Mrs Van Le v Australian Taxation Office
[2024] FWC 2890
•17 OCTOBER 2024
| [2024] FWC 2890 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Van Le
v
Australian Taxation Office
(U2024/8325)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 17 OCTOBER 2024 |
Application for an unfair dismissal remedy
On 18 July 2024 Ms. Van Le (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act). The respondent to the proceeding was the Commonwealth as represented by the Australian Taxation Office (ATO or Respondent).
It was not in issue that the Applicant was a person protected from unfair dismissal under s.382 of the Act. However, the Respondent objected to the application on the basis that it had been made outside the 21-day time period prescribed by s.394(2) and maintained that there were no exceptional circumstances to warrant an extension of time under s.394(3). The Respondent also objected to the application on the basis that the Applicant was not ‘dismissed’ as that term is defined by s.386, but rather resigned her employment on 7 May 2024, with her employment coming to an end on 21 May 2024. The Applicant argued that there were exceptional circumstances justifying an extension of time and that her resignation on 7 May 2024 was a dismissal that took effect on 21 May 2024.
Background
Much of the factual background to the matter was uncontroversial. The Applicant commenced employment with the Respondent in February 2017. Some performance issues were raised by the Respondent in 2021 and during 2022, processes were put in place to address the issues that had been raised. The Applicant disputed that the processes were necessary or appropriate and by late 2022 had lodged a formal complaint alleging workplace bullying, harassment and/or discrimination.
In mid-December 2022 the Applicant stopped attending for work and proceeded to take various forms of authorised paid and unpaid leave. From 8 December 2023 the Applicant was absent on leave which was unpaid and which the Respondent described as unauthorised leave. On 7 May 2024 the Applicant tendered her resignation in writing and gave 2 weeks’ notice of the termination of her employment. The ATO accepted the resignation and the Applicant’s employment came to an end on 21 May 2024.
Approach to the application and objections
As the application for an unfair dismissal remedy was filed on 18 July 2024, it was made 37 days after the 21-day period provided for in s.394(2)(a), the last date for filing being 11 June 2024. The proper course in the present circumstances is to determine whether an extension of time should be granted and if an extension is granted, to then consider the objection that the Applicant was not dismissed.[1]
In order to determine whether exceptional circumstances exist to justify an extension of time I am required to take into account the matters listed in s.394(3). I deal with each of those matters, in turn, below.
Section 394(3)(a) - Reason for the delay
The delay is the period after the prescribed 21-day period for lodging an application; it does not include the period from the date the dismissal took effect.[2] However, circumstances arising prior to the delay may be relevant to the reason for the delay.[3]
An applicant does not need to provide an explanation for the entire period of the delay. The absence of an explanation for any part of the delay will usually count against an applicant. On the other hand, a credible explanation for the entirety of the delay will generally weigh in an applicant’s favour. The ultimate conclusion as to exceptional circumstances requires a consideration of all of the matters in s.394(3) and the allocation of appropriate weight to each of them.[4]
In summary form, the Applicant’s explanation of the delay is based on the following matters:
(i)the Applicant believed her notice period was four weeks rather than two weeks and that her effective date of dismissal was 4 June 2024;
(ii)the Applicant was sick when she submitted her resignation;
(iii)the Applicant “regretted and blamed herself” and was in a “depressed mood and could not eat or sleep well; and
(iv)all of the Applicant’s family members, including the Applicant, “took turns” being sick throughout June and July 2024, reportedly having contracted “the flu”.
The Respondent submitted that there was no basis for the Commission to conclude that the Applicant reasonably believed that her effective date of ‘dismissal’ was 4 June, as opposed to 21 May 2024. This is because the Applicant’s own written resignation makes clear that her employment was coming to an end on the latter date and that email correspondence between the parties from the period after 7 May confirms that the Applicant understood that 21 May was the date on which her employment would end. Further, the Respondent pointed out that the enterprise agreement that covered and applied to the parties provided for a requirement[5] for employees to give 14 calendar days’ notice of termination. There was evidence that Applicant emailed her colleagues at the ATO on 21 May 2024 expressing sadness at her departure and saying that ‘today marks the end of a chapter for me as I embark on a new journey for the future.’
Having regard to the documentary material, I accept the Respondent’s submissions. The Applicant could not have reasonably understood that her employment ended at any other point than 21 May 2024. In any event, any supposed misunderstanding would only be relevant to a limited period of the delay. This aspect of the explanation for the delay does not weigh in favour of the Applicant.
The Applicant submitted that her psychological work injury had an impact on her capacity to file the application within time. There was considerable evidence as to the Applicant’s medical situation during the course of her employment which I have considered. Various medical reports were provided for 2023. In August 2023 the Applicant was diagnosed with a mental health condition. There was also a report from an independent consultant psychiatrist dated 27 March 2024 which concluded that, at that time, the Applicant did have a limited capacity to return to work equivalent to 0.3 FTE hours.[6] Various certificates of capacity were provided by the Applicant for the period December 2023 to 28 May 2024.
The Respondent contended that the medical evidence, such as it was, related to the Applicant’s capacity to attend in the workplace since it was the workplace situation that appeared to exacerbate her condition. They said it did not necessarily support the view that the Applicant was incapacitated more generally. I do not consider that the medical evidence satisfactorily explains why it was that any injury suffered by the Applicant impeded her capacity to file an application before the statutory deadline or how it may have contributed to the delay. The evidence was not sufficiently direct[7] or contemporaneous and did not establish that the Applicant was so medically incapacitated as to be incapable of filing an application before she did.
The Applicant did not provide any medical evidence in support of her contention that she suffered from influenza in the period 21 May to 18 July 2024, nor did she indicate when during that period, she suffered from influenza. Further, the evidence as to the illnesses the Applicant said were experienced by her family members was very limited. There were emails from the Applicant’s child’s school in the period following 21 May 2024 for one of her two children. These emails described absences or partial absences from school over different days in May, June and July 2024. They were simply a record of absences. They did not describe any reasons for the absences. They did not refer to any medical conditions or the nature or severity of the illnesses suffered by the Applicant’s family member. No medical evidence was provided in relation to family members. I do not consider that there is sufficient evidence to support a conclusion that the Applicant’s physical condition and that of her family members were such that she was not reasonably capable of filing an application within the relevant period.
The lack of cogent evidence relating to the medical condition of influenza affecting the Applicant and her family members weighs against a finding that this aspect of the reason for the delay supports an overall conclusion that exceptional circumstances exist.
Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect
I am satisfied that the Applicant was at all times well aware that the last day of her employment was 21 May 2024[8] and that she did not first become aware of her ‘dismissal’ after it had taken effect. I do not accept the Applicant’s submission that there was some deficiency with the resignation process that would have resulted in the Applicant not being aware that the ‘dismissal’ took effect on that date. The Applicant had the benefit of the full 21-day period to file an application. This does not support a conclusion that there are exceptional circumstances.
Section 394(3)(c) – Any action taken by the person to dispute the dismissal
The Applicant did not contend that she disputed the ‘dismissal’ in the period following the tendering of her resignation on 7 May 2024. She said that because of her mental and physical condition she was incapable of doing so. The Respondent provided evidence that there were multiple instances of communication between the Applicant and the Respondent following the resignation on 7 May 2024 and up to 4 June 2024. The Respondent said the Applicant did not at any stage indicate that her resignation was not voluntarily given or that she was disputing her ‘dismissal’. I accept that to be the case. This factor weighs against a conclusion that exceptional circumstances exist.
Section 394(3)(d) - Prejudice to the employer, (including prejudice caused by the delay)
The Applicant’s evidence and submissions on this point were directed to her own alleged prejudice caused by the circumstances surrounding the end of her employment relationship. She did not contend that there was an absence of prejudice to the Respondent in the event an extension was granted. The Respondent referred to the time and resources devoted to the defence of an unfair dismissal application in circumstances where there was no dismissal, but a resignation voluntarily given and pointed to the desirability of ensuring that matters are litigated within the designated limitation period.
A relevant prejudice is one that the Respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. I am unable to identify any prejudice of that kind. I regard the issue of prejudice as a neutral consideration.
Section 394(3)(e) - Merits of the application
It is unnecessary and undesirable to undertake a detailed assessment of the merits here.[9] Key facts and the conclusions that might arise from factual findings are contested. The Applicant argued that she experienced discrimination and harassment in the workplace and that the Respondent failed to provide reasonable accommodations for her circumstances. She said that this resulted in a workplace injury that necessitated time off work and ultimately a contest about the status of her capacity for work. The Applicant said the termination of her employment was at the Respondent’s initiative. She contended that her resignation on 7 May was given in the ‘heat of the moment’ and that her resignation was also ultimately ‘forced’ by the Respondent because of the conduct engaged in by them.
The Respondent disputed that the Applicant had been dismissed at all. They said she provided a clear and voluntary resignation which expressly stated that it was given after ‘careful consideration’. The Respondent claimed that the resignation provided was not one that was given in the ‘heat of the moment’ and that there was no requirement in the circumstances for the ATO to clarify whether the resignation was voluntarily given. The Respondent also said the Applicant was provided with considerable latitude in that she was granted extended paid and unpaid leave throughout 2023. They submitted that it became clear that the Applicant had some capacity to return to work but would not confirm a return date. They referred to and relied on email correspondence between the parties and said that the exchanges were not indicative of any compulsion or force being exerted on the Applicant. The Respondent said in the circumstances, the claim for constructive dismissal in particular, lacked merit.
The case for the Applicant on the question of dismissal is not without its difficulties given what appears on the face of it to be a voluntary written resignation, and some of the other documentary evidence about the exchanges which preceded it. However, in the absence of a full hearing on the evidence I am unable to reach a firm view as to the prospects of the application. I regard the merits of the claim as a neutral consideration in the assessment.
Section 394(3)(e) - Fairness as between the person and other persons in a similar position
The Applicant accepted that she was unaware of persons in a similar position. This is a neutral factor here.
Exceptional Circumstances
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 nor unprecedented, nor even very rare.[10] Exceptional circumstances may 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 can be considered exceptional. [11]
Having considered the various matters referred to in s.394(3) and weighed them in the balance, I am not satisfied that there are exceptional circumstances in this case. I am therefore unable to extend time for the application to be made. Given that conclusion, it is unnecessary for me to address the Respondent’s further objection that the Applicant was not dismissed.
The application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mrs V. Le, Applicant.
Ms V. Bulut, Counsel for the Respondent.
Hearing details:
By Video using Microsoft Teams at 10:00am AEDT on Wednesday, 16 October 2024.
[1] Herc v. Hays Specialist Recruitment (Australia) Pty Ltd[2022] FWCFB 234 at [17].
[2] Long v Keolis Downer[2018] FWCFB 4109 at [4].
[3] Shaw v. ANZ Banking Group Ltd [2015] FWCFB 287 at [12].
[4] See Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39] and [40] in relation to similar provisions under Part 3-1. See also Reeves v. Monadelphous Engineering Associates Pty Ltd[2018] FWC 2219 at [20].
[5] Australian Taxation Office (ATO) Enterprise Agreement 2024 [2024] FWCA 1008 at clause 92.1.
[6] Exhibit R2, Hearing Book page 530.
[7] Higgins v FQM Australia Nickel Pty Ltd[2021] FWCFB 113 at [27].
[8] See conclusions above.
[9] See Kyvelos v Champion Socks[2000] AIRC 540. See also Nulty v. Blue Star Group Pty Ltd[2011] FWAFB 975 at [36] in relation to similar provisions in Part 3-1.
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.
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