Ms Fiona Reilly v Cranes Community Support Programs Ltd

[2016] FWC 2254

[2016] FWC 2254

FAIR WORK COMMISSION

DECISION

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

Ms Fiona Reilly
v
CRANES Community Support Programs Ltd
(U2015/16718)

COMMISSIONER SAUNDERS NEWCASTLE, 8 APRIL 2016

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (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 Fiona Reilly (the applicant) a further period for her unfair dismissal application (the Application) to be made.

[3] On 8 April 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

Legislative scheme

[4] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application 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) 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.”

[5] 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. 3 In 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.”   

[6] Ignorance of the timeframe for making an application for unfair dismissal is not an exceptional circumstance. 4

Consideration

Paragraph 394(3)(a) - reason for the delay

[7] 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

[8] There must be an acceptable reason for the delay in making the unfair dismissal application. 7

[9] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8

[10] 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. 9 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:10

“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

[11] I make the following findings in relation to the events leading up to and following the applicant’s dismissal:

(a) On 1 April 2015, the applicant was stood down on full pay as a result of an incident concerning a child who attended the pre-school at which the applicant worked;

(b) By letter dated 10 April 2015, the applicant was required to show cause in relation to allegations made against her concerning the incident at the workplace on 1 April 2015;

(c) On 16 April 2015, the applicant received the show cause letter and sought an extension of time in which to respond to the letter;

(d) By letter dated 20 April 2015, the applicant’s solicitor requested a further 14 days from the date of the letter to respond to the allegations contained in the show cause letter. Neither the applicant nor her solicitor received a response from the respondent to their request for an extension of time in which to respond to the show cause letter;

(e) The respondent says that it sent a letter dated 5 May 2015 to the applicant to inform her that her employment had been terminated. The applicant says she has not, at any time, received that letter. I accept her evidence in that regard because it is consistent with her conduct in May 2015, as summarised below;

(f) On 8 May 2015, the applicant’s solicitor sent to the applicant a draft response to the show cause letter by email. The applicant could not access her email until approximately eight days later. Once the applicant had approved the letter, it was sent to the respondent on 19 May 2015. At no time did the applicant or her solicitor receive a response to that letter. The penultimate paragraph of the letter states:

“Our client submits that she does not need to be subjected to any disciplinary action by your organisation. Would you please notify us of your decision regarding our client and that if you decide to terminate her employment, she reserves the right to lodge a claim for unfair dismissal through Fair Work Australia.”

(g) The respondent continued to pay the applicant her wages in the period from 1 April 2015 until 28 July 2015, at which time the payments stopped. As a result of receiving these regular payments and not having received the letter of termination dated 5 May 2015 or a response to the letter from the applicant’s solicitor dated 18 May 2015, the applicant believed that she remained employed by the respondent at all times in the period from 1 April 2015 until at least 28 July 2015. I accept her evidence in that regard;

(h) In a report dated 17 August 2015 from Dr Paine, the applicant’s treating neurologist and neuro-opthalmologist, Dr Paine stated, amongst other things:

“Thank you for asking me to review Fiona again. She describes ongoing difficulties with right sided headache, visual sensitivity including visual vertigo, as well as some nonspecific dizziness and disequilibrium. The symptoms have improved since I last saw her … Unfortunately there is no convenient time frame at which the symptoms settle … I would be happy to review again as needed.”

(i) On 31 August 2015, the applicant called the respondent and asked, on the advice of her solicitor, what her “capacity” was with the pre-school because she was no longer being paid. The applicant spoke to a woman by the name of “Lisa”, who told the applicant that she “had been dismissed ages ago” and a letter to that effect had been sent to her. When the applicant enquired as to the date on which the letter had been sent to her, Lisa hung up the telephone;

(j) Later on 31 August 2015, the applicant spoke to her solicitor and informed her of the conversation she had had with Lisa earlier in the day. The applicant’s solicitor then faxed a letter to the respondent in the following terms:

“We last wrote to your organisation on 18 May 2015 and we have not had the courtesy response.

Our client has today informed us that she has been dismissed and that there was, supposedly, a letter coming to us with the details of her dismissal.

As she was last paid on 28 July 2015 and there was no evidence of a letter sent by your organisation to us, as her lawyers, or to her, WE PUT YOU ON NOTICE that our client will be lodging a claim for unfair dismissal.

Please note that a person by the name of ‘Lisa’ hung up on our client when she enquired as to the date on which the letter had been sent to her solicitor.

As our client has worked for your organisation for over eight years, we consider that she has been treated in an unfair and unprofessional matter[sic].”

(k) The applicant relies on a printout made on 7 September 2015 of a page from the Respondent’s website which shows the applicant as one of the “early childhood educators” at the respondent’s preschool;

(l) On 14 September 2015, the applicant’s solicitor received a letter from the respondent, which states, in part:

“… In summary:

• We requested reply on the 17th April 2015



• We extended this until 1st May 2015



• We extended this again until 4th May 2015

On the 8th May 2015 I made the determination based on the material at hand. The letter was sent to Fiona Reilly on the 8th May 2015. Danielle Walker was directed to post a copy of the letter to your office. On the 21st May 2015, 17 days after your final request for a 3 day extension we received a letter from you replying to our letter of the 10th April 2015.

Danielle left CRANES in August, and we were disappointed to discover that she had not taken action to cease the payments to Fiona. We appreciate this may have caused confusion for Fiona, and from our point of view we regret the payments as well as the confusion, however our intention to resolve the matter within timeframes was clearly expressed.”

(m) The applicant says that, since 31 October 2015, she has had “personal relationship issues to deal with (marriage breakdown) and ongoing ill-health”. In addition, the applicant says that she has been unable to get any long-term work because she cannot communicate to any new employer whether she was dismissed from her previous employment and if so the reason for the termination;

(n) The applicant says that she suffers from anxiety, depression, and mood changes as a consequence of the events on and after 1 April 2015, as well as post-traumatic migraines and post-concussion syndrome as a consequence of a workplace accident on 23 October 2013;

(o) In a report from the applicant’s psychologist dated 1 March 2016, the psychologist noted that the applicant continued to attend sessions with the psychologist regularly until August 2015 and she resumed attending sessions in January 2016. On the basis of that report I find that the applicant did not attend any sessions with her psychologist in the period from 1 September 2015 until 31 December 2015;

(p) The applicant’s Application is dated 7 December 2015;

(q) The Application was lodged in the Commission on 10 December 2015;

(r) In the period from 31 August 2015 until early December 2015, the applicant was in contact with her solicitor from time to time. During that time she wavered as to whether or not to make an application for unfair dismissal;

(s) On 22 December 2015, Mr Kenneth Gerke, People and Culture Officer of the respondent sent an email to the applicant in the following terms:

“Dear Fiona,

I have been gathering information on behalf of CRANES to provide a response in relation to your unfair dismissal application. During this process I have not found any evidence of you being provided a separation certificate and have also discovered an overpayment error in your final separation payment I have therefore created a separation certificate (see attached) for your records. I have investigated the payment and it looks like your entitlements were paid to you in instalments between the 5/5/15 and 28/7/2015, we have also noticed that during this time you are overpaid your entitlement amount by $1,225.83. Your entitlements owing for accrued annual leave added up to $2376.32 including loading, the total of the two amounts was $3602.15, as the overpayment was an administration mistake by CRANES, will not be seeking a reimbursement for the overpayment amount of $1225.83. We now confirm that all entitlements were paid in full.”

(t) The applicant received the email dated 22 December 2015 but says she did not, at that or any other time, receive an employment separation certificate from the respondent. I accept her evidence in that regard.

Analysis of the chronology of events and reasons for delay

[12] In light of my earlier finding that the applicant did not receive the termination letter dated 5 May 2015, I am satisfied that the dismissal did not take place at or about that time.

[13] Having regard to the events which took place on 31 August 2015, as summarised in paragraphs [11(i)] and [11(j)] above, I am satisfied that the applicant’s dismissal was communicated to her orally on 31 August 2015. It follows that her dismissal took effect on 31 August 2015. It is therefore unnecessary for me to make a finding as to whether the information contained in the letter received by the applicant’s solicitor on 14 September 2015 amounted to communication to the applicant of her dismissal. Had I been required to make such a finding, I would have concluded that the letter constituted communication to the applicant of her dismissal. Although there was no express reference in the letter to a dismissal or termination of employment, the letter did refer to “the determination” and, in my view, a reasonable person in the position of the applicant would have understood, by reference to the language used in the letter and in the context in which it was received, that the respondent had made a decision to terminate her employment.

[14] The 21 day time period for the applicant to make her Application expired on 21 September 2015. 11 Given that the applicant completed her Application on 7 December 2015 and it was lodged with the Commission on 10 December 2015, the Application was made 81 days late.12

[15] In accordance with the principles summarised in paragraph [10] 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 22 September 2015 until 10 December 2015. However, the circumstances from the time of the dismissal (31 August 2015) 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.

[16] The principal reasons relied on by the applicant for the delay in filing her Application may be summarised as follows:

(a) confusion as to when the applicant was dismissed;

(b) ongoing ill-health and marriage breakdown;

(c) inexperience in legal matters; and

(d) inability to obtain alternative long-term work.

[17] As to (a), I agree that there was a significant amount of confusion as to when the applicant was dismissed. The fact that the respondent mistakenly continued to pay her wage on a regular basis until 28 July 2015 contributed to the confusion. However, I have found that the applicant’s dismissal was communicated to her on 31 August 2015. It follows that any confusion prior to this time is not relevant. In my view, there is little, if any, basis for confusion after 31 August 2015. So much is clear from the applicant’s solicitor’s letter dated 31 August 2015 in which the respondent was put on notice that “our client will be lodging a claim for unfair dismissal” [emphasis added].

[18] As to (b), there is no evidence to support a finding that the applicant was incapacitated for the entire period of the 81 day delay. Indeed, the applicant did not attend any sessions with her psychologist during this period. I accept that the applicant was distressed, depressed, and suffering from anxiety and mood changes following her dismissal. This is not uncommon for someone who has just lost their job. 13 I also accept that the circumstances of the applicant’s dismissal contributed to her marriage breakdown and that was a difficult period of time for her.

[19] As to (c), I accept that the applicant is not experienced in legal matters or in having her employment terminated. However, at all times from April 2015 she has been in receipt of legal advice from her solicitor. I also note that ignorance of the timeframe for making an application for unfair dismissal is not an exceptional circumstance. 14

[20] As to (d), an inability to find alternative employment is not, in my view, an acceptable reason to delay in making an unfair dismissal application.

[21] While I am sympathetic to the applicant’s circumstances, I am not persuaded that the applicant’s difficulties were out of the ordinary course, unusual, special or uncommon. I am also not satisfied that the applicant has provided a reasonable explanation for whole of the delay.

[22] This factor weighs against granting the applicant an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[23] In accordance with my earlier finding, the applicant first became aware of the dismissal on 31 August 2015. That was the day on which the dismissal took effect. The applicant had the full 21 days to make her application. This weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[24] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 15

[25] It is apparent from the chronology set out in paragraph [11] above that the applicant clearly disputed the fairness of her dismissal and put the respondent on notice that she would bring an unfair dismissal claim. This weighs in favour of a finding that there are exceptional circumstances.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[26] Prejudice to the employer will weigh against granting an extension of time. 16 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.17

[27] A long delay gives rise “to a general presumption of prejudice”. 18

[28] 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. 19

[29] Noting that the delay was 81 days and the respondent has not produced any evidence to demonstrate prejudice, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[30] In Kornicki v Telstra-Network Technology Group 20the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 21

[31] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 22 for the purpose of determining whether to grant an extension of time to the applicant to lodge [his/her] Application.

[32] I adopt this approach in relation to my consideration of the merits of the Application.

[33] The respondent submits that it had a valid reason for the termination of the applicant’s employment on the basis of the allegations set out in the show cause letter dated 10 April 2015. The applicant denies the allegations and claims that it was unfair for her to be dismissed.

[34] I am not able to make an assessment of the merits because there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[35] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 23 considered this criterion and said (at [29]) “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission”.

[36] There was no submission that there were other persons in a similar position to the applicant. I find this criterion to be neutral.

[37] I am satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.

[38] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[39] Having taken into account the matters referred to in paragraphs [7] to [38] 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.

[40] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Ms M Harding, solicitor, for the applicant;

Mr K Gerke and Ms C Rolph for the respondent.

Hearing details:

2016.

Newcastle:

April, 8.

 1   Section 394(2)(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   Section 394(3) of the Act.

 3 [2011] 203 IR 1

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

 5   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 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   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]

 10   [2016] FWCFB 349 at [31]

 11   That is, 21 days from 31 August 2015 (not including 31 August 2015) is 21 September 2015.

 12   That is, 10 December 2015 is 81 days after 21 September 2015.

 13   Australian Postal Corporation v Zhang[2015] FWCFB 5285 at [45]

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

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

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

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

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

 19   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 20   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 21   Ibid.

 22   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 23   [2015] FWC 8885

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