Miss Hannah Schauder v Acciona Rail Pty Ltd
[2025] FWC 149
•16 JANUARY 2025
| [2025] FWC 149 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Miss Hannah Schauder
v
Acciona Rail Pty Ltd
(C2024/8092)
| COMMISSIONER WILSON | MELBOURNE, 16 JANUARY 2025 |
Application for general protections involving dismissal – extension of time – no exceptional circumstances – application dismissed
This decision concerns an application made by Hannah Schauder (the Applicant) for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (Cth) (the Act). Ms Schauder’s employment with the Respondent, Acciona Rail Pty Ltd (Acciona or the Respondent), came to an end on Wednesday 6 March 2024. Ms Schauder’s application was received by the Commission on Sunday 10 November 2024.
Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. From the dates referred to above, Ms Schauder’s application was made 228 days out of time.
Consistent with the Commission’s usual practice on these matters, the application was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Ms Schauder’s application.
In considering an application for an extension of time for the making of a dismissal application, the Act requires satisfaction that there are exceptional circumstances to warrant the extension, taking into account the criteria which are specified within s.366(2). The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[1] A decision as to whether to extend the time period under s.366(2) involves the exercise of a discretion.[2]
In this decision, I have considered whether an extension of time should be granted to Ms Schauder for the making of her application and, for the reasons set out below, I am not satisfied that there are exceptional circumstances such that a further period for filing should be allowed.
PRELIMINARIES
A determinative conference regarding Ms Schauder’s application for an extension of time for her application was held on 8 January 2025. Ms Schauder appeared in the determinative conference and made submissions and gave evidence on her own behalf. Acciona was represented by its Head of People and Capability, Ms Julia Grbac. A request by the Respondent to be represented by a lawyer was refused by me at the start of the determinative conference for reasons detailed in the transcript of this matter, as I was not satisfied the criteria for doing so within s.596 of the FW Act had been enlivened.
BACKGROUND
The following matters of background are relevant to my decision. While I note that I do not believe I have the complete narrative of events leading to the end of Ms Schauder’s employment with Acciona, there is sufficient material upon which to base this decision.
Ms Schauder’s employment with Acciona started on 18 September 2023 and ended on 6 March 2024. In that time, she worked as an Internal Communications Coordinator for a contract Acciona held in association with the Victorian Government’s level crossing removal program.
Ms Schauder’s employment was subject to a probationary period of 6 months, which was due to end on 17 March 2024. During February her supervisor met with her and provided verbal and written feedback about her work performance. The supervisor’s written feedback included a section headed “What's needed prior to probation end”.[3] There were several further meetings with Ms Schauder which Acciona describe as being to ensure “she understood her role, the expectations and deliverables, improvement areas and various support mechanisms available to her”.[4]
By late February, Ms Schauder felt distressed about what she perceived as micromanagement and expressed that concern in writing to a people and culture representative and her supervisor in emails sent on 23 and 25 February 2024. These communications were followed by another on Tuesday, 5 March 2024 in which Ms Schauder said she was “writing to get ahead of the probation period decision coming up” and offered to reduce her role to half-time. In doing so, she said she accepted that “my inexperience perhaps limits what I can do proactively and that I may need to build back up to a full time load over time”.[5]
Early on 6 March 2024, Ms Schauder reiterated the half-time proposal in a further email sent at 8:26 AM.[6] Before Ms Schauder sent a letter of resignation letter, she met with Anne-Marie Boicovitis, an Acciona human resources director, at about 9:30 AM.[7]
Ms Schauder’s employment ended later that day when she sent a letter of resignation to her managers on 6 March 2024 at 1:57 PM.[8] Ms Schauder did not perform work for Acciona after that date, as her employer accepted the termination of her employment and waived the requirement for work to be performed during the required period of notice.
The end of Ms Schauder’s employment came after a deterioration in her relationships with her supervisors as the end of an applicable probation period neared. In these proceedings, Ms Schauder characterised her resignation as having been forced, with her being subjected to unnecessary scrutiny and bullying.
After her employment with Acciona ended, Ms Schauder travelled to Israel where she performed volunteer work for a month, and then to Europe. She returned to Australia in June, obtained paid work with the King David School on 15 July and later with the East Melbourne Hebrew Congregation on 10 August. Ms Schauder accepts that both during her travel and upon return to Australia she had access to phone services and internet data.
By October 2024, Ms Schauder says she was in a position to begin researching her rights and acting on what she found. She did so by consulting the Australian Human Rights Commission, the date of which is unclear.[9] Ms Schauder’s evidence is that after her research, she decided in late October that she would begin to pursue making a general protections application and that, also in October, she learned there were time limits in which to make an application.[10]
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
CONSIDERATION
Extension of time – the criteria within s.366(2)
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application:
“[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”.[11]
In considering whether an extension of time should be granted to Ms Schauder, I am required to consider all of the criteria in s.366(2), which I now do.
The reason for the delay
It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[12] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[13] An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay. It could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[14] While the “reason for the delay” is a factor that must be taken into account, this does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[15]
The “delay” to be considered in this case is the period it took after the prescribed period for Ms Schauder to lodge her application. As Ms Schauder’s employment ended on Wednesday 6 March 2024, an in-time application would need to have been made before midnight on Wednesday, 27 March 2024. As a result, the delay to be considered is the period after 27 March 2024 until the actual lodgement, dated 10 November 2024, being 228 days.
Ms Schauder attributes the delay in filing her general protections application to several factors, with her written submissions putting forward these matters;
In her application form;
“The psychological trauma resulting from this dismissal left me mentally unable to engage with the corporate environment and to fully comprehend the impact on my career. After seeking volunteer work abroad and regularly seeing a psychologist, I have only recently reached a stable enough mental state to address this case with objectivity via the Commission.”[16]
In her written submissions;
“The delay was not due to a lack of intention, capability or action on my part, but rather a combination of unusual factors that led me to genuinely believe I had no rights or basis to challenge my terrible experience working under Angela Maher.
1. During my probation period, I attempted in good faith to resolve the issues directly with my manager, Angela. However, I was met with intimidating and discouraging comments from HR and others such as, “Hannah you have no rights in probation,” and that pursuing a case with Fair Work would be futile as the company, Acciona, “would use its full legal force against you”.
2. The responses from Angela and from HR - deliberate or not - deeply disempowered me, leading me to believe that pursuing my rights would be both pointless and impossible. The comments seemed also designed to have me give up on any chance that Angela would be held accountable internally.
3.In an effort to escape the distressing situation, I left the country for three months to take an opportunity for volunteer development work, as outlined in my application.
4. It wasn’t until my return to Australia that I had the courage to speak with workplace and legal advisors, workplace consultants, friends and others. They reassured me that I did, in fact, have clear rights under the general protections provisions of the Fair Work Act. It took time, therapy, and professional consultations for me to fully understand that my treatment constituted age discrimination and that I had a valid case. I was educated that unless the situation could be explained in other terms, discrimination was provable.”[17]
In the determinative conference held on 9 January 2025, Ms Schauder advanced that it was “impossible” for her to complete and lodge an application within the statutory time limit.[18] Further, she claimed for the first time that she was “coerced to resign” in the meeting held with Acciona immediately prior to providing her termination letter, as well as being threatened and feeling intimidated about the prospect of taking action against Acciona.[19]
The matters relied upon by Ms Schauder are a mix of factors related to her health and factors associated with legal and other advice about the characterisation of the treatment she experienced and her rights.
In relation to advice Ms Schauder may have received about her rights, the Commission expects applicants to frame and action their grievance in general protections dismissal matters within the 21 day statutory time limit unless there are exceptional circumstances. Ignorance of one’s rights is not an exceptional circumstance. Ms Schauder’s evidence is that she did not seek advice about her rights until October, many months after she left Acciona’s employment.
The matter Ms Schauder puts forward about her psychological condition is unsupported by evidence as to why and how that caused a delay of 228 days; that is of 32 weeks, or 8 months beyond the statutory time limit for the making of an in-time general protections application. Between 6 March and 10 November 2024, Ms Schauder sought and obtained a position as a volunteer in Israel; organised flights to and from Israel and Europe; undertook a period of extended travel, including a holiday for a period of about three months; applied for and worked in a position with a school; and used her networks to obtain other paid work.
These actions do not assist Ms Schauder in providing a credible explanation as to why she was unable to herself commence a general protections application before 10 November or, if she was unable to do so, to instruct lawyers, family or friends to do so on her behalf.
Ms Schauder’s submission is essentially that she either did not have capacity to commence an application because of her mental health, or that she avoided the subject so as to preserve her mental health and well-being. In the absence of medical evidence which provides some insight into the extent to which Ms Schauder was incapacitated after expiry of the statutory time limit, I do not accept that the delay was caused by her health.[20]
The Commission has said repeatedly that requests for an extension of time involving the proposition that a medical illness explains a filing delay require compelling medical evidence to that effect. In order to accept evidence of this type, the Commission expects to have an insight into the extent of the person’s incapacity during the whole of the period following termination of employment. Cogent medical evidence of these things will likely need to be provided.[21]
As a consequence of these considerations, I do not find that any of the reasons advanced by Ms Schauder either individually or collectively are an acceptable explanation for the late lodgement of her application. She has not advanced an acceptable explanation to the extent her delay in filing was caused by a lack of understanding about her rights. Similarly, to the extent that her explanation relies on health factors, the material she has advanced on the subject is not an acceptable explanation. In all, the factors relied upon by Ms Schauder do not give me an insight as to why the application was made when it was and not earlier, or why those factors explain why it could not have been made at an earlier time.
As a result, I do not find that Ms Schauder has put forward an acceptable explanation for the delay in making her application. Therefore, my consideration of this criterion does not resolve in her favour in deciding whether an extension of time for filing should be granted.
Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[22]
There is no material before me to suggest that Ms Schauder has taken other steps to dispute her dismissal. This is therefore a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 228 days. The Respondent does not claim that the delay in lodging the application caused it prejudice.
In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter also is a neutral factor in my consideration.
The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.
In relation to the Commission’s consideration of the merits of an application, when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such a case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[23]
In general protections matters, s.361(1) presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases, an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question.[24]
Ms Schauder’s case, if it were to proceed, appears to be an argument to the effect that by 6 March 2024, the working relationship had become intolerable and she had no alternative but to resign. This situation, it is argued, stemmed from Ms Schauder being patronised about her young age and gender. She argues these factors of active discrimination contravened s.351 of the FW Act which prohibits the taking of adverse action against a person for several reasons, including a person’s sex and age.
Acciona reject these contentions, arguing first there is no adverse action as Ms Schauder resigned and further that Ms Schauder’s application is without merit, with no evidence being offered on the subjects, and with Ms Schauder having elected to resign.
While noting these aspects of the parties’ respective cases, there is insufficient material before the Commission to form any view about the likely merits of Ms Schauder’s case, were it to proceed to a Court or to be the subject of a consent arbitration before the Commission.
Accordingly, consideration of this criterion is a neutral factor in my overall consideration of whether there are exceptional circumstances that would warrant the extension of time.
Fairness as between the person and other persons in a like position
In considering whether I should grant an extension of time, I need to have regard to whether any matters of fairness arise either to Ms Schauder or to other general protections applicants whose applications are either currently before the Commission or have been decided in the past.[25]
No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances.
CONCLUSION
Consideration of the statutory criteria in relation to exceptional circumstances shows that none of the criteria resolve in favour of Ms Schauder and in particular there is not an acceptable explanation for the delay in making her application. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are not exceptional circumstances that would allow a further period for a general protections application to be made by Ms Schauder.
For these reasons, I decline to grant an extension of time pursuant to s.366 of the Act and will issue an Order dismissing Ms Schauder’s application at the same time as this decision.[26]
COMMISSIONER
Appearances:
Ms H. Schauder, for the Applicant.
Ms J. Grbac, for the Respondent.
Hearing details:
8 January.
2025.
[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[3] Email from Angela Maher, 16 February 2024.
[4] Employer response form, Form F8A, item 3.1(7).
[5] Applicant’s email, 5 March 2024.
[6] Applicant’s email, 6 March 2024, 8:26 AM.
[7] Transcript, PN 159.
[8] Applicant’s email, 6 March 2024, 1:57 PM.
[9] Applicant’s Outline of Submissions: extension of time, Attachment E.
[10] Transcript, PN 125 – 128.
[11] Nulty v Blue Star Group, [2011] FWAFB 975 (2011), 203 IR 1, [13].
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[13] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
[14] Ibid, [40].
[15] Ibid, [41].
[16] General protections dismissal form, Form F8, item 1.5.
[17] Applicant’s Outline of Submissions: extension of time.
[18] Transcript, PN 105.
[19] Transcript, PN 106.
[20] See GHD Pty Ltd v Kevin Alan Black[2023] FWCFB 38, [79].
[21] See Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu Duo (Lynda) - [2018] FWCFB 1643, [38], [67]
[22] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[23] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[24] Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 [50], (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445.
[25] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[26] PR783346
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