Mrs Erica Brestel v International on the Water/ Mercure Perth Ascot

[2019] FWC 1040

[2019] FWC 1040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Erica Brestel
v
International on the Water/ Mercure Perth Ascot
(U2018/12594)

COMMISSIONER WILLIAMS PERTH, 19 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] Mrs Erica Brestel (Mrs Brestel or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is International on the Water/ Mercure Perth Ascot (the Respondent).

[2] Mrs Brestel alleges she resigned in circumstances that ought to be considered a ‘dismissal’ under the Act on 14 November 2018. The application was made on 6 December 2018.

[3] The application has been lodged more than 21 days after the alleged dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] The Respondent in its form F3-Employer Response to Unfair Dismissal Application denies the Applicant was dismissed but alleges the Applicant resigned her employment on 13 November 2018.

[5] If the Applicant’s alleged date of dismissal is accepted the application was filed one day outside the statutory timeframe. If the Respondent’s alleged date of resignation is accepted the application was filed 2 days outside the statutory timeframe.

[6] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[7] The application states that the Applicant verbally resigned but that she was constructively dismissed. The application says that she was notified of her dismissal and the dismissal took effect on 14 November 2018. The application was filed in the Commission on 6 December 2018. This application was therefore made after the 21 day time limit had passed.

[8] Consequently I wrote to the Applicant explaining to her the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.

[9] The Applicant provided a written response to the Commission’s direction. This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The Applicant’s submission

[10] The Applicant submits that the reason for the delay was that she was unaware of the full extent of emotional damages she had endured while working at International on the Water by both the owner, Roger Frost on the day of her exit and the general manager, John O'Reilly since August 2018.  After speaking with a psychologist (whom she was unable to make an appointment with until right before the deadline), she explained that her recurrent dreams and inability to sleep were a result of Post-Traumatic Stress. The Applicant says they spoke about ways to minimise said stress and one of the ways was to "take action" to ensure that the abuse did not continue with more female staff members.   She says she was unaware that she had missed the date by one day.  

[11] With respects to the merits of her application the Applicant says that on the day she quit, she was asked to perform the "entirety" of another staff member's duty, who was out of the office due to emotional stress caused by the environment at the International on the Water.  Doing this co-workers’ entire job along with her own was stressful enough; however, knowing she would have to work closely with John O'Reilly whom had grabbed and threatened her, made her panic. She went into the office of Roger and Julia and stated that she was resigning due to the fact that they had failed their duty of care. She had not written out her resignation as it was spur of the moment.  Unlike what Julia said, she did not have another job at the time. She only stated she had another job after they were out of their office and in the main office in front of others.  It was only when Roger started to wave condescendingly at her saying, "Bye-bye.  No one will ever want you," that she said she had another job.  As further proof of the merits, she attached a resignation letter from another former employee at International on the Water.  In it she states that the manager at the time was and still is very inappropriate in his conduct towards his staff, both physically and verbally.

[12] With respect to fairness as between the person and other persons in a similar position. The Applicant referred to the case of Harley v Aristocrat Technologies Australia Pty Ltd [2010] FWA 62 which she says concerns a gentleman that resigned after being bullied.

The reason for the delay

[13] The Applicant’s submits that the reason for the delay in making this application was that she was suffering post-traumatic stress and was unaware she had missed the date.

[14] The Applicant has not provided any medical evidence at all to the Commission regarding her post traumatic stress and certainly no evidence to satisfy the Commission that this incapacitated her at any particular time to the extent that she was unable to make this application.

[15] A Full Bench of the Fair Work Commission in Australian Postal Corporation v Zhang 1, with respect to medical evidence provided to a Commissioner considering whether or not there were exceptional circumstances warranting an extension of time to make an application held at [22] as follows:

“In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”

[16] Consequently I am not satisfied that on the evidence before me that the Applicant’s state of health was itself an exceptional circumstance nor was it an acceptable reason for the delay.

[17] Separately the fact the Applicant states she was unaware she had missed the cut-off date to make her application in time is neither an exceptional circumstances nor an acceptable reason for the delay.

Any action taken by the person to dispute the dismissal

[18] There is no evidence that the Applicant took any action to dispute her dismissal other than the making of this application.

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

[19] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[20] The Applicant states that she resigned from her employment because she had previously been grabbed and threatened by the manager and on the day she resigned she had been asked to perform another staff member’s duty in addition to her own. She had not written out a resignation as it was a spur of the moment decision.

[21] The Respondent’s response includes the jurisdictional objection that the Applicant was not dismissed. It also includes a further jurisdictional objection that she had not met the minimum employment period.

[22] The Respondent’s response includes that the Applicant resigned to the owners of the Respondent advising that she was taking up another position and would like to leave immediately. The Respondent says the Applicant was on probation until 31 December 2018. The Respondent also contests in detail many of the complaints and accusations made by the Applicant in her application.

[23] There is obviously some force in the Respondent’s objection that the Applicant was not dismissed given she concedes she resigned. The question at any hearing of this matter will be whether in terms of section 386(1)(b) the Applicant was forced to resign because of conduct, or a course of conduct engaged in by her employer.

[24] The second jurisdictional objection the Respondent raises regarding the minimum employment period is ill-conceived and would not succeed. The employer is not a small business employer and the Applicant’s period of employment was more than six months so she has completed the minimum employment period required by section 382 and as defined in section 383.

[25] It is only at a hearing of a matter such as this would it become clear what the truth of the accusations are versus the Respondent’s denials and counterclaims.

[26] As is often the case without the matter being fully argued it is difficult for the Fair Work Commission to determine whether the merits of the application do or do not support an extension of time. Consequently I view the merits of the application as a neutral factor in this decision.

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

[27] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application. The Applicant’s reference to a particular case above misunderstands the requirements of this provision, section 393(3)(f).

Conclusion

[28] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[29] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Fair Work Commission and must be dismissed.

[30] An order [PR705046] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 1 February 2019

Printed by authority of the Commonwealth Government Printer

<PR705040>

 1   [2015] FWCFB 5285.