Ms Christina Stonell v Legend Corporate Services Pty Ltd

[2018] FWC 4828

[2018] FWC 4828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Ms Christina Stonell
v
Legend Corporate Services Pty Ltd
(U2018/6128)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 17 AUGUST 2018

Application for an unfair dismissal remedy – resignation whilst on annual leave – date resignation took effect – whether out of time – extension of time required - no exceptional circumstances – application dismissed

[1] Ms Christina Stonell has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her (alleged) dismissal by Legend Corporate Services Pty Ltd (Legend or ‘the employer’). She claims to have been notified of her dismissal on 23 May 2018 and that her dismissal took effect on 24 May 2018.

[2] Legend opposes the application and raises two jurisdictional issues; firstly, a contention that the application is out of time and secondly, that Ms Stonell resigned and was not dismissed.

[3] On 13 July 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was then referred to me for hearing and determination.

[4] On 18 July 2018 I directed that the extension of time issue be dealt with at a telephone hearing scheduled for 14 August 2018. I directed Ms Stonell and Legend to file materials on the extension of time issue. I have received those materials.

[5] In her written submission Ms Stonell disputes that she requires an extension of time. She claims that her employment ceased by forced resignation on 24 May 2018, not 23 May as the employer asserts. Having lodged her application on 14 June 2018, she says that it was lodged within 21 days.

[6] Legend asserts that Ms Stonell resigned on 23 May 2018 and is out of time because her application was filed 22 days after her employment ceased.

[7] In a decision on 9 August 2018 1 I granted Legend permission to be represented in this matter by a legal practitioner, subject to certain conditions. In that decision I made the following observation:

“I put both Ms Stonell and Legend on notice that given the factual dispute apparent on the written materials before me concerning the circumstances in which Ms Stonell came to cease her employment, the hearing on 14 August 2018 will require the taking of oral evidence from Ms Stonell and from the employer, should the factual differences remain unresolved. It may also involve making findings on whether Ms Stonell resigned, and if so when her employment ceased.” 2

[8] Given the contentions of the parties, in order to determine the extension of time issue it is necessary to make findings on when the cessation of her employment by resignation came into effect.

[9] I these circumstances and by consent, the hearing of the matter on 14 and 15 August 2018 dealt with the following issues. Accordingly this decision determines:

● whether Ms Stonell resigned and if so when that resignation took effect. If Ms Stonell’s resignation took effect on 23 May 2018 she does not require an extension of time. If her resignation took effect on 24 May 2018 or later she requires an extension of time;

● whether, if an extension of time is required, it should be granted;

● whether, if an extension of time is required and is granted, Ms Stonell was “dismissed” within the meaning of the FW Act.

[10] Only if Ms Stonell was “dismissed” within the meaning of the FW Act and has made an application within the statutory time frame (or has had the time frame extended under section 394(3)) is the Commission able to consider whether Ms Stonell was unfairly dismissed.

[11] At the hearing of the matter Ms Stonell was self-represented with the assistance of her partner Mr Ford. Legend was represented by a legal practitioner Ms Bolzon with the assistance of the employer’s Group Human Resources Manager Ms Kuppen.

[12] At the hearing’s conclusion, I reserved my decision.

[13] A sound file record of the hearing was made by the Commission.

[14] I heard evidence from three witnesses:

● Ms Christina Stonell;
● Mr Sean Ford;
● Ms Lyn Kuppen.

[15] Each gave evidence directly and thoughtfully. Allowing for some gloss, the evidence of each is generally reliable and was presented to the best of their knowledge and belief. The relevant events were not long past by the hearing date. Recollections were not perfect but relatively fresh. There are some differences in evidence between Ms Stonell and Ms Kuppen, and between Mr Ford and Ms Kuppen. These I put down to the elapse of time and different perspectives of the same events. Where there is a factual difference, I rely on corroborative documentary evidence where it exists.

The Facts

[16] I make the following findings.

[17] Legend is based in South Australia but operates nationally and in New Zealand. Its parent company (Legend Corporation Limited) is publicly listed and supplies engineering solutions and products to the electrical, power, gas, information technology and semiconductor industries.

[18] In February 2015 Ms Stonell commenced employment with Legend as a Business Services Coordinator. 3 Her work involved frequent use of computer software. Legend provided Ms Stonell a laptop for use in and out of the office. Ms Stonell, and certain other employees, were permitted to work from home for a portion of their working week under the terms of Legend’s Working from Home policy.4

[19] In December 2017 Ms Stonell’s position changed. She became a Product Content Coordinator. It was a different role but with overlaps and transferrable skills from her previous role. A new position description was accepted by her. 5

[20] Ms Stonell’s partner (Mr Ford) is a member of the Defence Forces.

[21] On 13 April 2018 Ms Stonell advised Legend (Ms Kuppen) that her partner was likely to be transferred to the eastern States later in 2018. She requested to be transferred to Legend’s operations in the eastern States when that occurred.

[22] On 16 April 2018 Legend (Amelia Loechel her supervisor and Ms Kuppen) told Ms Stonell that her request to be transferred would not be granted. She was told that her new role required her to work in South Australia and be present in the Adelaide office to work face to face with other employees (including a newly employed graphic designer).

[23] On 19 April 2018 Ms Kuppen told Ms Stonell that her permission to work from home was revoked on two grounds; that she needed to work face to face with the graphic designer and that she had been uncontactable when working from home (on one occasion). Ms Stonell objected to this decision and the earlier decision to decline her request for an interstate transfer. During the course of the discussion Ms Kuppen said words to the effect that she “had a job for now” but that if she was to move interstate she would have to resign.

[24] Ms Stonell became anxious and stressed by the employer’s decisions. Her working environment became uncomfortable. After a training meeting in May 2018 she was spoken to by Ms Kuppen about her wellbeing, including alleged inattentiveness during training.

[25] As Ms Stonell was no longer working from home, on 9 May 2018 Legend (Ms Loechel) asked Ms Stonell to return the company laptop which had been loaned to her “so it can be re-assigned”. Ms Stonell declined. She replied to the effect “As I am aware that we have plenty of spare laptops, I won’t be returning the laptop until my last day here.” 6 At that time, no “last day” had been set or scheduled.

[26] On 14 May 2018 Ms Kuppen met with Ms Stonell and asked again for return of the laptop. Ms Stonell said it was at her home but did not know where it was as renovations were occurring. 7 Ms Stonell said she would be getting advice from “fair work” about her rights.

[27] Ms Stonell contacted the Fair Work Ombudsman (FWO) on or about 14 May 2018.

[28] Upset by what she considered unfair pressure, Ms Stonell felt bullied and went on sick leave. She did not feel able to front the workplace, which she considered unsafe to her wellbeing. On her behalf, on 15 May 2018 Mr Ford took a medical certificate to Legend and handed it to Ms Kuppen. A brief discussion between the two ensued. Mr Ford asked Ms Kuppen details about Ms Stonell’s employment contract. He was told she was not award covered. The laptop was discussed. Mr Ford said that everything was in boxes due to renovations. Ms Kuppen said that the laptop could be returned on Ms Stonell’s first day back from leave.

[29] On 18 May 2018 Mr Ford was informed by Defence that he was required to move interstate (to New South Wales) by the end of June 2018. He told Ms Stonell that day.

[30] Ms Stonell took pre-arranged annual leave between 21 May and 25 May 2018 inclusive.

[31] In the days leading up to and on 23 May, whilst on leave, Ms Stonell and Mr Ford discussed Ms Stonell’s employment position. Ms Stonell spoke again to the FWO. She also spoke to Legal Aid and to Safe Work SA. Both Ms Stonell and Mr Ford were unhappy with Legend’s treatment of Ms Stonell, particularly the denial of her transfer request. However, Mr Ford was concerned that the upset and stress was adversely affecting Ms Stonell’s health. That evening Ms Stonell, intending to move interstate with Mr Ford, used Mr Ford’s computer to type and send an emailed resignation to Legend in the following terms: 8

“Wed 23 May 2018 20:01:40

Subject: Christina Stonell

Evening,

Consider this a written notification of my resignation.

Any work equipment located will be posted back to Legend Corporate.

As I do not fall under an award and my contract does not state required notice, I am not legally required to provide a notice period. If you have any disagreement with this, you are able to email me.

Please pay out my annual leave in the next pay period.

Regards,

Christina”

[32] The next day, 24 May 2018 Ms Kuppen replied by email in the following terms: 9

“24 May 2018 1:41:57pm

Subject: Acceptance of your Resignation

Good afternoon Christina,

We accept your resignation as per the email sent to Amelia Loechel May 23, 2018.

We confirm that payment of your annual leave entitlements will be paid May 25, 2018. Details of this payment will be posted to the current address we have for you in our systems.

We request that the following company equipment be returned to us by no later than close of business (COB) May 29, 2018:

1 x HP ProBook laptop 43064

1 x iPad Mini air wifi – Model A1474

1 x Android mobile phone – Haueel (brand)

Should this equipment not be returned by the above date, we will place this matter in the hands of our legal department for collection.

I also attach for your reference your signed employment contract, please refer to clause 11.5 for your reference.

Please contact me should you need to on the below numbers.

Lyn Kuppen

Group Human Resources Manager”

[33] Ms Stonell received her final payments from Legend by electronic transfer on 25 May, whilst on leave. She disagreed with Legend’s calculation of her accrued annual leave. On 25 May 2018 Mr Ford emailed Legend on that topic. 10 On 27 May Ms Stonell also did so.11 On 28 May Legend replied.12

[34] A dispute also arose over the return of the laptop. On 29 May 2018 Legend received via Australia Post a packaged laptop from Ms Stonell. On opening the package Legend considered the laptop damaged. Later that day (within three hours) Legend sent Ms Stonell an invoice of $1,907.40 for the cost of a replacement laptop. 13 Ms Stonell immediately replied, claiming that the laptop was in “perfect condition” when posted, and that any damage in transit was “your problem”.14 In her reply Ms Stonell asserted that this latest demand “has been added to the investigation with Safe Work Australia pending against you. I have also raised this with Fair Work Australia and will be adding this additional harassment and bullying to that claim as well.”

[35] In the first two weeks of June 2018 Ms Stonell (and Mr Ford) starting packing for their move interstate. Ms Stonell remained upset and anxious about what she considered bullying over the laptop return.

[36] On 13 June 2018 Ms Stonell received an email from debt collection solicitors acting for Legend (Stewart-Rattray Lawyers). 15 The email demanded payment of the invoice. After receiving that email, Ms Stonell replied (by email) rejecting the demand and claiming that it was further bullying “following my unfair dismissal”.16

[37] Ms Stonell again sought advice from Legal Aid and FWO, particularly about the laptop demand.

[38] On 14 June 20918, the day following the laptop demand from the debt collection solicitors, Ms Stonell decided to file unfair dismissal proceedings. She did so after speaking to Mr Ford.

[39] On 20 June 2018 Legend issued proceedings in the Magistrates Court of South Australia (Civil Division) seeking $2,166.40 from Ms Stonell as a debt due for the return of damaged goods and non-payment of its invoice. 17 Ms Stonell is defending those proceedings.

[40] On 21 June 2018 Mr Ford and Ms Stonell left Adelaide and relocated to New South Wales.

Did Ms Stonell Resign?

[41] I have found that Ms Stonell resigned from her employment with Legend by email under her hand dated 23 May 2018. Her employment came to an end by resignation.

When did Ms Stonell’s resignation take effect?

[42] Ms Stonell was under no contractual or statutory duty to provide notice of resignation. This much she had ascertained from the legal and industrial advice she received prior to drafting her resignation. The terms of her resignation are specific in this regard: “I am not legally required to provide a notice period”. There was no impediment in law or in fact for Ms Stonell’s resignation to not take immediate effect.

[43] The terms of Ms Stonell’s resignation (Exhibit R1) lead me to conclude that her resignation took immediate effect. It is worded in a way that provides no ambiguity: “Consider this a written notification of my resignation”. Ms Stonell only contemplated a response by the employer if the employer has “any disagreement with this”. The employer registered no disagreement. The resignation requested annual leave owing to be “paid out in the next pay period”. It was paid, two days later. It is clear from the terms of her resignation that Ms Stonell did not contemplate returning to employment once the resignation was sent.

[44] Aside from its direct terms, the surrounding circumstances support this conclusion. Ms Stonell was unhappy with her employer. She considered the employer to have made unfair decisions about her in the preceding weeks, by denying her transfer request, by revoking her work from home permission, by altering her software permissions, by requiring the return of its laptop and by commenting on her alleged inattentiveness during a training session. She had found her work life become uncomfortable as a consequence. This was affecting her health. Her partner had expressed concern to her and they had discussed her options. She did not want to return to work. She did not want to again face her managers, evidenced by asking Mr Ford to take in her medical certificate a week earlier.

[45] Nor do I consider it a coincidence that her resignation was made a few days after Mr Ford learnt that he had to transfer interstate in a month’s time. Once Defence advised Mr Ford that he had to go, Ms Stonell formed the view that, with reluctance, she would resign. Having been denied her transfer request, resignation was considered by Ms Stonell to be the only way open to her to bring an unhappy employment situation to a close in order to move interstate with her partner.

[46] In her evidence, Ms Stonell said that she sent her resignation in the terms of exhibit R1 but still hoped that her employer would negotiate a period where she could remain employed. I do not accept this evidence. There is nothing Ms Stonell said or did on or around 23 May 2018 which suggested that she was intending or requesting to remain employed by Legend beyond the resignation date. Her hope that the employer would transfer her and allow her to work from the eastern states had been dashed long before; the employer had rejected that request back in April. By 23 May 2018 Ms Stonell had no reason to believe that Legend was going to reverse that decision.

[47] I do not consider that Legend’s email of 24 May accepting her resignation meant that the resignation did not take effect until that date. There is no right of veto held by an employer over an employee’s resignation. A decision to resign, if lawfully taken, is not a decision that requires an employer’s consent or mutuality any more than an employer’s decision to terminate requires an employee’s consent. 18 The employer’s email of 24 May 2018 expressly informed Ms Stonell that it had received and accepted her resignation “as per the email sent” – in other words as per her terms.

[48] Nor do I consider that the resignation did not take effect until annual leave had concluded and statutory entitlements were paid. A dismissal or resignation is not prevented from taking effect at law simply because statutory entitlements are yet to be paid. It is not inconsistent with an employment relationship having ceased for final statutory entitlements being paid in the days following an employment relationship having ceased.

[49] I take into account that Ms Stonell was on pre-arranged annual leave between 21 and 25 May. However, her act of resignation altered the status of her employment during that period. There is no bar to an employee resigning, if lawfully able to do so, whilst on annual leave. Although there are some conflicting decisions in Australian jurisdictions on the interaction between leave and notice, the weight of authority and the line of authority I adopt, particularly having regard to the statutory scheme and the National Employment Standards of the FW Act, is that the right to terminate a contract of employment and the right to annual leave are independent of the other. 19 Being independent, one can be disturbed by the other. An employee can resign whilst on annual leave in the same way that an employee can be dismissed whilst on annual leave, if there is reasonable cause. Whilst this principle may be qualified with respect to the treatment of notice, in this matter Ms Stonell gave no notice and had no obligation to do so.

[50] Having lawfully resigned on 23 May 2018 without the need to give notice, the 24 and 25 May 2018 became days when Ms Stonell was no longer on leave but rather days when she was no longer in employment. She had already been paid in advance for that week of leave due to the ordinary pay cycle. Those days (24 and 25 May) were not double counted in the payment of her statutory entitlements.

[51] For these reasons, I conclude that Ms Stonell’s resignation took effect on 23 May 2018.

[52] As a consequence, Ms Stonell’s unfair dismissal application was filed 22 days after her resignation took effect. Given that she claims it was a forced resignation (and thereby a dismissal which she says was unfair), I turn to consider whether there are exceptional circumstances warranting an extension of time.

Should an extension of time be granted?

[53] Assuming she was dismissed, Ms Stonell’s application is one day out of time. The provisions of the FW Act governing whether an extension of time should be granted are set out in section 394(3):

“394 Application for unfair dismissal remedy

…

(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.”

[54] Ms Stonell’s application can only proceed to determination on the merits if she can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 20 which stated:

“[13] In summary, the expression “exceptional circumstances” has its ordinary 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.”

[55] I now consider each of the factors set out in section 394(3) of the FW Act.

Reason for the delay (section 394(3)(a))

[56] Ms Stonell’s evidence was that when she filed her application she was not sure if the 23 or 24 May would be counted as the day her employment ceased. She says that she was upset and unwell following her resignation and during the first fortnight of June 2018 due the stress of an unhappy exit from her employment and due to the demands for the return of the laptop and her belief that she had been bullied. She also says that “a lot was going on” including packing-up and removalists and contractors being in the home she shared with Mr Ford as they readied to move interstate.

[57] While I accept Ms Stonell’s evidence, including that her upset and its impact on her health was genuinely felt, Ms Stonell produced no medical evidence to indicate that she was medically incapable of lodging unfair dismissal proceedings during the period between 23 May and 14 June 2018.

[58] The evidence before me is that over this period Ms Stonell was in contact with Legal Aid and with both the FWO and Safe Work SA, including discussing her employment rights concerning the demand that she return property and concerning her dispute over the calculation of annual leave. The evidence also is that Ms Stonell was capable of sending emails to the employer about her annual leave calculation and about the laptop invoice (R8 and R12), and capable of sending emails to Legend’s debt collection solicitor about the threat of legal proceedings over the unpaid invoice (R14). I am not satisfied that she was medically incapable of exercising her unfair dismissal rights during this period.

[59] Further, the evidence before me is that Ms Stonell knew from at least the time she spoke to the FWO on or about 25 May (about her annual leave entitlement) that a 21 day period applied from the date of dismissal for an employee to commence unfair dismissal proceedings. This was Ms Stonell’s evidence, honestly given.

[60] Further, if Ms Stonell was unsure whether her resignation took effect on 23 or 24 May, and knowing that a 21 day statutory limit applied, she nonetheless chose to wait until the 14 June to file, aware that this could be out of time.

[61] Whilst this appears inexplicable, the evidence suggests otherwise. On 13 June 2018 Ms Stonell received a letter of demand from Stewart-Rattray Lawyers putting her on notice that if she did not pay the invoice for the replacement laptop in full then legal proceedings would be commenced against her to recover the debt.

[62] Ms Stonell’s evidence was that this escalation of the dispute over the laptop into a demand from a debt collection lawyer and the threat of imminent legal proceedings against her by Legend was an active and operative factor in her deciding to issue unfair dismissal proceedings the following day. Her evidence was that it was not, however, the sole factor as she said that she was also motivated by her sense of unfairness at the perceived bullying she had experienced. Whilst I accept this evidence, it does not provide a reasonable explanation as to why she delayed until 14 June to file proceedings to address her sense of unfairness. Mr Ford’s evidence, again honestly given, was that in discussing with Ms Stonell her options on 13 and 14 June, that the debt collector’s letter and threat was a motivating force for filing the unfair dismissal proceedings.

[63] I accept that Ms Stonell had a genuine sense of grievance against Legend following her resignation. However, her evidence was that it was not in her nature to get involved in legal action against anyone. I accept this evidence; it was honestly given. Suing for unfair dismissal was not her intention in late May or during the first 13 days of June even though she had been informed by FWO that a right to commence proceedings existed. I conclude that the filing of the unfair dismissal proceedings on 14 June 2018 was a tit-for-tat reaction to the threat of legal proceedings made by Legend on 13 June. It was not until 14 June that Ms Stonell decided that she would take what she considered the unusual action of suing her former employer. She did so because it had threatened to sue her.

[64] In drawing this conclusion I also take into account the remedy expressly sought in the F2 application she filed with the Commission on 14 June 2018. Its content was drafted by Ms Stonell. In paragraph 2.1 ‘Remedy’ she states in response to the question ‘What outcome are you seeking by lodging this application?”:

“To discontinue the harassment and bullying received by Lyn Kuppen, Amelia Loechel and Lea Fox from Legend Corporate. I would also like for the false invoice raised against me to be removed and the lawyers hired to chase this disputed invoice corrected.”

[65] By seeking such an order, Ms Stonell clearly links (but not exclusively) her application to the laptop litigation threat.

[66] Overall, the evidence does not provide a reasonable explanation for the delay.

[67] In these circumstances, the reasons for delay are factors that weigh against the granting of an extension.

Awareness of the dismissal taking effect (section 394(3)(b))

[68] I have found that the (alleged) dismissal took effect on 23 May 2018. I accept that Ms Stonell was unsure which date (23 or 24 May) the dismissal would, at law, be taking effect. I accept that the employer’s “acceptance” email of 24 May created reasonable grounds for that uncertainty.

[69] On the facts in this case, I consider this to be a factor that weighs in favour of granting an extension.

Action taken to dispute dismissal (section 394(3)(c))

[70] Ms Stonell did not take action after her resignation to dispute the cessation of her employment. However, she did dispute her annual leave calculations and the demand for the return of the laptop and the allegation that it was returned damaged. She also, in the context of these communications with her former employer, repeated her view that she had been bullied and harassed. Legend were also aware in general terms that at the time of resignation she was unhappy, was taking industrial advice and considered that she had been treated unfairly. This sentiment was expressed by Ms Stonell as early as 8 May 2018 in a text to Ms Loechel. 21

[71] On the facts in this case, I consider this to be a factor that weighs in favour of granting an extension.

Prejudice to the employer (section 394(3)(d))

[72] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances. However, there is no evidence that Legend is likely to be prejudiced on account of an application not having been made by the due date.

[73] However, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension. 22

[74] On the facts in this case, I consider this to be a neutral factor.

Merits of the Application (section 394(3)(e))

[75] Ms Stonell’s application faces two hurdles should an extension be granted. She would have to establish that her resignation, voluntarily given, was a forced resignation under the FW Act. Only if she did so could her application be heard on the merits.

[76] Having heard evidence from both parties about the events leading up to her resignation, I am able to form preliminary views about the merits of this matter, should a forced resignation be found.

[77] The employer’s conduct concerned decisions to deny her an interstate transfer request, to revoke her work from home permission, to alter her software permissions, to require the return of its laptop and to question her alleged inattentiveness during a training session. There is nothing before me to suggest she had any counselling or warnings or was anything other than a competent employee.

[78] On the remaining jurisdictional issue and merit, Ms Stonell’s case is not strong but by no means hopeless. The remaining jurisdictional issue (of forced resignation) would require Ms Stonell to establish that Legend left her with no effective or real choice but to resign. 23 This would be a considerable task in circumstances where Ms Stonell resigned five days after learning that a move to New South Wales was required if she was to travel with her partner. Nonetheless, it is not a contention entirely devoid of prospects given the evidence I have heard about workplace conduct and decisions over the preceding month.

[79] However, Ms Stonell’s claim to remedy is not able to be entertained by the Commission. She seeks an order discontinuing the harassment and bullying. This is not an order able to be made in section 394 proceedings. I have also noted that Ms Stonell seeks an order for “the false invoice raised against me to be removed and the lawyers hired to chase this disputed invoice corrected.” The Commission has no jurisdiction to make such an order. Whilst her case on the merits is not hopeless, the remedies sought have no reasonable prospect of being granted.

[80] I am unable to draw any conclusion about the merits of the application. However, the need to establish a “dismissal” at law before the merits can be considered and the impermissible remedies sought weigh against an extension being granted.

Fairness between persons in similar position (section 394(f))

[81] No evidence or submissions from Ms Stonell or Legend raise issues of fairness with and between other persons. The resignation, on the information before me, concerns Ms Stonell in her capacity as an individual employee.

[82] On the facts in this case, this is not a relevant factor.

Conclusion on extension of time

[83] The delay in lodgement is small, being only one day. However, having regard to the 21 day statutory time limit, it is not inconsequential.

[84] In considering whether exceptional circumstances exist, the conduct of Ms Stonell after dismissal is relevant but a reasonable explanation for the delay is not needed for the whole of the period or may in fact not be required at all if the circumstances are otherwise exceptional. 24

[85] The reasons for delay are unconvincing. They do not adequately explain the delay or periods of the delay. Whilst I readily find that Ms Stonell felt genuinely aggrieved during this period, she chose not to commence proceedings inside the 21 day period and only did so on the 22^nd day once legal proceedings had been threatened against her by her former employer’s debt collector for recovery of the cost of an allegedly damaged laptop.

[86] Weighing the other factors, none are so significant individually or collectively that lead me to conclude that the circumstances in this matter are exceptional. Whilst Ms Stonell’s grievance and distress was genuinely felt at the time of her resignation and in the three weeks that followed, it is not uncommon that a dismissed employee (including an employee resigning in the belief that they have been forced to do so) feels upset, unwell or anxious due to the breakdown in the personal and legal elements of their employment relationship. 25 Despite that upset and the bitter taste it left, Ms Stonell sought advice, had the support of Mr Ford and went about her business of arranging to move interstate.

[87] Having regard to the conclusions reached, I am not satisfied that exceptional circumstances exist so as to warrant an extension of time.

[88] In these circumstances, and although I have heard evidence on the topic, it is not necessary for me to determine whether Ms Stonell’s resignation was a forced resignation, as the application has not met its first jurisdictional hurdle.

[89] For these reasons, Ms Stonell’s application for relief under section 394 of the FW Act is out of time and the time period for lodgement has not been extended. Accordingly, her application is dismissed. An order to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

C. Stonell, on her own behalf, and S. Ford, for the Applicant

S. Bolzon, with permission, and L. Kuppen, for the Respondent

Hearing details:

2018.

Adelaide; by telephone.

14 and 15 August 2018.

 1   [2018] FWC 4696

 2   at [38]

 3 R2: Contract, 18 February 2015

 4   R3

 5   R19

 6   R4

 7   R6

 8   R1

 9   A3

 10   R7

 11   R8

 12   R9

 13   R11

 14   R12

 15   R13

 16   R14

 17   A2

 18   State of New South Wales v Paige [2002] NSWCA 235; Leary v Rebel Sport Limited[2011] FWA 8512

 19   Australian Institute of Marine and Power Engineers v Australian Coastal Shipping Commission (1972) CAR 468; CEPU and Others v Silcar Pty Ltd[2013] FWC 856 at [46]

 20   [2011] FWAFB 7251. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

 21 R16 “I am being treated unfairly which is unacceptable.”

 22 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 23   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 (PR973462); Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47]

 24   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288

 25   Shaw v ANZ Banking Group[2015] FWCFB 287 at [15]; Australian Postal Corporation v Zhang[2015] FWCFB 5285 at [45]

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