Lili (Karen) Zhang v Australian Postal Corporation

[2015] FWC 4202

[2015] FWC 4202 [Note: a correction has been issued to this document] [Note: An appeal pursuant to s.604 (C2015/4721) was lodged against this decision - refer to Full Bench decision dated 27 November 2015 [[2015] FWCFB 5285] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lili (Karen) Zhang
v
Australian Postal Corporation
(U2015/7140)

COMMISSIONER RYAN MELBOURNE, 22 JUNE 2015

Application for relief from unfair dismissal - extension of time granted.

[1] The Applicant was dismissed from her employment on 9 September 2014 and the Applicant filed an application for an unfair dismissal remedy with the Commission on 24 April 2015.

[2] The application was filed some 205 days outside the time limit specified by s.394(2)(a) of the Act. The Applicant seeks that the Commission allow the Applicant an extension of time to file her application on 24 April 2015.

[3] Both the Applicant and the Respondent filed submissions and witness statements in accordance with directions of the Commission. The Respondent requested that the extension of time application be determined by the Commission “on the papers”. The Applicant agreed with this.

[4] Relevantly, s.394(3) of the Act provides as follows:

“394 Application for unfair dismissal remedy

(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.”

[5] The term "exceptional circumstances" has been considered in a number of decisions of the Fair Work Commission. A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd summarised various decisions which dealt with the meaning of "exceptional circumstances". The Full Bench found that:

"[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." 1

Reason for the Delay in making the Unfair Dismissal application - s.394(3)(a)

[6] The contentions of the Applicant as to the reasons for the delay in making her application are set out in eight separate paragraphs in her written material. However it is apparent that there are four broad reasons for delay advanced by the Applicant.

1. The Applicant contends that she was not aware of her rights under the Fair Work Act as she was born overseas and only became an Australian citizen in 2007.

[7] The Respondent contends “that the Applicant’s ignorance of her rights is surprising given the seniority of her position with the Respondent.”

[8] The Commission also notes that the Applicant has been an Australian citizen since 2007 and has been employed by the Respondent since 2008. Clearly the Applicant has had more than sufficient time to become acquainted with the existence of the Fair Work Act or the existence of resources which any Australian can access to find out information about unfair dismissal rights, obligations and processes.

[9] There is nothing put by the Applicant which would permit the Commission to treat this reason as being an acceptable reason for the delay in making her application.

2. Shortly after the dismissal the Applicant’s partner of a number of years ended the relationship and left the Applicant with a significant financial burden. The breakdown in that relationship left the Applicant “feeling destroyed”.

[10] The Respondent in opposing the grant of an extension of time makes a submission in relation to both the alleged trauma suffered by the Applicant and the end of a personal relationship “that the applicant’s level of alleged incapacity is insufficient to create abnormal, and therefore exceptional, circumstances justifying an extension of time for a period of seven months and in any event, the applicant has not provided evidence to substantiate that she was incapacitated for the entire period since her termination of employment.”

[11] It is to be expected and should be treated as a normal consequence of termination that the termination of a full time well paid person will create significant financial pressures on the household and on the person. The normal loss of income flowing from a termination of employment could not of itself provide an adequate reason for a delay in making an unfair dismissal application within time.

[12] In the present circumstance the Applicant not only suffered the normal loss of income from the termination but in addition her partner left her and refused to support her financially. There is nothing in the material filed by the Applicant which gives any information about the level (if any) of financial support to the household that the Applicant’s partner had been contributing before the relationship ended. The financial issues alone are not in my view sufficient to provide a reason for delay which would weigh in favour of a finding as to the existence of exceptional circumstances.

[13] The breakdown in a personal relationship shortly after the Applicant was dismissed is not a situation that would be considered as an ordinary, usual or common occurrence for dismissed employees.

[14] The Commission accepts that when the Applicant’s partner left her the Applicant would have suffered a level of stress greater than that suffered by the dismissal alone and that this breakdown of a relationship would be an event out of the ordinary, it would have been an unusual issue to confront a dismissed employee and it is most certainly not a common occurrence. The breakdown in the Applicant’s relationship would provide a reason which could give rise to an exceptional circumstance warranting an extension of time. The real difficulty in the present matter is that on its own the breakdown in the personal relationship of the Applicant would not appear to justify an extension of time of over 7 months.

3. The Applicant contends that she had carer’s responsibility for her aged parents even while she was suffering from stress and depression from the dismissal.

[15] The Respondent relied on the decision of the Commission in Chand v Maxton Fox Commercial Furniture P/L 2 to contend that the Applicant’s carer’s responsibilities do not amount to exceptional circumstances.

[16] Given the Applicant’s own material it is apparent that the Applicant had care of her parents before the dismissal when the Applicant was engaged in full time employment. The fact that those carer responsibilities continued after the dismissal took effect could not give rise to an exceptional circumstance warranting an extension of time of 7 months.

4. The Applicant contends that she suffered trauma from the dismissal and that she suffered from depression and stress from the dismissal.

[17] The Applicant was diagnosed with Post Traumatic Stress Disorder in February 2015. The Applicant contends that the trauma, stress and depression had a real impact on her. In her filed material the Applicant variously describes the effect of the trauma as follows:

• “I was feeling very devastated and I have difficulty reconciling and was emotionally destroyed by this unfair, unjust and not genuine redundancy.”



• “I was not knowing how to cope with the stress of the unfair job loss, I was depressed and can not concentrate or think straight. I can not even drive out properly by myself, and I was always trying to go out with my parents in public from late September 2014 onwards.”



• “I lost my confidence, can not smile happily and feel very burdened every day. I can not sleep properly some days, and feel desperate.”



• “I was not even being able to go to the public by myself, I feel very scared, not safe, lost confidence, very unhappy and cried at home after I lost my job.”

[18] The Respondent in opposing the grant of an extension of time makes a submission in relation to both the alleged trauma suffered by the Applicant and the end of a personal relationship:

“that the applicant’s level of alleged incapacity is insufficient to create abnormal, and therefore exceptional, circumstances justifying an extension of time for a period of seven months and in any event, the applicant has not provided evidence to substantiate that she was incapacitated for the entire period since her termination of employment.”

[19] In support of this contention the Respondent relied on the following factors:

“(a) the period of approximately three months between the termination of employment on 9 September 2014 and the commencement of GP sessions in December 2014 and January 2015 and then counselling on 3 February 2015, for which the applicant has provided no explanation;

(b) the fact that the alleged trauma did not prevent the applicant from picking up her belongings from the workplace on 20 September 201414, emailing Mr Wilson Lorimer of the respondent about her relationship on 28 September 201415, caring for her parents16, fact gathering17, applying for jobs since January 201518, attending interviews or requesting references from the respondent19;

(c) the report of Ms Middling, psychologist, is only relevant to the period since February 2015 when the applicant commenced counselling sessions; and

(d) the respondent offered support to the applicant by way of employee assistance and outplacement services on 9 September 2014.”

[20] The Respondent also contends that the above factors support its contention that the applicant was not sufficiently incapacitated to prevent her from making the application on time, or alternatively, that she was not sufficiently incapacitated for the entire period between the termination and application to justify the delay in her application.

[21] Part of the Applicant’s material filed with the Commission on 14 May 2015 was a one page report from the Applicant’s treating psychologist dated 20 April 2015 confirming that the Applicant was experiencing Post Traumatic Stress Disorder (PTSD) symptoms. The report identified that the Applicant had been referred to the psychologist by the Applicant’s general practitioner and that the psychologist first saw the Applicant on 3 February 2015.

[22] The Respondent contends that the report of the psychologist “is only relevant to the period since February 2015 when the applicant commenced counselling sessions”. This contention is inherently unsound. As the psychologist identifies in her report, the Applicant was referred to the psychologist because the Applicant’s GP had identified that the Applicant had PTSD symptoms. It is clear then that PTSD symptoms were being experienced by the Applicant prior to February 2015.

[23] What is apparent is that the material relied on by the Applicant, including the psychologist report, does not clearly identify that PTSD symptoms were being experienced by the Applicant from the time of the dismissal such as to provide a reason for the Applicant delaying 205 days after the 21 day time limit before filing her application in this matter.

[24] In the absence of any more direct evidence from the Applicant’s treating GP or psychologist the proper way of interpreting the evidence before the Commission is to have regard to the standard texts dealing with PTSD.

[25] The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM 5) edited by the American Psychiatric Association is considered to be an authoritative text on mental health issues.

[26] In the chapter on Trauma- and Stressor-Related Disorders, DSM 5 says of the development and course of PTSD in adults:

“Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. There is abundant evidence for what DSM-IV called “delayed onset” but is now called “delayed expression,” with the recognition that some symptoms typically appear immediately and that the delay is in meeting full criteria (Andrews et al. 2007).

Frequently, an individual’s reaction to a trauma initially meets criteria for acute stress disorder in the immediate aftermath of the trauma. The symptoms of PTSD and the relative predominance of different symptoms may vary over time. Duration of the symptoms also varies, with complete recovery within 3 months occurring in approximately one-half of adults, while some individuals remain symptomatic for longer than 12 months (Bryant et al. 2011) and sometimes for more than 50 years. Symptom recurrence and intensification may occur in response to reminders of the original trauma, ongoing life stressors, or newly experienced traumatic events. For older individuals, declining health, worsening cognitive functioning, and social isolation may exacerbate PTSD symptoms (Thorp et al. 2011).

The clinical expression of reexperiencing can vary across development. ..........Individuals who continue to experience PTSD into older adulthood may express fewer symptoms of hyperarousal, avoidance, and negative cognitions and mood compared with younger adults with PTSD, although adults exposed to traumatic events during later life may display more avoidance, hyperarousal, sleep problems, and crying spells than do younger adults exposed to the same traumatic events (Thorp et al. 2011). In older individuals, the disorder is associated with negative health perceptions, primary care utilization, and suicidal ideation (Rauch et al. 2006).”

[27] DSM 5 notes that where “the full diagnostic criteria are not met until at least 6 months after the event (although the onset and expression of some symptoms may be immediate)” then the diagnosis is to be of PTSD “with delayed expression”. The report of the Applicant’s psychologist does not identify that the Applicant was suffering from PTSD “with delayed expression”.

[28] DSM 5 also identifies a number of risk and prognostic factors which may be associated with PTSD. Amongst the posttraumatic factors are Environmental factors which are described as follows:

“Environmental

These include subsequent exposure to repeated upsetting reminders, subsequent adverse life events, and financial or other trauma-related losses. Social support (including family stability, for children) is a protective factor that moderates outcome after trauma (Breslau 2009; Vogt et al. 2007).”

[29] It would appear that the breakdown in the defacto relationship that the Applicant had been in would fit the description of a “subsequent adverse life event”.

[30] Having regard to DSM 5 and the report from the psychologist, it would appear that the Applicant’s PTSD symptoms would have been present (either partly or fully) within a short time after the Applicant was dismissed from her employment.

[31] The trauma suffered by the Applicant as a result of her dismissal was probably no greater and no less than the trauma suffered by many employees who are dismissed from full time employment where the employee has an expectation of continuing employment. What is very different in the Applicant’s case is her reaction to that trauma.

[32] It would appear to be out of the ordinary, unusual or uncommon for a dismissed employee to develop PTSD as has the Applicant.

[33] The factor raised by s.394(3)(a) favours the Applicant.

When the Applicant first became aware of the dismissal - s.394(3)(b)

[34] On the Applicant’s own material it is clear that the Applicant first became aware of her at the time that the dismissal was effected.

[35] The factor raised by s.394(3)(b) favours the Respondent.

Any action taken by the Applicant to dispute the dismissal - s.394(3)(c)

[36] The Applicant’s own material does not disclose any action taken by the Applicant to dispute the dismissal after the dismissal had been effected. The most that the Applicant’s material discloses is that at the meeting when the Applicant was told that her position was redundant and that her employment would be terminated the Applicant asked about the possibility of alternative employment rather than termination.

[37] The factor raised by s.394(3)(c) favours the Respondent.

Prejudice to the Respondent - s.394(3)(d)

[38] The Respondent raises 3 matters giving rise to prejudice to the Respondent:

● that the length of delay in this matter gives rise to a general presumption of prejudice;
● that it will be prejudiced in being required to defend an application that the applicant, due to statutory limitation period, should not be entitled to bring;
● the Respondent’s ability to defend the matter is prejudiced by the significant amount of time that has passed as witnesses recollections of events are likely to have been detrimentally impacted.

[39] The notion that a lengthy delay gives rise to a general presumption of prejudice would appear to be somewhat obvious. But this notion must be considered in context. The Respondent relies on the decision of the High Court in Brisbane South Regional Health Authority v Taylor 3, where the High Court was dealing with an extension of time matter where the originating party had 3 years in which to commence an action and where the originating party sought to commence an action some 14 years out of time. The District Court at first instance refused to grant an extension of time. Mc Hugh J said:

“Once the learned judge had made a finding of actual prejudice, his decision to dismiss the application was inevitable. Besides the proved prejudice, the long delay gave rise to a general presumption of prejudice.”

[40] The observation of McHugh J was nothing more than an observation as the case did not turn on any argument as to a general presumption of prejudice. The plurality accepted that the District Court Judge had made a finding as to actual prejudice and that that finding was reasonably open to him.

[41] Even if there can be a proposition that a lengthy delay gives rise to a general presumption of prejudice in civil actions in which a party has 3 years to commence an action, one wonders how far that proposition can be taken in relation to an unfair dismissal application where the legislature has set a 21 day time limit and an application is made 7 months after the dismissal.

[42] A degree of prejudice must always be suffered by a respondent where the applicant does not make an application within the time frame specified by the legislature. In that sense the second issue raised by the Respondent is stating the obvious.

[43] The third issue raised by the Respondent goes to the actual level of prejudice suffered by the Respondent. The highest that the Respondent puts its own case is that:

“33. Further, given the significant amount of time that has passed, witnesses’ recollection of events leading to the applicant’s termination of employment are likely to have been detrimentally impacted, thereby prejudicing the respondent’s ability to defend the matter.”

[44] The Respondent offers no evidence as to the actual prejudice that it will suffer. In Brisbane South Regional Health Authority v Taylor, Kirby J said:

“It will be rare that the passage of time does not cause at least some disadvantages to a prospective defendant (for example the erosion of memory; the loss of documents; and the death, departure or disappearance of witnesses). But precisely what that disadvantage is in a particular case is better determined on evidence than on the basis of judicial generalities about time, the importance of finality and the usual desirability of prompt action for the fair trial of contested issues.

It is always open to a proposed defendant, resisting an application for extension of time, to call evidence of any specific detriment it would suffer if an order were made. The appellant did so in the present case. If any such evidence is called, a court must consider it carefully in exercising its residual discretion. If a defendant does not call evidence, or calls evidence which is unpersuasive or insignificant, provided it is reasonable to infer that some evidence was available to it in the circumstances the defendant cannot complain if the court concludes that no particular prejudice, over and beyond the generalities, could have been established by it. This is simply another way of saying that, because a prospective defendant has an interest in keeping the limitation bar in place and in resisting an extension that lifts it, it may be inferred that he or she would ordinarily place before a court evidence of specific prejudice pertinent to the exercise of the court's discretion. If the prospective defendant does not do so, he or she cannot justly complain if the court infers, and then holds, that the defendant has failed to demonstrate such prejudice. This is not to shift the burden in the application from the applicant to the defendant. It is simply to recognise that the burden of persuading a court on the particular issue of specific prejudice lies on the party making any such suggestion. This is what is meant by the "evidentiary onus" resting on a proposed defendant in relation to such an issue.” 4

[45] In the absence of the Respondent offering any evidence as to the actual prejudice suffered by the Respondent the Commission is left with nothing other than the Respondent relying on the general presumption of prejudice. In other words the third issue raised by the Respondent is the same as the first issue raised by the Respondent.

[46] The factor raised by s.394(3)(d) favours the Respondent.

Merits of the Application - s.394(3)(e)

[47] The Respondent has raised two objections to the Applicant’s application for an unfair dismissal remedy:

1. that the application is out of time, and
2. that the dismissal was a case of a genuine redundancy.

Both of these challenges must be dealt with before the Commission is permitted to consider the merits of the application. Such is clear from s.396.

[48] In the present matter both the Applicant and the Respondent have filed submissions dealing with the issue as to whether the dismissal was a case of a genuine redundancy. In addition the Respondent has filed a detailed and lengthy witness statement which deals with the issue of genuine redundancy.

[49] In opposing a grant of an extension of time to the Applicant, the Respondent contends that the strength of its case in relation to genuine redundancy means that there is little or no merit in the Applicant’s case for an unfair dismissal remedy.

[50] Even though there is an amount of material before the Commission from both the Applicant and the Respondent dealing with the issue of genuine redundancy it is not proper for the Commission to come to any concluded view about this material.

[51] The Respondent, in making a request for the extension of time matter to be dealt with on the papers said:

“We understand that the hearing listed for 12 June 2015 is limited to the determination of the application for an extension of time. On this basis, we have not filed an Outline of Argument (merits) and note that all the materials filed only relate to the extension of time issues. If our understanding is incorrect, please advise as soon as possible so that we may file further submissions regarding our additional jurisdictional objection (genuine redundancy) and submissions on the merits of the unfair dismissal application.

On the basis that the hearing is limited to the extension of time application, we request that this be determined by the Fair Work Commission (FWC) on the papers. We submit that there is sufficient material before the FWC to enable it to determine this issue on the papers and that doing so in this manner, without the need for a hearing, will promote the cost-efficient, fair and timely resolution of the matter. However, if required, the Respondent will make itself available for the hearing.”

[52] The Applicant consented to having the extension of time matter determined on the papers.

[53] It is very clear that, whilst the Respondent has filed material dealing with the issue of genuine redundancy as part of its case against the grant of an extension of time, the Respondent wants the opportunity to file further material in relation to its objection that the dismissal was a case of a genuine redundancy. In the absence of having available before the Commission all of the material that both the Applicant and the Respondent wish to rely on in support of their respective cases on the “genuine redundancy” question the Commission cannot come to any concluded view as to how the merits of the unfair dismissal application will weigh in favour of or against a grant of an extension of time. In the present matter I must accept that the issue of merits of the unfair dismissal application is neutral in relation to the Commissions consideration of the relevant factors under s.394(3).

Fairness as between the Applicant and other persons in a similar position - s.394(3)(f)

[54] This factor is not a relevant factor in the present matter. There are no other employees of the Respondent who are in a similar position to the Applicant.

Conclusion

[55] In order to grant an extension of time the Commission must be positively satisfied that there are exceptional circumstances, having considered all of the relevant factors in s.394(3).

[56] In the present matter the Commission has weighed the factor which favours the Applicant against the factors which favour the Respondent and the weighing exercise produces a very strong outcome in favour of the Applicant.

[57] The Commission is satisfied that in this matter there are exceptional circumstances which warrant the Commission exercising its discretion to grant an extension of time to the Applicant to allow her to file her application for an unfair dismissal remedy on 4 March 2015.

[58] The time for filing an unfair dismissal remedy by the Applicant in relation to her dismissal by the Respondent is extended until close of business on 4 March 2015. The application by the Applicant is therefore within the time allowed under s.394(2)(b).

[59] The parties will be advised in due course in relation to further proceedings to deal with the application.

COMMISSIONER

 1   [2011] FWAFB 975 at pn [13].

 2   [2014] FWC 8564.

 3 [1996] HCA 25.

 4   ibid.

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