Mikaelah Paynter v Rinkglen Pty Ltd ATF GMG Admin Trust
[2022] FWC 1883
•19 JULY 2022
| [2022] FWC 1883 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mikaelah Paynter
v
Rinkglen Pty Ltd ATF GMG Admin Trust
(U2022/6380)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 19 JULY 2022 |
Application for an unfair dismissal remedy – extension of time – stress, caring responsibilities and job search following dismissal – discretionary considerations – no exceptional circumstances – application dismissed
On 16 June 2022 Mikaelah Paynter (Ms Paynter or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment by Rinkglen Pty Ltd (Rinkglen or the employer) on 19 May 2022.
Ms Paynter’s application was made twenty-eight days after the alleged dismissal took effect, being seven days beyond the 21-day statutory time-limit. For the application to proceed, it requires an extension of time. Ms Paynter seeks that extension.
This decision deals with whether an extension should be granted.
I issued directions on 4 July 2022.
On 8 and 11 July 2022 Ms Paynter filed additional materials.
Rinkglen filed a response on 24 June 2022 and submissions on 8 and 11 July 2022. Rinkglen contend that the application should be dismissed because it is out of time and because the dismissal was a case of genuine redundancy and not unfair.
I heard the extension of time matter by video on 12 July 2022.
Ms Paynter was self-represented. Rinkglen was represented with permission, and without objection.
Ms Paynter gave evidence[1] and both parties made oral submissions.
Following the hearing I reserved my decision.
Facts
I make the following findings.
Rinkglen operates the Grant Motors Group which includes a Mercedes Benz motor vehicle dealership (amongst others) in Southport, Queensland.
On or about 9 May 2022 Rinkglen decided to close its Customer Care Centre at the dealership consequent on a decision by certain dealerships in the Group to bring customer care services in-house.
Ms Paynter was employed by Rinkglen at the dealership in October 2019. At the date of dismissal she was an Acting Customer Care Officer having a former primary role in the Centre as Quality Assurance and Data Integrity Manager.
Ms Paynter’s immediate manager in the Customer Care Centre was her mother, Ms Wood.
On about 16 May 2022, a human resources officer Ms Selbie advised employees including Ms Paynter that the Customer Care Centre was closing. Employees were informed of alternate positions they could apply for[2], or take a redundancy package offered by the employer.
Ms Paynter was offered and accepted a redundancy package of seven weeks in lieu of notice and six weeks redundancy pay.[3] She made this decision in preference to applying for alternate roles.
On 18 May 2022 Ms Paynter was notified that her termination would take effect on 19 May 2022.
After a meeting on 18 May 2022 with Ms Selbie, Ms Paynter formed the view that her impending redundancy may be unfair. She searched the Commission website concerning unfair dismissal claims. She telephoned the Commission to confirm what she had read. She was advised of the right to dispute a redundancy if it was considered non-genuine.
Ms Paynter ceased work on 19 May 2022 on the ground of redundancy.
Following dismissal, on 19 May 2022 and again on 21 and 22 May 2022 Ms Paynter returned to the Commission website and confirmed her intention to file a claim. At least by 22 May 2022 Ms Paynter had downloaded the F2 application form and commenced reading it. From both the form and the website she understood that she had to file a claim within twenty-one days of her dismissal taking effect. Ms Paynter made a calendar note of what the twenty-first day was, and intended to file by that day.
Ms Paynter did not commence completing the form on 19, 21 or 22 May 2022 because, according to Ms Paynter, she did not feel well enough to do so as it triggered stress and anxiety arising from her dismissal and required her to “re-live” the events. Ms Paynter says she first consulted her general practitioner about her stress in early June 2022, though in evidence she could not remember on which day. Ten days after filing her application (26 June 2022) she attended a second appointment.
Ms Paynter lives with her mother. Her mother was also made redundant when the Centre closed. Her mother fell unwell following her redundancy. Ms Paynter assumed domestic and caring responsibilities for her mother.
Following dismissal, Ms Paynter commenced actively looking for work. She prepared a resume. She regularly looked on websites and made job applications (at least five). She attended job interviews by phone and in person.
In the fortnight following dismissal Ms Paynter secured alternative full-time employment in the occupational health industry. She commenced new employment on 6 June 2022.
The twenty-first day following her dismissal was 9 June 2022. Although Ms Paynter had made a calendar note, she did not return on that day to her intention to file an unfair dismissal claim. Although she says the issue crossed her mind from time-to-time between 22 May 2022 and 16 June 2022, she did not return to the issue until 16 June 2022.
On 16 June 2022 whilst driving home from work Ms Paynter remembered that she had not yet filed an unfair dismissal claim (“I remembered that hadn’t been done”[4]).
On returning home that day (16 June 2022), Ms Paynter populated the unfair dismissal application and filed it by email at 6.34pm.
When making her application Ms Paynter acknowledged it was filed out of time. Her application stated as follows:[5]
“Due to the extreme emotional distress and anxiety I have been unable to lodge this application until now. Since the 16th of May I have experienced extreme stress and anxiety constantly and have struggled with daily life.”
In her application, Ms Paynter disputes that the redundancy was genuine. She says that her former role has not ceased to exist as a comparable position was advertised.
The employer filed a response on 24 June 2022 to the effect that the redundancy was genuine, that an above minimum entitlement redundancy package was paid, that an opportunity to apply for alternate roles was provided, and that the position referenced by Ms Paynter which was advertised was not comparable and was in any event a singular position advertised and filled prior to Ms Paynter’s dismissal taking effect.
Consideration
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
Being seven days out of time, Ms Paynter’s application can only proceed if she can establish that “exceptional circumstances” exist within the meaning of s 394(3).
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[6] A decision whether to extend time under section 394(3) involves the exercise of a discretion.[7]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[8]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[9]
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for the delay is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[10] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[11]
However, a reasonable explanation is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[12]
The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[13]
Ms Paynter’s explanations for the delay were expanded on in her witness statement.[14] She says that:
“I submitted my application as soon as my mental health and life circumstances permitted.”
In summary, her reasons are threefold:
· she was experiencing “extreme stress and anxiety”;
· she was “required to look after and care for her mother” who was also made redundant by the employer and suffered ill health as a result; and
· she “needed to seek employment as fast as possible”.
Ms Paynter says that her stress and anxiety manifest in panic attacks and insomnia.
In support, Ms Paynter submitted a medical certificate dated ten days after she lodged her claim from her general practitioner Dr Aung. It provides:[15]
“26/06/2022
THIS IS TO CERTIFY THAT:
Miss Mikaelah Paynter is having symptoms of adjustment disorder due to situation that happened around her employment. She will be lodging a claim through fair work. She has had a delay in lodging due to her personal health issues and due to the fact that she needs to care for her mother. This letter to certify above facts
Dr Soe (Sam) Aung
MBBS, FRACGP
436205HT”
I accept Ms Paynter’s evidence that she experienced stress and anxiety at the time of and following her dismissal.
I also accept that this stress and anxiety was compounded by the contemporaneous responsibility of unexpected caring responsibilities for her mother. Ms Paynter’s mother was also made redundant upon the closure of the Customer Care Centre. Although no independent evidence was led in this regard, Ms Paynter said that her mother suffered a nervous breakdown.
I also accept that Ms Paynter’s stress and anxiety was further compounded by the need to search for new employment in circumstances where her mother, being unwell, could not obtain new work and maintain her financial independence. That burden fell on Ms Paynter.
A dismissed employee experiencing stress and anxiety after dismissal and having to seek alternate employment is common, not unusual. Without more, it is not an exceptional circumstance.[16]
The somewhat unusual feature in Ms Paynter’s post-dismissal circumstance is the unexpected caring responsibilities for her mother who was made redundant contemporaneously with Ms Paynter, and who fell unwell in that period.
However, whilst Ms Paynter’s evidence as to these stressors was largely plausible, she did not call Dr Aung to give evidence on his certificate or opinion. An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[17]
Given this, Dr Aung’s certificate has less force than it otherwise might. There is no evidence that connects the stressors with a medical condition that relevantly explains a barrier to filing an unfair dismissal claim, or to explain how it came to be that the stressors were sufficiently under control by the time of filing that they were no longer an impairment to doing so.
Without evidence of that type, I am left with Ms Paynter’s evidence that she gave priority to her caring responsibilities and to securing new employment.
Ms Paynter is not to be criticised for doing so. It is reasonable that a dismissed employee gives priority to securing fresh employment and gives priority to caring responsibilities, whether to children or other dependents. However, seeking fresh employment and discharging caring responsibilities are not, of themselves, unusual. However, the unexpected nature of the oversight of her mother post-dismissal was somewhat unusual given that prior to the redundancy, Ms Paynter’s mother was not unwell or a dependant.
The question arising in these proceedings is not whether the allocation of post-dismissal priorities by Ms Paynter was reasonable, but whether they reasonably explain the delay or the circumstances are otherwise exceptional.
Considered overall, given their interconnected nature and the somewhat unusual circumstance of a contemporaneous dismissal of a parent imposing unexpected burdens, I conclude that the reasons for delay in combination weigh somewhat in favour of an extension of time.
Whilst weighing somewhat in favour they do not do so conclusively. Ms Paynter knew at the time of dismissal or very shortly thereafter that she had only twenty-one days to file the claim. It is clear from the evidence that Ms Paynter was stressed and busy in the four weeks after dismissal. However, she was not incapable of performing responsible tasks. She had seen her general practitioner on one occasion. Ms Paynter had searched web sites. She had already telephoned the Commission. She had downloaded the application form. I accept that completing the form in the days immediately following dismissal compounded her stress and that it was put aside for that reason. However, over the following days and weeks Ms Paynter was able to effectively complete resumes, apply for jobs and attend job interviews. By at least 6 June 2022 (three days prior to the 21-day lodgement period expiring) she had accepted and commenced new employment.
Given the absence of independent medical evidence connecting the stressors to the delay, it is more likely than not that Ms Paynter’s stress and anxiety was a contributing factor in not filing the claim on time, particularly initially, but not a singular cause for the delay. By the time lodgement was required it was the combination of a new job, the continued oversight of her mother and dealing with her own stress that led Ms Paynter to not remembering on 9 June 2022 that filing was required that day, and only remembering to do so a week later.
It was not a change to her medical condition that triggered the filing of the claim. Her claim was filed on 16 June 2022 because it was on that day that she remembered that she had not yet filed the claim. By then she was out of time.
The reasons for delay in combination weigh somewhat but only somewhat in favour of an extension of time.
Awareness of the dismissal taking effect (s 394(3)(b))
Ms Paynter was aware from 16 May 2022 that she was to be dismissed and on 19 May 2022 that her dismissal took effect when she accepted and signed for a redundancy package.
That Ms Paynter was well aware of the dismissal taking effect and its reason makes this a neutral consideration and does not weigh in favour of an extension of time.
Action taken to dispute dismissal (s 394(3)(c))
Ms Paynter did not correspond with the employer post-dismissal raising a concern at the genuineness of the redundancy. Having accepted and taken the redundancy package, the employer was entitled to be somewhat surprised at these proceedings and views expressed by Ms Paynter in her application that her redundancy is now alleged to not have been genuine.
There is no reason advanced by Ms Paynter for not having raised these issues with the employer other than her desire not to “re-live the ordeal”.[18] Yet that is a consequence of these proceedings.
This was not a redundancy where post-dismissal information that was not known or not reasonably capable of being known at the time of dismissal emerged and generated a belief of a non-genuine redundancy, thus explaining the delay. Ms Paynter was of the view at the time of dismissal (19 May 2022) that her redundancy was questionable and open to challenge. Indeed, she had privately commenced investigating her rights the day prior.
Despite holding a view from the time of dismissal that the redundancy should be challenged, no action was taken to dispute the dismissal at that time of in the period following dismissal.
The absence of earlier action being taken to dispute the dismissal weighs somewhat against an extension of time.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[19]
Rinkglen submit that it would incur prejudice including by having to defend a late claim in circumstances where the business that employed Ms Paynter has closed down.
A claim would have to be responded to, involving time and cost. That prejudice, whilst real, is not unique.
That the business has closed down may be relevant to remedy (insofar as reinstatement is concerned). If the dismissal was a genuine redundancy as claimed by the employer, matters of remedy would not arise.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[20]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would necessarily concern whether the dismissal was a genuine redundancy within the meaning of the FW Act, and only if not, would broader issues of fairness arise.
Whilst it may not be in dispute that the business of the employer or a relevant part of it has closed down, redundancy considerations in the unfair dismissal jurisdiction involve not just business closure but also re-deployment issues.
Whilst Ms Paynter’s case may not be strong on a preliminary view of the materials, as I have not fully heard evidence or submissions on these questions it is unsafe to draw any conclusion for current purposes.
This is a neutral consideration.
Fairness between persons in similar position (s 394(f))
No evidence or submissions from Ms Paynter or Rinkglen raise issues of fairness with and between other persons.
Rinkglen’s submission that a case where an extension of time was refused despite only a one day delay is not relevant given that the case referenced by Rinkglen bears no relationship to the facts in this matter.
In these circumstances, this is not a relevant factor.
Conclusion
The reasons for delay in combination weigh somewhat but only somewhat in favour of an extension of time.
The absence of earlier action being taken to dispute the dismissal weighs somewhat against an extension.
All other considerations are neutral or not relevant.
The period of delay being seven days, in the context of a statutory twenty-one day time frame, is not insignificant.
An extension can only be granted if the circumstances are, considered overall, exceptional. The test establishes a high hurdle for an applicant. Whilst there are some unusual features in this matter, I do not consider that the test of exceptional circumstances has been made out. Ms Paynter knew of the statutory deadline but missed the deadline due to a combination of other priorities and pressures in the weeks that followed dismissal, some expected, some unexpected. She was capable of meeting the deadline but it passed her by. She filed when she remembered that she had not done so. The other priorities and pressures involve some unusual features but considered overall the circumstances are not exceptional.
There being no exceptional circumstances, the time for lodging the application cannot be extended.
As Ms Paynter’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order[21] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
M Paynter, on her own behalf
A Smeaton, with permission, with A Fitzsimmons on behalf of Rinkglen Pty Ltd ATF GMG Admin Trust
Hearing details:
2022
Adelaide (by video)
12 July
[1] Statements of Ms Paynter A1 and A5
[2] A4
[3] A3
[4] Audio 9.48am (SA)
[5] F3 at 1.5
[6] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[7] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[8] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[9] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[10] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[12] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[13] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[14] A1
[15] A2
[16] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [62]
[17] Smith v Canning Division of General Practice[2009] AIRC 959
[18] A1
[19] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[21] PR743905
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