Mrs Janzey Pratt v Sarina Russo Job Access Australia Pty Ltd
[2018] FWC 7070
•13 DECEMBER 2018
| [2018] FWC 7070 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mrs Janzey Pratt
v
Sarina Russo Job Access Australia Pty Ltd
(C2018/5630)
COMMISSIONER SPENCER | BRISBANE, 13 DECEMBER 2018 |
Application to deal with general protections dispute involving dismissal – jurisdictional objection – application filed out of time – extension not granted.
INTRODUCTION
[1] An application pursuant to s.365 of the Fair Work Act 2009 (the Act) was made by Mrs Janzey Pratt (the Applicant) alleging that the termination of her employment from Sarina Russo Job Access Australia Pty Ltd (the Respondent) was in contravention of the General Protections provisions. The Applicant’s employment was terminated on 4 September 2018, and the General Protections application filed 35 days later.
[2] The Applicant had originally filed an F2 Unfair Dismissal application on 26 September 2018, which she withdrew on 9 October 2018, and on the same day lodged her General Protections application in the current matter.
[3] The Respondent is an organisation, which deals primarily with the placement of around 50,000 jobseekers as its core business. 1 The Applicant commenced employment with the Respondent on 9 May 2018, until the termination of her employment on 4 September 2018.
[4] The Respondent raised a jurisdictional objection to the General Protections application, that the application was filed outside of the 21 day statutory time limit. The Respondent later confirmed that, at the time of making this jurisdictional objection, it was unaware that the Applicant had filed an Unfair Dismissal application; referred to later.
[5] This decision relates to whether an extension of time should be granted pursuant to s.366(2) of the Act. It was not in dispute that the Applicant’s termination took effect on 4 September 2018, and the General Protections application was filed on 9 October 2018, 14 days outside the statutory time limit. The prior Unfair Dismissal application had been filed one day out of time.
[6] The Applicant was self-represented, and the Respondent was represented by Mr David Ormesher, in-house Lawyer, of the Respondent.
[7] The Applicant stated that the reasons for the delay in filing were due to anxiety and depression, which she had suffered since her termination, and the unexpected passing of her husband’s father. The Applicant stated she was informed of her father in law’s passing on 6 September 2018, which required them to travel to Scotland for the funeral on 14 September 2018, and spend a further period in Scotland to make subsequent arrangements. These reasons were also those relied on for the lateness in filing the Unfair Dismissal application. The Respondent submitted that the Applicant has failed to provide sufficient excuse or any exceptional circumstance to justify the extent of the overall delay, and accordingly the General Protections application should be dismissed.
[8] Directions were set on 26 October 2018, for the filing of material in relation to the extension of time and the matter was listed for Hearing in Brisbane on 30 November 2018.
[9] On 27 November 2018, the parties were notified of the Unfair Dismissal application, the lodgement of which the Applicant refers to in her F8 General Protections application. Further directions were issued, allowing for the parties to provide any further responses on this, in relation to the Applicant’s timeframe in filing her current General Protections application.
[10] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.
RELEVANT PROVISIONS
[11] Pursuant to s.365 of the Act:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
[12] Further, s.366 of the Act relevantly provides:
“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.”
[13] As to exceptional circumstances, it was stated in the decision of Green v Bilco Group Pty Ltd: 2
“[5] It is clear from the structure of s.366(2) that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
[6] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) that there are exceptional circumstances.”
[14] Regarding Unfair Dismissal applications, the following sections of the Act are relevant:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE
[15] The Applicant submitted that her employment was terminated on 4 September 2018, without any prior notice.
[16] In her General Protections dismissal application, filed on 9 October 2018, she stated at Question 1.4 that she “submitted an unfair dismissal application [on the evening of 25 September] however was contacted the next day by Fair Work to advise that this application under General Protections was more appropriate”. The Registry file note indicated that, during a call to the Applicant on 26 September regarding her application, she was advised that her period of employment did not meet the six month minimum engagement period for the Unfair Dismissal application.
[17] In regard to the late filing of her General Protections application, and in response to the directions of 26 October, the Applicant gave evidence that she had been diagnosed with extreme anxiety prior to her termination, and had been prescribed medication to assist with reducing the symptoms. She submitted evidence (in the form of a discharge letter from the Sunshine Coast University Hospital Emergency Department) that she had been admitted at the Sunshine Coast Hospital on 30 August 2018, due to anxiety related chest pains. Further she stated that she has suffered ongoing anxiety and depression since her termination on 4 September 2018. No documentary evidence in relation to this condition was submitted with her initial submissions of 5 November 2018.
[18] The Applicant stated that on 6 September 2018, she received a call advising that her father in law had passed unexpectedly, and that they were required to travel to Scotland for the funeral on 14 September 2018. The Applicant gave evidence that after making arrangements for their children to be cared for, she and her husband travelled to Scotland on 11 September 2018, and that following the funeral they remained in Scotland to assist with family arrangements, until their return to Australia on 23 September 2018.
[19] The Applicant submitted that due to these events, she was “physically, mentally and emotionally drained at the end of each day”, and that the unexpected passing of her father in law caused significant stress, further impacting her mental and emotional health. The Applicant gave evidence that she was not only dealing with her own mental state and grieving, but also the grieving of her husband who had now lost both of his parents, and supporting her children, who had lost their grandfather.
[20] The Applicant gave evidence that the emotional and financial stress of the situation resulted in her finding it “extremely difficult to sit down and concentrate enough to pull together [her] application”, submitting that the “week or so” after her return to Australia was the earliest opportunity she had to “focus to get it done”. Her General Protections application was filed 16 days after her return to Australia.
[21] The Applicant gave evidence that she is still without employment due to the “toll the stress and anxiety caused from the unresolved matters at Sarina Russo events have taken on [her]”.
[22] In response to the further directions of 27 November 2018, the Applicant sent correspondence to Chambers on 29 November, indicating that she would be seeking to submit a letter from her doctor at the Hearing.
SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE
[23] The Respondent submitted that, in response to the Applicant’s submissions, “going overseas is not considered an exceptional circumstance in that it is not uncommon, out of the ordinary course, special or uncommon in human affairs”.
[24] The Respondent further submitted that the Fair Work Commission has an online lodgement service, facilitating lodgement “from anywhere in the world”. It submitted that Scotland is a “first world country” with ready access to the internet, meaning that the Applicant would have had “ample opportunity to lodge an Application in time”. It made reference here to Parker v Hire Intelligence International, 3 in which the Applicant in that case, was in Europe and lodged their application 6 days out of time, and the Commission noted, “it is more likely than not that throughout his time in Europe he would have been able to obtain access to either a telephone or a computer to allow an application to have been made if he had chosen to do so”.4
[25] Further, the Respondent submitted that the Applicant was in Australia for a “considerable period within the timeframe”, meaning there was sufficient time for the Applicant to file her application, “before the deadline domestically”.
[26] Regarding the Applicant’s evidence as to her mental state, the Respondent submitted that the Applicant indicated she “simply did not have the energy or mindset to be sitting down at night to work on an application”, and that this does not satisfy an “impaired cognitive capacity” which would prevent her from lodging her application.
[27] The Respondent submitted that the Applicant had failed to raise a medical reason or preclusion to drafting and lodging an application on time, and further that the Applicant has only provided:
“(a) Her own testimony of anxiety and depression;
(b) A photo of a prescription case for apo-duloxetine dated 8 August 2018 (pre-dating the termination for application and time period for Application).
(c) A letter from the hospital for temporary admission for chest pains dated 30 August 2018 (pre-dating the termination for application).”
[28] The Respondent submitted that no professional medical evidence had been provided in response to the initial directions, in support of the Applicant’s claim, and that the Applicant’s evidence did not establish any “significant impairment”. The Respondent made reference to Ellis v Melton Shire Council, 5 where descriptive evidence from the Applicant’s doctor as to her psychological condition suffered post-termination resulted in an extension being granted, but distinguished that case from the current matter, where the Applicant had not sought any medical evidence to support the suffering of a medical condition post-termination. It was conceded that on the day of the Hearing, the Applicant provided a medical letter from her General Practitioner, dated 29 November 2018 (extracted below).
[29] Further, the Respondent made reference to the Applicant’s ability to travel and manage the legal administration of her father in law’s estate, in support of the Applicant’s capacity to have lodged her application within time.
[30] In response to the further directions of 27 November, the Respondent submitted that, despite the reference made at Question 1.4 of the Applicant’s application, it had not previously been aware that an Unfair Dismissal application had been filed, prior to the filing of the Applicant’s General Protections dismissal application. The Respondent submitted that it had “invested significant time, expense and correspondence in responding the matter, as presented against the timeline of the Submission of the Applicant’s General Protections Application”, and that it was further burdened in providing a further response to the additional information, (that is, in response to the Unfair Dismissal application it had not originally been served with).
[31] The Respondent submitted that on the evidence, the Applicant had been advised her Unfair Dismissal application was out of time, “yet took another 14 days to lodge the subsequent General Protections” application, and in this respect it submitted the Applicant:
“(a) Does not appear to have engaged external counsel nor await any further advices in relation to the matter which would explain any further delay (beyond the initial delay) of 14 days.
(b) The brevity of the Application itself notes that the matter could reasonably have been submitted in a much more prompt fashion than submitted.
(c) To reiterate, the Applicant has not raised any medical evidence such as a doctor’s certificate to prove incapacity, or any empirical evidence otherwise to justify its late submission of the Application. By the Applicant’s own admission she “simply did not have the energy or mindset to be sitting down at night to work on an application”. A failure to apply herself to the Applicant cannot be determined an exceptional circumstance justifying the delay in lodgement of the Applicant.
(d) The Applicant’s submission itself detailed that the Applicant was at full capacity to handle other matters competently, including travelling internationally and handling administrative matters relevant to the estate of her late Father in Law which underlines the inexcusability of the failure to submit the Application on time.”
[32] For these reasons, the Respondent argued an extension to the time to accept the application should not be granted.
CONSIDERATION
[33] Pursuant to s.366(2) of the Act, the Commission must have regard to whether, “exceptional circumstances,” exist to warrant extending the time for filing the application. The term “exceptional circumstances” was considered in the Full Bench decision of the Commission (then Fair Work Australia), in Cheyne Leanne Nulty v Blue Star Group Pty Ltd: 6
“… 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.” 7
(Emphasis added)
[34] Further, the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 8 held that:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
[41] The ‘reason for the delay’ is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.
[42] If we have correctly interpreted what is being said at [29] of the Decision, then the Commissioner has elevated what is merely a relevant factor into a decision rule so as to allow the automatic production of a solution. In deciding whether there are exceptional circumstances, thus enlivening the discretion to extend time, s.366(2) provides that the Commission must take into account certain matters (at s.366(2)(a)-(e)); but it is not for the Commission to impose an arbitrary limitation not expressed in the words of the Act.
[43] We acknowledge that there is a degree of ambiguity as to what is being said at [29] of the Decision. We note that the statement is made in the course of the Commissioner’s consideration of s.366(2)(a) and it may be read as saying that a credible explanation for the whole of the delay is necessary in order to conclude that s.366(2)(a) is to be treated as a factor weighing in favour of a finding of exceptional circumstances. But, with respect, that proposition is also incorrect.
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.
[46] It follows that, however understood, the proposition advanced at [29] of the Decision is erroneous. We would note, however, that the error was understandable given the ambiguity in Cheval Properties and does not imply any criticism of the Commissioner.” 9
(Emphasis added)
[35] The Full Bench in Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers, 10 also noted:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” 11
[36] The Applicant has the onus of proof to establish that “exceptional circumstances” existed to allow an extension for filing. 12 As set out by the Full Bench decision in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,13 the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances,14 across the period.
[37] In determining whether exceptional circumstances exist, s.366 of the Act requires the Commission to take into consideration the matters contained in s.366(2)(a)-(e).
(a) the reason for the delay; and
[38] The Applicant submitted that she has suffered ongoing anxiety and depression following her termination, which was further impacted by the passing of her father in law. However, no medical evidence was submitted by the Applicant to support these claims, save for (as noted by the Respondent, evidence that pre-dates the termination), in the form of a letter from the Sunshine Coast University Hospital regarding her admission on 30 August 2018, and a prescription for Duloxetine APO Caps EC 30mg 28, dated 8 August 2018.
[39] After the completion of the Directions, on the morning of the Hearing, the Applicant provided to Chambers a copy of a medical letter dated 29 November 2018, which stated as follows:
“Medical Certificate
29th November 2018
Re: Janzey Pratt
D.O.B. 26/05/1969
To whom it may concern,
I have reviewed Janzey and it would appear that Janzey is experiencing considerable stress and anxiety as a consequence of work related stress.
Janzey first presented to me in relation to this on the 8th August 2018. As an Aboriginal case worker working with Sarina Russo she was experiencing considerable stress in relation to her employment. At this time we commenced her on antidepressant medication. She also had a rash at the time and although difficult to confirm, it was a possibility that her current levels of stress were contributing to this. A short time later Janzey required antibiotics for treatment of her rash.
On the 30th August, Janzey presented with chest pain that awake her from her sleep early morning. She was advised to go to hospital and was reviewed by the Emergency Department and the cardiology team were consulted. After initial investigations, it was determined Janzey could go home with follow up at a later date and that pain was unlikely to be cardiac in nature. A common cause of this presentation is stress.
Janzey reportd [sic] receiving ongoing stress and harassment while in employment at Sarina Russo. She felt she was being unfairly treated and her concerns were not listened to or taken seriously.
Overall, I feel Janzey has been suffering the consequences of numerous psychosocial stressors requiring treatment as they were having a detrimental effect on health.
Sincerely
Dr Stacie King.”
[40] The Applicant did not copy the Respondent into this correspondence to Chambers. The Respondent was made aware of this document at the commencement of the Hearing.
[41] This medical certificate of 29 November 2018 post-dates the termination, and arises from consultation with the Applicant’s General Practitioner on 29 November 2018 (the day before the Hearing). The certificate refers to stress-related health issues the Applicant submitted she was experiencing prior to termination, and continued to experience post-termination.
[42] The medical certificate (as emphasised by the Respondent), does not provide an indication of any cognitive or health issue, of such severity that would prevent the Applicant from lodging the application.
[43] The Applicant submitted that the additional reasons for the delay were due to filing and later withdrawing an Unfair Dismissal application, as well as the death of her father in law, the associated travel to Scotland for the funeral, and dealing with the associated arrangements and grief.
[44] The Respondent submitted that the Applicant had failed to establish there are exceptional circumstances to justify an extension of time. Further, it was submitted that the General Protections application was filed five weeks after the Applicant’s dismissal, and that the considerable delay and “meagre excuses” rendered the Applicant’s delay in filing “inexcusable”.
[45] It is relevant to consider the Applicant’s prior filing of the Unfair Dismissal application, which she referred to at Question 1.4 of her General Protections application.The Commission’s case management system confirmed that, on 26 September 2018, one day outside the statutory time limit, the Applicant filed an F2 Unfair Dismissal application.
[46] An FWC Registry file note against this Unfair Dismissal matter, indicated that a Registry staff member contacted the Applicant on 26 September to advise that the Applicant did not meet the minimum employment period (as per ss.382 and 383) required to meet the jurisdiction, to make an Unfair Dismissal application, and further that the s.394 application had been filed out of time. In accordance with the file note, the Applicant was advised she could “investigate an application for [general protections]” and was directed to the Commission’s website.
[47] Thirteen days later, on 9 October 2018, (14 days outside the statutory 21 day time limit), the Applicant wrote to the Commission to withdraw her Unfair Dismissal application, and on the same day filed her General Protections dismissal application.
[48] The initial Unfair Dismissal application was filed one day out of time. This must be considered in the overall context of the events that have been detailed. The total period from the termination to the filing of the General Protections application, was 35 days from the date of dismissal; 14 days after the expiration of the statutory 21 day time period.
[49] The Applicant at the Hearing, for the first time, offered a further reason for the delay, that she understood that the 21 day time period recommenced for the General Protections application, after the withdrawal of the Unfair Dismissal application. This reference to the Applicant’s erroneous understanding of the time period was not raised in any of the Applicant’s prior submissions; however, in any event, ignorance of the timeframe for lodgement has been found not to be an exceptional circumstance to justify late filing. 15
[50] In accordance with Ioannou v Northern Belting Services Pty Ltd, 16 where an Unfair Dismissal application is wrongly filed, the power provided in s.586 of the Act, (which provides the power for the Commission to correct or amend an application, or waive an irregularity in the form or manner in which an application is made), does not allow the Commission to amend an Unfair Dismissal application, to convert such to a General Protections application:
“[11] We have come to the conclusion that the power in s.586 of the Act does not allow the Commission to make the orders sought by the applicant to amend an unfair dismissal application so that it becomes a general protections application. There are two reasons for this conclusion. The first relates to the nature of the power conferred by s.586. The second relates to the limitations in s.725 on the making of multiple applications or complaints in relation to a dismissal.” 17
[51] Where an Unfair Dismissal application is filed, later discontinued, and a General Protections dismissal application filed, the new application is subject to the 21 day timeframe as if the original Unfair Dismissal application had never been filed.
[52] In the decision of Green v Bilco Group Pty Ltd, 18 (the circumstances of which are distinguishable from the current matter) an Applicant was granted a further period for filing their General Protections claim, after he had mistakenly filed an Unfair Dismissal application:
“[17] The differences between an unfair dismissal remedy application and an application for the Commission to deal with a dismissal related general protections dispute may, it must be acknowledged, confuse an unrepresented person seeking to dispute a dismissal. The Applicant acted promptly in challenging his dismissal by lodging an application he was not entitled to make. Thereafter he sought some advice and following consultation with staff of the Commission, he acted reasonably promptly to lodge the application subject of this decision. This is not a case where the Applicant sought to test the jurisdictional limits of his UD application. Rather, once he was advised that his UD application was beyond jurisdiction he took steps to discontinue that application and to make an appropriate application. The UD application in substance alleged a breach of the general protections provisions of the Act. The delay in bringing this application was principally because the Applicant made the wrong application in respect of that which was in substance the same complaint. Whilst the period of delay would have been shorter had the Applicant made the general protections application by email instead of post, he nonetheless acted promptly once told that the UD application was beyond jurisdiction. In the circumstances I am persuaded there is an acceptable explanation for the delay and this weighs in the Applicant’s favour.”
[53] However, in that matter, the Applicant had filed his Unfair Dismissal application within the statutory timeframe, and once the Registry made successful contact with him on 14 August 2018, advising he did not meet the minimum employment period, the Applicant discontinued this application and posted his General Protections application on 15 August 2018, which was received by the Commission on 17 August 2018 (6 days out of time). As noted in Green v Bilco, the Applicant in that matter acted promptly, to initially dispute his termination, and then promptly to file the correct application, after receiving the advice. In this current matter, the Applicant’s original Unfair Dismissal application was filed out of time, and she failed to act promptly, or to provide sufficient explanation for, the delay in filing her General Protections application following contact by the Commission Registry on 26 September 2018.
[54] In summary, the Applicant filed her Unfair Dismissal application on 26 September 2018, and had returned to Australia by this date. On filing, the Applicant was contacted by the Commission on 26 September, and was advised that she did not meet the “minimum employment period”. This phone call from the FWC Registry occurred 13 days prior to her withdrawing the Unfair Dismissal application, and filing the General Protections dismissal application. No particularised or acceptable reasons were provided (apart from the later reference to anxiety) for the subsequent period of the delay in filing. These reasons are also not commensurate with “exceptional circumstances”.
[55] On 3 December 2018, and following the closing of the evidentiary case at Hearing, the Applicant sent an email to Chambers seeking to provide further particulars as to her condition following the termination of her employment, and further explanations for the delay in filing. In summary terms, the Applicant stated in this correspondence that:
• She only received the General Protections application form the morning of 9 October, and emailed it to the Commission;
• She had been seeking an appointment with her General Practitioner for “weeks leading up to Friday’s hearing”, however only managed an appointment the day before;
• Her condition has caused her to experience “Brain fog, inability to concentrate, insomnia, and memory loss”, both leading up to and following the termination of her employment, and she stated the Respondent has failed to recognise the severity of her condition, nor did it provide adequate support to her during her employment;
• Her travel overseas was not for a holiday, but due to the unexpected passing of her husband’s father, and that as an Aboriginal woman, his passing required “cultural time to honour and respect the passing of that person”;
• She held a genuine belief that she had another 21 days to file a new application; and
• Previous employees, who held the same position as her, had been “sacked unlawfully”, and were willing to provide supporting statements.
[56] The Respondent was provided with the opportunity to respond to this further correspondence, and in a further submission of 5 December 2018, stated:
• The Applicant filed her Unfair Dismissal application out of time, and despite being made aware of this by the Commission Registry on lodgement, the Applicant took another 14 days to lodge her further General Protections application. The Respondent submitted there was an “extensive delay” in submitting this second application;
• Regarding the further directions of 27 November 2018, the Respondent provided its submissions by the due date; however the Applicant failed to provide any further submissions. On the day of Hearing, the Applicant submitted a Medical Certificate; she had not met the further directions due date by doing so. Further, in response to the medical certificate, the Respondent submitted:
• The Applicant was provided ample time to obtain medical evidence to support her submissions as to her condition, and the Respondent’s original submissions invited her to tender such;
• The Respondent noted at Hearing, and reiterated in these submissions that the medical certificate failed to establish any issues requiring treatment, or any impaired cognitive capacity to impact the Applicant’s ability to lodge her application on time;
• Further, at Hearing, the Applicant gave evidence that she was “administering other matters ably”, and in this regard the Respondent submitted the Applicant failed to establish the onus that medical grounds existed to establish exceptional circumstances, to warrant the Commission granting an extension of time. 19
• Mr Ormesher is the Respondent’s only full-time legal officer, and as such the Respondent submitted that the requirement to “attend to these submissions after the cumulative delays underlines the prejudicial burden already suffered by the Respondent”. Additionally, given the Respondent’s caseload of jobseekers equating approximately 40,000 people, the further time dedicated to matters such as this places burden on the Employer;
• Regarding the Applicant’s overseas travel, the Respondent emphasised its submission that the Applicant had ready access to online lodgement services, and had ample opportunity to lodge in time; and further, that the Applicant was in Australia for one third of the statutory timeframe;
• Further, the Applicant has failed to established any evidence or cause of action to establish a General Protections claim; and
• The Applicant has not taken any meaningful steps to dispute the nature of the dismissal.
[57] The further submissions of the Applicant and Respondent have been considered. In assessing the delay, the following excerpt from Green v Bilco is relevant:
“[8] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay, will usually weigh against an Applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the Applicant’s favour, though it is ultimately a question of degree and insight. Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.”
[58] The Applicant’s evidence, submissions and further material, do not provide sufficient basis for the delay. The medical evidence provided at Hearing also does not evidence a condition justifying the delay, and collectively the reasons do not satisfy “exceptional circumstances”. This weighs against the Applicant’s case for an extension.
(b) any action taken by the person to dispute the dismissal; and
[59] No submissions were made on this criterion to demonstrate that the Applicant had taken any action with the Employer, to dispute the termination. The Applicant had filed an Unfair Dismissal application on 26 September 2018; however this was also out of time, being filed on the 22nd day following the termination.
[60] At the Hearing, the Applicant stated she had sent a text to her direct supervisor, advising she was disappointed at the lack of support and explanation for the dismissal, to which she did not receive a response. Further, she stated she had made a request for her work performance reports and a termination letter, which were received a couple of days after the termination. While the Respondent agrees that the Applicant sought these documents, and they were provided, it was not conceded that this equated to the Applicant contesting the dismissal.
[61] On the evidence before the Commission, there was no discernible action taken to promptly contest the dismissal, prior to filing the out of time Unfair Dismissal application. Notably, that application did not meet the minimum employment period, and therefore was jurisdictionally barred. This does not weigh in favour of the Applicant.
(c) prejudice to the employer (including prejudice caused by the delay); and
[62] Prejudice to the Employer will go against granting an extension for filing, 20 particularly where there is a long delay.21
[63] The Respondent submitted that further to the Applicant’s delay in filing her application, she likewise failed to copy in all parties when filing her extension of time submissions, which caused an additional delay and burden to the Respondent in responding to the matter. The Respondent submitted that the Commission should have regard to the case of Burke v Department of Agriculture, Fisheries and Forestry – Australian Quarantine and Inspection Service, 22 noting that as in that case, the Employer has already been significantly burdened in responding to the matter. The Respondent further sought that the Commission have regard to the additional burden, in being required to file further submissions in response to the Unfair Dismissal application filed prior to the General Protections application, and in response to the Applicant’s further submissions of 3 December 2018.
[64] The Respondent submitted there has been “delay on top of delay”, and that the Applicant has not made use of the online lodgement, or other functions which could have assisted in filing on time.
[65] However, the delays outlined above, and the requirement for the Respondent to file a number of further submissions, does not in this case establish significant prejudice against the Employer. Additionally, as the Applicant made reference to her prior Unfair Dismissal application at Question 1.4 of her General Protections application, the Respondent had been on notice of this prior application. Therefore, no significant prejudice against the Employer is established.
(d) the merits of the application; and
[66] The Applicant gave some evidence at the Hearing as to the merits of her application, including that she was dismissed without warning or explanation, and given a week’s notice.
[67] The Respondent submitted that the Applicant’s application is weak as to merit, and that there should not be any undue weight given to the reasons raised in relation to the merits of her application, or the delay in the Applicant’s application. In summary terms, the Respondent submitted in relation to the Applicant’s application:
“(a) There has been no evidence supporting any form of bullying or harassment.
(b) There has been no evidence raised of any fraud committed.
(c) There has been no evidence raised of racism. This is peculiar, as the majority of the aspect of the Applicant’s claim is directed at Anthony Corrie, who is our National Indigenous Service Manager.”
[68] The Applicant made no real submissions on this criterion, but at Hearing noted she had a recording of the termination meeting, and various emails regarding the allegations the she had made. The Applicant stated she had been advised there had been complaints about her, but she had not been made aware of who had made the complaints or the nature of them.
[69] The Respondent submitted the Applicant provided no reference to the actual merits of her application.
[70] The two applications are predominantly similar, and specifically relate to performance management, capacity and conduct matters related to the dismissal. No clear infringement of the General Protections provisions is evident, although the Applicant makes reference that her grievances regarding bullying, workload matters, and discrimination were not resolved.
[71] However, matters relevant to a breach of the General Protections provisions were not specifically evident on either application.
[72] The parties had competing cases regarding the reasons for the dismissal, and as such, the evidence would need to be subject to cross-examination. Given this, the Commission “should not embark on a detailed consideration of the substantive case” 23 in determining whether an extension of time should be granted. A cautionary approach should be taken in this regard, and therefore a neutral consideration has been adopted in relation to the contested reasons, on this matter.
(e) fairness as between the person and other persons in a like position.
[73] Aside from those submissions by the Applicant in her email of 3 December 2018, there was no notable submission that there were persons in a like position.
[74] The Respondent submitted that the statutory time limit should be upheld, and that this application is not of a unique form or nature, which would give rise to a special consideration in respect of this criterion.
CONCLUSION
[75] Where significant medical evidence has been provided to demonstrate that the Applicant suffers anxiety and depression, such as to render them unfit or in a state of reduced capacity to make decisions, this has been found sufficient to extend the timeframe for filing. 24 In this case, the Applicant had provided minimal evidence regarding her medical condition (which predated the termination), such as a reference to her admission to hospital, and a photo of prescription medication for managing her condition. The Applicant had failed to provide medical evidence supporting ongoing health concerns following her termination, which would justify the delay in filing. The medical evidence, which is general in nature, filed for the first time at the Hearing, does not support a finding that there were exceptional circumstances.
[76] On the evidence provided to the Commission, the Applicant failed to establish impairment that impeded her ability to file her application, such as to support the granting of an extension of time. It is acknowledged that the Applicant has had to manage, during the period of the delay, the impact of her termination as well as matters associated with the passing of her father in law and related travel, the filing of an Unfair Dismissal application, and further filing of the General Protections dismissal application the subject of this jurisdictional decision. However taking into account all of the Applicant’s reasons for delay and evidence of the events, viewed collectively it fails to establish “exceptional circumstances” as to favour an extension of time.
[77] The reasons for the delay in filing, and taking into account the unexplained periods of delay, cannot be construed when considered collectively across the period as unusual, or commensurate with exceptional circumstances. There are sets of series of days, for which no explanation has been provided, in particular the 13 days prior to the lodgement of the General Protections application.
[78] Whilst the Applicant did travel to Scotland, the Respondent also emphasised that the Applicant was present in Australia for more than a third of the statutory time limit, and the extended period prior for filing has therefore not been sufficiently explained, in the overall context of the delay.
[79] For all of the aforementioned reasons, and pursuant to s.366(2) of the Act, the extension of time is denied, and the s.365 application dismissed. I Order accordingly.
COMMISSIONER
Appearances:
Ms J Pratt appearing on her own behalf.
Mr D Ormesher, on behalf of the Respondent.
Hearing details:
30 November.
2018.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR702415>
1 Respondent’s submissions dated 15 November 2018, at [21].
2 [2018] FWC 6818.
3 [2015] FWC 215.
4 Ibid at [10].
5 [2012] FWA 1033.
6 [2011] FWAFB 975.
7 Ibid at [13].
8 [2018] FWCFB 901
9 Ibid at [38] – [46].
10 [2010] FWAFB 7251
11 Ibid at [5].
12 Francis v Holmesglen Institute [2017] FWC 3910; Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.
13 [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018).
14 Ibid at [38].
15 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].
16 [2014] FWCFB 6660 (Boulton J, Gostencnik DP, Johns C, 2 October 2014) at [11].
17 Ibid.
18 [2018] FWC 6818.
19 Respondent’s further submissions dated 5 December 2018, at [10]; Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB.
20 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
21 Ibid.
22 [2011] FWA 1386.
23 Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14].
24 Ryan v Gellibrand River Tourism Pty Ltd [2011] FWA 4833; Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645.
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