Miss Melissa Kerr v Ballarat Truck Centre Pty Ltd

[2011] FWA 3894

Note: An appeal pursuant to s.604 (C2011/5102) was lodged against this decision - refer to Full Bench decision dated 29 September 2011 [[2011] FWAFB 5645] for result of appeal.

[2011] FWA 3894

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Miss Melissa Kerr
v
Ballarat Truck Centre Pty Ltd
(C2011/3631)

COMMISSIONER BISSETT MELBOURNE, 23 JUNE 2011

General protections dispute involving dismissal – extension of time for lodging application

[1] Ms Melissa Kerr has made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed from her employment with Ballarat Truck Centre for a reason or reasons that amount to prohibited adverse action under Part 3-1 of the Act.

[2] Ms Kerr’s employment was terminated on 17 December 2010. Ms Kerr claims that during her employment she was subject to less favourable treatment than male employees of the Respondent and that her treatment and the termination of her employment amounted to prohibited adverse action. Ms Kerr submits that the adverse action occurred for reasons which include because she had certain workplace rights, because of her sex, pregnancy and her race and because of her temporary absence from work due to illness or injury.

[3] Ms Kerr lodged her application under s.365 of the Act on 15 March 2011. Her application was lodged 28 days outside the 60 day time limit prescribed for the lodgement of such applications under the Act.

[4] Ms Kerr has sought that she be granted an extension of time within which to lodge her application.

[5] Section 366 of the Act provides:

366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.

[6] The term ‘exceptional circumstances’ was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 1After considering relevant authorities on the issue the Full Bench stated that:

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. 2

[7] I adopt this approach to determining if indeed the circumstances in this matter are exceptional.

[8] In order to determine if I should grant the extension of time under s.366(1)(b) I must be satisfied that there are exceptional circumstances taking into account those matters in s.366(2)(a)-(e).

Reason for the delay

[9] Ms Kerr submits that there are three reasons for the delay in lodging her application. These are her anxiety/depressive illness, the actions of her legal representative and her lack of funds.

[10] The medical evidence 3 is that Ms Kerr has been suffering from anxiety/depressive illness at least since late November 2010 when she first attended Dr Hassett, her general practitioner. On 30 November 2010 (prior to the termination of her employment) she was placed on antidepressant medication. Following the termination of her employment Dr Hassett states her condition worsened and she was referred to a psychiatrist for further treatment. When last seen by Dr Hassett in April 2011 she remained significantly depressed.

[11] Ms Kim Armstrong is Ms Kerr’s Counsellor. Her evidence is that Ms Kerr presented for treatment with her on 29 November 2010 and, up until early May 2011, she has seen Ms Kerr at least 21 times. When Ms Kerr first presented ‘she was in a state of extreme distress, she was almost incoherent.’ 4 On the day of the termination of her employment Ms Kerr contacted Ms Armstrong ‘acutely distressed.’5 Ms Armstrong has continued to treat Ms Kerr on a regular basis. Her evidence is that her progress ‘is quite slow and [Ms Kerr] can in an instant revert to tears and acute distress, especially when placed under any kind of pressure.’6 Up until 9 March 2011 Ms Armstrong saw Ms Kerr on a frequent basis both at her office and at Ms Kerr’s residence and by phone. Ms Kerr continues to see Ms Armstrong on a weekly basis.

[12] Ms Armstrong assisted Ms Kerr to fill out a general protections claim that was lodged with Fair Work Australia (the claim subject to these proceedings).

[13] Ms Kerr’s evidence 7 is from about August 2010 she was increasingly depressed about what was happening at work. In November 2010 she attended Dr Hassett who put her on an anti-depressant. One or two days prior to the termination of her employment she was diagnosed with stomach ulcers at Ballarat Base Hospital. Her evidence is that on 20 or 21 December 2010 she contacted Job Watch who advised her to write everything down and told her of general protections claims. Her evidence is that she cannot remember any discussion of time limits or application fees. She was referred by Job Watch to Saines Lucas Lawyers in Ballarat. On the same day that she contacted Job Watch Ms Kerr’s evidence is that she also saw Gavin Francis, a solicitor with Saines Lucas Lawyers. Ms Kerr says she was distraught and that Mr Francis filled in some form for her. In January 2011 she saw Mr Francis again who advised her that it would be too stressful for her to lodge any other claims and that a WorkCover claim was the best he could do.

[14] Mr Francis has submitted a statement in these proceedings. He says that on 21 December 2010 he attended to Ms Kerr who ‘was extremely distraught...bursting into tears and wringing her hands’ 8 and advised her on a WorkCover claim. She questioned him on a general protections claim but his evidence is that he said he was not familiar with that aspect of the law and told Ms Kerr he would have to get back to her. He did however fill out a WorkCover claim for her.9 On 19 January 2010 Mr Francis advised Ms Kerr that WorkCover was the best she could get and that it would give her financial stability. He also advised that she should ‘let sleeping dogs lie’ with respect to the general protections matter and that he would not be making a general protections claim on her behalf. He advised her by phone on 22 February 2011 that he had not lodged a general protections claim on her behalf.

[15] Ms Kerr’s evidence is that she did not have the money to make a general protections application as the $400.00-$500.00 per fortnight she received from Centrelink was used on rent payments. Following acceptance of her WorkCover claim and with the assistance of Ms Armstrong Ms Kerr completed and lodged her general protections claim. 10 Ms Kerr included with her application a note asking that the application be accepted late as her ‘lawyer Gavin Francis decided it would be to much for me so didn’t file my claim filled out in December when they fired me (sic)’11 and that she had ‘been waiting 13 weeks for any money - my workcover came through today + you’s wouldn’t accept my claim without money. Plz help me get this through (sic).’12

[16] On the basis of this evidence Ms Kerr submits that she was incapable of lodging a general protections application on her own. Ms Kerr further submits that she was incapable of following through with any of the advice given to her but that, in any event, Mr Francis decided not to pursue a general protections application but did pursue her WorkCover application. Further, Ms Kerr submits she was not aware that she could apply for a waiver of the lodgement fee required and did lodge her application as soon as she had money available to do so.

[17] The Respondent does not dispute the evidence of Ms Kerr, Dr Hassett, Ms Armstrong or Mr Francis in this proceeding although does not concede that the workplace contributed to Ms Kerr’s depressive illness and anxiety.

[18] The Respondent submits that Ms Kerr’s illness did not prevent her from complying with the requirement to file her general protections application within the 60 day time period.

[19] The Respondent submits that Ms Kerr was apparently well enough to contact Job Watch on 21 December 2010 and again in February 2011, to write to her employer seeking information on the workplace bullying policy, consult her lawyer and make a worker’s compensation claim. She was also able to raise a grievance about the Respondent with Work Safe and make an appointment with a discrimination lawyer in Melbourne. These activities, the Respondent submits, indicate that Ms Kerr was capable of functioning at a level that would enable her to make a general protections application within time.

[20] Further the Respondent argues that whilst not disputing that Ms Kerr was ill, the evidence is that Ms Kerr was, at the time of the dismissal, ‘astute enough...to seek advice from her employer and write the employer a letter besides doing all these other things.’ 13 By sending the letter of 21 December 2010 to the Respondent the Applicant demonstrated she was aware of what she was doing and ‘capable of complying with instructions.’14

[21] The Respondent says that Ms Kerr did not rely solely on her solicitor for advice and therefore cannot claim representative error as a reason for the delay in making her application.

Finding

[22] In the circumstances presented in this matter, I find that there are a number of reasons for the delay of Ms Kerr in filing her general protections application to which I should pay appropriate regard in determining the application for an extension of time.

[23] It is clear that prior to the termination of her employment Ms Kerr was already suffering from anxiety and a depressive illness. This had been diagnosed by her doctor at the end of November 2010. At this time she had also commenced seeing Ms Armstrong, a counsellor, who had such concerns for Ms Kerr that her ‘standard’ consultation times were extended beyond their normal length. Ms Kerr’s condition worsened following the termination of her employment and she was referred to a psychiatrist. At the time of the termination of her employment Ms Kerr also suffered from stomach ulcers. The medical evidence and the evidence of her counsellor indicate that Ms Kerr was clearly unwell and not functioning at a level that enabled her to make rational decisions of her own accord.

[24] Ms Kerr’s solicitor, Mr Francis, determined a course of action with respect to the claims Ms Kerr sought to pursue and part of this was that he would not lodge a general protections application. This decision was not taken by Ms Kerr. Given Ms Kerr’s state of anxiety as observed by Mr Francis it appears he considered such a course to be in Ms Kerr’s best interests. Having advised her that he would not lodge the claim and given my opinion with respect to Ms Kerr’s capacity to make decisions unaided it is not surprising that she did not proceed to lodge an application by herself on 19 January 2011 when Mr Francis advised he would not lodge the application.

[25] That Ms Kerr rang Job Watch on 21 December 2010 is not evidence that she was capable of lodging the relevant material with Fair Work Australia on time. It is apparent from the undisputed evidence in this matter that she had little recollection of the phone call with Job Watch.

[26] It is clear that any applications filed by or on behalf of Ms Kerr were done with the support and direct assistance of a third party. In the case of her WorkCover claim this was her solicitor. I have no doubt that had her solicitor agreed to the lodgement of a general protections application and assisted in the preparation of the documentation it would have been lodged in time.

[27] With respect to her general protections application ultimately this form was completed with the support of Ms Kerr’s counsellor. I am of the opinion that had Ms Kerr not had such support it is unlikely the application would have been made when it was.

[28] There is nothing to suggest that Ms Kerr was capable of completing forms and lodging any claims against her employer within the time limit required without direction or support in doing so. In this respect the Respondent is correct - Ms Kerr was capable of complying with instructions but this does not mean she could act at her own initiative. Whilst it is possible she was advised by Job Watch or some other organisation of the need to file her application within the required time limit (although there is no direct evidence of this) the instruction from Mr Francis, her solicitor, was to ‘let sleeping dogs lie’ and not file a general protections application. Her state of mind and the decision of her legal advisor to not pursue a general protections application are the reason this application was not lodged within the prescribed time limit. This does indicate representative error as a reason for the delay. Had Mr Francis followed through with the application in December or January when Ms Kerr saw him the application would have been lodged within time.

[29] I do consider that Ms Kerr’s anxiety and depressive illness and the decision of her then solicitor to not lodge the application are the reasons for the delay in lodging the application. I do not consider that a lack of funds by Ms Kerr is an explanation for the delay in filing her application although the lack of funds may have been an additional matter contributing to her anxiety levels that I believe are a significant factor in explaining the delay in lodgement. Had she had the support and assistance in filing her application I expect she would have been made aware of the procedure for waiving the filling fee.

[30] As I have found above it is my opinion that Ms Kerr was incapable, within the 60 days of the termination of her employment, of making and executing a decision with respect to this application without assistance.

[31] In all of these circumstances I find that there is a reasonable explanation for the delay in lodging the application.

Action taken to dispute the dismissal

[32] On 21 December 2010 Ms Kerr wrote a letter to the Respondent which stated:

As you are well aware, I have endured a significant amount of physical, emotional and mental bullying and harassment, whilst being in your employment from 4th Jan 2010 until my employment was ceased by you on Friday 17th December 2010.

This bullying and harassment has emensly affected myself and my ability to perform my work duties.

I hereby advise you that I will be submitting a bullying claim...(sic) 15

[33] The Applicant submits that, in sending this letter she clearly indicated that she was disputing the dismissal.

[34] The Respondent submits that the attempts by Ms Kerr to dispute her dismissal were ad hoc at best and that an indication to the Respondent that she intended to lodge a bullying claim cannot be equated to disputing her dismissal. In any event the Respondent believed that the matters had been dealt with through the WorkSafe investigation.

Findings

[35] Section 366(2)(b) requires that consideration be given to any action taken to dispute the dismissal. Ms Kerr, in sending the letter of 21 December 2010, made it clear to the Respondent that there were matters associated with her employment and the cessation of that employment that she was not content to leave lie. I find that Ms Kerr took action to dispute her dismissal.

Prejudice to the employer

[36] The Applicant argues that there is no prejudice to the employer - in part because she could bring a claim under alternative legislation such that a bar to action under the Act will not necessarily shield the Respondent from a requirement to respond to the claim in some form.

[37] The Respondent argues that the business is a small business, the Applicant should have made a prompt application allowing prompt resolution and that a WorkSafe investigation is under way and should be allowed to run its course.

Finding

[38] Whilst I recognise that the Respondent is a small business the matters raised in the application, if proven, are very serious indeed. The Respondent has been aware of this particular claim since March 2011 and has been aware from well before that date of at least some of the matters Ms Kerr alleges occurred.

[39] It is worth noting that this matter, whilst now subject to a decision as to an extension of time application, has already been subject to conciliation. Both parties consented to conciliation in an attempt to resolve the matter prior to the determination of this application. That conciliation concluded without success. Should this out of time application succeed a certificate will be issued forth with which will allow the matter to proceed to the relevant court. There will be no great delay arising from this decision that will exacerbate any prejudice that may already exist.

[40] A decision to decline an extension of time will not stop other appropriate applications being made by Ms Kerr. Time limits such as those imposed by the Act do not necessarily exist in other jurisdictions. Such other applications may bring with them further delay in the resolution of the matter, thus perhaps creating a greater prejudice to the employer.

[41] I find that there is some prejudice to the employer caused by the delay in lodgement though I do not consider such prejudice to be of such magnitude to outweigh any other relevant considerations.

Merits of the application

[42] The Applicant submits that there is merit to her application in that she has suffered adverse action because she was entitled to workplace rights, including the right to a working environment safe from risks to health and safety and free from discrimination.

[43] The Respondent makes no submission on this although denies that it took adverse action or that it discriminated against the Applicant.

Finding

[44] There is without question a dispute over the facts leading up to and surrounding the termination of Ms Kerr’s employment. It is however very difficult to make an assessment of the merits of this application without the benefit of testing the evidence and receiving detailed submissions. That the Respondent has not provided submissions on the merits of the claim at this point is not an indication that they concede such a point.

[45] The claims made by the Applicant in her application are very serious. On the basis of the limited material before me they are not without merit.

Fairness as between the Applicant and others in a like situation

[46] The Applicant submits that, should the extension of time not be granted, she will be ‘significantly disadvantaged vis a vis another employee who had been injured in their employment and discriminated against, but who had not been dismissed’ 16 who would not be barred by time constraints from commencing court action with respect to the general protections breach. The Applicant submits that ‘a person in a like position’ for the purpose of s.366(2)(e) is a person who has been subject to the same treatment as the Applicant but has not been forced to resign or been dismissed from employment.

The Respondent makes no submissions on this point.

Finding

[47] For the purpose of this provision I take a person in a like position to be that as characterised by the Applicant. Fairness between the Applicant and others in a like position suggests an extension of time should be granted.

Conclusion

[48] The circumstances outlined above provide a number of factors that caused the delay in lodgement of the application under s.365 of the Act. Neither the illness suffered by the Applicant nor the actions of her then legal advisor are by themselves ordinary, nor are the circumstances relating to fairness. So much of the evaluation of this case does however relate to Ms Kerr’s anxiety and depressive illness. The debilitating effect of this should not be underestimated.

[49] Taking into account all of the material before me with respect to the application for an extension of time I find that there are exceptional circumstances such that Fair Work Australia should extend the time for filing the application. An order extending the time for filing the application by Ms Kerr under s.365 of the Act to 15 March 2011 will be issued today.

[50] Given that the matter has been subject to conciliation and that I had reached a view at that time that further conciliation would not assist in the resolution of the matter I shall, unless I am advised that more conciliation is now thought useful, issue a certificate under s.369 of the Act on Monday 27 June 2011.

COMMISSIONER

Appearances:

Mr J. McKenna with Ms C. Andrades for the Applicant

Mr M. Weldon for the Respondent

Hearing details:

2011

Melbourne

June 15

 1   [2011] FWAFB 975.

 2   [2011] FWAFB 975, [13].

 3   Exhibit K4.

 4   Exhibit K5, page 2.

 5   Exhibit K5, page 2.

 6   Exhibit K5, page 3.

 7   Exhibit K2.

 8   Exhibit K3, paragraph 3.

 9   Exhibit K3, paragraph 3.

 10   Exhibit K2, paragraphs 24 & 26.

 11   Exhibit K2, attachment MK2.

 12   Exhibit K2, attachment MK2.

 13   Transcript PN80.

 14   Transcript PN 84.

 15   Exhibit K6.

 16   Exhibit K1, paragraph 56.

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