Lisa De-Anne Burnell v Ronald Young & Co Builders Pty Ltd
[2023] FWC 3274
•11 DECEMBER 2023
| [2023] FWC 3274 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Lisa De-Anne Burnell
v
Ronald Young & Co Builders Pty Ltd
(U2023/10553)
| COMMISSIONER CIRKOVIC | MELBOURNE, 11 DECEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances –extension granted.
This decision concerns an application by Ms Lisa De-Anne Burnell (Applicant) for an unfair dismissal remedy (application) pursuant to s 394 of the Fair Work Act 2009 (Act).
The matter was listed for hearing on 29 November 2023. On 28 November 2023, the Applicant wrote to my chambers requesting an adjournment of the hearing. On 28 November 2023, the Respondent wrote to my chambers indicating that it was content for the hearing to be vacated and for the matter to be dealt with “on the papers” on the basis of the written material filed by the parties. On 29 November 2023, the Applicant confirmed in writing her consent that the matter be dealt with on the papers. In light of the above, I have determined the application on the material before me.
The Applicant submits that her employment with Ronald Young & Co Builders Pty Ltd (Respondent) was terminated with effect from 29 September 2023. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Fair Work Commission (Commission) allows pursuant to s 394(3).
It is not in dispute that the Applicant was terminated effective 29 September 2023. The unfair dismissal application was lodged at 7.14pm on 26 October 2023. As the Applicant was terminated on 29 September 2023, the last day to lodge the application was 20 October 2023, and was therefore lodged 6 days out of time. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under section 394(3) contrasts with the broad discretion conferred on the Commission under section 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reason for the delay
The delay required to be considered in section 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[5]
The Applicant proffers several reasons for the delay in filing her application, distilled as follows:
· She experienced an exacerbation of her heart condition (supraventricular tachycardia or SVT) due to “stress of what has happened, the abuse, bullying and the Unfair Dismissal and the financial fall out as a consequence of having to move and deal with this financially”.
· She was additionally “completing annexing for a domestic violence order in the same week as her unfair dismissal application”. She had made calls to the Queensland and Tasmanian Police regarding her “domestic violence and bullying” experienced over “the last 30 years”.
· She attended the Noosa Hospital for medical treatment for her heart condition on 18 October 2023 and was attended to by Professor Christian Craig-Hamilton. She was provided with a medical certificate for 18-19 October 2023, however “it is in the rooms of the Noosa Hospital”, and she is unable to provide it to the Commission.
· Due to the stress of her dismissal, she has had four ambulance call outs and spent time in hospital.
· On 20 October 2023, the Queensland Ambulance Service was “called to her” who “insisted on her transfer to Noosa Hospital”.
· She was discharged from Noosa Hospital on 20 October 2023 and “a letter was posted at the Noosaville post office as soon as practical (sic) after I was discharged from the Noosa Hospital on the 20th October 2023”.
In support of her submission, the Applicant relied on a medical certificate from Dr Rose Baker dated 20 October 2023 (Medical Certificate). The Medical Certificate states, inter alia, that “Lisa Burnell attended Noosa Hospital – Emergency Dept on the 20 October 2023. She has a cardiac condition causing paroxysmal supraventricular tachycardia and is awaiting assessment for an ablaition (sic). If Lisa becomes symptomatic of her supraventricular tachycardia, she will need to delay legal and physical activites (sic) and rest and may require medical review if her symptoms persist” (emphasis added).
The Respondent submits that the Applicant’s purported reasons for delay in filing did not preclude her from filing her application on time. In particular, the Respondent states that:
· The Applicant has not produced medical evidence from 18 and 19 October 2023 that indicates she was completely incapacitated from posting her application and was able to engage with the Respondent via email during that time.
The Applicant’s letter mailed on 20 October 2023 was not a valid application, however in the event that it is accepted to be a valid application by the Commission, the Applicant did not provide a satisfactory reason for the delay as she did not comply with her “duty to provide a reasonable period in advance of posting for delivery to the Commission by postal authorities so as to ensure, so far as possible, the application is filed (received) within 21 days”.[6]
The Applicant’s email sent on 22 October 2023 was not a valid application, however in the event that it is accepted to be a valid application by the Commission, the Applicant still has not satisfied the Commission that exceptional circumstances exist which warrant an extension of time, particularly in relation to the reason for the delay between 20 October 2023 and 22 October 2023.
A search of the Commission’s records indicates the following:
A letter dated 20 October 2023 was sent to the Commission by the Applicant stating the following:
“To Whom It May Concern,
I was Unfairly Dismissed from my Part-Time Marketing Job at Ronald Young & Co Builders by Mr Paul Burnell on the 29th of September 2023.
I worked 20 hrs per week / Social Media / Website / Customer Service @ ~$40 per hour.
I believe that I have been a victim of Horizontal and Vertical Bullying in the Workplace.
I have evidence of this for almost 12 years of my employment with this Company.
I have had significant Chest Pain and symptoms of my Cardiac Condition – SVT – and I have been having medical attention for this - a serious condition and have been seen by Professor Craig-Hamilton the 18th of October, and he provided me with a medical certificate for the 18th-19th of October 2023 – it is available in his rooms at the Noosa Hospital (He did not print me a copy) – but provision was given for this.
I had a Queensland Ambulance Service crew called to me on Friday afternoon the 20th of October 2023 – and they insisted on my transfer to Noosa Hospital. I have been under extreme stress from my ex-husband – and who I have had to escape a DV / Bullying situation in Hobart.
A letter was posted at the Noosaville post office as soon as practical after I was discharged from the Noosa Hospital on the 20th October 2023.
3 days after leaving my marriage – my ex-husband of 3 days Terminated me from my position in our business (on the day I told him I was leaving the marriage – I was Unfairly Terminated from my part-time position)
I was Coercively made to Resign as a Director of this Company ~ 18 months ago.
The last four weeks have been very stressful, and I am struggling to meet all the deadlines due to exacerbation of serious cardiac health issue – I am awaiting a cardiac ablation to rectify the cardiac problem.
I am doing everything to reduce Stress on my heart – but whilst the completion of formal claims (and Affidavits and Statements) is taking up my time and energy – I am determined to do what I can to protect my good employment record, my safety and my financial safety and control.
I have had exemplary employment records – 6 years at the Sydney Adventist Hospital, 25 years at the Calvary Health Care Tasmania, and 2 years at the Royal Hobart Hospital.
I worked in our own business additionally for 12+ years at the highest level, and I believe that I am being vengefully Terminated. I have HR Diploma, and this Termination will affect my ability to secure future Employment – and may also affect my ability to secure work in the Nursing Profession and the Construction Industry. This is not fair – when I believe that there are no grounds for dismissal.
Further Evidence and Documentation can be provided upon request.
Sincerely,”
The medical certificate of 20 October 2023 from Dr Rose Baker, reproduced at paragraph [12] above was attached to the letter.
The envelope in which the letter was posted states “NMC CFCP 455 23.10.23 22h47” indicating that it was postmarked on 23 October 2023 at the Northgate Mail Centre.
The envelope is stamped 13 November 2023; however, the Commission Registry notes that it was incorrectly stamped, and was received by the Commission on 8 November 2023.
On 22 October 2023 at 4.52am, the Applicant lodged an enquiry on the Commission’s website. This enquiry states “I have been unfairly terminated from my employment on the 29/9/2023”.
On 22 October 2023 at 3.55pm, the Applicant sent an email to the Commission in the same terms as the letter dated 20 October 2023, also attaching the 20 October 2023 medical certificate from Dr Rose Baker, and a photograph of the letter dated 20 October 2023.
On 23 October 2023 at 12.38pm, the Commission emailed the Applicant stating:
“The Fair Work Commission received the attached email from you on Monday 23 October 2023.
There was not a completed application form attached to your email.
The Fair Work Commission can only start dealing with a case after we receive a completed application on an approved form (as per Rule 14 of the Fair Work Commission Rules 2013).
To make an application to the Commission you need to complete the relevant form and lodge it by email, fax or by post.
There are strict time limits for some application types. Some applications are dismissed if they aren’t lodged within the time limits.”
On 25 October 2023 at 7.08am, the Applicant carbon copied the Commission into email correspondence to the Respondent. This correspondence is reproduced below:
“Hi Mr Paul Burnell,
Please have my email re-instated now – you have unfairly terminated my employment.
I still require access to my personal emails.
I have made an Unfair Dismissal Claim against you.
You are a bully, a DV abuser (A DVO is in place currently) and I will prove workplace bullying too.
You did this to financially Control me.
And to humiliate me and hinder my opportunity to secure future work in HR and possibly other professions that I work in.
I worked tirelessly for our Company for 12 + years, and you bullied me, and allowed others in our company to do so.
Why was I terminated days after leaving my marriage to you? This is a vendetta against me.
I have strong evidence.”
On 25 October 2023 at 7.25am, the Applicant sent an email to the Commission attaching her final payslip and stating the following:
“To Whom It May Concern,
I believe that my ex-husband has vengefully Terminated my employment within days of ending our marriage.
I was subjected to workplace bullying – Horizontally and Vertically for a sustained amount of time.
Please investigate – he is very controlling, and our stakeholders are advising him (I am concerned for my personal Safey also)
There is a DVO in place.
Please be aware of the urgency of this – and my Safety, I would like urgent contact please.
Please find attached my last payslip.”
On 25 October 2023 at 7.34am, the Applicant carbon copied the Commission into email correspondence to Paul Burnell and David Kerr from the Respondent from 22 September 2023 regarding IT access problems concerning Datawise, an IT support network used by the Respondent.
On 25 October 2023 at 10.04am, the Commission emailed the Applicant in the same terms as the email of 23 October 2023 at 12.38pm, informing the Applicant how to make an application to the Commission, and reminding the Applicant that the Commission can only start dealing with a case after it receives a completed application on an approved form.
On 26 October 2023 at 7.14pm, the Applicant sent through a completed Form F2 unfair dismissal application. Attached to this application was the medical certificate of Dr Rose Baker of 20 October 2023, her final payslip, her email correspondence of 22 October 2023 at 3.55pm, a letter of 18 October 2023 sent to the Respondent stating her intent to lodge an unfair dismissal claim, a letter from the Respondent’s legal representatives of 18 October 2023, and a termination letter from the Respondent of 29 September 2023.
On the material before me, I am satisfied that the Applicant was hospitalised in emergency on 20 October 2023 following a “a cardiac condition causing paroxysmal supraventricular tachycardia” and that she was discharged from hospital on 20 October 2023. I am also satisfied that the practitioner who attended the Applicant whilst she was hospitalised, Dr Rose Baker advised the Applicant that if she if became “symptomatic of her supraventricular tachycardia” she would need to delay ‘legal and physical activites (sic)”.
I have taken into account the Commission records that indicate that after her discharge from hospital on 20 October 2023, the Applicant attempted to contact the Commission numerous times on 22 October 2023. Further, it is apparent that the Applicant made an attempt to lodge a valid application on 23 October 2023 both via email and post. I am satisfied on the material before me that she corresponded with the Commission in a timely manner when she was advised by the Commission’s Registry that she had made an incomplete application.
In the circumstances I accept the Applicant’s explanation that her medical treatment and hospitalisation on 20 October 2023 prevented her from making her application on time. I have considered the other matters raised by the Applicant and referred to at paragraph [11] above and note that I am unable to make any evidentiary findings as to those matters. On the material before me, I am satisfied the Applicant’s medical condition provides an acceptable reason for the delay.
For those reasons, I consider the Applicant has an acceptable reason for the delay in lodging her unfair dismissal claim. The reason for the delay weighs in favour of granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
There is no contest the Applicant became aware of her dismissal on 29 September 2023.
Having made a finding that the Applicant was notified of the dismissal on 29 September 2023 and that it took effect immediately, I find that the Applicant had the benefit of the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal.
Action taken by an employee to contest the dismissal, other than lodging an unfair dismissal application, may favour the granting of an extension of time.[7]
The Applicant submits that she asked the Respondent to reconsider the dismissal and reinstate her.
The Respondent concedes that the Applicant took action to dispute her dismissal outside of lodging an unfair dismissal application through sending multiple emails to the Respondent and other parties disputing her dismissal.
I find that the Applicant took action to dispute this dismissal. This factor weighs in favour of granting an extension of time.
Prejudice to the employer
Prejudice to the employer will go against a granting of an extension of time.[8]
The Applicant submits that no prejudice would be experienced by the Respondent if an extension of time was granted.
It is not disputed by the Respondent that there would be no prejudice if an extension of time were to be granted.
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not, in my view, a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Respondent submits that the Applicant was dismissed for serious misconduct after she impersonated the Managing Director of the Respondent by using his iPad to send a message to an employee and signing it off with his name. The Respondent additionally submits that the Applicant was dismissed for attempting to dishonestly acquire a financial advantage by emailing the Respondent’s accounts manager stating the Managing Director had authorised a pay rise for her.
The Applicant submits that she was vengefully terminated, bullied in the workplace, and that the Respondent did not follow due process.
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
Having regard to the matters I am required to take into account under s394(3), I am satisfied that there are exceptional circumstances in this case. Whilst some of the factors required to be considered are either neutral or do not point in favour of granting an extension of time, I have determined that there is a credible reason for the delay, and the Applicant took action to contest the dismissal. For those reasons, I am satisfied that the discretion to extend under s394(3) is enlivened and I consider it appropriate to exercise it. The matter will be programmed for further directions.
COMMISSIONER
Hearing details:
Matter determined on the papers.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[4] 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].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Weber, Raymond v THR Developments Pty Ltd [2021] FWC 2422 at [48]
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[8] Ibid
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