Ms Emmalee Meisels v Patrick Studios Australia Pty Ltd T/A Patrick Studios Australia

[2016] FWC 7099

[2016] FWC 7099

FAIR WORK COMMISSION

DECISION

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

Ms Emmalee Meisels
v
Patrick Studios Australia Pty Ltd T/A Patrick Studios Australia
(C2016/1956)

COMMISSIONER SAUNDERS NEWCASTLE, 18 OCTOBER 2016

Application to deal with contraventions involving dismissal – application for extension of time refused – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Ms Emmalee Meisels (the applicant) a further period for her general protections application (the Application) to be made.

The Hearing

[3] On 17 October 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence in support of her application for an extension of time. The respondent called evidence from its Business Owner, Mr Todd Patrick, and its Business Manager, Ms Kerrie Patrick.

Legislative Scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[6] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 3

[7] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”

Consideration

Paragraph 366(2)(a) – reasons for delay

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[9] There must be an acceptable reason for the delay in making the general protections application. 7

[10] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8 Ignorance of the 21 day timeframe is not an exceptional circumstance.9

[11] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 10 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:11

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[12] The respondent contends that the applicant resigned with effect on 19 May 2016. The applicant submits, in effect, that she was constructively dismissed on 19 May 2016. In considering the reasons for delay under s.366(2)(a) of the Act, I will take the applicant’s case at its highest on the issue of dismissal and proceed on the assumption that she was dismissed by the respondent on 19 May 2016.

[13] The 21 day time period for the applicant to make her Application expired on 9 June 2016. 12 Given that the applicant filed her Application on 18 August 2016, the Application was 70 days late.13

[14] In accordance with the principles summarised in paragraphs [8] to [11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 10 June 2016 to 18 August 2016. However, the circumstances from the time of the dismissal (19 May 2016) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[15] In her outline of argument, the applicant described the reasons for her delay as follows:

“1. Following my dismissal I firstly needed time to best deal effectively with the difficult circumstance I had found myself in (being unintentionally unemployed). I felt confused, lost, disappointed and depressed and was not sure what move to make next. Without confidence that Patrick Studios Australia would pay me correctly for my time, I immediately needed to begin looking for new work in order to support myself as well as investigating what government funding options were available to me (ultimately, I was eligible for none). I applied for over sixty new jobs within seven weeks before eventually finding new employment, however this took many hours of answering key selection criteria and cover letter writing as well as sitting for interviews and driving across Melbourne. Ultimately Patrick Studios Australia took multiple correspondence to pay me and still have not paid me all of my overtime payments.

2. Additionally I was retaining a large volume of emotional stress from the ongoing harassment and bullying from the workplace itself, and was not in my most concentrated sense of self to be taking such a large organization to a Fair Work Commission. This task largely intimidated me at this time and I very much needed to seek counselling to remove myself from the stress of this position. It was not an easy task to do immediately against an organization which I am commenting about bullying.

3. Contacting the FWC did not appear to be necessary at first as my initial communications with Patrick Studios Australia appeared as though they were open to communication and would be swift in my remedy, however once it was discovered that the directors did not have the intentions to remedy me completely I required intervention and immediately contacted the FWC. I believe I gave Patrick Studios Australia all of the information that they required during my communications with them as well as ample time to respond. I was polite and courteous.

I first contacted Patrick Studios Australia to remedy my overtime and Annual Leave payments on 20/05/2016. As Patrick Studios Australia employee Kristen Mahar immediately denied owing me my overtime payments and negated the amount of Annual leave owed, I began an ongoing email discussion in order to retain these amounts which were delivered on the following dates;
- 07/05/2016
- 26/05/2016
- 27/05/2016
- 02/06/2016
- 03/06/2016
- 09/06/2016
- 23/06/2016
- 08/07/2016 (This was a final letter of intent, expressing the amount owed for lost wages, pain and suffering for bullying/harassment in the workplace as well as overtime listed on my timesheet and part-payment of my annual leave. This payment was to be paid within ten days of this letter before lodging an application with FWC).

I have attempted wholeheartedly to resolve this matter personally before coming to FWC, however, unfortunately, this has not proved fruitful and I now require a lodgment in order to be heard and made whole.”

[16] The applicant gave oral evidence to the effect that she felt depressed and incapacitated following her dismissal; she obtained treatment from her General Practitioner and psychologist. However, the applicant did not adduce any evidence from her General Practitioner or psychologist to support her contention that she was incapacitated following her dismissal.

[17] Further, the applicant was able to communicate with the respondent in an articulate manner in numerous emails following her dismissal. The applicant was hopeful that she would be able to resolve her issues with the respondent in those written communications. She also applied for about 60 jobs in the 90 days following her dismissal, with her first application being made about three or four weeks after her dismissal. The applicant made all of her applications for alternative employment on-line. The applicant also sought advice following her dismissal about her rights. These facts demonstrate, in my view, that the applicant was not incapable of making a general protections application for the whole of the period from 19 May 2016 until the Application was filed on 18 August 2016.

[18] Although I have some sympathy for the applicant, the matters she relies on, as set out in paragraphs [15] and [16] above, are not, either viewed in isolation or considered together, out of the ordinary course, unusual, special or uncommon. I find that this factor (s.366(2)(a)) weighs against granting the applicant an extension of time.

Paragraph 366(2)(b) – any action taken by the person to dispute the dismissal

[19] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 14

[20] The applicant sent a number of written communications to the respondent in the period between 19 May 2016 and 18 August 2016. In those communications the applicant primarily challenged her entitlements to annual leave and overtime, however in her letter to the respondent dated 7 August 2016 the applicant sought damages for her constructive dismissal and contended that her dismissal was causally connected to the complaints and concerns she raised during her employment with the respondent. By sending her letter dated 7 August 2016 to the respondent, the applicant took action to dispute her dismissal.

[21] This factor weighs in favour of granting the applicant an extension of time.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[22] Prejudice to the employer will weigh against granting an extension of time. 15 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.16

[23] A long delay gives rise “to a general presumption of prejudice”. 17

[24] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 18 No such evidence was adduced by the respondent in this case.

[25] The period of the delay in this matter was 70 days. I consider that to be a reasonably long period of delay.

[26] In all the circumstances of this case, prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d) - merits of the application

[27] The applicant contends that she was constructively dismissed on 19 May 2016 as a result of raising concerns and making complaints to her employer about bullying and occupational health and safety matters. The respondent denies the applicant’s allegations and submits that the applicant was not dismissed at the employer’s initiative.

[28] The applicant also contends that she was dismissed because she was temporarily absent from work (s.352) and the respondent attempted to coerce her in contravention of s.355 of the Act. The respondent denies those allegations.

[29] The resolution of the contested factual questions concerning what was said in the discussion between the applicant and Mr Todd Patrick on 19 May 2016, whether the applicant was constructively dismissed, and if so the reasons for the applicant’s dismissal will only be able to be determined after a full hearing on the merits, including cross examination of the decision makers. In those circumstances, I am satisfied that the merits of the Application is a neutral consideration in relation to whether or not I should extend time for the Application to be made.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[30] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 19 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[31] I am not satisfied that the issue of fairness as between the applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[32] Having taken into account the matters referred to in paragraphs [12] to [31] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[33] Accordingly, the application for an extension of time is refused. The jurisdictional objection as to the Application being made out of time is upheld and the substantive Application is dismissed.

COMMISSIONER

Appearances:

Ms E Meisels on her own behalf;

Ms J Lane, solicitor from Kliger Partners Lawyers, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

October, 17.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Secction 366(2) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 4 [2011] 203 IR 1

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

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

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 11   [2016] FWCFB 349 at [31]

 12   That is, 21 days from 19 May 2016 (not including 19 May) is 9 June 2016.

 13   That is, 18 August 2016 is 70 days after 9 June 2016.

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

 15   Ibid.

 16   Ibid.

 17   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 18   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February

2003) PR927201 at [16]

 19   [2016] FWCFB 6963

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