Mrs Susan Thinee v Multiple Sclerosis Society of Queensland

[2014] FWC 2785

[2014] FWC 2785

FAIR WORK COMMISSION

DECISION

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

Mrs Susan Thinee
v
Multiple Sclerosis Society of Queensland
(U2014/3760)

COMMISSIONER SIMPSON BRISBANE, 8 MAY 2014

Application for relief from unfair dismissal - Applicant suffering stress - Evidence insufficient to find exceptional circumstances - Application dismissed.

[1] The following Decision, now edited, was issued during proceedings on 1 May 2014.

[2] On 10 January 2014 Susan Thinee (“the Applicant”) made an application under Section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. Her employer was Multiple Sclerosis Society of Queensland (“the Respondent”).

[3] A Conciliation conference was listed for Thursday 6 March 2014 however it was cancelled as the Respondent filed on 13 February 2014 a Form 3 Employer’s Response to Application for Unfair Dismissal Remedy making a jurisdictional objection on the basis that the Applicant had failed to make the Application within 21 days as the dismissal took effect on 18 December 2013 and the application was filed on 10 January 2014. Therefore the Application was 2 days out of time.

[4] At the Directions hearing on Thursday 17 April 2014 it was agreed by both the Applicant and the Respondent’s representative that both parties would file submissions on the extension of time jurisdictional objection which was subsequently done.

CONSIDERATION

[5] In determining this matter, I need to consider section 394 of the Fair Work Act.

[6] Section 394 of the Act reads as follows;

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] I have read all of the submissions that have been filed and I’ve given the parties an opportunity to say anything further they wish to today and I’ve taken those things in to consideration. The respondent’s submissions do refer to the decision in Mr Christopher Johnson v Joy Manufacturing Company Pty Ltd 1, a decision of Fair Work Australia as it then was, made by Vice President Lawler, where he observed that:

“The legislature must be taken to have intended that a significant narrowing of the discretion to extend time.”

[8] That was in the context of the new provisions as compared to the Workplace Relations Act, the previous legislation. The respondent similarly referred to a decision of Senior Deputy President Kaufman in Shields v Warringarri Aboriginal Corporation 2 where he concluded that the requirements that there be exceptional circumstances was not found in the Workplace Relations Act, the Act that preceded and was repealed by this Act. Later in the same decision, he said:

“It seems to me that the alterations between the two Acts evince an intention by the parliament that applications for relief should be confined to 14 days, except in rare cases. Cases where there are exceptional circumstances. The use of the word exceptional also in my view, evinces an intention that the hurdle for extensions of time is higher under the Act than it was under the Workplace Relations Act.”

[9] The respondent, in its submissions, also refer to the authorities in Cheval Properties Pty Ltd, trading as Penrith Hotel Motel v Janette Smitters 3, a full bench decision of Fair Work Australia, where the word exceptional was treated with its ordinary meaning, as being an exceptional or unusual instance, unusual or extraordinary. The respondent has also referred to the full bench decision in Nulty v Blue Star4, a 2011 full bench decision of Fair Work Australia and with particular emphasis on the finding that mere ignorance of the statutory time limits in section 366(1)(a), which is the provisions dealing with general protections, is not an exceptional circumstance.

[10] I’ll now turn to consideration of section 394(3)(a) the reason for the delay. The applicant has filed submissions seeking extension, primarily relying on a number of medical issues that she has suffered, which predated the termination and she says have continued after the termination. The respondent has submitted that the applicant’s submissions fail to demonstrate any exceptional circumstances for the delay. The applicant’s submissions say that in September 2013, she was diagnosed with depression, that this was several months prior to the termination itself. In particular, Ms Thinee has referred to a medical certificate which was attached to her application, which provides that she was unfit for work for the period between 18 and 23 December inclusive. The applicant claims that she was suffering from acute stress and anxiety at the time of the termination. The applicant said that after receiving an email on 17 December advising her to attend a meeting the following day, and that if she did not attend, a decision may be made regarding her ongoing employment, on available information at the time. The applicant said that she felt that she had no choice but to attend the meeting. Ms Thinee’s claim that this medical certificate that covered the period 18 December to 23 December, was not accepted by the respondent in the course of the meeting after it was presented, and the meeting proceeded on the basis that it was stated to her that she had deemed herself well enough to attend the meeting. Subsequently the applicant was dismissed that day on 18 December.

[11] The applicant has referred to the following day, 19 December, where she says she felt extremely stressed. In the course of a conversation with Ms Hegarty of the respondent, who telephoned that day, she said she felt extremely anxious and uptight, to the point of having pains in her chest, and was very upset. The applicant did agree, in her submissions, that following the conversation, she carried out a request made to her by Ms Hegarty to take certain steps to return computer equipment to the employer, which she ultimately did. The applicant says that the following day, 20 December, she received at home, a telephone message from Ms Hegarty advising that the computer had been received and wishing her a merry Christmas and asking her to ring back. The applicant said that the phone call left her feeling intimidated and harassed. Further, that on 23 December, the applicant says that she sought medical treatment and was suffering from an influenza chest infection and was prescribed medication to take twice a day. There’s no medical certificate specifically dealing with that. The applicant says that generally the whole ordeal has taken a considerable toll on her mental health and her general well-being. The applicant said that she has suffered weight loss, she’s repeated that submission today, and also said that she continues to be the sole carer for her 85 year old mother, who resides with her family and who also has medical problems and mobility issues. The applicant has said that she has suffered extreme stress and has not been able to function to full capacity. She said it was her husband that supported her in applying for the unfair dismissal. In summary, the applicant’s essentially said that the reason the application was submitted late was due to the effects on her health, finding it extremely difficult to go in to the public and that one day rolled in to another and she was left with a sense of low self-worth brought on by feelings of intimidation, harassment by Ms Hegarty.

[12] The respondent’s submissions draw attention to the fact that the medical certificate for the period 18 December to 23 December simply states “a medical condition”, it does not go in to any further particularity, which might go to issues which specifically provide evidence that could support an argument to say that the applicant might not have been capable of filing an application for unfair dismissal. On the matter of the medical condition, the respondent has referred to a decision of Deputy President Harrison in Kennedy v Department of Human Resources 5, where Deputy President Harrison said as follows:

“There is no medical evidence that the applicant was: a) incapable of reading or understanding the letter from the respondent notifying the application of her dismissal and her rights to make an application for an unfair dismissal remedy in the required timeframe for doing so.”

[13] The respondent argues that the diagnosis of influenza or chest infection did not incapacitate the applicant to the extent that she would have been prevented from completing and filing an application within the relevant time period. Essentially, the respondent’s argument is the applicant has adduced no evidence to establish that she suffered an illness that prevented her from being able to file an application within the timeframe. The respondent says that the applicant may well have been stressed as a result of the dismissal however, that of itself does not constitute an exceptional circumstance. There are a number of other authorities that address the particular issue that arises in this case. In Susan Rose v BMD Constructions Pty Ltd 6, Commissioner Roe, dealing with another case where an applicant asserted that they filed outside the time limit, for reasons similar to those asserted in this case, said as follows, and this is at paragraph 10 of that decision:

“It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case, of the level of incapacity is insufficient to create abnormal circumstances which justify an extension of time.”

[14] I’ve also considered in determining this application, another decision which is a full bench decision of Fair Work Australia in September of 2011 in Ballarat Truck Centre Pty Ltd v Melissa Kerr 7. I’ll read passages from that decision, and particularly paragraphs 11 through 15. Again, that was a circumstance where an applicant was asserting reasons that justified an extension of time, on the basis of her anxiety and depressive illness. Reading from paragraph 11, the full bench found as follows:

[11] At the hearing before the Commissioner on 15 June 2011, Ms Kerr presented evidence from a number of sources that went to her medical condition. The evidence of Dr Brian Hassett (K4), Ms Kerr’s treating doctor, was that he was of the opinion that Ms Kerr was suffering from anxiety and depressive illness, and that this illness was a work related problem with the condition becoming more severe after the termination of her employment. Dr Hassett commented that he believed the condition was likely to be prolonged and required ongoing treatment and medication. The report did not deal with Ms Kerr’s ability to make an application to a tribunal.

[12] Ms Kerr also relied on the evidence of Ms K Armstrong, 4 Ms Kerr’s holistic counsellor, in the hearing before the Commissioner. The evidence of Ms Armstrong details her view of the severity of Ms Kerr’s situation at work, and the effect that the alleged workplace bullying and subsequent dismissal has had on her physical and mental wellbeing.

[13] The Commissioner had regard to this evidence about Ms Kerr’s medical condition and concluded at paragraph [23] of her decision that the “medical evidence and the evidence of her counsellor indicate that Ms Kerr was clearly unwell and not functioning at a level that enabled her to make rational decisions of her own accord” (emphasis added) and, ultimately at paragraph [30], that “Ms Kerr was incapable, within 60 days of the termination of her employment, of making and executing a decision with respect to this application without assistance”

[14] Mr McKenna placed emphasis on the words “making and executing a decision” as used by Commissioner Bissett in her finding at paragraph [30]. He submitted that the Commissioner’s finding was not that Ms Kerr was unable to decide to make a s.365 application without assistance, but rather that Ms Kerr was unable to “make and execute” that decision.

[15] This is the critical paragraph that I rely upon:

“In our view -”

[16] And this is the Full Bench’s view -

“- such conclusions were not open to the Commissioner, as Mr Follett submitted, the evidence actually pointed to the opposite conclusions, that is, that Ms Kerr was quite capable of acting in her own capacity and could engage in formal dealings related to her dismissal. For instance, after her employment was terminated, Ms Kerr was able to contact Job Watch and Safe Work for assistance, write to Mr Smith, who was the owner of BTC, meet with a solicitor to complete a Workcover claim and provide a written summary of events. Further, she was assisted in January 2011 by Mr G. Francis of Saines Lucas Lawyers in respect to a decision to make an application under section 365.”

[17] Now I’ve raised those two authorities because I think they are relevant to the particular facts in this case. I’ve had regard to the evidence concerning the phone calls made by Ms Hegarty. I am not satisfied on the basis of the material that’s been provided, that the phone calls of themselves would have prevented the applicant from making an application in time. I’ve also had regard to other elements of the respondent’s submissions going to the fact that an overlap with the Christmas period and also that the applicant asserts that she was ignorant of the time limits. I would agree with the submissions of the respondent that those of themselves are not exceptional circumstances.

[18] In having weighed all of the material before me and in light of the authorities and particularly the decision Rose v BMD 8 and the authority in Ballarat v Kerr,9 I am satisfied that there is insufficient evidence to justify an extension of time in connection with an argument about section 394(3)(a) and that’s the element that deals with specifically, the question about the reason for the delay being in connection with the applicant’s health condition. That is because the evidence of itself is not sufficient for me to be satisfied that the applicant was incapable of making an application within the timeframe. As Commissioner Roe identified in his decision Rose v BMD,10 it is common for employees to suffer shock and trauma and I don’t doubt that the applicant has been suffering from a medical condition. She herself says in the material, she had been diagnosed with depression. The evidence does not get to a point where I believe it is sufficient to be satisfied that there are exceptional circumstances justifying, on the basis of the reasons given, an extension.

[19] Having said that, I need to go on and consider the elements of section 394 and I intend to do so now. In relation to section 394(3)(b) the question there is a question as to whether the person first became aware of the dismissal after it had taken effect. There is common ground that the applicant was notified of the dismissal on Wednesday, 18 December and the dismissal took effect on that day. In relation to section 394(3)(c) any action taken by the person to dispute the dismissal, it seems to be reasonably clear that the first action taken by the applicant was to file the application itself on 10 January. The respondent asserts that it will incur unreasonable costs in defending the application, as a basis to argue there would be prejudice to it. I am not satisfied that section 394(3)(d) gives rise to circumstances that the employer would suffer such prejudice that would of itself be a basis to find against extending time. In relation to section 394(3)(e) the merits of the matter, I am not intending to express a view either way in that regard and I see it is a neutral issue for the purposes of determining this jurisdictional question today. I don’t think section 394(3)(f) is a relevant factor.

[20] On the basis of having considered each of the elements under section 394(3), I am satisfied that it would not be appropriate to extend time, given the nature of the material before me and the reasons given. On that basis, jurisdiction does not exist and I intend to dismiss the application.

COMMISSIONER

 1   [2010] FWA 1394

 2   [2009] FWA 860

 3   [2010] FWAFB 7251

 4   [2011] FWAFB 975

 5   [2012] FWA 10068

 6   [2011] FWA 673

 7   [2011] FWAFB 5645

 8   [2011] FWA 673

 9   [2011] FWAFB 5645

 10   [2011] FWA 673

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