Ms Irene Kypreos v IMCD Australia Pty Ltd T/A IMCD Australia Pty Ltd
[2024] FWC 2117
•9 AUGUST 2024
| [2024] FWC 2117 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Irene Kypreos
v
IMCD Australia Pty Ltd T/A IMCD Australia Pty Ltd
(U2024/7167)
| DEPUTY PRESIDENT CROSS | SYDNEY, 9 AUGUST 2024 |
Application for an unfair dismissal remedy – alleged forced resignation – 44 days out of time – lack of adequate medical records – jurisdictional objection upheld – application dismissed
On 21 June 2024, Irene Kypreos (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by IMCD Australia Pty Ltd T/A IMCD Australia Pty Ltd (the Respondent). The Applicant commenced her employment with the Respondent on 13 April 2020. The Applicant claimed that she was notified of her dismissal on 17 April 2024, but states she resigned. The Respondent contends that the Applicant was not dismissed but that she resigned.
Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. An application for a remedy should have been lodged by 8 May 2024. The Application was therefore lodged outside of the time prescribed and was lodged 44 days after the last day on which such an application could have been made.
On 10 July 2024, the matter was allocated to my Chambers and on that same day Directions were issued to determine the programming of the matter. The Directions were:
1. By no later than 4:00PM on Wednesday, 17 July 2024, Ms Irene Kypreos (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
· The reason(s) for the delay;
· Whether the Applicant first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position
2. IMCD Australia Pty Ltd T/A IMCD Australia Pty Ltd (the Respondent) is required to send their signed witness statement to the Fair Work Commission by email at and provide a copy to the Applicant by no later than 4:00PM on Wednesday, 24 July 2024.
Important note: Failure to comply with these Directions or to attend the Conference/Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.
The Applicant provided a brief statement and attached a certificate of capacity. The Respondent filed a statement from Ms Marquardt.
The Hearing took place on 9 August 2024.
Consideration
Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:
“(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).”
As the Application was lodged outside of the 21-day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:
“(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.”
It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.
(a) Reason for the delay
When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 stated at [30]:
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”
Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.
In her Form F2, the Applicant submitted the following with respect to why her Application was being lodged outside of the 21-day limit:
I resigned under a forced dismissal 17th April due to the high pressure environment created in an unexpected restructure meeting, whereby I was advised through a presentation that my workload was to increase significantly and beyond my capacity. There was some back and forth, however my mental health deteriorated over the coming weeks and I have been on stress leave. My focus has been on recovering. The thought of starting this process has been overwhelming up to now.
Further, in her witness statement, the Applicant submitted as “The reason(s) for the delay”, the following:
At the time of my resignation, I was unknowingly suffering from burnout. I was invited to a meeting which I was told was to be a presentation on the business, however it unknowingly turned out to be a restructure meeting. It was presented to me that my workload would increase by over 50%. This event was traumatic and left me with PTSD. I spent the following weeks dealing with my mental health and future livelihood options.
Essentially there were two reasons advanced by the Applicant for her delay, being:
(a) That, despite the Applicant resigning, she continued to discuss future and part time employment options until the last meeting on 6 May 2024; and
(b) The Applicant’s mental health.
The discussions that occurred after the resignation do not explain any part of the delay because those discussions ended within the 21 day limitation period. The Applicant was clearly not precluded from commencing proceedings while the discussions occurred.
As to the 44 day delay period after 8 May 2024, the Applicant relies of alleged mental health issues. The Applicant provided a Certificate of capacity that did little to account for the delay in her filing the Application. The Certificate of Capacity was dated 2 July 2024, bearing little relevance as to why the Application was lodged outside the 21-day limit. Apparently, the Applicant had provided her first certificate of Capacity on around 21 May 2024, but that was 13 days after the expiry of the 21 day filing period.
The Applicant did not provide adequate evidence in relation to her mental health. In any event, I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[1], where the majority (Watson VP and Smith DP) observed:
‘[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.’
[Emphasis added]
In all the circumstances, the Commission cannot be satisfied that the Applicant’s stated reasons for filing her Application out of time, constitute exceptional circumstances, as contemplated by the statute.
(b) Whether the person first became aware of the dismissal after it had taken effect
The Applicant submitted:
At the time of my resignation, I had not considered the legalities of the situation. It was
weeks later, that I began looking into it and identified it as a forced dismissal.
For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 17 April 2024, when she resigned. This is not a relevant factor in this matter.
(c) Action taken by the person to dispute the dismissal
The Applicant submitted:
I had multiple meetings with IMCD; however, they were not willing to offer any option other than to take on the unreasonable workload.
It is common ground between the parties that the Applicant resigned on 17 April 2024. While the Applicant sought to negotiate different terms of employment, those actions did not constitute disputing the dismissal itself. Nonetheless, I consider this to be a neutral factor in this matter.
(d) Prejudice to the employer
The Respondent made no particular submission regarding this consideration. Accordingly, I consider that this is a neutral factor in my consideration.
Merits of the application (s 394(3)(e))
It is appropriate to note that a consideration of the merits of an Application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited[2]. [3]
I note, however, that the Respondent raised the further jurisdictional objection in its Form F3, noting that the Applicant was earning more than the high-income threshold. The Applicant was earning $160,353 as a base salary and she conceded during the Hearing that she was provided with a car allowance valued at around $20,000. Despite the above issues, I cannot make any findings on contested matters without a hearing on the evidence.
In the matter of Kornicki v Telstra-Network Technology Group[4] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”[5]
I adopt the reasoning of the Full Bench of the Commission in relation to the consideration of merits. I consider that this is a neutral factor.
(f) Fairness between the person and other persons in a similar position
Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.
Conclusion
As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight was the absence of any acceptable reason for delay. That factor weighed in the Respondent’s favour.
I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms I Kypreos the Applicant.
Ms M Marquardt on behalf of the Respondent.
Hearing details:
10AM.
Sydney.
Microsoft Teams.
[1] [2015] FWCFB 287, at para [15].
[3] Print T2421, at [14].
[4] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[5] Ibid.
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