Lehmann v Longarrla Pty Ltd

[2016] FWC 1481

[2016] FWC 1481

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Christine Lehmann
v
Longarrla Pty Ltd
(U2015/16852)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 8 MARCH 2016
Application for relief from unfair dismissal.

[1]        Mrs Christine Lehmann alleged the termination of her employment by Longarria Pty

Ltd was unfair.

[2]        There is a dispute about the date Mrs Lehmann’s employment ended.

[3]        Mrs Lehmann injured herself at work on 11 September 2015. Mrs Lehmann alleged

that Longarria did not have workers compensation insurance. Issues arose about Mrs

Lehmann’s wages and her medical expenses. On 19 October 2015, Mrs Lehmann told Mr Ray

Davies, the owner of Longarria, that as he was calling her a liar he could “stick his job” until

he apologized. On 28 October 2015 Mrs Lehmann sent Mr Davies a letter in which she

complained about the unfair treatment she was receiving. She complained about her injury

and underpayment of wages and entitlements. Mr Davies had been paying Mrs Lehmann a flat

hourly rate which was less than the relevant award rate of pay. In that letter Mrs Lehmann

wrote “you called me on 21 October 2015 and apologized asking me to return to work at the

end of November or when my ankle had healed but due to the way I have been treated and the

work conditions I will not be returning.” She gave Mr Davies seven days to respond to her

claim for outstanding monies.

[4]        Mr Davies said he received that letter soon after it was posted.

[5]        On 3 November 2015, Mr Davies and Mrs Lehmann met. There is a dispute about

what was said at the meeting. Mrs Lehmann said that Mr Davies told her that if she dropped

her claim he would accept liability for the accident and she would still have a job but if she

went on with her claim she would not have a job. While Mrs Lehmann said that she decided

not to proceed with the letter of demand she told Mr Davies that “he should do what he had to

do and she would do what she had to do.” This evidence was supported by Mr Davies.

[6] Mr Davies denied making this statement though he accepted that he told Mrs Lehmann

that if she pressed her claim she would implicate her husband. Mr Davies said that Mrs
[2016] FWC 1481

Lehmann told him that she would not be returning. This evidence was supported by Ms Joy

Barrow and Mr Tyson Reynolds.

[7]        On 18 and 20 November 2015, Ms Lehmann sent Mr Davies text messages asking if

she still had a job. Mr Davies did not respond. On 8 December 2015, she was advised by the

workers compensation insurer that she did not have a job and on 10 December 2015 she sent

Mr Davies another text message asking him to confirm this and asked when she could pick up

some belongings. Mr Davies replied saying “you said you won’t be coming back.”

[8]        On 27 November 2015, Mrs Lehmann’s workers compensation claim was accepted.

[9]        I find that Mrs Lehmann resigned her employment on 28 October 2015. Whilst she

may have hoped that Mr Davies would respond differently, he did not. It cannot be said that

the letter was ambiguous. Further if, as Mrs Lehmann submitted, she thought by deciding not

to pursue her letter of demand she remained in employment, she did not tell Mr Davies this

and there was no agreement that her resignation could be rescinded.

[10]      Accordingly Mrs Lehmann’s application lodged on 17 December 2015 was not made

within 21 days of the date of the dismissal.

[11]      The Fair Work Commission can extend time for the lodging of an unfair dismissal

application if it is satisfied that there are exceptional circumstances. In assessing whether

there are exceptional circumstances the Commission must have regard to certain matters.

Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion

to decide whether to extend time.

[12]      The meaning of "exceptional circumstances" was considered in Nulty v Blue Star

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Group Pty Ltd where the Full Bench said:

“[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."

[Endnotes not reproduced]

[2016] FWC 1481

(a) the reason for the delay;

[13]      Mrs Lehmann said that she did not believe her employment had come to an end until 8

December 2015 when she was told by the insurer that she was no longer employed. She

explained that she did not lodge her application until 17 December 2015 because she had to

fill in the paper work and she needed to make sure she got it right.

[14]      I am not satisfied that Mrs Lehmann had a reasonable explanation for the whole of the

delay. Mr Davies did nothing to indicate that he did not accept her resignation. While he was

willing to sort things out with Mrs Lehmann in the end, it was not sorted. There was nothing

in Mrs Lehmann’s evidence about the conversation on 3 November 2015 that could have led

her to conclude that Mr Davies had agreed that her resignation be set aside. The application

form was signed on 14 December 2015 and posted to the Commission. It was not reasonable

for Mrs Lehmann to take six days to complete her application form in circumstances where

she was already late.

[15]      This weighs against a finding that there are exceptional circumstances.

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

[16]      Mrs Lehmann resigned her employment. If she believed she had been forced to resign

because of a course of conduct by her employer she had the full 21 days to lodge her

application. This weighs against a finding that there are exceptional circumstances.

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

[17]      Mrs Lehmann met with Mr Davies to see if the issues could be resolved. This weighs

in favour of a finding that there are exceptional circumstances

(d) prejudice to the employer (including prejudice caused by the delay);

[18]      Mr Davies said that he had employed someone to replace Mrs Lehmann. He did so

after 3 November 2015 when it was clear he said that she was not coming back. He accepted

that he had to engage other labour immediately and he only made this a permanent

arrangement after 3 November 2015. I accept there will be some prejudice to Longarria if an

extension of time was granted but this does not weigh against a finding that there are

exceptional circumstances.

(e) the merits of the application;

[19]      Mrs Lehmann said she resigned because of the way she was treated by Mr Davies. She

was concerned about the conditions on the farm and also raised issues about her entitlements.

There was also the dispute about her workers compensation entitlements.

[20]      Mr Davies was clear that he did not dismiss Mrs Lehmann and that she freely resigned

her employment.

[21]      I am not able to make any assessment of the merits as there are factual disputes

between the parties that have not been tested. If Mrs Lehmann’s evidence is accepted, she

was not being paid her entitlements and she thought that Longarria’s lack of a workers
[2016] FWC 1481

compensation policy would make it difficult for her claim. It was Mr Davies’ response to her

injury that led to her resignation. I am satisfied that Mrs Lehmann has an arguable case that

she was forced to resign because of this conduct. This weighs in favour of a finding of

exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[22]      There were no submissions made on this criterion. I consider it to be neutral.

Conclusion

[23]      I am not satisfied that there are exceptional circumstances. Mrs Lehmann has not

provided a reasonable explanation for the delay and while her claim is not without merit it is

not so strong as to outweigh the other criteria. Mrs Lehmann’s application for an extension of

time is dismissed as is her application for an unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

C. Lehmann on her own behalf.

R. Davies for the Respondent.

Hearing details:

2016.

Melbourne, by telephone link:

7 March.

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[2011] FWAFB 975