Meena Kaliyaperumal v Commonwealth of Australia as represented by the Australian Bureau of Statistics

[2016] FWC 979

[2016] FWC 979 [Note: An appeal pursuant to s.604 (C2016/2767) was lodged against this decision - refer to Full Bench decision dated 2 May 2016 [[2016] FWCFB 2634] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Meena Kaliyaperumal
v
Commonwealth of Australia as represented by the Australian Bureau of Statistics
(U2015/11625)

DEPUTY PRESIDENT KOVACIC CANBERRA, 12 FEBRUARY 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mrs Meena Kaliyaperumal (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 4 September 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by the Australian Bureau of Statistics (ABS – the Respondent) on 22 May 2015 in contravention of the unfair dismissal provisions in the Act.

[2] ABS, in reply, contended that Mrs Kaliyaperumal resigned on 13 May 2015 with her resignation taking effect on 18 May 2015. On Mrs Kaliyaperumal’s version of events, the application was lodged 84 days outside the statutory timeframe for lodgement. On the ABS version of events, the application was lodged 88 days outside the statutory timeframe for lodgement.

[3] As the application had on both accounts been lodged well outside the timeframe for lodgement prescribed under s.394(2)(a) of the Act, the Commission issued Directions on 7 September 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Revised Directions were subsequently issued on 18 September and 16 October 2015.

[4] The parties indicated that they did not wish to be heard on the extension of time issue, and consented to the Commission determining the matter based on the material lodged in accordance with the Directions.

[5] Mrs Kaliyaperumal filed a witness statement on her own behalf together with a witness statement by her husband, Mr Govindaraju Kaliyaperumal, while Ms Kylie Manning from ABS People Management and Wellbeing (PMaW) provided a witness statement on behalf of ABS.

[6] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application will be dismissed.

Background

[7] Mrs Kaliyaperumal commenced employment with ABS on 25 January 2007. At the time her employment ceased, Mrs Kaliyaperumal was working as an Executive Level 1 employee in ABS’ Technology Services Division.

[8] The background leading up to the cessation of Mrs Kaliyaperumal’s employment was set out in a letter from the Respondent’s legal representative to Mr Kaliyaperumal on 23 September 2015. The letter set out the circumstances in the following terms:

• in the period March to April 2015, ABS worked with Mrs Kaliyaperumal to address some interpersonal friction that had arisen between her and another ABS employee;



• on 16 April 2015 the situation was resolved to Mrs Kaliyaperumal’s satisfaction on the basis that the other staff member was counselled about their inappropriate behaviour;



• also on that day Mrs Kaliyaperumal requested a transfer to a different team;



• on 20 April 2015 Mrs Kaliyaperumal’s supervisor, Mr Oleg Volguine, emailed Mrs Kaliyaperumal to confirm that he had escalated her request for a transfer;



• on 21 April 2015 Mrs Kaliyaperumal withdrew her request for her transfer and later that day in a meeting with Ms Manning raised a number of concerns about her work environment and colleagues;



• on 28 April 2015 Mrs Kaliyaperumal met with Mr Volguine, Ms Manning and another member of PMaW when she requested a transfer to a different team and a change to her working hours to 3 days per week;



• on 30 April 2015 Mr Volguine informed Mrs Kaliyaperumal that her part-time work arrangement had been approved to commence in the week beginning 4 May 2015;



• on 13 May 2015 Mrs Kaliyaperumal met with Mr Volguine and told him that either he should find her a new role immediately or she would resign and that she later indicated that she would resign her position at ABS;



• Mrs Kaliyaperumal left the meeting and shortly afterwards tendered her resignation in writing;



• Mrs Kaliyaperumal last attended for work on 13 May 2015;



• on 25 May 2015 Mrs Kaliyaperumal attended ABS’ Canberra premises and advised her Melbourne based manager by telephone that she had changed her mind about resigning and wished to return to work, with her manager indicating that he did not think that was possible and that he would arrange for a PMaW team member to meet with her to talk about her situation;



• Ms Manning went downstairs to meet Mrs Kaliyaperumal but she had already left the building and did not return; and



• in early to mid-August 2015 Mr Kaliyaperumal had a series of conversations and email exchanges with Ms Manning about Mrs Kaliyaperumal’s health and wellbeing.

[9] As previously noted, Mrs Kaliyaperumal’s unfair dismissal application was received by the Commission on 4 September 2015. In her application, Mrs Kaliyaperumal contended that she was forced to resign from her employment with ABS. ABS submitted that Mrs Kaliyaperumal was not dismissed but she resigned on 13 May 2015 with her resignation taking effect on 18 May 2015.

The Relevant Legislation

[10] Section 394 of the Act provides:

“394 Application for unfair dismissal remedy

394(1) When a person may apply for order

A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(2) Standard time limit

The application must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).

394(3) Extended time limit

The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”

Whether to allow a further period for the application to be made

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] Mrs Kaliyaperumal stated in her application that she could not lodge her application within the statutory timeframe for the following reasons:

• she was suffering from a mental illness, with the illness not diagnosed until August 2015;



• as she was not aware of her illness, she could not go for treatment;



• she did not know how to approach the situation;



• she was hospitalised for a few weeks; and



• her state of mind was not normal due to her illness.

[13] In the written material provided to the Commission by Mrs Kaliyaperumal continued to rely on her medical condition as the reason for the delay in lodging her application.

[14] ABS, in reply, submitted that such evidence does not cover the entirety of the period from the alleged date of dismissal to the lodgement date. In particular, ABS submitted that there was no supporting evidence that demonstrated that Mrs Kaliyaperumal was unable to lodge an unfair dismissal application within the 21 day statutory timeframe.

[15] The material provided to the Commission regarding Mrs Kaliyaperumal’s medical condition included:

• a medical certificate for workers’ compensation which stated that Mrs Kaliyaperumal was examined on 4 August 2015 and that she was “unfit to work fr 22/05/15 at present hospitalised”;



• a Medical Discharge Summary from the Canberra Hospital which stated that Mrs Kaliyaperumal was admitted as an involuntary patient on 13 August 2015 and was discharged on 2 September 2015; and



• a letter dated 7 September 2015 from Mrs Kaliyaperumal’s treating general practitioner, Dr Saba Somasundaram, which stated, among other things, that he saw Mrs Kaliyaperumal on 23 July 2015 following a motor vehicle accident on 20 July 2015 and that she was in a state of panic and confusion and that “At present, Meena [Mrs Kaliyaperumal] is unfit for any form of employment”.

[16] Based on that medical evidence, I am satisfied that Mrs Kaliyaperumal has provided a satisfactory reason for the delay in filing her application for the period 4 August 2015 until 4 September 2015 when her application was lodged. However, as noted by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 1, an employee needs to provide a credible reason for the whole of the period that the application was delayed. In this case no evidence has been provided to substantiate Mrs Kaliyaperumal’s contention that she was unable to lodge her application prior to 4 August 2015 due to her medical condition. While I accept that Mrs Kaliyaperumal’s illness was unlikely to have somehow just manifested on or around 4 August 2015, there is no medical evidence before the Commission which indicates that she was incapacitated during this period to such an extent that she was unable to lodge her application. In other words, based on the material before the Commission, I am not satisfied that Mrs Kaliyaperumal has provided a credible reason for the whole period of the delay.

[17] This does not support a finding of exceptional circumstances.

(b) Whether the person first became aware of the dismissal after it had taken effect

[18] Mrs Kaliyaperumal did not address this factor in her submissions.

[19] ABS submitted that this factor was not applicable as Mrs Kaliyaperumal resigned and was not dismissed.

[20] The material before the Commission indicates that Mrs Kaliyaperumal did not attend work after she tendered her resignation on 13 May 2015 and that she attended ABS’ Canberra premises on 25 May 2015 when she indicated to her manager that she wished to withdraw her resignation. This supports a finding that Mrs Kaliyaperumal was aware that her employment had ceased on 18 May 2015 as a result of her resignation, which in turn does not point to the existence of exceptional circumstances.

(c) Any action taken by the person to dispute the dismissal

[21] Mrs Kaliyaperumal did not address this factor in her submissions.

[22] ABS submitted that Mrs Kaliyaperumal took minimal action to dispute the circumstances in which her employment ended. ABS acknowledged in its submissions that when Mrs Kaliyaperumal attended ABS’ Canberra premises on 25 May 2015 where she indicated to her manager that she wished to withdraw her resignation and that in the first half of August 2015 Mr Kaliyaperumal contacted ABS to raise issues with the cessation of Mrs Kaliyaperumal’s employment.

[23] The material before the Commission indicates that Mrs Kaliyaperumal took limited action to dispute the cessation of employment. This does not point to the existence of exceptional circumstances.

(d) Prejudice to the employer (including prejudice caused by the delay)

[24] Mrs Kaliyaperumal did not address this factor in her submissions.

[25] ABS did not seek to rely on this factor, but added that the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.

[26] Against that background, I consider the issue of prejudice to the employer to be a neutral consideration.

(e) The merits of the application

[27] In her application Mrs Kaliyaperumal stated that she was forced to resign as staying in her job would seriously impact her health. In her written submissions, Mrs Kaliyaperumal contended that she was forced to resign due to her work environment, stress, harassment and bullying at her workplace over the period January to May 2015. Mrs Kaliyaperumal also submitted that she discussed her concerns with Mr Volguine and requested that she be transferred to a different role, contending that Mr Volguine told her that she either had to accept the bullying and harassment and stay at work or resign from the job. In those circumstances, Mrs Kaliyaperumal contended that resignation was her only option and she could not continue in her current role. Further, Mrs Kaliyaperumal submitted that she was not given any other option and that her wellbeing was not taken into account by ABS. 2

[28] ABS submitted that Mrs Kaliyaperumal was not dismissed but resigned on 13 May 2015 with effect from 18 May 2015. ABS further submitted that Mrs Kaliyaperumal was not forced to resign because of the conduct or course of conduct engaged in by ABS, adding that it took no action to bring about the end of Mrs Kaliyaperumal’s employment. ABS also submitted that when Mrs Kaliyaperumal indicated that she wished to resign, she was asked if she wished to wait for the outcome of her transfer request and was given a number of opportunities to clarify her intentions. ABS described Mrs Kaliyaperumal’s application as highly unmeritorious and contended that the Commission did not have jurisdiction to consider the application because Mrs Kaliyaperumal resigned and was not dismissed.

[29] Mrs Kaliyaperumal provided no evidence to support her submission that she was forced to resign by ABS. To the contrary, the material before the Commission suggests that ABS was exploring another role for Mrs Kaliyaperumal until she indicated that she no longer wished to move. Further, the material before the Commission supports a finding that Mrs Kaliyaperumal voluntarily resigned.

[30] In the absence of any evidence indicating that Mrs Kaliyaperumal was forced to resign, the merits of her application appear particularly poor. This does not point to the existence of exceptional circumstances.

(f) Fairness as between the person and other persons in a similar position

[31] Mrs Kaliyaperumal did not address this factor in her submissions.

[32] ABS did not seek to rely on this factor, other than noting that there may be general considerations of fairness in relation to other applicants who have been denied an extension of time in similar circumstances.

[33] Accordingly, I consider this factor to be a neutral consideration.

Conclusion

[34] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 3(Nulty) in the following way:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[35] Having considered all of the factors set out in s.394(3) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394(3).

[36] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1 (2010) 197 IR 403 at 408-409

 2   Applicant's Statement in response to Respondent's Statement: Recompiled on 2 October 2015

 3   [2011] FWAFB 975

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