Lynette Hocking v Villa Maria T/A Villa Maria Society

[2014] FWC 7155

[2014] FWC 7155

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lynette Hocking
v
Villa Maria T/A Villa Maria Society
(U2014/8462)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 13 OCTOBER 2014

Application for relief from unfair dismissal.

[1] This is an edited version of a decision delivered in transcript on 6 October 2014. Ms Lynette Hocking commenced employment with Villa Maria Society (Respondent) as a case manager on or about 24 January 2008. As a consequence of an organisational restructure that was implemented by the Respondent during the first half of 2014, Ms Hocking's employment with the Respondent was terminated with effect from 30 June 2014, for the reason of redundancy.

[2] Ms Hocking has applied for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (Act). That application was lodged with the Fair Work Commission (Commission) on 22 July 2014. Ms Hocking's application, which should have been lodged on or before 21 July 2014, was made outside of the time prescribed in s. 394(2) of the Act, and so Ms Hocking seeks to be allowed a further period within which to make her application.

[3] Ms Hocking was first advised of the real possibility that her employment with the Respondent may end because of an organisational restructure by letter dated 1 May 2014. That letter, a copy of which is attached to Exhibit A2, advises Ms Hocking that because of implementation of a new organisational structure, her current position will be made redundant, and as a consequence there were a number of options that were available to her.

[4] The options included the taking of a voluntary departure package, apply for a new position within the new organisational structure, the possibility of redeployment to another suitable position if one became available, or if any of those options were not available, or were not taken up, then termination of her employment on redundancy grounds would take effect on 30 June 2014.

[5] Ms Hocking submits in her written material that she took personal leave on account of illness between 12 June and 29 June 2014. She says that she was in a state of shock following the notification of her dismissal and that her mental capacity to make decisions, or to make clear decisions, was impacted for some period of time. Ms Hocking submits that she was suffering from a lack of concentration, panic attacks and impaired decision making.

[6] Ms Hocking submits that she had previously been diagnosed with anxiety and depression and that on or about 4 June 2014 she consulted her medical practitioner and was referred to a psychologist for further treatment. There is no medical evidence produced to support the diagnosis alleged, however there was a report produced from Ms Hocking's treating psychologist. The prescribed medication (to which reference is made further below) that Ms Hocking is taking suggests that any anxiety and or depression suffered by Ms Hocking is long standing and not brought about by the dismissal. That report and the post traumatic stress disorder checklist administered by the psychologist to Ms Hocking are in evidence 1 .

[7] The psychologist's report notes that Ms Hocking had been attending psychological counselling because of her feelings that she was unfairly dismissed from her workplace. The report sets out that Ms Hocking was administered a post traumatic stress disorder (PTSD) checklist in which Ms Hocking recorded a score of three or more on questions relating to physical reactions when something reminded her of her stressful experience from the past, avoiding thinking about or talking about stressful experience from the past, or avoiding having feelings relating to it, avoiding activities or situations because they reminded her of a stressful experience from the past and feeling her future will somehow be cut short.

[8] The PTSD checklist scores responses with a rating of between one and five, with one indicating “not at all”, two indicating “a little bit”, three indicating “moderately”, four indicating “quite a bit” and five indicating “extremely”. The report also notes that within the last two weeks of Ms Hocking's employment, Ms Hocking reported that she could not go near the place (of work) and that she was suffering extreme anxiety. Ms Hocking also reported having constant negative thoughts about her future as her career had been cut short.

[9] Ms Hocking also suggested in her written material that she had been prescribed a course of antidepressant medication. However, it became clear during her oral evidence that Ms Hocking had been taking that medication for some significant period of time and certainly well before the termination of her employment, and that the medication was neither prescribed as a consequence of, nor the dosage increased as a consequence of, the dismissal or feelings associated with the dismissal. In short, the prescription of the antidepressant medication was not related to Ms Hocking's dismissal or any feelings associated with the dismissal.

[10] Ms Hocking also said in her written material that as a result of a death in her family occurring on or about 26 June 2014 her condition was exacerbated. She also says that her son, who suffers from an intellectual disability, was due to have surgery during that period. That is the period during which her application could properly have been made. This commitment she submits, would have required her to travel interstate if her son's surgery had not been rescheduled.

[11] Ultimately it seems to me that as Ms Hocking's son's surgery was rescheduled then whatever commitment she might otherwise have had interstate is not a factor that need be taken into account since it did not occur. Further, to the extent that the death in her family exacerbated her condition, I have little doubt that a death in the family would have resulted in a degree of grieving. But absent any medical evidence about that fact, it is not a matter about which I have any evidence, and nor is it a matter that I can properly assess absent of such evidence.

[12] Ms Hocking says that her dismissal was unfair. She says firstly that the dismissal was not a case of genuine redundancy because the Respondent still requires the job that she performed previously to be performed by somebody, and that is so despite the organisational change. She also says that the dismissal was not a case of genuine redundancy because the Respondent did not comply with its obligations to consult under the Social and Community Home Care and Disability Services Award 2010.

[13] In addition, Ms Hocking says that her dismissal was not for a valid reason because it had nothing to do with her capacity or her conduct, and absent a case of genuine redundancy the Respondent is not able to establish a valid reason, and so Ms Hocking will be able to succeed in demonstrating that her dismissal was harsh, unjust and unreasonable. Before considering the substance of the application to allow a further period, I will briefly discuss some of the principles that are to be applied in assessing whether I should exercise my discretion to extend time.

[14] As indicated earlier, Ms Hocking's dismissal took effect on 30 June 2014. Her application for a remedy should have been made within 21 days, namely by no later than 21 July 2014. The application was made on 22 July 2014 and was therefore one day outside the time prescribed. As is evident from the provisions of the Act, the Commission may allow a further period within which an application may be made but that discretion to allow a further period will only be considered if the Commission is satisfied that there are exceptional circumstances, taking into account the matters that are set out in s. 394(3) of the Act.

These matters are:

● the reason for the delay;

● whether Ms Hocking first became aware of the dismissal after it took effect;

● any action taken by Ms Hocking to dispute her dismissal;

● the prejudice to the employer including prejudice that is caused by the delay;

● the merits of Ms Hocking's application; and

● fairness as between Ms Hocking and other persons in a similar position.

[15] It is clear from the structure of s. 394(3) that each of the matters must be taken into account in assessing whether there are exceptional circumstances.

[16] Exceptional circumstances are circumstances that are out of the ordinary course, that are unusual, that are special or uncommon. But the circumstances do not have to be unique nor do they have to be unprecedented, nor do they have to be even very rare. However, before considering whether or not to exercise my discretion at all I need first to be satisfied that there are exceptional circumstances, taking into account and weighing those matters that I have just discussed.

[17] Turning then to those matters, the first of which is the reason for delay, there must be an acceptable reason for the delay and Ms Hocking needs to provide credible reasons or a credible explanation which explains the whole of the period of the delay. Ms Hocking gives evidence that an explanation for the delay in making her unfair dismissal application was her mental condition. She says that due to her mental state she was unclear as to the dates on which she should lodge, and she genuinely believed that her application had been lodged within the 21 days.

[18] She says that she can only explain this by the possible miscalculation of the number of days in the month of June, which caused her to make that calculation, June having 30 days not 31. Ms Hocking offers no credible medical evidence to support her contention that she was suffering anxiety and depression, but even if I accept that she suffers from those conditions it does not follow that the conditions affected her cognitive functioning or her coping mechanisms to a sufficient degree so as to explain the delay in making the application, or that her condition contributed to that delay.

[19] There is no medical evidence offered about the effect of the anxiety and depression on Ms Hocking's cognitive functioning during that 21 day period. Even if I accept that Ms Hocking genuinely believed that the date on which she lodged her application was within time, there is no explanation given as to why she waited until the very last day on which to lodge her application, other than she was unsure as to whether she should proceed with her application at all. Ultimately, one of the reasons for the delay is Ms Hocking's decision to wait until the last moment on which she had to lodge her application. That last moment turned out to be erroneous.

[20] To the extent that there is medical evidence from Ms Hocking's psychologist, I note the following. Firstly, the evidence is untested in the sense that the Respondent was denied an opportunity to cross-examine the author of the report. Attempts were made by the Commission to make the psychologist available for cross-examination firstly by telephone and then by the issue of an Order for attendance to give evidence at the hearing on 6 October 2014.

[21] The psychologist did not attend the hearing and did not take any steps to communicate with my chambers to make arrangements to give her evidence by telephone. I gave Ms Hocking an opportunity to seek to adjourn the proceedings again in order to enable the psychologist to attend in person, but Ms Hocking decided to apply to set aside the Order for attendance. The application was granted and the order was set aside. Consequently, such weight as may be given to the reports produced by the psychologist are low for the principal reason that the Respondent has not been given a fair opportunity to cross-examine on that report.

[22] In relation to the post traumatic stress disorder checklist which is the principal instrument upon which the conclusions that are drawn by the psychologist are based I note the following. Firstly, the PTSD checklist civilian version sets out how it is to be scored. The first method is to add up all of the items for a total severity score, and I note that the total severity score in the PTSD checklist administered to Ms Hocking is 35. However the explanation tells me nothing about whether that is particularly serious or otherwise.

[23] The second manner in which the checklist is to be scored is to add up the number of symptomatic responses in each of the three sections set out. That is, there should be at least one item scored at three or greater in answer to questions 1 to 5, at least three items in relation to the questions 6 to 12, and at least two items scoring three or greater in answer to questions 13 to 17. On reviewing the results of the PTSD checklist I note that Ms Hocking scored at least two in the first range of questions with a score of three or more, a further three in response to questions 6 to 12, but none in response to questions 13 to 17.

[24] Since the scoring checklist using that method requires an accumulation of all three, I can only reasonably conclude that absent any scoring for the questions 13 to 17 that the outcome is not particularly serious, and certainly not of a kind that would warrant a conclusion that Ms Hocking's cognitive functioning was impaired to a sufficient degree as to provide a reasonable explanation for the delay. Consequently on the evidence I am not satisfied that Ms Hocking has provided an acceptable explanation for the delay, and that factor is a factor that weighs against Ms Hocking.

[25] As to whether Ms Hocking became aware of the date that her dismissal took effect, it seems to me clear on the evidence that Ms Hocking became aware of the date of her dismissal well before the date it took effect and certainly not afterwards. On her own material, some time before 13 June 2014 Ms Hocking was asked to write handover notes about her client cases. This request was made because Ms Hocking had been unsuccessful in applying for a position with the Respondent in the new organisational structure, and as a consequence she was advised that her employment would end by reason of redundancy on 30 June 2014.

[26] At the very least on 30 June 2014 Ms Hocking was aware that her employment ended on that date. Consequently, Ms Hocking had the full 21 day period in which to make her unfair dismissal remedy application. Ms Hocking said that although she was aware that her dismissal had taken effect, she lacked the mental capacity to make clear decisions following the termination of her employment. For the reasons already given and absent any medical evidence I am not persuaded that Ms Hocking's mental capacity affected her understanding of when her dismissal took effect. In the circumstances Ms Hocking was aware that her dismissal took effect at least on the date it took effect, and this fact weighs against Ms Hocking.

[27] As to any action that Ms Hocking took to dispute her dismissal, Ms Hocking says that she took some steps to dispute her dismissal from employment, or at least the restructure of the organisation, whilst she was still in employment. Ms Hocking submits she did this by disputing the fact that she was unsuccessful for the position into which she applied during a meeting with the Respondent on or about 3 June 2014. Whilst the evidence about what precisely occurred and when precisely the conversations took place is vague, I am prepared to accept that Ms Hocking did raise issues about her non-appointment to a position, and in the circumstances I am prepared to accept that that is a step that Ms Hocking took to dispute her dismissal, as the consequence of her failure to successfully apply for a position within the Respondent's organisation was the termination of her employment.

[28] It is also clear that Ms Hocking took no other step to dispute her dismissal. However, on balance I am prepared to accept that raising issues that related to the termination of her employment whilst she was still employed is action taken to dispute her dismissal. There seems to me to be nothing in the language of s. 394(3)(c) which requires that steps to dispute a dismissal can only be taken after the dismissal took effect. Accordingly I take into account the fact that Ms Hocking took some steps before 30 June 2014 to dispute her dismissal and this is a factor that weighs in her favour.

[29] As to prejudice to the employer, Ms Hocking in her written material submits that the Respondent will not suffer any prejudice either by reason of the short delay in making the application or otherwise. The Respondent submits that it will suffer a prejudice because to grant an extension of time to allow Ms Hocking to prosecute her unfair dismissal application will set a precedent for other employees of the Respondent who may wish to dispute their dismissal as a consequence of the reorganisation.

[30] The suggestion of prejudice as set out by the Respondent is fanciful and does not speak to prejudice in any event that might result from the conduct of the unfair dismissal remedy by Ms Hocking, should it be permitted to proceed. Any other application that might be made as a consequence will necessarily be out of time and the question will always be whether there are exceptional circumstances in relation to that other application which would warrant, in that given case, the Commission exercising its discretion to extend time.

[31] Ultimately any such application will itself turn on its own facts, and the outcome of this application for an extension of time will have no bearing on any other application made by any former employee. There is no other prejudice identified, and I am satisfied that the employer will not suffer any prejudice as a consequence of the delay in bringing this application or otherwise. However, the absence of prejudice does not in and of itself give rise to exceptional circumstances. It is but one of a number of factors that needs to be taken into account. In the whole of the present circumstances I consider that consideration to be essentially neutral.

[32] As to the merits of the application, as I indicated earlier Ms Hocking says that her dismissal from employment with the Respondent was unfair. She says that the dismissal is not a case of genuine redundancy because her job continues to be required to be performed. She also says that there was an absence of consultation consistent with the requirements of the modern award, and in addition she says that the dismissal was not for a valid reason because it had nothing to do with her capacity or conduct.

[33] The Respondent says that the dismissal was a case of genuine redundancy. It says that the role performed by Ms Hocking is no longer required in a new structure, and that the Respondent has fully consulted with Ms Hocking and others affected by the restructure, consistent with its obligations to consult under the modern award. It also says that it took steps to find suitable alternative employment or redeployment opportunities and those endeavours were unsuccessful. It is usually not practical in proceedings of this kind to conduct a full evidentiary hearing about the merits.

[34] Indeed s. 396 of the Act requires that the question of whether an application was made within the time prescribed by s. 394(2) to be decided before the consideration of the merits of an application, and so an assessment of the merits can usually only be made by taking the applicant's case at its highest. Neither party led any substantive evidence going to the merits of the case. However I am satisfied based on the material, limited as it was, and accepting that factual assertions about merits have not been tested by a cross-examination, that Ms Hocking's application is not without merit. So in those circumstances I assess that fact as weighing slightly in favour of Ms Hocking.

[35] As to fairness between Ms Hocking and persons in a similar position or like position, neither party advanced any argument to address this consideration. Cases of this kind will generally turn on their own facts. In this circumstance where, as Ms Hocking relies on mental incapacity as a reason for the delay, evidence of the effect of mental incapacity on Ms Hocking's cognitive functioning is something that is usually required. Absent such evidence and, as indicated above, I am not satisfied that her mental capacity was relevantly impaired, then there are no similar cases with which comparisons can be drawn.

[36] Cases where an impairment of the applicant's cognitive functioning have been accepted as providing an acceptable explanation for delay have been founded either on medical evidence or on undisputed assertions about the effect of the mental condition. This is not the case in relation to Ms Hocking's explanation. Ms Hocking does not provide medical evidence which would satisfy me that her cognitive functioning was impaired, and such evidence as there is, is generalised and inconclusive and in any event disputed by the Respondent in the circumstances where the Respondent was not given an opportunity to cross-examine. The circumstances of this case are entirely different to circumstances where similar explanations have been offered and accepted. Ultimately, this consideration does not assist Ms Hocking.

[37] Statutory time limitations that apply to the exercise of a person's right to make an unfair dismissal remedy application is an expression of Parliament's intention that rights must be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability of prompt action and certainty. This is so that proceedings involving questions about actions that have been taken by one party would be agitated within a strict period otherwise those rights would be lost.

[38] A person seeking relief from unfair dismissal must make an application within 21 days after the dismissal takes effect. It is only in exceptional circumstances that the Commission will consider allowing a further period. Weighing all the matters that I must weigh, and taking into account those matters in s. 394(3), this is not a case where I am satisfied that Ms Hocking has established that there are exceptional circumstances warranting the consideration of my discretion to allow a further period within which she may lodge her unfair dismissal remedy application.

[39] Although Ms Hocking's case is not without merit she has not established by evidence an acceptable or credible reason for the delay. Although she took some steps to dispute her dismissal during the period before her dismissal took effect, she nevertheless had the full 21 days within which to lodge an application. Indeed she had a significantly further and lengthier period within which to contemplate whether or not such an application should be made, given that as early as 1 May 2014 she was aware that employment might end on 30 June 2014, and certainly by the middle of June 2014 she was well aware that her dismissal would end at the end of that month.

[40] In the circumstances of this case, I am of the view that the factors that weigh in Ms Hocking’s favour do not operate to outweigh the other considerations that do not favour a finding of exceptional circumstances, indicated above. Consequently I am not satisfied in the circumstances that there are exceptional circumstances warranting the exercise of my discretion. The application by Ms Hocking to lodge her unfair dismissal remedy application within a further period is refused. The application for an unfair dismissal remedy is therefore dismissed.

[41] An order giving effect to this decision has been made separately in PR556408.

DEPUTY PRESIDENT

Appearances:

L. Hocking on her own behalf

T. Cooper for the respondent

Hearing details:

Melbourne.

2014

26 September

6 October

 1   Exhibit A3

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