Mrs Amanda Watherston v Federal Hospitality Equipment Australia Pty Ltd
[2024] FWC 1922
•22 JULY 2024
| [2024] FWC 1922 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Amanda Watherston
v
Federal Hospitality Equipment Australia Pty Ltd
(U2024/6403)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 22 JULY 2024 |
Application for an unfair dismissal remedy – extension of time – dismissal – mental health impacts – whether exceptional circumstances – extension refused – application dismissed
On 4 June 2024 Amanda Watherston (Ms Watherston or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy. The application related to a dismissal by Federal Hospitality Equipment Australia Pty Ltd (FHE, the respondent or the employer) which took effect on 15 March 2024.
The application is sixty days outside the statutory 21-day period for making unfair dismissal claims. Ms Watherston seeks an extension of time. FHE oppose an extension.
This decision determines whether an extension should be granted.
I issued directions on 27 June 2024.
I heard the extension of time issue (by video) on 18 July 2024.
Ms Watherston was self-represented. FHE were represented by its National Sales Manager, Mr Johns. I heard evidence from Ms Watherston.
Facts
Facts relevant to the extension of time issue are largely not in dispute.
There is a factual dispute concerning the nature and extent of discussions between FHE and Ms Watherston prior to dismissal concerning performance matters. As that generally concerns merit and not the extension issue, I need not make findings on the dispute over the nature or extent of warnings or counselling.
I make the following findings.
FHE is a nationally operating business in the commercial hospitality equipment sector. It is not a small business for the purposes of the FW Act.
In August 2020, Ms Watherston was employed in an administrative and sales support role in its Adelaide office, reporting to the State Manager.
Until dismissed, she had been employed for approximately three and a half years.
On 15 March 2024, at a meeting attended by the State Sales Manager (Mr Messner) and the National Sales Manager (Mr Johns) Ms Watherston was dismissed for performance reasons effective that day, with four weeks paid in lieu.
Ms Watherston was upset by the dismissal. She told the meeting that she was shocked and surprised.
A letter of dismissal of the same date[1] stated the reason to be “persistent issues that significantly impact on your performance and ability to meet the required standards of FHE”.
Ms Watherston went home and tried to process that she had lost her job. She had not previously been dismissed from employment. According to her evidence, from the day she was dismissed she considered it unfair. However, also according to her evidence, she was too upset to do anything about it.
Ms Watherston and her family had a pre-booked 12-day holiday to Bali departing 22 March and returning 1 April. Ms Watherston decided to take the holiday but, according to her evidence, while she did not discuss the dismissal at length with her family (wanting not to spoil the holiday), she remained upset.
Approximately one week after returning to Australia (around 8 April) Ms Watherston searched online to investigate what her dismissal rights may be. She found on the Commission web site that claims could be made for unfair dismissal but that they needed to be made within 21-days of a dismissal taking effect.
Whilst searching online, Ms Watherston worked out that she was already out of time. The 21-day period had ended on 5 April. Being out of time, Ms Watherston did not believe that she could do anything about the matter.
Over the following week, Ms Watherston spoke about the matter to former work colleagues who were friends. The friends informed Ms Watherston that she still might be able to make a claim and could ask for time to be extended.
Ms Watherston decided to contact the Commission to verify if this was correct. On or about 17 or 18 April, Ms Watherston telephoned the Commission and spoke to an inquiries officer. She was informed of the 21-day rule, and that whilst she was out of time an application could be made requesting an extension and that a decision would then be made whether to grant an extension. She was directed to the online application form and fee waiver form.
Between approximately 18 April and the last week of May 2024 (a period of between five and six weeks) Ms Watherston considered what she wanted to do. She still believed the dismissal unfair but was not sure if she could emotionally cope with prosecuting an application. In this period she was also seeking alternative employment.
During the last week of May 2024 Ms Watherston decided to take the matter further. She returned to the Commission web site and downloaded the application and fee waiver forms.
On 31 May 2024, Ms Watherston populated and dated the application form. She did not immediately send it because she wanted to check it over and still remained somewhat unsure whether she was strong enough to make a claim.
On 4 June 2024, after checking and re-checking the application, she positively decided to go ahead. She lodged the application (and the fee waiver) that day, by email.
The application was then served by the Commission on FHE.
Submissions
Ms Watherston
Ms Watherston submits that the reason for the delay was that she did not know of the time limit until it had passed, and “I didn’t feel I was up to putting in for an unfair dismissal at the time”.[2]
Ms Watherston submits that this is a reference to not having “mentally” coped well during the five to six weeks following dismissal. Ms Watherston submits that this was due to the shock of the dismissal and associated impacts on her confidence and well-being, and because she had not previously experienced being dismissed . She remained on anti-depressants, which had been prescribed prior to dismissal.
Ms Watherston also submits that time should be extended so the fairness of her claim can be assessed to prevent any other person being unfairly treated in the way she believes she was.
FHE
FHE submit that the circumstances for the late lodgement are not exceptional, individually or collectively.
FHE submit that an employee being shocked or upset after being dismissed is not unusual. FHE submit that Ms Watherston presented no medical or other evidence of her emotional state or whether it materially impacted her capacity to seek advice or make a claim within time. It points out that Ms Watherston went on a holiday and then received information from the Commission. FHE submit that even after finding out that a 21-day rule applied, Ms Watherston procrastinated and delayed for a further lengthy period.
FHE submit that the 21-day rule is there for a reason and should not be set aside simply because a dismissed employee waits until they feel able to make a claim.
FHE submit that the application is weak on merit because warnings and counselling occurred, and the employer gave Ms Watherston a fair chance to not repeat performance concerns. This, it says, also weighs against extending time.
Consideration
Unfair dismissal applications are required to be filed within twenty-one days of a dismissal taking effect. However, s 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…..
(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.”
The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[3]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[4] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[5]
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.”[6]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[7]
It is not in dispute that Ms Watherston’s application is sixty days out of time.
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application 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.[8] The absence of an explanation for any part of the delay will usually weigh against an applicant. 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.[9]
However, a reasonable explanation for the delay 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.[10]
The period of delay that requires 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 delay is acceptable or credible.[11]
In this matter, the delay period was between 6 April 2024 and 4 June 2024 inclusive.
I now deal with the reasons for delay advanced by Ms Watherston.
Unaware of the time limit until it had passed. I accept that Ms Watherston, being a person with no legal or industrial expertise, was unaware of the 21-day rule for filing unfair dismissal claims until she spoke to an officer of the Commission on 17 or 18 April 2024. By then, the 21-day period had passed. However, for the following reasons, this is not an acceptable reason for the delay.
Firstly, there is an abundance of information available at no cost and in plain English on web sites (government and private) informing dismissed employees of the unfair dismissal jurisdiction and that a 21-day rule applies. All that is required to access that information is a computer with a search engine, and a motivation to do so. Ms Watherston had access to online searches about her rights from the time she was dismissed. What she lacked was the motivation. Whilst I make no criticism of Ms Watherston for going on the pre-booked holiday with her family inside the 21-day period, a week transpired after dismissal before departing overseas, and she returned four days before the 21-day period ended. Even if it was not reasonable for Ms Watherston to interrupt her holiday by conducting an online search, she could have done so before departing or immediately upon her return.
Secondly, it is well established that ignorance of the statutory time limit, of itself, does not reasonably explain a delay in lodgement.
Thirdly, Ms Watherston delayed a further forty days (almost seven weeks) after being informed of the 21-day period before making her application. Even after completing the application (on 31 May) Ms Watherston delayed a further four days before lodging it. Ms Watherston acknowledged in her evidence that she “procrastinated” at least in this final period.
Emotional and mental unfitness. Ms Watherston submits that she “didn’t feel up to” making an unfair dismissal application at the time. I accept that Ms Watherston did not cope well with the shock of being dismissed and that it impacted her confidence and motivation.
It is plausible that the dismissal exacerbated feelings of worthlessness given that Ms Watherston was already taking anti-depressants prescribed by her general practitioner prior to the dismissal.
However, for two reasons only limited weight can be given to this consideration.
Firstly, an employee being shocked, upset or demotivated after being dismissed is not unusual.
Secondly, Ms Watherston presented no medical or other evidence of her health condition or whether it materially impacted her capacity to seek advice or make a claim. Generally, where a dismissed employee relies on a health condition to explain a delay in making an application, the practical reality is that without proper and specific evidence from a health professional it is very difficult for the Commission to make informed findings about the applicant’s capacity to complete and file an application within the statutory time limit.[12]
I also observe that whatever demotivation Ms Watherston experienced, it did not preclude taking an overseas holiday, did not preclude discussing the dismissal with family or friends, did not preclude contacting the Commission to seek advice and did not preclude making online searches. All of this occurred, but over a prolonged period and without a particular sense of urgency.
Considered overall, whilst I accept that Ms Watherston was upset and demotivated following the dismissal, the explanations for the delay do not weigh materially in favour of granting an extension of time.
Awareness of the dismissal taking effect (s 394(3)(b))
Ms Watherston was aware on 15 March 2024 that she was dismissed with four weeks’ pay in lieu of notice. She was also aware of the reason.
This is a neutral factor.
Action taken to dispute dismissal (s 394(3)(c))
Whilst not expressly stated, I am satisfied that Ms Watherston’s expression of shock and disappointment at being dismissed during the meeting on 15 March 2024 put FHE on some degree of notice that the dismissal was disputed. However, FHE had no insight into the fact that legal action was contemplated until it was served with the application months later.
This factor weighs marginally in favour of a finding of exceptional circumstances.
Prejudice to the employer (s 394(3)(d))
FHE would incur time and effort in responding to an unfair dismissal claim. It is not a small business employer. The prejudice has no unique element.
However, the absence of prejudice would not of itself be a reason to grant an extension.[13]
In the circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
A hearing on merit will concern whether the performance concerns advanced by FHE constituted a valid reason for dismissal and whether Ms Watherston was afforded procedural fairness. Given the factual contest (at least concerning the formality or frequency of warnings or counselling) it is not possible to express even a provisional view on the merits.
This is a neutral consideration.
Fairness between persons in similar positions (s 394(f))
This issue does not arise in this matter. I reject Ms Watherston’s submission that there is a broader issue of principle at stake. Each case of alleged unfairness, including any other concerning this employer, would be decided on its own facts, as with this application.
Conclusion
The sixty-day period of delay is lengthy in the context of a twenty-one-day statutory time limit.
The reasons for the delay do not materially weigh in favour of a finding of exceptional circumstances.
That FHE knew, but in a general sense only, that Ms Watherston was shocked and upset at being dismissed weighs marginally in favour of extending time. No other factors weigh materially in favour.
Considered overall, Ms Watherston made the application only when she felt able to do so. She was demotivated but did not act with a sense of urgency even after she was aware of the 21-day rule. She allowed a further seven weeks to lapse due to indecisiveness and procrastination.
I do not find the circumstances for the late filing to be exceptional.
Disposition
There being no exceptional circumstances, the time for lodgement of application U2024/6403 cannot be extended.
Being out of time, the unfair dismissal application must be dismissed.
An order[14] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
A. Watherston on her own behalf.
B. Johns of and on behalf of Federal Hospitality Equipment Australia Pty Ltd.
Hearing details:
2024.
Adelaide;
18 July.
[1] R1
[2] F2 item 1.6
[3] Smith v Canning Division of General Practice[2009] AIRC 959
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21]
[5] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[6] [2011] FWAFB 975, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251, [5]
[7] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954, [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167, [6]
[8] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [30] and [36]
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, [35] - [45]
[10] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[11] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287, [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
[12] Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group [2021] FWC 3903, [24]
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
[14] PR777305
Printed by authority of the Commonwealth Government Printer
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