragraphs [9] to [12] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 11 August 2017 to 29 August 2017. However, the circumstances from the time of the alleged dismissal on 20 July 2017 must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[23] On 11 August 2017, Ms O’Connell was aware of the need to file any application in the Commission quickly, but she did not do so for a further 18 days. In light of Ms O’Connell’s ability to correspond with the Respondent on many occasions after 20 July 2017, arrange for her Previous Application to be relisted before the Commission, and participate in a conference in the Commission on 11 August 2017, I am not satisfied that Ms O’Connell was incapacitated for any significant period of time between 20 July 2017 and 29 August 2017, or otherwise prevented from filing her Application prior to 29 August 2017. Further, I am not satisfied that Ms O’Connell has provided an adequate explanation in respect of the delay for the whole of the period from the conference in the Commission on 11 August 2017 to the filing of her Application on 29 August 2017.

[24] For the reasons set out above, I find that this factor (s.366(2)(a)) weighs against granting Ms O’Connell an extension of time.

Any action taken by the person to dispute the dismissal – s.366(2)(b)

[25] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 14

[26] On 26 July 2017 at 12:49pm, Ms O’Connell sent an email to Ms Richardson indicating that she had resigned under duress and she wished to withdraw her resignation. The email was in the following terms:

“Thank you for your reply Eleanor.

I was actually threatened to withdraw my complaints from the fair work commission which is why I withdrew them. Under duress. Its also the reason I resigned. Under duress.

Not only was I threatened but also my family. They whoever they were, threatened my family.

I am yet to lodge a police report as they also threatened me not to.

I am seriously disappointed that neither the fair work commission or my employer care about my welfare as a human being or employee. It is distressing & disturbing that I have been treated like this.

As a result I may now have to put my home on the market as the bank won’t continue to support me without a job or income. Should that happen it is unlikely that I will ever be able to gain finance to purchase another home as my credit rating is crap.

The department advised they were committed to supporting my return yet someone working for the department has threatened me & my family.

I took the actions under duress. I retreated to think about what to do & if the threat posed a real threat or was just to scare me. Well it did scare me. But I will not be backing down & I had hoped & expected my employer to support & afford me some protection by at least not accepting resignation.

I withdraw my resignation. Given the circumstances I would expect the department to be concerned that this has happened & be supporting me through this not accepting my resignation.

I am relodging my complaints with the fair work commission as I refuse to live my life in fear.”

[27] At 1:31pm on 27 July 2017, Mr Jarrad Edge, Service Manager – Adelaide and Port Augusta Smart Centre of the Respondent, sent an email to Ms O’Connell advising her that the Respondent does not accept the withdrawal of her resignation and inviting her to provide detailed information regarding her allegation that she resigned under duress.

[28] At 2:16pm on 27 July 2017, Ms O’Connell sent an email to Mr Edge in response in which she, inter alia, advised Mr Edge that she disputed his decision not to accept the withdrawal of her resignation. Relevantly the email provided as follows:

“…I will be consulting a solicitor with regards to my resignation & subsequent withdrawal as my resignation was a knee jerk reaction to being threatened again as was the withdrawal of my complaints with the fair work commission.”

[29] Ms O’Connell did not consult with a solicitor, but she did attend (together with her parents) a conference on 11 August 2017 before the Commission in relation to her Previous Application. During the conference Ms O’Connell disputed her dismissal.

[30] For the reasons set out above, I find that Ms O’Connell did take action to dispute her alleged dismissal and this factor (s.366(2)(b)) weighs in favour of granting Ms O’Connell an extension of time.

Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)

[31] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16

[32] A long delay gives rise “to a general presumption of prejudice”. 17 The period of the delay in this matter was 19 days.

[33] The employer must produce evidence to demonstrate prejudice. No such evidence was adduced in this case.

[34] I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, I find that this factor is a neutral consideration in determining whether to grant an extension of time.

Merits of the application – s.366(2)(d)

[35] Ms O’Connell contends that she was forced to resign from her employment because of conduct, or a course of conduct, engaged in by the Respondent. Ms O’Connell also alleges that the Respondent has contravened ss.340, 344, 351 and 352 of the Act.

[36] The Respondent denies that Ms O’Connell was dismissed within the meaning of s.386 of the Act and otherwise denies the alleged contraventions.

[37] The resolution of the contested questions concerning whether Ms O’Connell was forced to resign from her employment because of conduct, or a course of conduct, engaged in by the Respondent and whether the Respondent engaged in conduct in contravention of ss.340, 344, 351 and/or 352 of the Act will only be able to be determined after a full hearing on the merits, including cross examination of the relevant witnesses. In those circumstances, I find that this factor is a neutral consideration in determining whether to grant an extension of time.

Fairness as between the person and other persons in a like position – s.366(2)(e)

[38] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 18 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[39] I am not satisfied that the issue of fairness as between Ms O’Connell and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant, I find that this factor is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[40] Having taken into account the matters referred to in paragraphs [14] to [39] above, I am, on balance, not satisfied that there are exceptional circumstances warranting Ms O’Connell being allowed a further period for her Application to be made. Although I have sympathy for Ms O’Connell, her circumstances were not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon.

[41] Accordingly, the application for an extension of time is refused. The jurisdictional objection to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Ms K O’Connell on her own behalf.

Mr A Abbas on behalf of the Department of Human Services.

Hearing details:

2017.

Newcastle (by telephone):

September 28.

 1 Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

 2 Section 366(2) of the Act

 3   [2011] FWAFB 975

 4   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 5   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 6   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 7   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 8   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 9   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 10   [2016] FWCFB 349

 11   Hewitt v Topero Nominees Pty Ltd[2013] FWCFB 6321

 12   That is, 21 days from 20 July 2017 (not including 20 July 2017) is 10 August 2017.

 13   That is, 29 August 2017 is 19 days after 10 August 2017.

 14   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 15   Ibid.

 16   Ibid.

 17   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 18   [2016] FWCFB 6963

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