Monita Ng v Airservices Australia

[2016] FWC 8976

[2016] FWC 8976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Monita Ng
v
Airservices Australia

(U2016/9350)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 DECEMBER 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] Ms Monita Ng (the Applicant) made an application on 12 July 2016 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Airservices Australia (the Respondent) on 22 January 2016 was unfair.

[2] On 7 September 2016 the Fair Work Commission (the Commission) wrote to the Applicant indicating that her application appeared to have been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was made 151 days outside the 21 day statutory timeframe. The letter requested that the Applicant supply a written statement explaining why the Commission should decide to grant an extension of time for her to make her application. The Respondent requested that the extension of time issue be dealt with by way of a hearing.

[3] The extension of time issue was heard on 9 December 2016. At the hearing, Ms Anca Costin appeared with permission for the Applicant, while Mr Stephen Jenkins-Flint appeared for the Respondent.

[4] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Ms Ng’s application will be dismissed.

Background

[5] The Applicant commenced employment with the Respondent in 1996.

[6] In her application Ms Ng stated that she:

• was on sick leave from August 2014 to 30 January 2015;



• returned to work between 2 February and 11 March 2015;



• was absent on sick leave for the period 12 March to 3 May 2015;



• was absent on long service leave and annual leave for the period 4 May to 29 November 2015; and



• requested three months leave without pay from 29 November 2015 to aid her recovery such that she might be able to return to work.

[7] The Applicant stated in her application that her absence from work was as a result of a psychological injury she suffered as a result of bullying and harassment by her supervisor.

[8] A medical report dated 17 November 2015 attached to the application stated, inter alia, that “It is unlikely that Ms Ng would be fit to return to work at Airservices in any capacity now or in the foreseeable future.” 1

[9] In its Form F3, the Respondent stated that it informed the Applicant on 30 November 2015 that it intended to terminate her employment and provided her with an opportunity to respond. The Respondent further stated that the Applicant responded on 7 December 2015 and again on 5 January 2016 when she requested that Airservices postpone its decision to terminate her employment in order to allow her to seek further treatment. However, the Respondent decided to dismiss the Applicant on 22 January 2016 on the basis that she was not medically fit to perform her duties and there was no prospect of her being able to return to work with the Respondent in any capacity.

[10] On 21 February 2016 the Applicant sent an email to the Respondent which stated among other things:

“I received a letter … on 20.1.2016 regarding the termination of my employment with Airservices, the letter is focus on the length of my absence from duty but neglect to see the cause of my absence is due to injury from the work place …

I am very disappointed that you do not allow me to take leave without pay … may I request one year of leave without pay then to see progress.

…

If you insist to terminate my employment, I would like you to write me a reference so that I can look for job after I recover …” 2

[11] In other developments, on 28 April 2016 the Administrative Appeals Tribunal (AAT) determined that the Applicant had suffered from a major depressive disorder which had been significantly contributed to by her employment with Airservices and that she was therefore eligible to receive compensation pursuant to the Safety Rehabilitation and Compensation Act 199 (Cth) 3. A medical report which was prepared for the purposes of those proceedings concluded, among other things, that “I do not believe that she [Ms Ng] has any current work capacity in duties with Airservices Australia”4 and “I doubt she will ever return to full time work given the trajectory of her illness.”5 That report was dated 8 March 2016, i.e. after the Applicant had been dismissed.
[12] As previously noted, the Applicant’s unfair dismissal application was made on 12 July 2016, 151 days outside the 21 day statutory timeframe.

The Relevant Legislation

[13] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(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).

394(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 first person 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 under s.394(2)

[14] 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

[15] The Applicant in her written submissions cited several reasons for the delay in making her application. The reasons were her major depressive disorder, her inability to concentrate on tasks that required attention following her dismissal, her failure to grasp that she had been dismissed and her impression that the legal advisers representing her in respect of her workers’ compensation claim would also advise in respect of the foreshadowed termination of her employment.

[16] At the hearing the Applicant reiterated those reasons, adding, inter alia, that:

• as stated in the 8 March 2016 medical report, her state of mind deteriorated following her dismissal;



• following her dismissal whenever she sought to consider making an unfair dismissal application she would fall asleep and feel anxious and depressed about her situation;



• prior to her workers’ compensation claim being determined by the AAT on 28 April 2016 she did not have the financial means to seek legal advice regarding her dismissal;



• she had previously been assessed as ineligible to receive assistance from Legal Aid;



• pressing her workers’ compensation claim was really distressful;



• the fact that she pressed her workers’ compensation claim did not indicate that she had the capacity to instruct in respect of a new matter, i.e. an unfair dismissal application; and



• she felt that addressing her dismissal would hurt her more than leaving the matter dormant, though she ultimately came to the view that she needed to address her dismissal.

[17] In response to a question from the Commission as to whether the Applicant sought to argue representative error based on the failure of her legal representative in the workers’ compensation claim not providing advice in respect of her foreshadowed dismissal, the Applicant’s representative indicated that she did not know what instructions the Applicant had provided to her legal representatives in that regard. The Commission also asked the Applicant the reason for the delay between 28 April 2016 when her workers’ compensation claim was determined by the AAT and 12 July 2016 when her unfair dismissal application was lodged with the Commission. Other than referring to surgery on both ears in June 2016, the Applicant did not provide any other specific reasons.

[18] The Respondent submitted that the reasons for the delay were not exceptional and did not justify the length of the delay. Among other things, the Respondent also submitted that:

• the Applicant had provided no evidence that her health prevented her from making her application, particularly as she was able to instruct and participate in the AAT proceedings regarding her workers’ compensation claim; and



• as to the Applicant’s claim that she failed to grasp that she had been dismissed, the termination letter was clear in its effect with the subject line of the letter including the words “Termination of employment” and the second paragraph of the letter stating that “Airservices has … decided to terminate your employment.”

[19] From the material before the Commission it is clear that the Applicant suffers from a serious illness which undoubtedly impacted on her ability to make her application within the 21 day timeframe. However, I note that the 8 March 2016 medical report stated that the Applicant reported “that on a typical day, she is able to function three-four hours, attending to her property, including a small number of animals and household pets. She will spend 30-60 minutes on the computer.” 6 This suggests that in early March 2016 the Applicant had some capacity to pursue an unfair dismissal application at that stage. That view is reinforced by the Applicant’s email of 21 February 2016 to the Respondent and her involvement in the AAT proceedings regarding her workers’ compensation claim both of which indicate that the Applicant was not fully incapacitated by her illness. On the other hand, however, the medical report also stated that the Applicant had “significant impairment of cognitive functioning and propensity to anxiety”7. While I am satisfied that the Applicant’s illness was a significant factor in her application not being made within the 21 day statutory timeframe, I am not satisfied that the Applicant’s illness precluded her from making an application prior to 12 July 2016 when it was lodged with the Commission.

[20] One of the other reasons for the delay cited by the Applicant is that she did not have the means to seek legal advice until after the AAT had determined her workers’ compensation claim on 28 April 2016. However, beyond referring to surgery on her ears in June 2016 the Applicant did not cite any other specific reason for the delay between that date and 12 July 2016 when her application was received by the Commission. As noted by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 8, an employee needs to provide a credible reason for the whole of the period that the application was delayed. Based on the material before the Commission, I am not satisfied that the Applicant has done so.

[21] Taken together, the above considerations do not point to the existence of exceptional circumstances.

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

[22] The Applicant submitted that while she was unable to identify the exact date she became aware of her dismissal she was inclined to believe that she received the termination letter by post on 25 January 2016.

[23] As noted at paragraph [18] above, the Respondent submitted that the termination letter was clear in its effect.

[24] I am satisfied that the Applicant became aware of her dismissal in late January 2016. I therefore consider this factor to be a neutral consideration.

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

[25] The Applicant submitted that she sent the abovementioned email of 21 February 2016 to the Respondent in the hope that the decision to terminate her employment would be overturned. The Applicant further submitted that while she did not formally dispute her dismissal, her actions could be interpreted as being indicative of her disagreement with the decision to dismiss her.

[26] The Respondent did not address this consideration in its submissions.

[27] The Applicant’s email does not directly dispute her dismissal, though the underlying tone of the email appears to question the Respondent’s decision to dismiss her. To that end, the email could be construed as disputing the Applicant’s dismissal. Beyond that email, the Applicant appears to have taken no other action to dispute her dismissal prior to lodging her application. Nevertheless, I consider this factor to favour the Applicant.

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

[28] The Applicant submitted, inter alia, that any prejudice caused by the delay should be minimal.

[29] The Respondent submitted that it would be prejudiced were an extension of time granted because the Applicant’s relevant manager and her specialist case worker were no longer employed by Airservices. The Respondent further submitted that were an extension of time granted it would be put to significant expense in defending the matter in circumstances where it considered the merits of the application to be weak.

[30] The absence of the Applicant’s specialist case worker is likely to cause some prejudice to the Respondent, though given the various medical reports attached to her application any such prejudice is likely to be marginal. I do not consider the absence of the Applicant’s relevant manager will prejudice the Respondent given that the Applicant was not dismissed as a result of performance related issues. Against that background, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[31] The Applicant submitted that her application had strong merits considering that she was dismissed while recovering from an injury caused by the Respondent. The Applicant contended that she should have been given the opportunity to seek further treatment to establish if she could return to work at a later date.

[32] The Respondent submitted that it had a valid reason to dismiss the Applicant and that it followed a fair process in doing so. The Respondent further submitted that it dismissed the Applicant after a period of 17 months in which she was unfit to attend work, adding that it took all reasonable steps to facilitate and assist the Applicant to return to work. The Respondent also pointed to the medical report of 17 November 2015 which assessed Ms Ng as unfit to return to work and stated that the prognosis was unlikely to change in the long term, emphasising that the medical evidence available to it was clear and consistent in this regard.

[33] In circumstances where the 2015 and 2016 medical reports attached to the application all indicate that the Applicant was not fit to return to work, with the November 2015 and March 2016 reports expressing the view that the Applicant was unlikely to return to work with Airservices in the immediate future, the merits of her application do not appear compelling. While not a reflection on the circumstances which lead to the Applicant’s illness or the seriousness of her illness, this does not point to the existence of exceptional circumstances.

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

[34] The Applicant submitted that having her application heard by the Commission would provide her closure in relation to the trauma she experienced at work, both during and after the termination of her employment. While I note the Applicant’s submission, it does not draw a comparison with others in a similar situation to her.

[35] The Respondent did not address this consideration in its submissions.

[36] I therefore consider this factor to be a neutral consideration.

Conclusion

[37] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of 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.”

[38] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[39] Accordingly, Ms Ng’s application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

A. Costin for the Applicant

S. Jenkins-Flint for the Respondent

Hearing details:

2016

Canberra:

December 9.

 1   Form F2 – Unfair Dismissal Application at Annexure H

 2   Ibid at Annexure C

 3   Ibid at Annexure A

 4   Ibid at Annexure B at 3.4(c)

 5   Ibid at Annexure B at 3.4(e)

 6   Form F2 – Unfair Dismissal Application at Annexure B at page 3

 7   Ibid at 3.4(a)

 8 (2010) 197 IR 403 at 408-409

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