Michelle Gerblich v Centacare Catholic Family Services Country SA

[2014] FWC 6495

[2014] FWC 6495

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Gerblich
v
Centacare Catholic Family Services Country SA
(U2014/12060)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 17 SEPTEMBER 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 15 September 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 28 August 2014 Ms Gerblich lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the termination of her employment with Centacare Catholic Family Services Country SA (Centacare).

[3] In that application, Ms Gerblich advised that her dismissal took effect on either 3 or 4 July 2014. She attached to her application a letter of dismissal dated 2 July 2014. This letter advised that her last working day would be 16 July 2014. Ms Gerblich also attached pay advices which indicate that she was paid up to and including 4 July 2014 but was not paid between that date and 16 July 2014 because she had previously requested two weeks unpaid leave for that time so that she could undertake vacation care work. Ms Gerblich was, however paid her annual leave and other leave entitlements up to and including 16 July 2014. I have taken the effective date of termination of her employment to be 16 July 2014. Ms Gerblich advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept her application out of time.

“I experienced severe depression and anxiety. When thinking about pursuing unfair dismissal against Centacare, I suffered panic attacks. I consulted my doctor and psychologist when possible. I was rostered on to work 8am to 6pm during the two weeks after my dismissal at 2 Vacation Care Programs. My anxiety did affect my ability to work. I was not aware of the 21 day limit until afterwards.” 1

[4] The application was referred to me for consideration. On 1 September 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 15 September 2014. Ms Gerblich was required to provide a witness statement and a copy of any document relied upon, by 8 September 2014.

[5] The Employer’s Response (Form F3) to the application asserted that Ms Gerblich voluntarily resigned her employment and had not been dismissed. In the alternative, it confirmed that an extension of time for lodgement of the application was opposed.

[6] Ms Gerblich provided a witness statement and a letter from her doctor. Her witness statement was as follows:

• I was unaware of any time limit



• It was the school holidays immediately after I was dismissed and I worked 8am-6pm most days at two Vacation Care Programs. I was already rostered for these hours several weeks earlier.



• The sudden and unexpected dismissal resulted in me experiencing depression and severe anxiety, especially around having no future employment.



• I rang Father Jim (at the advice of another previous Centacare) and did not receive a return call. I did not pursue this option.



• I didn’t know where to go for help.



• My anxiety levels rose when thinking about lodging a claim.



• I became sick with the flue for three weeks (beginning during the last week of the school holidays) and was unable to work or leave the house due to flu symptoms.



• I had ongoing depression due to my treatment by Centacare and informed my psychologist that a suicidal though had reoccured. I decided not to lodge a claim because of the depression and anxiety. After gaining part-time work, my depression and anxiety began to be manageable, and with the support of family and friends I decided to submit the claim.



• A letter from my doctor will be available on Monday 8th September 2014.

[7] Ms Gerblich’s doctor relevantly advised that it supported her application for an extension of time and further, that:

“She was dismissed from work on the 3/7/2014 and came to see me on the 4/7/2014 with work related stress issues because of the dismissal

She was subsequently reviewed on the 3/7/14, 4/8/14, 7/8/14, 4/9/14 and then today

She continues to have depressive and adjustment reaction issues

She is currently seeing psychologist Ms Irene Vermotten for psychological counselling after referral under the Mental Health plan”

[8] The extension of time issue was considered through a telephone conference on 15 September 2014. A sound file record of this conference was kept. Ms Gerblich attended this conference. Centacare was represented by Ms Lane and Ms Knox.

[9] I have taken all of the information before me into account in considering the extension of time issue.

[10] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[11] Section 394 states:

“394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) 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).

(3) 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.”

[12] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. That application was lodged some 22 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Ms Gerblich’s circumstances can be regarded as exceptional for the purposes of this subsection.

[13] In Nulty v Blue Star Group Pty Ltd 2 a Full Bench of the FWC addressed this concept of exceptional circumstances in the following terms:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[14] I have adopted this approach.

[15] Information provided by Ms Gerblich discloses a number of reasons for the delay. Firstly, she advises at the outset that she was unaware of any time limit. Having considered all of the material Ms Gerblich has provided, I have concluded that this lack of awareness was a significant factor in the late lodgement. That ignorance of the time limit cannot be regarded as either an acceptable reason for the delay, or as an exceptional circumstance.

[16] Ms Gerblich advised that immediately after she was dismissed she worked 8.00 am to 6.00 pm most days over the following two weeks at two vacation care programs. To the extent that she asserts that this prevented her from lodging the application, I cannot regard this as an acceptable reason for the delay. I have concluded that Ms Gerblich could have pursued her application over this time. Additionally, this advice confirms that Ms Gerblich was well enough to be able to work.

[17] Ms Gerblich and her doctor referred to her depression. I do not doubt that Ms Gerblich was depressed and that she suffered from the medical conditions identified by her doctor. Further, I do not doubt that the termination of her employment was a stressful circumstance. However, the medical evidence before me does not establish that Ms Gerblich was unable to lodge, or even pursue this application. Ms Gerblich advised that she had the "flu" for three days over the initial 21 day period. Notwithstanding that medical evidence of her illness has not been provided, I do not consider that this represents an acceptable reason for the delay.

[18] Finally, to the extent that Ms Gerblich advises that she was not aware of whom to approach regarding the application, or that other people did not return her calls, I cannot regard this as an indication of an exceptional circumstance. Accordingly, I am not satisfied that Ms Gerblich has established to me a satisfactory reason for the substantial delay.

[19] On the information provided in Ms Gerblich’s application, I am satisfied that she was aware of the termination of employment decision on 3 July 2014 and that she returned her keys to the workplace on the following day. This was well before the date that termination of her employment took effect.

[20] Again, from the information before me, I have concluded it is clear that, apart from the late lodgement of this application, Ms Gerblich did not take any other action to challenge the termination of her employment. I have not included her approach to the Fair Work Ombudsman just prior to lodging this application as a factor in this respect.

[21] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter, but this, of itself does not form a basis for an extension of time.

[22] In terms of the merits of the application, the information before me is inconclusive. Clearly, if Ms Gerblich voluntarily resigned her employment, she cannot have been unfairly dismissed. I have concluded that when Ms Gerblich attended the meeting with Centacare on 3 July 2014 she had already prepared a resignation letter. She subsequently printed out this letter. That course of action appears to indicate that Ms Gerblich elected to resign as distinct from being forced to do so. However, the material before does not permit a definite conclusion relative to this issue. Consequently, I have regarded the merits of the application as a neutral factor in considering the extension of time issue.

[23] Considerations of fairness relative to persons in similar circumstances to Ms Gerblich do not support an extension of time.

Conclusion

[24] For the reasons I have set out above, Ms Gerblich’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). An Order (PR555555) reflecting this decision will be issued. I note that the parties remain in dispute over Ms Gerblich’s claim for payment of two week’s pay from 3 July 2014. That matter is not a matter which falls within the jurisdiction available to the Fair Work Commission.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

M Gerblich on her own behalf.

C Knox and C Lane representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

September 15.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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