Ms Jacquelyn Hardy v Royal Flying Doctor Service of Australia (Queensland Section) Limited

[2018] FWC 334

[2018] FWC 334

FAIR WORK COMMISSION

DECISION

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

Ms Jacquelyn Hardy
v
Royal Flying Doctor Service of Australia (Queensland Section) Limited
(U2017/9145)

DEPUTY PRESIDENT ASBURY BRISBANE, 17 JANUARY 2018

Application for an unfair dismissal remedy – Extension of Time – No exceptional circumstances – Application refused – Application for unfair dismissal remedy dismissed.

BACKGROUND

[1] On 23 August 2017, Ms Jacquelyn Hardy (the Applicant) applied to the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (the Act) for a remedy regarding the termination of her employment from the Royal Flying Doctor Service of Australia (Queensland Section) Limited (the Respondent/RFDS) which was communicated to the Applicant on 21 March 2017 and took effect on 30 June 2017.

[2] Pursuant to s. 394(2)(a) of the Act, an application for an unfair dismissal remedy must be made within 21 days of the dismissal taking effect or within such further period as the Commission allows under s. 394(2)(b) of the Act. The application was required to be made by 21 July 2017, and was made 33 days outside the time required in s. 394(2)(a) of the Act.

[3] Directions were issued on 17 October 2017 requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to whether a further period of time should be allowed for Ms Hardy to make her application. The matter was listed for hearing on 1 November 2017.

[4] At the hearing on 1 November 2017, Mr Davies sought to appear on behalf of the Applicant. Mr Davies is a friend of the Applicant’s and is a law student. Mr Davies is neither a lawyer nor a paid agent and Ms Hardy advised orally at the hearing that she wanted him to represent her. Mr Heath of Carter Newell Lawyers sought permission pursuant to s. 596 of the Act to represent the Respondent. Permission was granted for the purposes of the extension of time application on the basis that it would allow the matter to be dealt with more efficiently.

[5] A statement of evidence filed by the Applicant on 20 October 2017 provided an explanation for the delay in making her unfair dismissal application up until 21 July 2017 but failed to provide any reasons for the failure to make the application in the period between 21 July and 23 August when the application was lodged.

[6] At the hearing on 1 November 2017, the Applicant’s representative sought to tender a further statement of Ms Hardy that had not been provided to the Respondent. In order to provide the Applicant with an opportunity to put all relevant matters before the Commission as to why she contends that there are exceptional circumstances justifying a further period in which to make her application being granted, and to afford the Respondent an opportunity to respond to that case, it was necessary to adjourn the hearing. The matter was relisted for hearing on 14 November 2017.

[7] In relisting the matter and giving the Applicant a further opportunity to file material in support of a further period in which to make an unfair dismissal application being granted, I made it clear that the Applicant was required to explain the full period of the delay. I also made it clear that when the further material was provided, it should be a comprehensive statement rather than referring to the first statement and material appended to the application for an unfair dismissal remedy. Unfortunately the second statement filed by the Applicant was not comprehensive and did not contain evidence of all matters raised at the further hearing.

[8] At the further hearing on 14 November 2017, evidence was given by the Applicant on her own behalf. 1 Evidence for the Respondent was given by Mr David Bryant, Human Resources Manager.2 In the circumstances I have considered both statements filed by the Applicant and the information set out in the Form F2 Application in determining whether to grant a further period for the application to be made.

LEGISLATION

[9] Section 394 of the Act states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

…

(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).

(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.”

[10] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

•  out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or

•  involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 3

[11] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 4 The Applicant must provide a credible reason for the whole of the period that the application was delayed.5 The circumstances from the time of the dismissal must also be considered and ultimately whether that reason constitutes exceptional circumstances.6

[12] 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. 7

[13] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. I will consider each of those matters in turn.

CONSIDERATION

Reasons for the delay

[14] Ms Hardy gave evidence that on 27 June 2017 – three days before her dismissal took effect – she requested a copy of her personnel file. Ms Hardy made this request by email to Ms Cheryl Tether. The email – appended to Ms Hardy’s unfair dismissal application, states:

“Hi Cheryl,

Could you please provide me a copy of my Personal file for my records.”

[15] Ms Hardy said that she did not receive a copy of the file until 21 July 2017, which was the last day on which her application could have been filed within the time required by s. 394(2) of the Act. 8 Ms Hardy asserts that the delay in receiving her file was unreasonable and caused her to be unable to file her application within the required time. Ms Hardy accepts that she did not use any information from her file when she made her application for an unfair dismissal remedy.

[16] In response to questions from the Commission, Ms Hardy agreed that prior to receiving her personnel file, she was already of the view that her dismissal was unfair and unreasonable but maintained that she needed the file prior to making her unfair dismissal application to clarify the actual reasons for the redundancy and for her unsuccessful application for an alternative position. 9

[17] Under cross-examination, Ms Hardy agreed that in response to her request for her personnel file, she received an email from Ms Tether dated 5 July 2017 in the following terms:

“Hi Jackie

I have been working on pulling your personnel file together and realised that we had moved between paper file and electronic, with not all documents in the paper file. For this reason, to get a complete file I will need to print the electronic files that are not in the paper file. This might take me a little longer. Let me know if there is anything in particular you need urgently and I can get that to you.

As this is the first time we have had to send a copy of a personnel file for a while, so we are feeling our way a little here. Let me know if you have any queries.” 10

[18] Ms Hardy also agreed that despite requesting her personnel file on 27 June, and being told on 5 July that there would be a delay in the Respondent providing the file to her, at no point in time did Ms Hardy inform the Respondent that the file was required urgently in order for her to file an unfair dismissal application within 21 days from the date of her dismissal on 30 June 2017. 11 Ms Hardy further agreed that she was aware of her impending redundancy in March 2017.

[19] Following the receipt of her personnel file, Ms Hardy stated that the further delay prior to her application being filed in the Commission on 23 August 2017 was due to a multitude of personal issues, which Ms Hardy describes as follows:

“There was a lot of other things going on in my life. The termination of course has a huge impact on everybody and as discussed I found it difficult to understand why I was terminated after almost 10 years of services for the RFDS. Also it does back to my service with the Air Force. I’m a veteran, I’ve been deployed to several war zones in Rwanda, Timor, involved in the Bali bombings and Banda Aceh. And these areas, again despite not having a diagnosed mental health illness, has a huge impact on a heightened level of anxiety and related stress. I was unable to go and afford the services of a lawyer and was aware that the RFDS had already obtained the services of a lawyer. 12

[20] Further, Ms Hardy stated in this period she was attending job interviews in Brisbane, to attempt to obtain alternative employment, requiring her to leave her husband on his own at their property in Bungadoo, in circumstances where her husband is a disabled veteran, for whom she is the primary care giver. Ms Hardy’s husband’s dog which she states was akin to a support animal, died in that period. Ms Hardy also stated that from at or around 10 July, she was living with and caring for her mother in Brisbane following a breast cancer diagnosis and treatment and made numerous trips back to her husband on weekends until late August 2017.

[21] It later emerged in Ms Hardy’s evidence that she attended one job interview in Brisbane in that time, on a date she was unable to recall, and which necessitated her being away from home for two days. 13

[22] Under cross-examination, Ms Hardy agreed that she does not currently suffer from a diagnosed mental illness, but contended that one can have a mental illness without actually having a diagnosed condition. Ms Hardy conceded that she had not placed evidence before the Commission to support a finding that her mental illness and accumulation of effects of the defence force “and everything else” has prevented an application being lodged within the 21 day time limit. Ms Hardy also agreed that the various stresses that she was under were not new matters, nor was the deteriorating health of her mother and the requirement of Ms Hardy to be the primary caregiver to her husband. 14

[23] It also emerged that Ms Hardy was successful in obtaining new employment on 10 July 2017. In response to the proposition that she was unable to submit her unfair dismissal application within the 21 day statutory time limit due to focusing her attention on her new employment, Ms Hardy said: “there are other factors also involved.” 15

[24] I am not persuaded that the Applicant has provided a reasonable explanation as to why she could not lodge her unfair dismissal application during the required 21 day statutory time limit. The Applicant indicates that prior to receiving her personnel file on 21 July 2017, she was already of the view that her dismissal was neither fair nor reasonable and it is on this basis that there appears no logical reason as to why the unfair dismissal application could not have been made in the absence of having her personnel file and within the 21 day time limit.

[25] Even if I am to accept the Applicant’s assertion that waiting for her personnel file to be received was a reasonable explanation for the delay in filing her application, Ms Hardy gives evidence that she received her personnel file on 21 July 2017, but was unable to file her application until 23 August 2017, a further 33 days later. Even if I allow a reasonable period for Ms Hardy to have considered the personnel file before making her application, a period of 33 days for that purpose is not reasonable. Ms Hardy has provided further reasons as to why she was unable to file her application until 23 August 2017.

[26] In relation to these further reasons, Ms Hardy’s situation as primary carer for her husband and her mother’s poor health were not new occurrences. While I accept that Ms Hardy’s level of anxiety and related stress was heightened by her dismissal, there is no evidence that she had a medical condition that prevented her from making her application within the required time. It is also the case that very many dismissed employees suffer heightened levels of anxiety and stress as a result and while regrettable, this is not exceptional.

[27] The reasons for the delay advanced by the Applicant do not in my view amount to exceptional circumstances and do not provide a reasonable explanation for her failure to make her application within the time required.

Whether the person first became aware of the dismissal after it had taken effect

[28] It is not in dispute that the Applicant was aware that the termination of her employment took effect on 30 June 2017. This consideration does not provide a basis for a further period to be granted.

Any action taken by the person to dispute the dismissal

[29] There is no evidence that the Applicant took any steps to dispute her termination by the Respondent until she made her unfair dismissal application on 23 August 2017. While the Applicant requested her personnel file from the Respondent on 27 June 2017 she gave no indication that the purpose of this request was to make an application for an unfair dismissal remedy. This fact weighs against the grant of a further period.

Prejudice to the employer (including prejudice caused by the delay)

[30] Mr Bryant’s evidence is that the Respondent is prejudiced by the delay in the application being made due to the fact that two key witnesses, Ms Tether (IR and People Specialist) and Mr Murray (Acting Chief Operations Officer) having left their employment in the intervening period. This is more than a mere absence of prejudice, and although evidence from those persons may still be obtained, the added difficulty arising from the fact that they have ceased employment is a matter that weighs against the grant of a further period in which to make the application.

Merits of the application

[31] In the matter of Kornicki v Telstra-Network Technology Group 16the Commission considered the principles applicable to the exercise of the discretion to extend time under s.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.” 17

[32] In the present case, the Respondent claims that the Applicant’s dismissal was a case of genuine redundancy. The Applicant contends that the redundancy process can only be fairly characterised as a “sham redundancy”. It is clear that there are factual disputes between the parties and it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.

Fairness as between the person and other persons in a similar position

[33] In relation to fairness between the Applicant and other persons in a similar position, Mr Bryant states that in the period between 1 October 2016 and 30 June 2016, RFDS has made 24 employees redundant. As such, there are many employees in the same situation as the Applicant. RFDS submits that any other employee made redundant by RFDS who wished to challenge the termination of their employment, was required to make an application with 21 days of the termination taking effect. Extending the time for the Applicant to file her application will result in unfairness to other employees who have either filed their applications within the required time or who have elected not to do so in the knowledge that an application was required to be made within 21 days unless there are exceptional circumstances.
[34] There is no evidence of any other applications being made by former employees of the RFDS. However, as stated above, I am not satisfied that the circumstances described by the Applicant are exceptional. There are many cases where applicants choose to wait for their former employer to respond to a question or request; fail to dispute the dismissal in any way; and advance similar arguments to those of the Applicant in this case in relation to the stress caused by their dismissal. Generally such arguments are not accepted as constituting exceptional circumstances and applications are dismissed on this basis. This is a matter that weighs against a further period being granted to the Applicant in the present case.

CONCLUSION

[35] The Applicant in this matter has not demonstrated that there are exceptional circumstances present which warrant me to exercise my discretion to allow a further period for the Applicant to file her application. After weighing the matters I am required to consider, I have decided to refuse the application for an extension of time and on this basis the application must be dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Mr W. Davies appeared on behalf of the Applicant.

Mr B. Heath of Carter Newell Lawyers as representative for the Respondent.

Hearing details:

1 & 14 November.

Brisbane

2017.

 1   Witness Statement of Ms Jacquelyn Hardy dated 5 November 2017 – Exhibit 1.

 2   Witness Statement of Mr David Alexander Bryant dated 25 October 2017 – Exhibit 2.

 3   Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.

 4 Ibid at [15].

 5   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403.

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

 7   Nulty v Blue Star Group [2011] FWAFB 975.

 8   Ibid at PN17.

 9   Transcript of 14 November 2017 at PN19 - 21.

 10   Exhibit 2 Statement of David Bryant Annexure “DB-6”.

 11   Ibid at PN75.

 12   Ibid at PN22.

 13   Ibid at PN28.

 14   Ibid from PN105-PN107.

 15   Ibid at PN100.

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

 17   Ibid.

Printed by authority of the Commonwealth Government Printer

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