Ms Kate Toner v Deloitte Services Pty Ltd T/A Trustee for Deloitte Services Trust
[2024] FWC 1224
•9 MAY 2024
| [2024] FWC 1224 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kate Toner
v
Deloitte Services Pty Ltd T/A Trustee for Deloitte Services Trust
(U2023/11601)
| COMMISSIONER THORNTON | ADELAIDE, 9 MAY 2024 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – reason for delay – whether stress and anxiety a reasonable reason – further period of delay occasioned by representative error – no exceptional circumstances
This decision concerns an application by Ms Kate Toner (Ms Toner or the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act).
The Applicant’s employment with Deloitte Services Pty Ltd T/A Trustee for Deloitte Services Trust (the Respondent) was terminated on 20 September 2023.
The Applicant’s application was lodged with the Fair Work Commission (the Commission) on 22 November 2023.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as allowed by the Commission pursuant to s.394(3). In this instance, the period of 21 days concluded on 11 October 2023. The application was not filed until 63 days from the date of dismissal, making the application 42 days out of time. It is therefore necessary that the Applicant be granted an extension of time for her application to proceed.
The Applicant requests the Commission grant an extension of time for her application under s.394(3) of the Act. The Respondent objected to the application on the basis that it was filed out of time and has provided submissions opposing the granting of an order to extend the time for filing the application on account of there being no exceptional circumstances which would justify an extension.
The Commission conducted a Hearing by video via MS Teams in order to facilitate the determination of the extension of time application.
I have determined that no exceptional circumstances exist to warrant the making of an order to extend the time for the Applicant to file her unfair dismissal application. I set out my reasons below.
Background
Ms Toner commenced employment with the Respondent on 23 May 2022 as a Senior Manager, Technology Strategy and Transformation in Consulting.
On 17 August 2023, Ms Toner was informed by the Respondent that she was suspended from work whilst an investigation was conducted into complaints made that Ms Toner had engaged in inappropriate behaviour in the workplace, including using inappropriate language.
Ms Toner was asked to attend an interview on 30 August 2023, during which a number of allegations were put to her in detail and she was asked to verbally respond in the meeting.
Following the interview, Ms Toner was asked to review the notes taken by the Respondent at the meeting and of her own initiative, provided a written response to the allegations, despite the Respondent not inviting or requesting a written response as part of their disciplinary process.
In a meeting on 18 September 2023, Ms Toner was advised that some of the allegations had been substantiated and that termination of her employment was being contemplated. This meeting was followed up with a letter from the Respondent on 20 September 2023, summarising the findings of the investigation and confirming the termination with effect from the same day, with payment in lieu of a contractual notice period.
The Applicant met with her legal representative on 30 October 2023, 40 days after her dismissal, instructing her solicitors to file an application for unfair dismissal on her behalf. On 2 November 2023, she forwarded documents requested by her solicitors to them to assist in the filing of her claim.
The Applicant’s solicitors did not file the claim at that time.
On 20 November 2023, the Applicant sought an update on the progress of her matter from her solicitors. Her solicitors then noted that they had overlooked Ms Toner’s claim and filed an application for unfair dismissal in the South Australian Employment Tribunal (SAET) on 21 November 2023.
When advised by the SAET that the matter had been filed in the wrong jurisdiction, the Applicant’s solicitors filed the application in this Commission on 22 November 2023.
Evidence
Stress and Anxiety
The Applicant provided limited evidence about the medical condition she relies on as a reason for the delay in filing her application.
In her written witness statement, Ms Toner says that it “took me many weeks to struggle to comprehend what had occurred … During this time, I was exhausted and found it incredibly difficult to perform my usual daily tasks, let alone consider whether I had an avenue of recourse against Deloitte.”[1]
In her oral evidence, Ms Toner said that she was very distraught, found it difficult to do her shopping and had difficulty sleeping at night, but rather was sleeping during the day. She also said she was not eating well or much at all and lost a lot of weight in the period following her dismissal. Ms Toner reported ruminating over the events surrounding her dismissal and described feeling financial pressure as she was supporting another person who was unable to work.
Ms Toner confirms that during the period following her dismissal she sought treatment from her General Practitioner, Dr Dalrymple, “commencing in early September 2023”.[2]
The Applicant submitted into evidence as an annexure to her statement, a medical certificate from Dr Dalrymple dated 2 November 2023. In that certificate, Dr Dalrymple confirmed that Ms Toner had been under his care since 16 September 2023 and at the time of writing the certificate she had been suffering from stress and anxiety. He noted:
“This is directly related to her workplace experiences and consequently her state of mind has been such that her ability to function and perform tasks has been impaired. … In my medical opinion this would have certainly resulted in her inadvertently not being able to submit a claim for unfair dismissal within the statutory time frame through NO fault of her own.”
Ms Smith, the Applicant’s solicitor, gave a statement addressing the steps she took to file the Applicant’s claim. She annexed to that statement a further medical certificate from Dr Dalrymple, also dated 2 November 2023, that she says was subsequently provided to her by Dr Dalrymple. This certificate appears to be the same document as previously provided but with additional words added. Dr Dalrymple relevantly adds:
“At times she has suffered prolonged fatigue and an inability to perform her normal activities of daily living as a result. … Additionally, her motivation and concentration would almost certainly have been impacted and as such she would have had difficulty in forward planning and making decisions about seeking help including legal advice.”
No explanation was initially provided as to why Dr Dalrymple provided an expanded medical certificate at a later time, which was also dated 2 November 2023. Ms Smith said in her statement that she was “subsequently … provided with a letter from Ms Toner’s treating General Practitioner, Dr Paul Dalrymple, expanding on the medical certificate he provided on 2 November 2023”.[3] Ms Smith confirmed in her oral evidence that she had recommended the Applicant ask Dr Dalrymple to provide additional information and he provided Ms Toner with the updated document, which she subsequently passed on to Ms Smith as her solicitor.
Ms Toner confirmed in cross examination that she did not see a psychologist for treatment following the termination because of the cost of the treatment. She also confirmed that Dr Dalrymple did not prescribe her anti-depressant medication, nor was she interested in taking any such medication.
Ms Toner reported that it was only with the assistance of a friend, who went to see her solicitor with her, that Ms Toner could get advice about her circumstances. She confirmed that her friend recommended that she get legal advice soon after the termination. Her friend suggested that she collate relevant materials before she met with a legal adviser to save cost and it was her evidence that she was unable to collate those materials because of her poor level of functioning. In cross examination she advised that her friend encouraged her to start collating materials not long after her termination but that she was “having difficulty going through that process and re-living it all”. In re-examination she confirmed that she was finding it “difficult to get up and get my day going” and she was “not in [her] normal state of function” and “it was getting too much sometimes”.
Ms Toner also confirmed that she did not investigate her options to seek redress for her termination and was unaware of what avenues, if any, were available to her until she sought legal advice. Consequently, Ms Toner submitted that she had no appreciation at the time of her dismissal, or in fact, at any time until she obtained legal advice, that there was a time limit in which she could file her claim. In cross examination, Ms Toner explained that in her mind she knew that she ought to get legal advice but otherwise did not take other steps in respect of her claim.
Representative error
Ms Caitlin Smith and Mr Matthew Selley, solicitors for the Applicant, provided witness statements regarding the delay in filing the claim after the Applicant sought legal advice.
Mr Selley filed a statement and gave oral evidence. In his evidence, Mr Selley confirmed that Ms Toner first made telephone contact with him on 27 October 2023 and then attended his office on 30 October 2023. It was on 30 October 2023 that Mr Selley says he was instructed to file an unfair dismissal claim for Ms Toner. Mr Selley says that it was his belief as at 30 October 2023 that the correct jurisdiction for the application was the SAET.
Mr Selley said that he understood there was a 21-day statutory time limit, but he accepted Ms Toner’s explanation for the delay as being caused by her “stress and anxiety which had prohibited her from seeking advice about the termination of her employment earlier.”[4]
Mr Selley’s evidence is that at the time of the initial meeting with the Applicant, he asked her to provide him with her contract of employment and a medical certificate from her treating General Practitioner, which she did on 2 November 2023.
In explaining the cause of the delay in his firm filing the application, Mr Selley said that he “missed the email.” He accepts the email he was awaiting from Ms Toner arrived in his inbox on 2 November 2023, and was only sent to him, but that his time recording entries for that day do not reflect that he read the email. Mr Selley also advised that he had a personal medical appointment on the same day and that none of his staff reminded him about the need to action the email or Ms Toner’s matter. He then said it was not until 20 November 2023 when Ms Toner sent an email following up her claim that he realised he “had overlooked dealing with her matter.”
Ms Smith’s evidence was that she was instructed by Mr Selley to file the Applicant’s application in the SAET on 21 November 2023. She filed an application for unfair dismissal in the SAET the same day. When she was contacted by a representative of the SAET on 22 November 2023 to advise the application had been filed in the wrong jurisdiction she was away from work on that day and arranged for another solicitor from her firm to file the application in this Commission the same day.
Applicant’s submissions
The Applicant submits that she has evidenced a credible reason for the delay in filing her application 42 days outside the statutory time limit. The Applicant says the credible reasons are a combination of stress and anxiety with resulting incapacity to file her claim and error on behalf of her legal representatives.[5] The Applicant says in her written submission: “the Applicant’s application was lodged 41 days out of time through no fault of her own but rather due to a combination of her medical condition and representative error.”[6]
The Applicant says that her stress and anxiety were caused by the Respondent, in particular “the manner in which the investigation was conducted”[7] and that the medical evidence submitted evidences the “material impact” of her diagnosed medical condition on her ability to perform “normal tasks and on her ability to lodge an unfair dismissal application.”[8]
The Applicant’s representatives concede the delay from the time they were first instructed is “wholly attributable to representative error”[9] and the Applicant should not be disadvantaged by their inaction.
The Applicant asserts the “overall circumstances are exceptional and accordingly, the Applicant ought to be granted an extension of time to lodge her application for a remedy for unfair dismissal.”[10]
Respondent’s submissions
The Respondent asserts that the stress and anxiety the Applicant says she experienced, which they accept is supported by the certificate provided by Dr Dalrymple, could not have incapacitated her such that she was incapable of either filing, or instructing solicitors, to file her application in the 21 days following her dismissal. The Respondent submits that Dr Dalrymple’s use of the word ‘impaired’ in the certificate imputes a meaning of a reduced ability but not a total incapacity of the Applicant to file her claim and if she were totally incapacitated, Dr Dalrymple would have said as much.
Further, the Respondent asks the Commission to examine closely the language used by Dr Dalrymple in his two certificates, in particular where he says, in reference to the Applicant’s condition: “this would have certainly resulted in her inadvertently not being able to submit a claim” (emphasis added). The Respondent invites a finding that Dr Dalrymple was not certain that the Applicant’s condition did in fact prevent her from filing her application on time and that the use of the term inadvertent suggests “an overlooking of or a mistake”[11] about the need to file within 21 days to meet the statutory requirement.
The Respondent asserts that little weight should be afforded to the medical certificates of Dr Dalrymple for reasons including that there is no clear evidence as to when the Applicant consulted her doctor in the period following her dismissal, the certificates were obtained solely to support this application, they do not provide contemporaneous evidence of the doctor’s opinion about the Applicant’s medical condition as at the date of dismissal, and do not set out whether Dr Dalrymple was aware of the Applicant’s “stress and anxiety” and resulting incapacity from consultations with her or from the Applicant’s subsequent reporting to him.
Importantly, the Respondent argues that there is no medical evidence that “the Applicant was suffering from any condition as at the date of the Dismissal, or in each of the 21 calendar days following the dismissal, which rendered her totally incapacitated such that she could not lodge the Dismissal Application within the Statutory Timeframe.”[12]
With respect to the Applicant’s argument that exceptional circumstances exist, at least for a period of the delay on account of representative error, the Respondent accepts that “in some circumstances, the lodgement of an application due to representative error may be grounds for an extension of time”.[13] However, the Respondent argues that the administrative oversight claimed by the Applicant’s solicitors is “wholly insufficient for the purposes of demonstrating that exceptional circumstances exist which would justify the extension of time sought by the Applicant”.[14]
The Respondent asserts that the Applicant cannot rely on representative error to assert exceptional circumstances in this case because she “made no effort”[15] to ensure that her claim had been lodged other than instructing her representatives to file the application on 30 October and then following up her instructions on 20 November 2023.
Consideration
Section 394(3) of the Act requires that when considering whether to grant an extension of time, the Commission must take into account the following:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether exceptional circumstances exist in the context of this matter.
Exceptional circumstances
Reason for the delay
The Applicant argues that the delay in filing her application was occasioned firstly by her stress and anxiety and secondly by representative error.
It is necessary for me to reach a view as to whether the reasons advanced by the Applicant constitute a reasonable explanation for the delay and then weigh that consideration along with the other factors outlined in section 394(3) to determine if the factors, either on their own or considered together, constitute exceptional circumstances.
Stress and anxiety
The first reason advanced by the Applicant for the delay is stress, anxiety and the resulting incapacity she experienced, which is applicable to the period from the date of dismissal until she instructed her solicitors to file an unfair dismissal claim, on 30 October 2023.
In the matter of Blanco v White Bathroom Co Pty Ltd,[16] Deputy President Easton considered an application for an extension of time in an unfair dismissal matter where the Applicant advanced as a reason for the delay the “debilitating effects of his anxiety disorder.”[17] In this matter, the Deputy President considered a number of relevant authorities. He noted:
“Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).”[18] (footnotes omitted).
In the same decision, the Deputy President said, in considering the reason for the delay:
“Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.”[19]
The Deputy President goes on to say:
“It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.”[20]
The Applicant herself provided little detail about the nature of her illness and symptoms, and most importantly, her incapacity from the date of the termination on 20 September 2023, until her instructions to her solicitor to file a claim on 30 October 2023. As I have already referenced, she provided limited details in her written statement and made general statements in her oral evidence about having altered sleep patterns, reduced eating and weight loss and difficulties with undertaking tasks, such as shopping and collating documents to seek legal advice.
Consequently, and in order to make an informed finding about the Applicant’s capacity to complete and file her application, the evidence of any incapacity will need to be derived from proper and specific medical evidence.
I can afford only limited weight to the medical certificates provided by Dr Dalrymple. The certificates lacked specificity with regard to the Applicant’s capacity at the relevant times. In his first certificate, Dr Dalrymple helpfully confirms that the Applicant was under his care but does not say when during the relevant period he consulted with the Applicant. He also says that the Applicant was suffering from “stress and anxiety since 16th September 2023” but does not confirm he knows that because he consulted with the Applicant or whether he is repeating what the Applicant said to him at a later time. It is unclear whether the certificates reflect a contemporaneous assessment of the Applicant’s mental health and incapacity within the initial 21 days or sometime thereafter.
Dr Dalrymple also says in his first certificate “consequently her state of mind has been such that her ability to function and perform tasks has been impaired”, but does not identify to what extent the Applicant was impaired. The basis of his conclusion that “this would have certainly resulted in her inadvertently not being able to submit a claim for unfair dismissal within the statutory time frame through NO fault of her own” is also unclear. It seems to me that Dr Dalrymple is asserting that the Applicant’s stress and anxiety caused her to overlook or not afford attention to the matter of a remedy for her dismissal. This is quite different to an assertion that the Applicant was so unwell and incapacitated that she simply could not attend to filing her application.
In his second certificate, Dr Dalrymple added, inter alia, “[a]t times she has suffered prolonged fatigue and an inability to perform her normal activities of daily living as a result”
without specifying at what times, whether that fatigue resulted in an incapacity such that Ms Toner could not commence this process by filing her unfair dismissal claim, the nature of the activities of daily living that could not be performed and again, whether the inability to perform certain activities of daily living were evidence of an incapacity significant enough to prevent Ms Toner from commencing this process.
I also accept the submissions of the Respondent that the language used by Dr Dalrymple in the second certificate does not give direct evidence of what Dr Dalrymple observed of the Applicant at the relevant time. That is, the use of the phrases “would almost certainly have been impacted”, “would have had difficulty”, suggests that Dr Dalrymple could only suppose the effects of the Applicant’s illness at the relevant time, following her dismissal, but may not have in fact observed the impacts of her illness in a consultation.
In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[21] (Underwood), the Full Bench confirmed a decision at first instance, refusing an extension of time in circumstances where the Deputy President deciding the matter had “properly considered the medical evidence … and found that it did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day timeframe.”[22]
In Underwood, the medical evidence did not “clinically diagnose the applicant as being unable to file his unfair dismissal application.”[23] In that matter, the Deputy President determining the matter at first instance noted that the doctor had not seen the applicant during the statutory time period and was rather repeating what the applicant had told her about his own self-assessed incapacity in the relevant period. Here, Dr Dalrymple confirms the Applicant is in his care, but does not advise when he consulted with her such that I can reach a view as to whether he is making a direct observation or recounting what the Applicant had told him about her symptoms. The Applicant in her own evidence does not detail when she consulted with Dr Dalrymple.
As the Applicant did not call Dr Dalrymple to give evidence, questions could not be asked of him that may have addressed the matters in question.
I accept the submissions of the Respondent with respect to the weight I should give to the medical evidence and the reference to the application of the decision of Manson v Marthakal Homeland Resource Centre[24] to this matter. The circumstances of that matter are akin to the facts in this case and the Commission held:
“I accept the medical report does indicate that Mrs Manson was under some general stress at the time of her dismissal. That report however does not provide direct evidence of Mrs Manson’s anxiety specifically at the time her employment was terminated. Nothing in that report indicates that Mrs Manson (sic) state at that time was such that it would adversely affect her ability to make an application for unfair dismissal within the 21 day period.”[25]
There is insufficient detail or direct evidence in the certificates of Dr Dalrymple as to when the doctor consulted the Applicant and her level of impairment at the relevant time, such that I can form a view, relying on the medical evidence, that the Applicant’s stress and anxiety had an impact on her mental capacity in such a way that it prevented her from lodging her application within 21 days. The medical evidence does not demonstrate that the Applicant was so incapacitated from her stress and anxiety that she could not complete and file, or instruct solicitors to file, her claim for unfair dismissal within the statutory timeframe.
Accepting, in line with the finding in the matter of Blanco, that medical evidence is not a requirement per se to find exceptional circumstances arising from mental illness, the evidence of the Applicant in this matter also lacked detail as to her incapacity in the relevant period. To the extent the Applicant did give evidence about her incapacity caused by stress and anxiety, it was not of an incapacity significant enough that the Applicant was unable to file her claim or instruct solicitors to file a claim within the statutory time frame or in fact until she saw a solicitor on 30 October 2023.
Taking into account the medical evidence and the Applicant’s own lay evidence, I am not persuaded that the Applicant’s illness provided a reasonable explanation for her failure to file her unfair dismissal claim within the statutory time period.
Representative error
The Applicant’s representatives accept their role in causing a delay in the filing of this application. They confirm they were instructed by Ms Toner on 30 October 2023, overlooked a further email from the Applicant containing relevant evidence on 2 November, were followed up by the Applicant on 20 November and filed in the wrong jurisdiction on 21 November 2023 before filing in this Commission on 22 November 2023.
The Applicant’s representatives provided no explanation as to why, after accepting instructions from Ms Toner on 30 October 2023, they did not file the application straight away, given that they would have been aware the application was already significantly out of time. It is unclear to me why the Applicant’s solicitors thought it necessary to have her employment contract and a medical certificate from her doctor before filing the late application.
It is also highly problematic that the Applicant’s representatives were unaware of the correct jurisdiction in which to pursue this claim. The filing of the application in the wrong jurisdiction is a continuation of the representative error.
The approach followed by the Commission in deciding matters involving representative error was set out in Clark v Ringwood Private Hospital[26]. The principles have been adopted and followed in subsequent Full Bench matters, including McConnell v A & PM Fornataro[27] where they are described as follows:
“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.
(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”
In this matter, the Applicant sought advice from her representative and upon being asked to provide her contract of employment and a certificate from her general practitioner, she acted promptly, providing the certificate once she could get an appointment with her doctor.
However, the Applicant by this stage, agreed that she had been informed about the 21 day statutory time limit and ought to have had an appreciation of the urgency of filing her application. I accept that she instructed solicitors and left it to them to action her instructions. However, given the urgency of filing such a late application, I consider the Applicant not contacting her solicitors for information about the progress of her matter for approximately 18 days, to be a long delay in the circumstances. Ms Toner took no further steps, after her meeting with Mr Selley and the provision of her contract and medical certificate, to ensure the application was lodged.
Whilst the period of delay in filing the application from 30 October 2023 until 22 November 2023 was caused by representative error, the Applicant is not blameless in the periods of delay certainly before 30 October 2023 but also in the period thereafter, until the application was filed.
Findings in respect of reason for delay
In the matter of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[28] the Full Bench held:
“It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.”[29] …
and
“if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”[30]
For the reasons set out above, I find that the Applicant has not provided a credible explanation for the entire period of the delay.
The Applicant did not seek advice or otherwise investigate her options for redress until she made a phone call to her now solicitors, some 37 days after her dismissal. It is during this period that I find insufficient evidence exists to establish that the Applicant was so unwell and incapacitated that she could not have filed, or instructed solicitors to file an application to dispute her dismissal.
Following the Applicant seeking legal advice, I accept that her representatives then caused delay in filing her claim. However, after coming to know on 30 October 2023 that her application was significantly out of time, the Applicant’s conduct did not demonstrate any urgency in filing the application and she did not take steps to contact her solicitors to follow up the filing of the application for a further 18 days. Nor did the Applicant’s solicitors conduct themselves in a manner which reflected the urgency of the situation.
Whilst I accept that the Applicant need not be blameless in reference to representative error, her conduct is relevant to any finding that representative error provides a reasonable explanation for delay. The conduct of the Applicant in failing to follow up with her solicitors in a timely way, given that the application was already significantly outside the statutory time frame, is central to my decision that representative error does not provide an acceptable explanation for the delay in filing the application in this matter.
When the Applicant first became aware of the dismissal
There is no dispute that the Applicant was notified of her dismissal on 20 September 2023 and had the balance of the 21 days to file her unfair dismissal claim.
This consideration is neutral in my decision.
Any action taken by the applicant to dispute the dismissal
The Applicant participated in the disciplinary process and strongly disputed the allegations against her. When the Respondent did not offer her an opportunity to set out her response in writing, other than to correct the notes a representative of the Respondent had taken in an investigation meeting, the Applicant took her own initiative to put a written response to the Respondent. After she had taken that step, she contacted a director of the Respondent that she understood was involved in making a decision about the disciplinary process to ask if he had read her written response.
Despite the above actions of the Applicant, she did not take any steps after her termination to inform the Respondent of her intention to dispute her dismissal until she filed this application, 42 days outside the statutory time limit. It is likely that until 22 November 2023, the Respondent did not know that Ms Toner intended to dispute her dismissal.
Given the additional steps taken by the Applicant prior to her termination to dispute the allegations, in my view it would not be a complete surprise to the Respondent that the Applicant ultimately filed this claim.
Balancing these considerations, I find this consideration neutral to my decision.
Prejudice to the employer, including prejudice caused by the delay
The Respondent submits that they will be prejudiced by the delay including the disruption and costs associated with their defence of the proceedings, if they are made to respond to an application that the Applicant is not entitled to make. These submissions of the Respondent do not address prejudice arising from the Applicant’s filing of the application outside the statutory time limit.
The Applicant asserts that as she is seeking monetary compensation and not reinstatement, no prejudice will be visited on the employer.
I have considered this factor but am not persuaded that prejudice to the Respondent is a matter to which I should attribute any weight in these circumstances.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[31] Further, the primary consideration is whether the Applicant has an arguable case.[32]
The Applicant’s case is not without merit. She denies the substance of the allegations against her. Without the benefit of hearing the evidence I cannot make any assessment of the veracity of the allegations substantiated against the Applicant.
Ms Toner has also set out complaints regarding procedural unfairness and proportionality of a dismissal in this matter that, if established, are likely to assist in her argument that the dismissal was harsh, unjust or unreasonable.
This consideration is weighted towards a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[33] considered this criterion and said:
“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.”[34]
Fairness as between the person and another person in a similar position may involve a comparison of cases involving similar facts.[35]
The Respondent makes no submission with respect to this factor.
The Applicant argues that there are a significant number of cases where a further period of time has been granted on the basis of representative error being found to be an acceptable reason for the delay, weighing in favour of a finding that exceptional circumstances exist.
This case does not only involve a period of representative error, or representative error where the Applicant has instructed a representative within the statutory time frame. This matter involves a notable period of delay after the expiry of the initial 21 day time limit, on account of the Applicant’s stress and anxiety arising from the termination.
Each case turns on its own facts, and just as there have been cases granting an extension of time on account of representative error, there have been many cases where representative error has also been insufficient for a finding of exceptional circumstances.
Likewise for the earlier period of delay occasioned by stress and anxiety; there have been many cases that have accepted the evidence of an Applicant’s incapacity as a reasonable reason for the delay and many that have not.
Consequently, this factor is neutral in my decision.
Conclusion
Despite the Applicant having a case that is not without merit, weighed against my finding that there is no credible reason for the delay in filing the application, I find that there are no exceptional circumstances in this matter which then require me to consider an exercise of discretion to extend the time for filing of the Applicant’s claim for unfair dismissal.
The Applicant’s claim is dismissed.
COMMISSIONER
Appearances:
C Smith and M Selley of Iles Selley Lawyers with permission for K Toner, the Applicant.
R Stephenson, S Hicks and A Brennan on behalf of Deloitte Services Pty Ltd.
Hearing details:
Adelaide (Video via MS Teams)
2023
21 December.
[1] Statement of Applicant, 11 December 2023 at paragraph 16.
[2] Statement of Applicant, 11 December 2023 at paragraph 17.
[3] Statement of Ms Smith, 11 December 2023 at paragraph 8.
[4] Statement of Mr Selley, 11 December 2023 at paragraph 4.
[5] Outline of Argument of the Applicant at paragraph 22.
[6] Ibid, at paragraph 16.
[7] Ibid, at paragraph 25.
[8] Ibid at paragraph 24.
[9] Ibid at paragraph 27.
[10] Ibid at paragraph 40.
[11] Submissions of the Respondent at paragraph 13.
[12] Submissions of Respondent at paragraph 18(b).
[13] Submissions of Respondent at paragraph 23, referencing Clark v Ringwood Private Hospital (1997) 74 IR 413.
[14] Submissions of Respondent at paragraph 24.
[15] Ibid.
[16] [2021] FWC 4694.
[17] Ibid at [2].
[18] Ibid at [40].
[19] Ibid at [44].
[20] Ibid at [50].
[21] [2015] FWCFB 3435.
[22] Ibid at [16].
[23] Ibid at [15] but citing the first instance decision Underwood v Terra Firma Pty Ltd t/as Terra Firma Business Consulting[2015] FWC 1387 at [11].
[24] [2015] FWC 2880.
[25] Ibid at [11].
[26] (1997) 74 IR 413, summarised in Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1 (Davidson).
[27] [2011] FWAFB 466 at [35] referencing Davidson.
[28] [2018] FWCFB 901.
[29] Ibid at [40].
[30] Ibid at [45].
[31] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph [14].
[32] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[33] [2016] FWCFB 6963.
[34] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] 750.
[35] Croker v Erndit Logistics Pty Ltd[2023] FWCFB 224 at [49].
Printed by authority of the Commonwealth Government Printer
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