Leah Portaro v BHP Billiton WAIO Pty Ltd

[2015] FWC 4255

[2015] FWC 4255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leah Portaro
v
BHP Billiton WAIO Pty Ltd
(U2015/4896)

COMMISSIONER ROE MELBOURNE, 25 JUNE 2015

Application for relief from unfair dismissal.

[1] Ms Portaro lodged her unfair dismissal application more than 21 days after the termination of her employment. She is seeking an extension of time. BHP Billiton WAIO Pty Ltd (BHP) oppose the granting of an extension of time. By letter of 10 March 2015 BHP notified Ms Portaro that she was being stood down. She was told her employment was terminated at a meeting on 13 March 2015 and provided with a letter of the same date. The application was lodged on 16 April 2015. The 21st day after the day of the termination is 3 April 2015 which was the Good Friday public holiday. The application would have been in time if it had been made on 7 April 2015. The application was therefore 9 days late.

[2] Ms Portaro agrees that she was made aware of the dismissal at a meeting on 13 March 2015. BHP does not argue that it will suffer any particular prejudice. Ms Portaro does not suggest that she took any action to dispute the dismissal after it took place and prior to the lodgement of the application for unfair dismissal remedy. Given the relatively short period of delay these are neutral factors in the circumstances of this case.

[3] Notwithstanding the submission of BHP to the contrary, I do not consider that any decision I might make in this matter would offend fairness between the person and other persons in a similar position. The main issue in this case is the reasons for the delay. In this case, the reasons for the delay relate to emotional and financial stress. There are some cases where such issues may, in conjunction with the other factors, lead to a finding of exceptional circumstances and there are others where it does not. The acceptance of those reasons and the weight to be placed upon them are discretionary matters which are particular to the circumstances of each case. A decision one way or another in this case would not offend any precedent.

[4] There are a number of significant factual matters which are in contention in this case including: the warnings received, the consistency of management actions, and whether or not the conduct complained of occurred. Ms Portaro is particularly aggrieved because she says that it has been acknowledged that one of the matters alleged against her was not valid. If the matters alleged by BHP were found to be correct then they could, depending upon the circumstances, form a valid reason for dismissal. The matters alleged affect the safety of others. There is no basis to conclude that the case is without merit. However, there is also no basis to reach a conclusion about the strength of the case. This is a neutral factor in the circumstances of this case.

[5] The most important factor in this case is the reasons for delay. The fact that the period of delay is relatively short means that it is more likely that the reasons could form a satisfactory explanation for the delay.

[6] Ms Portaro’s mother provided a statement which confirmed the shock and upset suffered by Ms Portaro when the dismissal occurred and her concern about her daughter’s mental health. 1 The symptoms described by Ms Portaro’s mother including stress, difficulties in getting out of bed, struggling to be motivated and get through the day are certainly worrying and out of the ordinary. Ms Portaro’s mother says that her daughter spent several days at a time in bed in the period following the dismissal and that she could not get her out of bed. On the days when she did get out of bed she did not get dressed or leave the house. Ms Portaro’s mother gave evidence that this continued throughout the period between the dismissal and the making of the application. The problems have continued since that time but with help and support since that time the problems have become less severe.

[7] Ms Portaro says that she attempted suicide in the day after the dismissal. She says that she tried at least three times to complete the application form but was unable to do so. She could not find the motivation to do so. Ms Portaro gave evidence that she did not know what day it was. Ms Portaro’s evidence was confused and I was not satisfied that she described matters in a chronological order and she was quite unclear about when various matters occurred. I do not have regard to her evidence in respect to the timing of various events. Ms Portaro referred to issues about payment of the lodgement fee and the delays in getting a fee waiver. However, it is clear from the file that correspondence about these matters occurred after the lodgement of the application. Ms Portaro also referred to having some doubts about whether or not she should proceed with making an application. If this was a significant element of the reason for the delay then it would not support a finding of exceptional circumstances. However, considering the evidence of Ms Portaro and her mother as a whole, I am satisfied that this was a manifestation of her general confusion, distress and impairment. Ms Portaro says that she became aware of the 21 day time limit and then called Fair Work Commission and asked if she could still put in her application.

[8] Ms Portaro also provided a medical certificate in support of the reasons for the delay. The statement was provided by a medical practitioner on 7 May 2015. It confirms that Ms Portaro told the medical practitioner on 7 May 2015 that she had been seeing a counsellor since late last year. The medical practitioner said “I have noted in November 2014 that she was struggling with her mood while at work. She felt like she was being picked on and that she had no support at work.” These matters are not relevant to the reason for the delay. The relevant matter raised is the statement that “she reported to me today that she has been struggling with a low mood and lack of motivation since losing her job. In my opinion her mental state contributed to her delay in lodging her claim with the Fair Work Commission.”

[9] The fact that the medical certificate is provided some seven weeks after the termination of employment and does not specifically say that her disability prevented her from completing her application within the specified period significantly reduces the value of this evidence. However, Ms Portaro’s mother said that she could not get Ms Portaro out of the house to attend doctors. Ms Portaro gave evidence that in the period between the dismissal and the attendance at her general practitioner on 7 May 2015 she had also attended a psychiatrist appointment and also an appointment with a counsellor. She also received telephone assistance from a psychologist through the BHP Employee Assistance Program.

[10] I would prefer to have stronger and more direct evidence concerning the medical condition suffered by Ms Portaro during the period from the dismissal to the lodging of the application. However, I take into account that Ms Portaro is representing herself and that it was clear to me from observing her during the proceedings that she is still agitated, upset and confused. I found Ms Portaro’s mother to be a convincing witness and I was satisfied by her evidence that Ms Portaro was suffering significant disability during the period from the dismissal until the date she made her application. Ms Portaro’s mother provided reliable contemporaneous evidence of her daughter’s lack of capacity to function normally throughout the period from the dismissal to the making of the application. I do not consider that Ms Portaro’s reaction to her dismissal was the common or normal hurt, distress and stress. I accept Ms Portaro’s mother’s evidence that Ms Portaro was unable to meet the normal requirements of daily existence during the period from the dismissal until the date when the application was made.

[11] I accept that there is no evidence to support a conclusion that Ms Portaro was totally incapacitated. However, her inability to find the motivation to get out of bed and focus on completing her application during the period between the dismissal and the making of the application provides an explanation for the delay in making the application, particularly in circumstances where the period of the delay is relatively short. I am satisfied that for the period of time between the dismissal and the making of the application Ms Portaro’s capacity to focus on matters such as completing an application form was significantly impaired. The level of impairment was beyond that which might normally be expected in the case of a dismissal.

[12] Ms Portaro needs to provide a credible reason for the whole of the period that the application was delayed. That is a credible reason for the whole of the nine day period of delay. However, the reason for the delay in the nine day period is in part found in the circumstances Ms Portaro found herself in during the 21 days following the dismissal. I consider that Ms Portaro has a credible reason for the whole of the period of delay and that is her impairment which continued, on the evidence of Ms Portaro and her mother, throughout the period from the dismissal until the time of lodgement. My observations of Ms Portaro at the hearing led me to believe that she is still suffering from a significant level of impairment. The legislation does not require that the reason for delay constitutes exceptional circumstances. Rather the legislation requires consideration of whether the totality of the circumstances having regard to the matters specified in section 394(3) constitutes exceptional circumstances.

[13] In summary:

● The reasons for the delay stand in favour of a finding of exceptional circumstances.
● The date of awareness of the dismissal is a neutral factor.
● The action taken to dispute the dismissal is a neutral factor in the circumstances of this case particularly given that the lack of action is explained by the incapacity and given the relatively short period of delay.
● There is no prejudice to the employer. This is a neutral factor.
● The merits of the application are a neutral factor.
● Fairness between Ms Portaro and others in a similar situation is a neutral factor.

[14] Taking all of the factors into consideration, I am satisfied that exceptional circumstances exist which warrant an extension of time. The extension of time is granted and the matter will now be listed for hearing in the normal manner.

COMMISSIONER

Appearances:

Ms. L Portaro on behalf of herself.

Ms. E Jones on behalf of the Respondent.

Hearing details:

2015

Melbourne (by video)

June 23

 1   Exhibit P1.

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