Mrs Kasiani Mcdonald v Castel Electronics Pty Ltd

[2014] FWC 5775

[2014] FWC 5775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mrs Kasiani Mcdonald
v
Castel Electronics Pty Ltd
(U2013/17065)

COMMISSIONER GREGORY MELBOURNE, 21 OCTOBER 2014

Application for relief from unfair dismissal.

Introduction

[1] Mrs Kasiani McDonald (“Mrs McDonald”) was employed by Castel Electronics Pty Ltd (“Castel”) on 31 July 2012 and worked in the Credit Department until she was dismissed by means of a letter of termination sent to her on 29 October 2013. Mrs McDonald was off work on sick leave at the time and says she did not receive the letter until 3 November. After her dismissal she initially pursued a bullying allegation with the Victorian Equal Opportunity and Human Rights Commission (“VEOHRC”), concerning an employee at Castel. However, the complaint was unable to be resolved and Mrs McDonald was advised by letter on 4 December 2013 that VEOHRC was closing the file.

[2] Mrs McDonald then proceeded to lodge an unfair dismissal application with the Fair Work Commission (“the Commission”) on 5 December 2014. While there is some dispute about the actual date of termination it is a clear that the application was lodged after the 21 day period set by s.394 of the Fair Work Act 2009 (Cth) (“the Act ”).

[3] However, s.394(3) of the Act allows an extension of time to be granted if the Commission believes there are “exceptional circumstances” to warrant the exercise of this discretion. It provides:

“(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.” 1

[4] There were some significant delays in the conduct of this matter. The initial hearing took place in March but was adjourned because Mrs McDonald wanted to call further evidence. She subsequently sought to subpoena additional witnesses and a further hearing took place by telephone about whether these subpoenas should be issued. Mrs McDonald was unfortunately then unwell and the proceedings did not resume again until August.

[5] Mrs McDonald was represented by her husband, Dr. Allan McDonald. Ms Jeanette Dobson and Ms Jennifer Jones appeared on behalf of Castel.

The Issue to be Determined

[6] Are there “exceptional circumstances” existing under s.394(3) of the Act to warrant the Commission exercising its discretion to grant Mrs McDonald additional time in which to make her unfair dismissal application?

The evidence and submissions

[7] Mrs McDonald submits she was off work on stress leave at the time of her dismissal, but had been in daily contact with Castel to inform them about her ongoing situation. This included the provision of relevant medical certificates.

[8] She submits the letter of termination, dated 29 October 2013, was not received by her until 3 November and, therefore, there is an issue about what is the actual date of termination. 2 She submits it is unclear about whether it is the date on which the notice of termination was sent, or the date on which it was received.

[9] She also submits she was not provided with “natural justice” and fair process in terms of dealing with her performance issues. 3 She submits a series of three warnings she received within a six week period left her with little chance to demonstrate improved performance, and Castel failed to comply with its own policies and procedures in dealing with these issues.4

[10] She also submits her termination is in breach of s.772 of the Act, which provides that an employer must not terminate an employee’s employment because of “temporary absence from work because of illness or injury of a kind prescribed in the regulations.” 5

[11] On 23 October 2013 Ms McDonald made a complaint of “workplace vilification” against her “immediate supervisor” and then on 30 October made application to VEOHRC about a complaint of workplace bullying. 6 She submits this attempt at alternate dispute resolution is relevant to her application for an extension of time, in that it demonstrates she took action promptly to contest her dismissal, even though the action was taken in another jurisdiction. She submits that as soon as this avenue was exhausted she then acted at the first available opportunity to lodge an unfair dismissal application with the Commission.

[12] She also submits Castel delayed the processes of dealing with the VEOHRC application in order “to thwart an application to Fair Work Australia within the prescribed time,” 7 and “acted with malicious intent to delay any application to Fair Work Australia within the timeframe allowed in the Act.”8 Mrs McDonald submits Castel’s actions delayed the process by up to 4 weeks.9 This occurred, in part, because of requests to adjourn the proceedings, and because Castel’s representatives attended the conciliation conference without authority to act on its’ behalf.

[13] Mrs McDonald also submitted that she did not make an unfair dismissal application at the same time as pursuing the bullying complaint because she had been provided with legal advice that it was not possible to make application in separate jurisdictions at the same time. However, it was also acknowledged in response to a question from the Commission that her concern at the time was “primarily one of workplace bullying,” 10 and the Commission did not have jurisdiction over workplace bullying at that time.

[14] Mrs McDonald did not provide a witness statement prior to the hearing, but did give evidence. She said she wanted the issues resolved “amicably,” if possible, and believed an application to VEOHRC would be the best way of achieving this outcome. 11 She confirmed that her primary concern was the workplace bullying complaint and she was aware that there was some delay in dealing with the application. She understood this may have been because relevant staff from Castel were absent on annual leave at the time.12

[15] She indicated in cross-examination that the letter of termination may have been emailed to her, as well as being sent by mail, but she was not checking her emails at the time because of her emotional state. She also acknowledged that she had not sought a meeting about the workplace bullying issues prior to her dismissal.13

[16] As indicated, subpoenas were also issued at Mrs McDonald’s request to Mr Apostolopoulos and Mr Yeo. Mr Apostolopoulos is a social worker and psychotherapist and said he first saw Mrs McDonald on 26 October. Following this consultation he prepared a letter indicating Mrs McDonald had stated she was experiencing harassment at work, and was suffering from work related stress. He also said he found her to be muddled and confused. He saw Mrs McDonald again on another five occasions between October and February 2014. He also stated in cross examination that Mrs McDonald had indicated that issues outside of work were also contributing to her stress.

[17] Mr Yeo is the Chief Accountant at Castel and in charge of the Credit Department. His evidence was primarily concerned with the workings of the Credit Department and issues to do with Mrs McDonald’s work performance. His evidence was of limited relevance to the application for an extension of time.

[18] Castel submits Mrs McDonald was dismissed because she was unable to perform the inherent requirements of her position. 14 It rejects the suggestion she was dismissed because of her illness and her consequent absence from work. It also rejects any claims she was bullied and vilified at work.15

[19] It submits her application for an extension of time should be dismissed because she was aware at all times of the option of making an unfair dismissal claim, and her “primary grievance” was the alleged workplace bullying complaint. 16 It submits it was only after this application was unsuccessful that she decided to pursue the unfair dismissal claim.

[20] Castel also rejects the submission it deliberately sought to delay the VEOHRC proceedings. It submits that after the complaint was made it needed to gain instructions from its Managing Director, who was on annual leave at the time. 17 It also submits the claim was very upsetting for the staff members involved in the incident, and it was endeavouring to deal with these issues as well. It also submitted there were delays during the course of the proceedings because Mrs McDonald was not prepared to participate in discussions with some of the employees.

[21] Castel also relies, in particular, on the decision in Prasad v Alcatel-Lucent Australia Ltd 18 to emphasise the importance of adherence to the time limits established by legislation. It referred to the following extract from the decision which was handed down at a time when the requisite period for making application was 14 days, rather than 21 days as it has been since the beginning of 2013.

“It should be clear from the case law I have cited that the making of a s.394 application out of time should not be regarded as presenting the applicant with some mere technical problem. Rather s.394 (2) is a substantive legislative provision which represent the legislature’s judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the period may often result in a good cause of action being defeated. The limitation period in s.394 (2) is a relatively short period of fourteen days (as it was then, underlining the legislature’s intention that applications under s.394 are dealt with expeditiously.” 19

[22] Castel also submits that no witness or medical evidence has been submitted in support of Mrs McDonald’s application. It also submits the clinical appraisal provided by Mr Apostopoulos is of limited relevance to the determination of this matter. 20

[23] Castel also submits the decision to dismiss Mrs McDonald was only made after an extensive process involving warnings and an appropriate process of performance management. 21 It submits she was told that the reason for her termination was to do with her inability to perform the inherent requirements of her position. It also submits appropriate processes were followed, and Mrs McDonald was provided at all times with the opportunity to respond to the issues to do with her work performance, before any decision was made.22 It also submits she was provided with the opportunity to have a support person present in any of the discussions about these issues.

[24] Ms Jeanette Dobson is the Sales Director at Castel. 23 She said she made various complaints about Mrs McDonald following issues raised with her by other employees about mistakes concerning credit claims.24 She also said Mrs McDonald approached her in July 2013 about a transfer to the Sales Department because she believed she would be better suited to work in this area, and made no mention at that time about being bullied or harassed.25

[25] Ms Jennifer Jones is both the Chief Operating Officer for Castel and the HR Manager. 26 She said that issues to do with Mrs McDonald’s work performance began to emerge within the first six months after she was employed.27 She said she spoke with her on 15 January 2013 about making an excessive number of personal telephone calls at work.28 She said Ms McDonald was then provided with a first written warning on 10 September 2013 after various discussions with her about issues to do with her work performance.29

[26] She said she was then given a second written warning on 27 September 2013, and a third written warning on 24 October. 30 The decision was then made to dismiss her and she was notified of this decision in the letter dated 29 October 2013. She also said that this decision had nothing to do with her absence on sick leave

Consideration

[27] It is evident that the circumstances associated with Mrs McDonald’s dismissal and her complaint to VEOHRC have been distressing, both for her and for the employees at Castel. It is to be hoped she can make a full recovery, although it is also noted that some of the evidence indicates these issues are not only derived from her employment.

[28] As indicated, issues have been raised in the proceedings about what was the actual date of termination. Mrs McDonald was on leave at the time she was dismissed and Castel states it forwarded the letter of termination to her by posting it in the traditional way, as well as sending it by email. However, Mrs McDonald says she was not checking her emails at the time and submits she only received the letter when it was delivered in the post to her home on 3 November and, therefore, that date should be treated as the date of termination.

[29] However, regardless of this situation the unfair dismissal application that she eventually lodged with the Commission on 5 December 2013 was received after the requisite 21 day time period. Even if it is accepted that the date of termination was 3 November, then the application was at least 10 days out of time. The Commission is therefore required to determine whether Mrs McDonald should be provided with additional time in which to make her application.

[30] The parties did not specifically address all of the matters that I must take account of in determining whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which to make application. I also note that a number of decisions of this Tribunal, and its predecessors, have considered what is required to find that “exceptional circumstances” exist to justify an extension of time being granted. I refer, in particular, to the decision of the Full Bench in Nulty v Blue Star Group 31(“Nulty”). It was made in the context of a general protections application, however, the principles established by the decision have been held to be of broader application. Relevant extracts from the Full Bench decision are contained at [13] and [14] in the following terms:

“In summary, the expression “exceptional circumstances” has its ordinary it is evident 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.

Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 32

[31] In summary, the decision indicates that s.394(3) of the Act requires the Commission to take into account each of the matters set out in sub sections (a) to (f). “Exceptional circumstances” might also be found to exist because of a single factor or a combination of factors. I now turn to deal with this matter by reference to these considerations.

(a) the reason for the delay

[32] As indicated, it is evident that the circumstances associated with Mrs McDonald’s dismissal have been stressful for her, and she provided evidence to indicate the psychological nature of that impact. However, while she was clearly upset and distressed, the reason why her unfair dismissal application was not made during the requisite 21 day period was because she decided instead to make a bullying complaint with VEOHRC, rather than pursuing an unfair dismissal application in the Commission. She indicated that the bullying complaint was her primary concern at the time, and the complaint was made to VEOHRC because she was aware the Fair Work Commission did not have jurisdiction to deal with workplace bullying complaints.

[33] She also submits that Castel then embarked on a deliberate strategy to prolong the process of dealing with her complaint, so that by the time the process was exhausted the 21 day time period for lodging an application with the Commission had passed. She also submits that as soon as the bullying complaint was dealt with she immediately proceeded to make the unfair dismissal claim and, therefore, acted promptly to pursue the options available to her in all the circumstances.

[34] In response Castel referred to previous decisions of the Tribunal which have emphasised the importance of acting within the prescribed time frames. It also rejected any suggestion it deliberately sought to delay the progress of the bullying complaint. It submits the claim caused significant distress for some of the employees involved, and those issues needed to be worked through. It also submits key personnel were on leave at the time, and Mrs McDonald’s reluctance to be involved in face-to-face conferences at different stages of the process contributed to the delay.

[35] The submissions and evidence provided on behalf of Mrs McDonald about these issues were not entirely consistent. Her complaint to VEOHRC appears to have been made on or before 29 October 2013, according to copies of emails attached to the written submissions provided on her behalf. This is the same day on which the termination letter was sent to her by Castel. However, her submissions and evidence also state she only became aware of the letter when a hardcopy was received by post at her home on 3 November.

[36] If this is correct then the complaint made to VEOHRC cannot have been made in reference to her dismissal, because she was not aware she had been dismissed at the time it was made. Her submissions and evidence also stated her primary concern at the time was to deal with the complaint of workplace bullying. It was also suggested in her evidence, and in submissions made on her behalf, that she was not aware of the ability to pursue an unfair dismissal claim following her termination. However, at the same time she said she did not pursue an unfair dismissal claim because she had been given advice that she could not make separate applications in different jurisdictions the same time. 33

[37] This implies that Mrs McDonald was aware of the option of bringing an unfair dismissal application in the Fair Work Commission, but her preferred course of action was to pursue the workplace bullying complaint. The unfair dismissal application was then made after the VEOHRC process had been exhausted, but by then it was at least 10 days after the 21 day period provided for in the Act.

[38] As indicated, the decision in Nulty deals with what is required to find that “exceptional circumstances” exist. I am not satisfied that the reasons for delay relied upon by Mrs McDonald can be described in this way. Her preoccupation at the time was with the workplace bullying complaint. She appears to have received some advice at the time as well, and as a consequence made a considered decision to pursue that option. It appears the advice may have also suggested she could not pursue separate actions to do with her dismissal at the same time. However, I am satisfied in all the circumstances that Mrs McDonald was aware, without necessarily being across all the detail, of the option of making an unfair dismissal application at the time of her dismissal, or shortly afterwards. However, it appears the bullying complaint was her priority, and the unfair dismissal claim was only pursued when that process had been exhausted. It therefore appears that there was nothing that actually prevented her from making an unfair dismissal claim within the requisite time period.

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

[39] I have already made reference to the fact that there is an issue about when Mrs McDonald first became aware of her dismissal. Castel submits the letter of termination was sent to her by post and by email on 29 October 2013. Mrs McDonald indicated in cross-examination that she was not checking her emails at the time, because of her emotional state, and could not confirm or deny whether the letter was emailed to her on 29 October. However, her first recollection of seeing the letter was when it was received in the post at her home on 3 November. Regardless of these issues her unfair dismissal application was still lodged after the 21 day period provided for in the Act.

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

[40] As indicated, Mrs McDonald was already involved in pursuing a workplace bullying complaint with VEOHRC at the time of her dismissal, and this was her priority. She did not make the unfair dismissal application until after this process had been exhausted. However, she was clearly upset and distressed by the circumstances surrounding her termination.

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

[41] There has already been considerable delay for a variety of reasons in dealing with this matter. If Mrs McDonald is granted additional time in which to make application there will inevitably be prejudice to Castel in terms of having to prepare and respond to the application. This situation is most likely to be exacerbated by the fact it is now almost 12 months since she was dismissed, and there may be difficulties with people’s recollection of events. The passage of time may also mean some employees are no longer employed by Castel, adding further complication to the process of dealing with the matter.

(e) the merits of the application

[42] Much of the submissions and evidence in the proceedings concerned the merits or otherwise of Mrs McDonald’s dismissal from Castel. This concerned issues about whether her work performance was unsatisfactory. It also concerned the process of dealing with the work performance issues and her subsequent termination. Without going to those matters in any detail it is clear, in summary, that Mrs McDonald does not believe her dismissal was warranted. She also does not believe the process of performance management was fair and reasonable. For example, she submits that the fact she was given three written warnings within a six week period meant she had very little real opportunity to demonstrate she was responding to and dealing with the work performance issues complained about . 34

[43] On the other hand Castel submits there were genuine issues to do with Mrs McDonald’s work performance, and these began to emerge in the first six months of her employment. It also submits that appropriate process and procedure was gone through in the period leading up to her termination, and her eventual dismissal was justified in all the circumstances.

[44] As indicated, there have been a range of submissions and evidence provided in the proceedings in regard to these matters. However, the principal concern in these proceedings is to determine whether it is appropriate for the Commission to exercise its discretion to grant additional time to Mrs McDonald to enable her to make her unfair dismissal application. The issues to do with “merit” are only one of a number of considerations in this context.

[45] In any case I am not satisfied the Commission is able to form a clear view about the respective merits of the matter on the basis of the submissions and evidence now before it. I also note that the relevance of the issue of “merit,” when determining an application for an extension of time, was considered by a Full Bench of the Australian Industrial Relations Commission in Kyvelos v. Champion Socks Pty Limited  35 (“Kyvelos”) when dealing with similar legislative provisions to those now contained in the Fair Work Act. It stated:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 36

The Full Bench continued:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 37

[46] As indicated, I have not formed a concluded view about the respective merits of the matter and, in the absence of detailed evidence and submissions going to merit, am not in a position to make conclusive findings about what are clearly contested issues. However, the decision in Kyvelos also makes clear it is not necessary to do so at this point.

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

[47] Neither party made particular submissions going to this consideration. I am satisfied it is of limited relevance in the present matter.

In conclusion

[48] In coming to a decision in this matter I have had regard to each of the matters in s.394(3) of the Act that I am required to take account of. I have also had regard to the principles established in decisions, such as Nulty, in terms of what is required to find that “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which to make application. I am not satisfied those circumstances exist in this matter.

[49] In coming to this decision I have had particular regard to the “reasons for delay.” I am satisfied that nothing prevented Mrs McDonald from making an unfair dismissal application within the requisite time period. She chose instead to pursue a complaint with VEOHRC about workplace bullying, in the knowledge that an unfair dismissal application was also a possible option. It is unclear whether the VEOHRC complaint precluded her from bringing an unfair dismissal application, given that it was made before she was dismissed. However, even if she was precluded from making an unfair dismissal application this was an outcome of the scheme of the legislation, and therefore can be considered to be an intended outcome, rather than an “exceptional circumstance.” The application is dismissed.

COMMISSIONER

Appearances:

Dr Allan McDonald appeared on behalf of the Applicant.

Ms Jeanette Dobson and Ms Jennifer Jones appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

21 March and 21 August.

 1   Fair Work Act 2009 (Cth) at s.394(3).

 2   Transcript at PN74 to PN75.

 3   Ibid at PN114.

 4   Ibid at PN120.

 5   Ibid at PN7 to PN12.

 6   Ibid at PN9.

 7   Ibid at PN12.

 8   Ibid at PN43.

 9   Ibid at PN8.

 10   Ibid at PN100.

 11   Ibid at PN150.

 12   Ibid at PN202.

 13   Ibid at PN73.

 14   Respondent’s Outline of Submissions dated 13 March 2014 at para 2.

 15   Ibid at para 6.

 16   Ibid at para 3.

 17   Transcript at PN146.

 18   [2010] FWA 7804.

 19   Ibid at para 13.

 20   Respondent’s Outline of Submissions dated 13 March 2014 at para 21(a).

 21   Ibid at para 33.

 22   Ibid at para 31.

 23   Witness Statement of Jeanette Dobson dated 13 March 2014 at para 1.

 24   Ibid at para 4.

 25   Ibid at para 10.

 26   Witness Statement of Jennifer Jones dated 13 March 2014 at para 3.

 27   Ibid at para 5.

 28   Ibid at para 6.

 29   Ibid at para 10.

 30   Ibid at para 12 to 13.

 31   [2011] FWAFB 975.

 32   Ibid at para 13 to 14.

 33   Transcript at PN46.

 34   Transcript at PN219.

 35   Dec 1294/00 M Print T2421.

 36   Ibid at para 14.

 37   Ibid.

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