Ms Denise Lam v Stallman Partners Pty Ltd T/A Trustee of the Maggie Moffatt Service Trust

[2014] FWCFB 4161

[2014] FWC 1892 [Note: An appeal pursuant to s.604 (C2014/4025) was lodged against this decision - refer to Full Bench decision dated 30 June 2014 [[2014] FWCFB 4161] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Denise Lam
v
Stallman Partners Pty Ltd T/A Trustee of the Maggie Moffatt Service Trust; Stallman Pty Ltd
(C2013/7019)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 21 MARCH 2014

Application to deal with contraventions involving dismissal.

[1] Ms Lam sought an extension of time for lodgement of her application pursuant to s365 of the Fair Work Act 2009 (the Act). Ms Lam's application was lodged 42 days after her dismissal. It was therefore lodged 21 days outside the time limit prescribed by the Act. To be within the prescribed time limit the application should have been filed before 28 November 2013.

[2] I heard this application on 4 February 2014 and issued an order extending the time for lodgement on 21 February 2014. 1

[3] Ms Lam is a forty year old single woman with a history of schizophrenia. Her evidence in that regard is set out below:

“------In approximately my 20s I suffered an episode of schizophrenia, thereafter two other times. However, approximately for the last I was admitted to hospital and was under the care of the community health centre in Fairfield and then after that I just - although I was under a psychiatrist’s care during that period, I was asked to potentially look at helping other patients because of my ability to perform quite extraordinarily considering the illness that had taken place.” 2

[4] Ms Lam relied upon the circumstances surrounding and following the termination of her employment in seeking an extension of time for lodgement. The circumstances included a miscarriage following the termination of her employment, subsequent health difficulties and severe distress brought on by the termination of her employment in combination with the miscarriage. Ms Lam submitted that her being increasingly unwell was demonstrated by the fact that she suffered her first schizophrenic event in eight years on the evening following the lodgement of her application.

[5] I have set out some aspects of the chronology of events relevant to this application below.

[6] Ms Lam had her pregnancy confirmed by ultrasound in early October 2013. Following that test she confirmed her pregnancy at work.

[7] On Friday 8 October 2013 Ms Lam was notified of the termination of her employment effective 7 November 2013. The reason provided to Ms Lam for the termination of her employment was a proposed company restructure.

[8] On Monday 11 October 2013 Ms Lam attended a medical practitioner at a medical clinic and advised that she had been "...fired by boss at work because of the pregnancy. Boss stated restructuring, ..."

[9] On 15 October 2013 Ms Lam sent her employer an e-mail to advise that she would not be returning to work for the balance of the notice period.

[10] On 21 October 2013 Ms Lam e-mailed Mr Stallman to request a separation certificate. She resubmitted her medical certificate. The employer informed Ms Lam that he would not provide a separation certificate because she was currently employed until 7 November 2013.

[11] On 3 November 2013 Ms Lam visited her general practitioner who confirmed medical difficulties with the pregnancy. She was confirmed to be nine weeks pregnant at this time. In the evening of 3 November 2013 Ms Lam visited Royal Prince Alfred Hospital (RPA).

[12] On 4 November 2013 Ms Lam attended RPA. She had miscarried.

[13] On 11 November 2013 Ms Lam commenced new employment earning approximately two thirds of her salary with her previous employer.

[14] On 21 November 2013 Ms Lam was confirmed to have suffered a natural miscarriage. There was no need for subsequent procedures. She was advised that she may have an ovarian cyst which might require surgical intervention. She was advised to attend the hospital in 2 to 3 months time. Ms Lam's evidence was that she was very distressed at this time as a result of the miscarriage, the prospect of further health problems and her dismissal. 3

[15] On an unconfirmed date in November 2013 Ms Lam contacted Centrelink regarding a New Start allowance. She was advised that she could not get any benefits until she had a Separation Certificate confirming the date of termination of employment. 4

[16] On 10 December 2013 Ms Lam left her new job. Her evidence was that she had had no training and found the new job too difficult to continue. Her evidence in this regard is set out below:

“Can you explain the nature of the position?---I commenced that job two days after my miscarriage and I was under an enormous amount of stress. There was lack of training, lack of support, which I advised the employer which I left. So I was given one and a half weeks’ training to take on board someone who has been there three years who was going to leave, and then someone else’s work who was there 10 years, taking on the biggest client, to do her work. So I just had work that was insurmountable for someone who had just been there a month. Considering all that I’d gone through, I just thought it was giving me more stress, more pressure and I just knew that it wasn’t a good time to do this in consideration of my health.

How long did you stay at Link Market Services?---I stayed there for a month.

You resigned or you - - -?---I resigned and the employer said, “That’s unfortunate because we were actually going to maybe look at some options for you,” but I didn’t get the support at the time. So I didn’t feel that – yes.” 5

[17] On 19 December 2013 the applicant lodged this application pursuant to section 365 of the Act.

[18] On the evening of 19 December 2013 Ms Lam suffered a schizophrenic episode regarding her work. She imagined Mr Stallman was going to attack her. Ms Lam's evidence in this regard is set out below:

“------Have you had any reoccurrence since the termination of the pregnancy, the cessation of the pregnancy?---Yes, I have. So the reoccurrence occurred some time in December – I can’t remember the exact date – whereby I actually thought that John was actually going to be attacking me and I actually went up to call the landlord and said, “Look, I’m really scared. There’s someone at the door.” At this time the blinds were down. “You need to come down immediately.” So they came down and I said, “Don’t go through the back because I think there’s somebody at the back just come through the door,” where there’s an entrance to the place which I stayed. So they came down - - -

Who’s John?---John Stallman, the respondent.

I see?---Yes. So I thought he actually was going to come and attack me. So they actually came down, calmed me down and said, “Look, it’s going to be okay. You’re obviously very traumatised by everything that has taken place.” Then they called me up for a cup of tea where we just had a light-hearted conversation, talking about Christmas lights, their children, because that’s something that I love to talk about, their kids, and they shared about their grandkids, what they’ve been up to.

So that was an incident in December. Whenabouts in December?---It would have occurred the night in which I submitted the application, the Fair Work Commission application.

So the evening after you’d done that?---Yes, that’s right.” 6

[19] This was the first episode of schizophrenia suffered by Ms Lam in eight years. She was admitted to the Community Health Centre, Fairfield as a result.

[20] On 31 December 2013 the employer provided Ms Lam with a separation certificate.

[21] The respondent opposed the extension of time. It submitted that Ms Lam should have been able to apply her mind to lodging her application before 28 November 2013.

[22] The respondent relied on the fact that Ms Lam could seek new employment as demonstrating that she had possessed sufficient presence of mind to attend to the application had she wished to do so.

[23] The respondent also relied on the nature of the miscarriage i.e. an early term miscarriage, as being less traumatic than if Mr Lam had suffered a late term miscarriage. Mr Angelopoulos, for the Respondent, did not explain what evidence he relied on to distinguish the trauma and consequent distress of an early term miscarriage as opposed to a late term miscarriage in its effect on decision-making powers of the woman affected.

[24] The relevant legislative framework for the exercise of the Fair Work Commission (the FWC) in relation to applications of this kind is set out below.

‘S394 Application for unfair dismissal remedy

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[25] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 7Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”8

[26] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 9 In Maan v Minister for Immigration and Citizenship10 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

[27] Although the expression “exceptional circumstances” is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

“We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 11

(my emphasis)

[28] I have adopted this approach.

[29] I considered the reasons provided by Ms Lam for the delay in lodging her application. I considered Ms Lam's miscarriage, despite Mr Angelopoulos’ submissions to the contrary, a significant explanation for Ms Lam's distraction from the timeliness of lodging her application.

[30] I am also persuaded and find that the fact of Ms Lam's termination of employment, her consequent financial concerns and her search for new employment all had a deleterious effect on Ms Lam's health. I am satisfied and find that the deterioration in her general health and increased stress levels more probably than not led eventually to the schizophrenic incident experienced by her on the evening of the day of lodgement of her application. I am satisfied that, for that type of florid event to have occurred after a gap of eight years, the stress and health problems suffered by Ms Lam must have been significant and that they provided a significant explanation for her lodging her application out of time.

[31] These explanations are circumstances that I was satisfied justify an exception to the ordinary time limit for an application of this kind.

[32] The date Ms Lam became aware of her dismissal, the action taken by her to dispute her dismissal, prejudice to the respondent and fairness between Ms Lam and other persons in a similar position in the merits of the substantive application were all neutral factors in my consideration.

[33] It was for these reasons that I decided to extend the time for lodgement of this application pursuant to section 365 of the Act.

SENIOR DEPUTY PRESIDENT

 1   PR548074

 2   Transcript PN92

 3   Transcript PN11

 4   Transcript PN137

 5   Transcript PN148 - PN150

 6   Transcript PN93 - PN97

 7 [2003] FCAFC 256.

 8   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 9   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 10 [2009] FCAFC 150

 11   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

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