Kirby Drew v Wesley Misson

[2020] FWC 3793

[2020] FWC 3793

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Kirby Drew
v
Wesley Misson
(U2020/6020)

DEPUTY PRESIDENT SAMS SYDNEY, 21 JULY 2020

Application for an unfair dismissal remedy – application filed nearly 400 days out of time – whether exceptional circumstances exist to grant an extension of time – severe personal and medical circumstances (PTSD) – not satisfied that circumstances can account for most of the delay – other factors either neutral or slightly weigh in favour of an extension – in balancing all factors no exceptional circumstances established – application dismissed.

BACKGROUND

[1] On 1 May 2020, Ms Kirby Drew filed on application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which she seeks a remedy for her alleged unfair dismissal as a Youth Worker by Wesley Mission Community Services Limited (the ‘respondent’ or ‘Wesley’) on 9 March 2019. It will be immediately apparent that the application was not filed for 419 days after her dismissal, making the application 398 days out of time pursuant to the 21-day statutory time limit set out in s 394(2) of the Act. I also note she had not worked for the respondent since 28 January 2018. It will therefore be necessary, given the statutory mandate in s 396 (Initial Matters to be considered before merits), for the Commission to be satisfied that there were ‘exceptional circumstances’ which would allow Ms Drew’s application to be filed outside the 21 day time limit. Ms Drew (hereafter referred to as the ‘applicant’) presses for such an extension and for a relevant order of the Commission.

[2] A telephone conciliation took place before me on 3 June 2020, but as no settlement of the applicant’s claim was able to be reached, the parties agreed that jurisdictional issue be determined ‘on the papers’. Directions were issued to this effect. While this decision will obviously not deal with the substantive merits of the application, it is useful to ‘set the scene’ by giving a summary of the contested reasons for the applicant’s termination of employment.

[3] The applicant commenced employment with the respondent on 1 December 2016. It is not contested that the applicant was the subject of significant and distressing personal circumstances, resulting in a diagnosis of Post-Traumatic Stress Disorder (‘PTSD’). In her Form F2 – Unfair dismissal application – the applicant set out her reasons as to why she believed her dismissal was unfair as follows:

•  She started having ‘issues’ with the respondent when her own daughter was hired by Wesley.

•  Her manager engaged in bullying and threatening behaviour in an attempt to remove her from the employment of the respondent.

•  Her personal circumstances involved a diagnosis of PTSD, a number of physical injuries including a broken wrist, and the arrest of the alleged perpetrator against her. As a result of her broken wrist, she took three months off work until medical clearance was given for her to return to work.

•  Upon returning to work some months later, she was advised that her services would no longer be required by Wesley.

•  She was provided with no support for her situation by the respondent.

•  She alleged that as her manager is friends with the perpetrator’s family, this impacted on the decision by Wesley to terminate her employment.

[4] In its Form F3 – Response to unfair dismissal application – the respondent claimed the factual circumstances were as follows:

•  The applicant last worked for the organisation in the pay week ending 28 January 2018.

•  The applicant went on extended leave for a holiday.

•  A number of attempts were made by the Program Manager to contact the applicant since 28 January 2018 with no response.

•  The applicant contacted Wesley Mission late May 2018 (4 months since last shift) informing of her availability to return to work.

•  The applicant was informed early June 2018 that she was no longer required to work with Wesley.

•  The applicant’s employment was formally terminated on 9 March 2019 due to her casual employment no longer required.

[5] In objecting to the application, the respondent claimed that not only was the application lodged out of time, but that the applicant was not engaged on a ‘true’ casual basis, as she was not employed on a regular and systematic basis, and therefore the Commission does not have jurisdiction to determine the application, even if it is accepted out of time.

[6] I note at this juncture the volume of documentation lodged by the applicant, including doctor’s certificates and reports, screenshots of conversations with fellow employees, a number of unsigned emails to the Commission in support of her application regarding the lateness of her application, evidence that she was a regular and systematic employee, and that her dismissal was unfair. As I am required under s 396(a) of the Act to firstly consider whether the application was made within the prescribed period of 21 days, there is no dispute that the application was not filed in time; therefore, I must firstly consider whether there are exceptional circumstances to allow a further period for the application to be made pursuant to s 394(3) of the Act. To assist in this analysis, what follows is a chronology of the events relevant to determining whether exceptional circumstances can be established to enable the applicant to lodge her application out of time as follows:

•  22 November 2016 – the applicant is provided with a Letter of Offer by Wesley in the position of Casual Youth Worker.

•  1 December 2016 – the applicant commences employment with Wesley.

•  3 January 2018 – the applicant was subject to a serious assault.

•  17 February 2018 – the applicant was again assaulted leading to her hospitalisation, and a Medical Certificate was provided from 21 February 2018 to 4 April 2018.

•  19 February 2018 – the applicant writes to the respondent regarding her circumstances.

•  6 April 2018 – the applicant sees Dr Adrian Hekel, requesting trauma therapy as a result of the 17 February 2018 assault.

•  15 May 2018 – Ms Meena Johnson, Program Manager, requests a clearance certificate from the applicant’s doctor and a response to the alleged performance issues from her shift on 11 January 2018.

•  18 May 2018 – the applicant is given full medical clearance to return to work.

•  25 May 2018 – the applicant provides the medical clearance and response to the 11 January 2018 shift to the respondent.

•  June 2018 – the applicant was again assaulted.

•  15 June 2018 – the respondent called the applicant advising that she would no longer be getting shifts.

•  Early January 2019 – the applicant’s mother passed away, and the applicant was subsequently admitted to psychiatric care for 11 days.

•  9 March 2019 – the applicant’s employment with the respondent was formally terminated.

•  1 May 2020 – the applicant lodges her unfair dismissal application with the Commission.

•  9 June 2020 – Dr Adrian Hekel provides a medical certificate to the Commission in support of the applicant’s exceptional circumstances in lodging the unfair dismissal application.

•  12 June 2020 – Lisa White, Clinical Social Worker, writes to the Commission in support of the applicant’s exceptional circumstances.

I will refer to this chronology throughout the course of this decision.

[7] Given that the applicant must address each of the matters the Commission must take into account when determining whether ‘exceptional circumstances’ are established to accept her unfair dismissal application out of time, I set out below, the relevant provision of s 394(3) of the Act:

(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.

I will summarise the parties’ respective positions under each component of s 394(3) of the Act.

[8] The applicant’s primary reason for the delay in filing her unfair dismissal application was that she was suffering significant physical and mental conditions after numerous violent assaults throughout 2018, leading to her hospitalisation and diagnosis of PTSD.

[9] The respondent submitted that in any event, the applicant was not a regular and systematic casual employee. It did not make submissions regarding the personal circumstances of the applicant.

[10] It was common ground that the applicant was aware of her dismissal on the day it took effect (9 March 2019).

[11] The applicant submitted that she was only in a position to dispute the dismissal at the time of filing her unfair dismissal application, due to the complexity of her PTSD and other personal circumstances. She provided two letters from medical professionals which supported this claim. The respondent did not make submissions regarding this aspect of s 394(3) of the Act.

[12] No submissions were made as to the prejudice to the respondent if the extension of time was granted.

[13] The applicant put that her unfair dismissal claim is one of substantial merit and deserves a detailed and thorough examination. The applicant made submissions as to the complex circumstances which she alleges led to her dismissal, including her manager’s relationship with the perpetrator of the assaults, the employment of her own daughter by Wesley to replace her position, and the alleged persistence of her manager to remove her from the organisation. The respondent denied these allegations, and in its Form F3, alleged that there was no evidence to support any of the above claims.

[14] The applicant submitted that notwithstanding the extremely difficult and distressing events which led to her temporary incapacity to work, the respondent provided her with no support during this time, and that she was discriminated against on the basis of her incapacity to work due to circumstances beyond her control.

[15] The respondent asserted that the application cannot be accepted by the Commission as having jurisdiction, as the applicant was a casual employee whose hours per fortnight varied substantially, and that there were notable periods in which the applicant did not work. The respondent provided a number of documents, including payroll data and timesheet information to support this claim.

[16] The applicant claimed that she was not treated fairly throughout the course of her dismissal from Wesley. She claimed the respondent did not provide her with any support during her period of incapacity, and she was distressed for an extended period of time resulting from her personal circumstances and her dismissal. The respondent maintained that it had no obligation to offer her ongoing shifts, as she was not a regular and systematic employee.

CONSIDERATION

[17] In Tamu v Australia for UNHCR [2019] FWCFB 2384, a Full Bench of the Commission (albeit in s 366(2) of the Act) summarised the relevant principles to have regard to in applications of this kind, at [16] – [20] as follows:

‘[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.

[19] The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:

“[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.”

[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.’ (footnotes omitted)

[18] It must also be stressed that a finding of ‘exceptional circumstances’ is a classic exercise of discretion, as is apparent from the inclusion of the word ‘may’ in s 394(3). The discretion is only enlivened if the Commission is satisfied there are ‘exceptional circumstances’. That test has been said to be a ‘high hurdle’ for an applicant to overcome when seeking an extension of time; see: Qantas Airways Limited v McRae [2017] FWCFB 4033. However,in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394, Lawler VP concluded that the Commission would be cautious in adopting an overly stringent interpretation of what constitutes ‘exceptional circumstances’, in that it would be sufficient for an applicant to meet the relatively high hurdle of ‘exceptional circumstances’ where one, or more, or in combination of the criteria in s 394(3) establishes circumstances which are ‘unusual, out of the ordinary, special or uncommon.’

[19] More recently, in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 (‘Stogiannidis’),a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 which had concluded that in order for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay. Until that time, this approach had been followed in numerous single member decisions. However, in Stogiannidis the Full Bench said at [38]-[40]:

‘[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However 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.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.’

See also: Cannon v Quad Services [2019] FWCFB 2097.

[20] I turn now to each of the matters the Commission is required to take into account in order to be satisfied whether the applicant has established ‘exceptional circumstances’ for the late lodgement of this application.

The reason for the delay (s 394(3)(a))

[21] The primary reason of the applicant to explain the reasons for the delay in filing her unfair dismissal application is her severe personal circumstances, meaning that she was only able to dispute the dismissal at the time she made her unfair dismissal application in March 2020.

[22] In Scott v Steritech Pty Ltd t/a Steritech[2019] FWC 2970 (‘Steritech’), in finding the establishment of ‘exceptional circumstances’, I said at [93]:

‘[93] As to Mr Scott’s medical/psychological condition, it is not ‘out of the ordinary’ or ‘unusual’ for a dismissal employee to experience some degree of anxiety, stress, withdrawal from social and normal human activities and helplessness. Sometimes this manifests itself in depression of such severity that medication, or regrettably even hospitalisation, may be necessary.’

[23] I very much sympathise with the applicant’s personal circumstances, and deeply regret that any human being has been subject to such trauma and distress. There is no denying that the applicant has experienced significant trauma and a string of extremely difficult circumstances, particularly in the former half of 2018. The effects of this trauma have had severe and deleterious impacts on the applicant’s livelihood and wellbeing. There is a clear link between her incapacity to work during this period, and the circumstances she faced which made working during this period almost impossible. There is also cogent evidence to support the applicant’s submission that she was regularly seeking treatment (including numerous instances of hospitalisation) due to her circumstances.

[24] I have carefully reviewed the materials submitted by both parties, in particular the voluminous medical evidence to support the applicant’s very difficult circumstances as outlined in the timeline at [6] above. Whilst I am satisfied that the applicant was incapable of making an unfair dismissal application for some of the period between being notified that she would not be receiving any shifts, the period in which I must make my finding as to exceptional circumstances is the period post-termination (from 9 March 2019 onwards).

[25] Despite the applicant’s submission that her PTSD affected her ability to make her unfair dismissal application until 1 May 2020, supported by two medical letters to this effect, I cannot be satisfied that the reasons provided constitute an explanation for the delay in line with the reasoning in Stogiannidis. The delay was very significant. True it is that the applicant’s medical letters lodged in June 2020 supported the proposition that the lateness of the application was due to exceptional circumstances; however, there was no express medical evidence provided to suggest that the applicant was unable to undertake normal tasks during this period. During the telephone conference of 3 June 2020, the applicant advised me that she had been working as a contracted support worker for a client for approximately 12 months. This confirms my conclusion that in the period after her dismissal, and for some 12 months, she was undertaking the normal functions and duties of a worker in her area of experience.

[26] I am also satisfied that the psychological impact on the applicant, both due to her personal circumstances and from her dismissal, was not in the same ‘ball park’ as the usual stress and anxiety experienced by most dismissed employees in the post dismissal period. While I find that the applicant’s circumstances were outside what might objectively be considered to be a person’s usual, ordinary or commonly encountered post dismissal circumstances, the overwhelming majority of the delay of almost 400 days from her dismissal to filing the unfair dismissal application was not explained, and cannot be overlooked. With this in mind, I cannot be satisfied that the applicant was unable to undertake normal functions for most of this period, and therefore this factor tells against a finding of ‘exceptional circumstances’ and the granting of an extension of time.

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

[27] There is no dispute that the applicant was made aware of her dismissal on 9 March 2019. This is a neutral factor.

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

[28] There is no doubt that Ms Drew was aggrieved about her dismissal. However, no action was taken to dispute the dismissal until the filing of this application. This factor tells against granting an extension of time.

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

[29] Neither party made submissions with respect to prejudice to the employer. I note, however, the length of time that has transpired between the dismissal and the making of this application, and the fact the applicant had not worked for the respondent for over two years. Notwithstanding this, I am of the view that this is a neutral factor in the matter.

Merits of the application (s 394(3)(e))

[30] In considering the merits of the substantive application, the Commission is not in a position to make findings of fact on contested issues.

[31] I refer to the observation of the Full Bench in Kyvelos v Champion Socks Pty Ltd Print T2421 (10 November 2000) Giudice J, Acton SDP and Gay C, as to the sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:

‘[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.’

[32] In Kornicki, a Full Bench of the Australian Industrial Relations Commission (as the Commission was then styled) said:

‘If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of merits of the substantive application for relief in the context of an extension or time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’ (my emphasis)

[33] It is not apparent from the evidence at this time, that Ms Drew’s belief as to the real reason for her dismissal is misconceived (or not without merit). This factor weighs slightly in favour of an extension of time being granted. Both parties have provided documentary evidence as to whether the applicant is a regular and systematic employee. As I must deal with the out of time component of this application, it is not open to me to make findings as to the merits of the application in this regard. This is a neutral factor.

Fairness between the applicant and other persons in a similar position (s 394(3)(f))

[34] In Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963, the Full Bench said at [41]:

‘Finally, we turn to consider fairness as between the Appellant and other persons in a similar position. Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the important 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.’

[35] In my view, it is most certainly the case that the applicant’s horrible experiences and circumstances in 2018 and early 2019 were not those usually encountered by the ordinary person. However, this is not the relevant period for present purposes. As there are other, thankfully, rare cases where an employee has been dismissed for being unable to fulfil the inherent requirements of their job, differential treatment is a neutral factor in this case.

CONCLUSION

[36] Taking into account all of the matters in s 394(3) of the Act and in considering all of the relevant circumstances established by uncontested evidence, I am satisfied that when viewed either individually or collectively, the reasons for the delay in filing the application within time, were not ‘exceptional circumstances’, within the meaning of s 394(3) of the Act. There is only one factor which tells slightly in favour of an extension of time being granted. The remainder are either neutral or tell against such a finding.

[37] Accordingly, the Commission’s jurisdiction is not enlivened and the application is dismissed. I so order.

DEPUTY PRESIDENT

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