Margaret Wilson v Northern Children's Network Inc
[2021] FWC 2839
•18 MAY 2021
| [2021] FWC 2839 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Margaret Wilson
v
Northern Children’s Network Inc
(U2021/3419)
COMMISSIONER CIRKOVIC | MELBOURNE, 18 MAY 2021 |
Application for unfair dismissal remedy – application made 1 day out of time – extension of time required – no exceptional circumstances – no representative error – application dismissed.
[1] This is an edited version of a Decision delivered ex tempore and recorded in transcript on 18 May 2021.
[2] This decision concerns an application by Margaret Wilson (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
[3] The Applicant’s employment with Northern Children’s Network Inc (Respondent) was terminated with effect from 30 March 2021. The unfair dismissal application was lodged on 21 April 2021.
[4] 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 Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 20 April 2021. The application was therefore filed 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.
[5] The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
[6] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute permits me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
[7] The matters that I need to take into account in considering whether I am satisfied there are exceptional circumstances are:
(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.
[8] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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 individual matters might not, viewed in isolation, be particularly significant, so it is necessary to also consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
[9] 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 or unprecedented, nor do they need to be very rare. I must be satisfied, taking into account section 394(3), that there are exceptional circumstances. 1
[10] I now consider these matters in the context of the Application.
Reason for the delay
[11] The delay required to be considered in s.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. 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.2
[12] 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 the circumstances must be considered.3
[13] The Applicant cited two matters as reasons for the delay in lodging the application, being representative error, and illness.
Representative error
[14] The Applicant states that she first sought legal advice from Mr Purcell of Everett Flight and Associates Lawyers, on 15 December 2020,4 pertaining to what she thought was an impending termination. The Applicant says that she continued to be in communication with her legal representative throughout the period leading up to her termination on 30 March 2021. On that date, the Applicant supplied a copy of her letter of termination to her lawyer.5
[15] In an undated letter, attached to the Applicant’s statement, the Applicant’s lawyer refers to an email from the Applicant dated 31 March 2021, which I infer is a copy of the termination letter. Relevantly, the correspondence:
• confirms the 21-day time requirement;
• does not identify the actual date that the application must be lodged; and
• requests that the Applicant provide her instructions as to the filing of an application.
[16] It is worth noting that the correspondence also deals with an issue involving time off in lieu (“the TOIL enquiry”).
[17] The Applicant gave instructions that she did not want to dispute her termination by email to her lawyer on 12 April 2021. Notably, in that email correspondence, the Applicant requests that the TOIL enquiry be assessed. On 14 April 2021, the Applicant sent a further email to her lawyer confirming that she “had second thoughts” and would like to dispute the termination if, in her lawyer’s opinion, she had a legal basis to do so.6 Further, the Applicant acknowledged the time limit to lodge was “short”, offered to be available by telephone and to lodge the form herself “if it helps”.
[18] The Applicant did not receive a reply from her lawyer to her 14 April letter until 4:36pm on 20 April 2021, which the Applicant submits was just 24 minutes prior to the statutory deadline, although as I have already noted, the Applicant had until mid-night that day to file electronically. Further, it is evident that the letter of 20 April 2021 from the Applicant’s lawyer,7 does not address the Applicant’s unfair dismissal application at all.
[19] The Applicant emailed her lawyer some 20 minutes later, at 4:56pm, wherein she:
• confirmed her earlier request for advice as to “applying for unfair dismissal”;
• erroneously stated that the deadline for filing was 21 April 2021; and
• requested a telephone meeting the next day before 12:00pm and stated that “I can do that application with the documents I have and name you as my legal representative if that is acceptable”.8
[20] The Applicant states that she spoke to her lawyer the next day and that he apologised for either not reading her email of 14 April, or not reading all of it. The Applicant states that they discussed lodging an unfair dismissal claim, and naming Mr Purcell as her representative. The Applicant says that Mr Purcell did not correct the Applicant’s erroneous statement of the statutory deadline.
[21] The Applicant submits that the matters referred above demonstrate representative error.
[22] I have carefully reviewed the correspondence and submissions advanced by the Applicant, and, regrettably, I do not consider the factual circumstances in this case amount to representative error occasioning the delay in filing. There is no evidence before me that the Applicant at any stage gave clear instructions to Mr Purcell to lodge the unfair dismissal application. At best, her instructions were a request for Mr Purcell’s legal opinion on the merits of her claim.9 Further, it is apparent from the supplied email exchanges that the Applicant was willing to lodge the claim herself.
[23] The error as to the correct deadline appears to emerge from the Applicant. Upon receiving Mr Purcell’s letter of 20 April 2021, which was silent on her unfair dismissal case, the Applicant proceeded on the basis that she had one further day to lodge. In the email correspondence of 1 April 2021,10 Mr Purcell correctly articulated that the deadline was 21 days after the termination takes effect (which he records correctly as 30 March 2021). There is no basis before me to conclude that Mr Purcell should be blamed for the Applicant miscalculating the date by 1 day.
[24] If there is any criticism to be levelled at Mr Purcell, it is for not replying more urgently to the Applicant’s 14 April request for an opinion. That said, I exercise caution in doing so given that I have had not had the benefit of hearing from him and am relying solely on the material provided by the Applicant as to the circumstances surrounding her instructions to Mr Purcell. However, it is evident that the Applicant was critically aware of the timeline to file and had expressed a willingness to the file the application herself.
[25] The test for representative error is not whether the Applicant received good or bad advice, it is whether their representative’s action or inaction caused the delay.11
[26] Given the material before me, it is apparent that the Applicant was responsible for determining that she had until 21 April to lodge, and that the Applicant was at least partly responsible for not putting in her application within the prescribed time limit.
Illness
[27] The Applicant has put forward evidence of medical conditions to substantiate that she was suffering from anxiety and depression over the period of 5 February 2021 to 22 April 2021, including:
• a WorkCover claim form that details an injury with gradual onset from 2018 to December 2020;12
• an Initial Workers Compensation Medical Certificate detailing depression and anxiety during the period 5 February 2021 to 5 March 2021;13
• a medical certificate dated 26 February 2021 that certifies the Applicant unfit for “work related meetings at least for one month”,14 and
• a further medical certificate dated 25 March 2021, that certifies the Applicant “unfit to continue her usual occupation” from 25 March 2021 until 22 April 2021.15
[28] I note that the medical evidence referred to above is largely concerned with the period prior to the Applicant’s termination. I accept that the Applicant was unfit to continue her usual occupation from 25 March 2021 to 22 April 2021. However, in my view the entirety of the medical evidence falls short of establishing that the impact of the Applicant’s medical condition was such that she was prevented from lodging her application on time.
[29] The medical certificates go no further than to certify that the Applicant was unfit for work on particular dates (some of which were well prior to her termination date), but do not expand on what condition the Applicant was suffering or provide any detail that supports a finding that she was also unable to fill out and lodge an unfair dismissal application.
[30] The WorkCover claim form was prepared by the Applicant herself and does not provide a medical opinion. The Workers Compensation Medical Certificate provides a provisional view that the Applicant was suffering:
“Depressed mood, low energy, loss of interests, poor concentration, poor memory, feeling worthless irritability” (sic)16
[31] However, this assessment was for the period 5 February 2021 to 5 March 2021 – a period prior to the termination.
[32] In coming to my conclusion, I observe that the Applicant was, on her own evidence, able to engage with legal representation with a view to progressing this unfair dismissal claim. Further, it is evident that the Applicant was proactive in pursuing legal advice as to a potential TOIL claim up to and after the deadline to lodge. In my view, these activities tell against a conclusion that the Applicant was medically incapacitated until 22 April 2021. Plainly, she was not given she lodged her claim by email on 21 April 2021.
[33] It follows that I do not accept that illness provides a valid reason for the delay.
Conclusion on reason for delay
[34] Regrettably, I do not regard the reasons advanced by the Applicant, either collectively or separately, as constituting an acceptable reason for the delay. I have great sympathy for the Applicant’s position. However, having regard to the circumstances of this case, I am not satisfied that the Applicant has provided an acceptable reason for the delay. This is a conclusion that weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[35] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
[36] The facts relevant to the Applicant’s efforts to dispute her dismissal have already been set out in my consideration of representative error. I am satisfied that the Applicant engaged earnestly with the disciplinary process, and that after being terminated, she made efforts to dispute her dismissal. In the circumstances, this factor weighs slightly in favour of an extension.
Prejudice to the employer
[37] I cannot identify any prejudice that would accrue to the company 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
[38] 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.
[39] Having examined these materials, it is evident to me that the crux of the Applicant’s case pertains to the harshness of the dismissal being summary and delivered by email, her age, and lengthy and unblemished tenure with the Respondent. The Applicant also raises the possibility that her alleged misconduct was condoned to the extent that she was given a pay rise after the Respondent became aware of some of the matters that led to the investigation.
[40] It is not possible to make any firm or detailed assessment of the merits. The Applicant may have a prima facie case, to which the Respondent raises an apparent defence. I note for completeness that the Applicant made submissions as to the material filed by the Respondent in their F3 as to the merits of the application and urged the Commission to disregard those submissions. Given the above, it is unnecessary for me to consider the substance of the Respondent’s submissions as to merits, beyond noting that the Respondent raises an apparent defence to the application.
[41] 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
[42] 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
[43] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.17
[44] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, which would warrant a consideration of the exercise of my discretion to allow a further period.
[45] As I have indicated, there is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.394(3), except the Applicant’s disputing of her dismissal, weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Ms A Wells, Butler McIntyre & Butler Lawyers, with permission, for the Applicant
Ms K Dwyer, Quartz Consulting, with permission, for the Respondent
Hearing details:
18 May 2021 (via telephone)
Printed by authority of the Commonwealth Government Printer
<PR729948>
1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
2 Rodney Flagg v Solar Depot Pty Ltd,[2021] FWC 2723, [8].
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
4 Statement of Margaret Marie Wilson, unsigned and undated, Annexure N.
5 Ibid, Annexure Q.
6 Ibid, Annexure T.
7 Ibid, Annexure U.
8 Ibid, Annexure V.
9 Ivan Cowen v Renascent Regional Pty Ltd, [2021] FWC 1365, [21], and Ivan Cowen v Renascent Regional Pty Ltd, [2021] FWCFB 2606, [35] to [37].
10 Statement of Margaret Marie Wilson, above n.6, Annexure R.
11 McConnell v A & PM Fornataro T/A Tony's Plumbing Service, (2011) 202 IR 59.
12 Statement of Margaret Marie Wilson, above n.6, Annexure H.
13 Ibid.
14 Ibid, Annexures I.
15 Ibid, Annexure L.
16 Ibid, Annexure H.
17 Lidia Li v Slim Form Australia Pty Ltd, [2021] FWC 619 (Gostencnik, DP), [20].
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