Lisa Marie Katerina Asher v Harvest B Pty Ltd
[2024] FWC 1246
•13 MAY 2024
| [2024] FWC 1246 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Lisa Marie Katerina Asher
v
Harvest B Pty Ltd
(C2023/7834)
| COMMISSIONER P RYAN | SYDNEY, 13 MAY 2024 |
Application to deal with a dismissal dispute filed out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Lisa Asher (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
In the Application, the Applicant states that her employment with Harvest B Pty Ltd (Respondent) commenced on 1 May 2023 and was terminated with effect from 22 November 2023. The Application was made on 14 December 2023.
Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). The period of 21 days ended at midnight on 13 December 2023. The Application was therefore made 1 day outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made under s.366(2).
Following the allocation of the matter to my chambers, and in accordance with directions issued by me, both parties were provided with an opportunity to file further materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard before me on 26 February 2024. The Applicant was self-represented. The Respondent was represented one of its directors, Ms Kristi Riordan.
The witness statements and materials filed by the parties were compiled into a Hearing Book which was admitted into evidence as Exhibit 1, except for pages 47 and 362-365.
The following persons gave evidence at the hearing:
· The Applicant;
· Mr Jacob Sijnja, the Applicant’s husband; and
· Mr Alfred Lo, the Respondent’s chief commercial officer and a company director.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).
Relevant Background
The Applicant commenced part-time employment with the Respondent on 1 May 2023 in the position of director of sales. In June 2023, the Applicant’s position was converted to full-time employment.[1]
The Applicant received a base salary of $200,000.00 per annum and the opportunity to receive incentive compensation of up to $60,000.00 per annum.[2]
On 22 November 2023, the Applicant’s employment was terminated due to her position being made redundant. The Applicant received a payment of $50,000.00 in lieu of notice, as well as payment for accrued annual leave and outstanding wages and commission.[3]
The Application was made on 14 December 2023 through the Commission’s Online Lodgment Service. In the comments section of the covering OLS application form[4], the Applicant stated:
Please find my completed general protections form for dismissal at Harvest B within 21 days of dismissal. I am still collating the evidence, so will send this through once completed, however today I believe is my final day to submit.
In response to question 1.4 of the Application, the Applicant answered “yes” to the question of whether the Application was being made within 21 calendar days of her dismissal taking effect.[5]
On 29 December 2023, there was a telephone call between the Commissions’ case management team and the Applicant. The telephone call was initiated by the Commission in response to correspondence received from the Applicant.
The Commission’s file records the following file note of the telephone call:
TC to A- Called in regards to her previous email objecting to EoT granted to R - I explained why the R was granted an EoT as failure to file a response may result in the matter being closed and the A issued with a CERT to take it to court. She said she wasn’t aware of it. Also explained the matter is OOT by a day. I explained the JO Hearing and how the Member will decide if the matter will proceed. She said she may have incorrectly counted the days - Requested her to wait for the F8A and the GPT team will advise her of the next steps.
(Emphasis added)
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute 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.[6] 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.[7]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.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 366(2) 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) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) 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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[8]
I now consider these matters in the context of the Application.
Reason for the delay
The FW 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 an applicant’s favour, however all of the circumstances must be considered.[9]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[10]
Furthermore, the Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[11]
Applicant’s Evidence and Submissions
In her written submissions filed prior to the hearing, the Applicant submitted:[12]
There was severe stress from the workplace leading up to my “redundancy” and the unexpected termination of my employment exasperated this stress. This was then compounded by the added financial stress this unexpected termination put me under as we had just started a large build project on the 4th October 2023, on the basis of my employment at Harvest B, which was over budget by $40k by mid-November 2023. This severe stress was psychological and financial, which compromised my ability to submit my application within the 21 days. This is verified by my GP (appendix b), Psychologist (appendix c) and witness statement of my husband Jacob Sijnja (appendix d), who was present in the “redundancy” meetings.
In support of that submission, the Applicant relies on letters from Dr Audrey Saurajen, a general practitioner, and Dr Lucia Holzner, a clinical psychologist.
The letter from Dr Saurajen is dated 1 February 2024 and states:[13]
I verify that Ms Asher was extremely stressed due to work issues in late 2023 and came to see me on seven November 2023 regarding these stresses that had taken a physical, mental and emotional toll on her. I provided her with a medical certificate for leave from work to manage her stress. I also note she sought treatment from her psychologist and her psychiatrist to cope with stress.
The impact on her mental state as a result of these stresses contributed to her delay in submitting her general protections claim on time.
The letter from Dr Holzner is dated 6 February 2024 and states:[14]
Ms. Asher is an ongoing client who has continued to be engaged in treatment of a confidential nature. I am writing to Ms Asher due to circumstance beyond her control impacting her ability to submit her general projections claim on time.
I met with Ms. Asher on 31/10/2023, 7/11/2023, 22/11/23, 27/11/23, and 15/12/23 to work through a stress response in the context of workplace issues at the end of last year.
The clinical assessment indicated that she was experiencing profound psychological distress as a result of difficulties in the workplace. The workplace circumstances were outside of her control and significantly impacted her mental health.
This memo is to support that I was seeing her at the time to support her to cope with the level of impact to her mental health. I can confirm that her stress related symptoms impacted her ability to submit her general projections claim on time.
In written submissions in reply, the Applicant stated the delay was:[15]
based on exceptional medical reasons caused by the Respondent. The process of writing the claim required revisiting triggering moments of acute stress. This caused strain and resulted in a miscalculation of due date.
In her evidence before the Commission, the Applicant:
· Recalled the discussion with the Commission’s case management team and agreed that the Commission’s file note, as a broad summary of the discussion, is accurate.[16]
· Stated that she was “surprised” upon being informed that the Application was made out of time.[17]
· Stated that she made an error in lodging the Application one day late due to cognitive impairment from being under significant stress;[18]
· Stated that during the period from 22 November 2023 to 14 December 2023:
· She applied for a number of new employment opportunities by submitting written applications which included a copy of her resume, as well as having discussions with recruiters;[19]
· She posted a statement on LinkedIn about her learnings from working in the plant-based meat industry. The Applicant stated that she did so in response to receiving queries regarding her employment status which were causing her distress;[20] and
· She participated in an online meeting with the University of Sydney regarding her PhD Thesis Proposal Defence.[21]
Mr Sijnja stated that the Applicant was “mentally affected and strained” and that the “mental strain” resulted in her miscalculating the last day to submit the Application.[22]
In her closing oral submissions, the Applicant emphasised that she was seeking an extension of one day in circumstances where she was under “extreme stress”.[23]
Respondent’s Evidence and Submissions
The Respondent submitted that the Applicant miscalculated the due date and is relying on mental incapacity to “save her claim”.[24]
The Respondent submitted that the medical evidence relates to periods prior to the Applicant’s dismissal and does not explain how stress caused the Applicant to miscalculate the due date.[25]
The Respondent submitted that the Applicant was able to complete other professional tasks during the period following her dismissal and that her home renovation going over budget is not the fault of the Respondent.[26]
In closing oral submissions, the Respondent submitted the Applicant’s evidence does not meet the high bar of exceptional circumstances. The Respondent submitted that the existence of a mental health condition does not automatically give rise to exceptional circumstances.[27]
The Respondent submitted that the activities engaged in by the Applicant following her dismissal required different degrees of cognitive capability.[28]
Reason for delay - Consideration
The Applicant accepts that she miscalculated the 21-day period. It is well established that a lack of knowledge, ignorance, or miscalculation of the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[29] However, in this case the Applicant contends that the miscalculation was a consequence of cognitive impairment caused by stress.
In Victor Blanco v White Bathroom,[30] Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
[44] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.
[51] In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii) the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
[Footnotes omitted]
More recently in Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd[31], a Full Bench of the Commission stated:
[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.
[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:
“[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.
[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
[28] The Full Bench’s comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench’s comments in Zhang that ‘compelling medical evidence’ is required to support a conclusion that the reason for the delay was due to the individual’s medical condition. The Deputy President in the present matter had no medical evidence before her, let alone ‘compelling medical evidence’, to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant’s opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.
The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit and that an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.
Turning to the circumstances of this matter, I have placed no weight on the letter of Dr Saurajen or the evidence of Mr Sijnja. The letter of Dr Saurajen relates to the Applicant’s condition prior to her dismissal and Mr Sijnja’s evidence as to the Applicant’s capacity is no more than lay person opinion.[32]
In relation to the letter of Dr Holzner, I accept that it states that the Applicant was suffering from stress related symptoms including “profound psychological distress” in the period from 31 October 2023 to 15 December 2023 and that stress related symptoms impacted her ability to submit the Application on time. However, that does not require the Commission to conclude that simply because a medical practitioner declares a person to be suffering from a relevant condition that it renders the person incapable of completing and lodging an application under the FW Act within the required time.[33] The opinion of a person’s medical practitioner is a relevant consideration to be taken into account together with all the other available information before the Commission[34]
The other available information relevant to my consideration of this matter is the Applicant’s evidence of the activities she engaged in during the period from her dismissal up to the lodging of the Application which included:
· Applying for a number of new employment opportunities by submitting written applications which included a copy of her resume, as well as having discussions with recruiters;
· Posting a statement on LinkedIn about her learnings from working in the plant-based meat industry;
· Participating in an online meeting with the University of Sydney regarding her PhD Thesis Proposal Defence.
Neither the letter of Dr Holzner nor the evidence of the Applicant satisfactorily explains how the Applicant was cognitively impaired by stress or incapacitated such that it resulted in the miscalculation or otherwise materially impacted her ability to lodge the Application within the 21-day period yet had sufficient capacity to undertake the activities that she did.
While I agree with the Respondent’s submission that each of those activities would require different degrees of cognitive capability, the Applicant’s undertaking of those activities is inconsistent with the medical evidence and her contention that she was suffering from medical incapacity. Most notably was her participation in the meeting with the University of Sydney regarding her PhD Thesis Proposal Defence.
Having regard to the evidence and submissions before me, I am not satisfied that the medical incapacity is an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[35]
However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[36]
The Applicant stated that during the period following her dismissal she wrote to the employer disputing her dismissal.[37] The Respondent did not dispute this.
Accordingly, I find that this circumstance weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
The Applicant contends that the redundancy was a sham designed to remove her from the workplace in response to her making a complaint that Mr Lo had bullied her at work in late September 2023.
The Respondent denies that the Applicant was bullied at work or that she complained of being bullied at work and contends that the Applicant’s position was made redundant following a restructure that shifted the Respondent’s marketing from a business-to-business focus to a direct-to-consumer focus.
It is clear that the merits of the Application turn on contested points of fact and law. Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).
Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
L Asher, Applicant.
K Riordan, for the Respondent.
Hearing details:
2024.
Sydney:
26 February.
[1] Hearing Book, p14; p37 at [5].
[2] Hearing Book, p37 at [5].
[3] Hearing Book, p2-4; p39 at [13]-[20].
[4] Reference QQQLDS.
[5] Hearing Book, p.15
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[7] Ibid.
[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[10] Ibid at [38]-[39].
[11] Ibid at [40].
[12] Hearing Book, p.2.
[13] Hearing Book, p.5.
[14] Hearing Book, p.6.
[15]
[16] Transcript at PN189-PN190.
[17] Transcript at PN190.
[18] Transcript at PN165-PN171.
[19] Transcript at PN126-PN134.
[20] Hearing Book, p.357; Transcript at PN150-PN151.
[21] Transcript at PN135-PN144.
[22] Hearing Book, p7-8 at [7].
[23] Transcript at PN410.
[24] Hearing Book, p.34-35.
[25] Hearing Book, p.35
[26] Ibid.
[27] Transcript at PN425, PN427.
[28] Transcript at PN426-PN427.
[29] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]; Sandra Mueller v Coles Supermarkets Australia Pty Ltd[2022] FWC 1852 at [13]; Ciaran Ryan v Finney Pty Limited T/A Cutprice Car Rentals[2020] FWC 1273 at [25]-[31]; Michael Harvey v Compass-Group (Australia) Pty Ltd[2021] FWC 1375 at [57].
[30] [2021] FWC 4694 at [44]-[51].
[31] [2023] FWCFB 113 (Higgins) at [26]-[28], citing Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285.
[32] See Higgins at [28].
[33] Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37].
[34] Ibid,
[35] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[36] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
[37] Transcript at PN114-PN117.
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