Ms Helen Solonsch v Western Dermatology
[2022] FWC 1047
•9 MAY 2022
| [2022] FWC 1047 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Helen Solonsch
v
Western Dermatology
(U2022/4106)
| COMMISSIONER WILSON | MELBOURNE, 9 MAY 2022 |
Application for an unfair dismissal remedy – out of time – circumstances not exceptional – application dismissed
On 7 May 2022, Ms Helen Solonsch (the Applicant) filed an application with the Fair Work Commission (Application) pursuant to section 394 of the Fair Work Act 2009 (the Act) alleging she was unfairly dismissed from her employment with Western Dermatology (the Respondent) on 11 March 2022.
On 26 May 2022, the Respondent filed an F3 Employer Response raising the jurisdictional objections that the dismissal was a case of genuine redundancy and that the application had been filed out of time.
Section 394(2) of the Act states that an unfair dismissal application must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to section 394(3). In Ms Solonsch’s case the 21-day period ended at midnight on 1 April 2022. The Application was accordingly made 6 days out of the time required by section 394(2) of the Act. For the Application to proceed, it is necessary that a further period for the Application to be made is granted under section 394(3) of the Act. This further period can only be allowed if I am satisfied that there are exceptional circumstances, after taking into account certain legislated matters.
The extension of time matter was the subject of a hearing before me on 5 May 2022.Ms Solonsch appeared for herself at the hearing with Dr Green being represented by Ms A Papas of the Australian Medical Association.
For the reasons set out below I am not satisfied there are exceptional circumstances in Ms Solonsch’s case. Accordingly, I decline to allow an extension of time for the making of her unfair dismissal application.
Exceptional Circumstances
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]
“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 of uncommon.” [emphasis added]
Section 394(3) of the Act sets out the matters that must be taken into account in considering whether there are exceptional circumstances. These are:
· the reason for the delay;
· whether the person first became aware of the dismissal after it had taken effect;
· any action taken by the person to dispute the dismissal;
· prejudice to the employer (including prejudice caused by the delay);
· the merits of the application; and
· fairness as between the person and other persons in a similar position.
Reason for Delay
The primary reason given by the Applicant for the delay was the shock and distress which the sudden nature of the dismissal caused her due to the lack of counselling or warning of the fact the dismissal would occur in the weeks leading up to the event.
In Ms Solonsch’s account of events, on 7 March 2022 she was informed she would be stood down from her permanent part time position. Then, on 11 March 2022 she was informed she had been made redundant. It is Ms Solonsch’s contention this redundancy was not genuine.
In support of her submissions as to the severity of the impact of these events upon her mental state, Ms Solonsch filed a medical certificate which stated she would be unfit for her usual activities from 9 March 2022 to 10 March 2022.
Ms Solonsch also submitted that in this same period she had also recently received news that her grandson had been diagnosed with cerebral palsy. Ms Solonsch submits that this news, and the support which she was required to give her daughter following it, led to her being unable to attend to the matter of the Application within the relevant period. Further, the partner of a close friend suffered a severe injury on 31 March 2022[2] leading to Ms Solonsch being required to support her friend in the Alfred Hospital, for an unspecified period of days, due to the extreme nature of her friend’s mental distress in combination with other health issues.
While the above circumstances were clearly extremely difficult for Ms Solonsch, I am not satisfied that they constitute an adequate reason for the delay. Shock and distress following dismissal are not unusual amongst applicants and do not in themselves provide reason for an extension of time to be granted in the absence of cogent medical evidence of an incapacity to act.
The proposition that a medical illness explains a filing delay requires compelling medical evidence to that effect,[3] and there was none before the Commission in relation to the factors relied upon by Ms Solonsch. In order to accept evidence of this type, the Commission would expect to have an insight into the extent to she was incapacitated during the whole of the period following termination of employment.[4]
While I do have sympathy for the fact Ms Solonsch was required to support her daughter and grandson and friend and her partner in this period, on the evidence submitted I cannot find that these responsibilities would have prevented Ms Solonsch from filing her application within time.
Ms Solonsch also submitted that it was not until 31 March 2022 that she had cause to question whether the stated reason for her dismissal, being redundancy, was correct. On that day she received a text message requesting assistance from a nurse currently employed at the practice, which led her to believe that her redundancy might not be genuine, and that what may have occurred could constitute an unfair dismissal. The date of that event though was still within the window for the making of an unfair dismissal application within time, with the time period not expiring until the following day. It took a week from the date of the text message for Ms Solonsch to make the application.
I note that as well as submitting the Application 6 days out of time, Ms Solonsch was also late in filing her submissions for the extension of time hearing, and that her explanation on the subject also connected the filing delay with the need for her to support her friend. That situation could be taken as either reinforcing the difficulties Ms Solonsch faced after her dismissal, and perhaps leaning in her favour for an extension of time; alternatively, it could be taken as indicating an inattention to the timeframes established by the Act and the Directions given by the Commission. In the circumstances, I do not find it either reinforces or undermines the factors Ms Solonsch put forward as her explanation for making a late application.
For these reasons I do not accept Ms Solonsch’s statements as an acceptable explanation of the delay which took place. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
When the Applicant First Became Aware of the Dismissal
Ms Solonsch clearly first became aware of her loss of employment on 11 March 2022. Consideration of this criterion does not assist a finding of exceptional circumstances, notwithstanding the Applicant did not have cause to question the legitimacy of her dismissal until late into the statutory time period.
Action Taken to Dispute the Dismissal
Ms Solonsch did not put forward any evidence as to action taken by her to dispute the dismissal. This is a neutral factor in my consideration.
Prejudice to the Employer
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances. Further, a long delay gives rise “to a general presumption of prejudice”.[5]
There is no evidence of a particular prejudice which would accrue to the employer were the application to be allowed to proceed even though it was made outside of the statutory time limit. This is a neutral factor in my consideration.
Merits of the Application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[6] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[7]
Ms Solonsch submits that she was not made redundant, as is contended by the Respondent, but was instead unfairly dismissed and replaced within the staff of Western Dermatology. The Respondent submits that Ms Solonsch was made redundant due to a downturn in demand for cosmetic procedures at the clinic meaning that there was no longer a sufficient client base to require her services. The difference between the parties is not to be reconciled without a full hearing of the evidence and accordingly this is a neutral factor in my consideration.
Fairness Between the Applicant and Other Persons in a Similar Position
As there is no evidence of any other persons in a similar position to the Applicant in respect to the Respondent, this is a neutral factor in my consideration.
Ms Solonsch’s Entitlements
Ms Solonsch began working for the Respondent on 8 July 2020, with her dismissal effective from 11 March 2022. Ms Solonsch also noted in her submissions that she was 66 years old and received a two week notice payment from the Respondent following her termination. After raising the matter with the Applicant and Respondent, the Respondent acknowledged that since Ms Solonsch is older than 45 years and worked for the Respondent for more than one year and less than three years, the appropriate notice payment is three weeks. This was noted by the Respondent who accepted that if this error had been made it would be rectified.
Conclusion
It is clear that there were a number of factors which could reasonably be considered to have impacted upon Ms Solonsch during the 21-day period in which she was required to submit her unfair dismissal application. Namely, the diagnosis of her grandson, the requirement to support her friend following her friend’s husband’s injury, and the delay in her awareness that her redundancy might not be genuine. However, for the reasons I have outlined above I do not find that these matters individually or in combination warrant an extension of time.
The application is dismissed.
COMMISSIONER
Appearances:
Ms Helen Solonsch on her own behalf
Ms Aspa Papas for the Respondent
Hearing details:
2022.
Melbourne via Microsoft Teams;
5 May 2022.
Printed by authority of the Commonwealth Government Printer
<PR741276>
[1] [2011] 203 IR 1, [13].
[2] Noting that the date was incorrectly stated in Ms Solonsch’s written statement as “31st (sic) September” and corrected in her oral evidence.
[3] Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu Duo (Lynda) - [2018] FWCFB 1643, [38], [67].
[4] Ibid.
[5] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[6] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[7] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
Printed by authority of the Commonwealth Government Printer
<PR741276>
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