Ms Kathryn Thomson v MACE Incorporated

[2023] FWC 3454

[2023] FWC 3454

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.365—General protections

Ms Kathryn Thomson
v

MACE Incorporated

(C2023/6411)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 21 DECEMBER 2023

Application to deal with contraventions involving dismissal – extension of time.

1. On 18 October 2023, Ms Kathryn Thomson (the Applicant) made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a contravention involving dismissal. The Respondent to the application is MACE Incorporated (the Respondent).

1. Ms Thomson commenced employment with the Respondent on 8 May 2023. Ms Thomson was dismissed form her role as Trainee Early Childhood Educator on 26 September 2023 and the dismissal took effect on that day.

1. Section 366 of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

1. Ms Thomson’s application was made one day after the 21 day time limit, I am therefore required to determine whether a further period of time to lodge the application should be allowed.

1. The Application proceeded to a hearing before me on 11 December 2023.  At the conclusion of the hearing I informed the parties that the application would be dismissed and I would provide my reasons for my decision in writing.

1. For the reasons set out below, I have concluded that I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an Application under s.365 of the Act.

Alleged Contravention

1. Ms Thomson contends that she was dismissed by the Respondent in contravention of s.340 of the Act. Ms Thomson submits during her employment with the Respondent at Mansfield Community Cubby House she raised several complaints and that after raising her complaints she was dismissed from her employment on 26 September 2023 with immediate effect.

1. The Respondent denies that it contravened s.340 of the Act, and submits it dismissed Ms Thomson during an extended probationary period because of her continued unsatisfactory work performance, despite receiving appropriate warnings and counselling. The Respondent further submits that during Ms Thomson’s probationary period it received several complaints from the Management team, other Educators, Families and Ms Thomson’s Registered Training Organisation (RTO) trainer relating to her workplace conduct and her capacity to follow organisational procedures.

Legislation

1. Section 366(2) of the Act allows the Commission to extend the period within which an application under s.365 must be made only if it is satisfied that there are “exceptional circumstances”. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1] The test of “exceptional circumstances” in relation to granting an extension of time to lodge an application under s.365 establishes a “high hurdle”.[2] A decision whether to extend time under s.366(2) involves an exercise of discretion. [3] The longer an Applicant delays making an application the more difficult it will generally be to overcome that hurdle. [4]

1. In deciding whether there are exceptional circumstances to enliven the discretion to extend time, I am required to consider and give appropriate weight to each of the matters outlined in s.366(2).[5] My consideration of each matter in the context of Ms Thomson’s application for an extension of time is set out below.

Reason for the delay –s.366(2)(a)

1. For this consideration there must be an acceptable or reasonable explanation for the delay.[6] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, which will tend to weigh against a finding of exceptional circumstances.[7]

1. Ms Thomson submits immediately after her termination she started looking into her options and contacted this Commission to see if there was anything she could do. Ms Thomson sought advice from this Commission and was made aware at that time that she had 21 days in which to make her application.  Ms Thomson was also advised that she had not met the minimum employment period required to make an unfair dismissal application however she could make a general protections application. Ms Thomson’s evidence is that after being made aware that the 21 day period for making an application was a strict requirement, she entered the date into the calendar on her iPhone.

1. Ms Thomson downloaded the Form F8 and over the following two weeks whilst looking for other employment she completed her application.  Ms Thomson’s evidence is that she completed her application on the 6 October 2023, however she did not file her application at that time. 

1. Ms Thomson was also successful in obtaining other employment and was performing work prior to making her application.

1. Ms Thomson submits the reason her application was not made within time was due to a combination of increased stress, anxiety and depression.  Ms Thomson submits she had done some “research” and believes she suffers from “high functioning depression”.

1. On 3 October 2023, Ms Thomson was examined by a General Practitioner (GP in Epping, Victoria.  On 8 November 2023, the GP provided a medical certificate in which it is stated that Ms Thomson was examined on 3 October 2023 and is suffering from mixed anxiety and depression due to the loss of her job. 

1. Ms Thomson also relies on a referral for a mental health treatment plan completed by the referring GP on 16 February 2023 which provides that Ms Thomson has not received any mental health care in the past, her appearance and general behaviours are normal, she has normal thinking, memory, insight and orientation whilst her moods do fluctuate.

1. Ms Thomson submits that after her termination she was distraught and that 95% of her friends were no longer speaking to her. She submits between the stress from being terminated, the isolation from her community, her mother’s poor health and having to find a job whilst researching what to do and then having to fill out the Fair Work Commission forms was all too much in her depressive state.

1. Ms Thomson submits that her mother, Ms Margaret Thomson had an accident in August which required her to undergo surgery, which added to her stress over the course of the next two months.  Ms Thomson sought to rely on a statement produced by her mother, Ms M Thomson. The Respondent objected to the statement on the basis that it was predominately hearsay, however agreed to have the statement admitted into evidence without Ms M Thomson being required to give evidence. The Respondent submits its objections should be considered when deciding on the weight I should attribute to Ms M Thomson’s evidence.

1. Ms M Thomson’s witness statement contains evidence which is predominantly hearsay and therefore I have attributed little to no weight to the matters contained within. However, I observe that in her statement Ms M Thomson states at the time of Ms Thomson’s dismissal, she was running the family business and had conversations with Ms Thomson about lodging her application.

1. In her submissions Ms Thomson relies on a single member decision in Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group (Ovenden)[8] in which the then Commissioner Deegan granted an extension of time because she was satisfied on the medical evidence supplied, being a psychologist report, the applicant was in no fit condition to deal with the notice of termination when it arrived and within the time required for filing his application. In addition to the applicant being diagnosed by the psychologist with Post Traumatic Stress disorder, the applicant had an intellectual impairment and was also suffering from depression and anxiety exacerbated by work stress. 

1. I accept that Ms Thomson would have been stressed and was most likely distressed as a consequence of being dismissed from her employment.   It is well accepted in this Commission that a person may suffer some increased stress and anxiety after being dismissed from their employment. In its decision in Shaw v ANZ, [9] the Full Bench stated that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves and that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.

1. There are a number of decisions of this Commission that consider whether a delay based on a mental health condition is an acceptable or reasonable explanation. In such matters the Commission must consider the circumstances of each case in their own unique context.[10] The factual circumstances in the present matter are quite different from those in Ovenden. Ms Thomson relies on a self-diagnosis and has failed to positively demonstrate that she did not have the mental capacity due to the condition of mixed anxiety and depression due to the termination of her employment to lodge her application within the 21 days. [11]

1. I have considered the evidence relied on by Ms Thomson’s from her GP and I have formed the view that Ms Thomson’s mental state did not prevent her capacity to engage in day-to-day activities and does not explain the relevant period of delay. Ms Thomson’s medical evidence provides that she was examined on 3 October 2023, and that she was suffering from mixed anxiety and depression due to the termination of her employment.  The medical certificate states that Ms Thomson had commenced oral medication and was “currently feeling stable”.  There is no medical evidence before me that suggests that from 3 October 2023 until 18 October 2023 Ms Thomson suffered from a medical condition that incapacitated her so that she was unable to make her application on time.  Further, I note Ms Thomson had been in contact with the Commission, was made aware of the requirement to file an application within 21 days and had completed her application on 6 October 2023, some three days after her appointment and yet she failed to lodge her application at that time.

1. I am not satisfied that the matters Ms Thomson relies upon as reasons for the delay in making her application are exceptional circumstances. This weighs against the granting of an extension of time.

Action taken by Ms Thomson to dispute the dismissal –  s.366(2)(b)

1. Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.[12]

1. Ms Thomson submits other than making this application she had not taken any steps to challenge her dismissal. She submits she was suffering from extreme anxiety and distress as a result of the actions taken by the Respondent.

1. Whilst I do not question the legitimacy of Ms Thomson’s claim that she was suffering from stress and anxiety, I am not persuaded that Ms Thomson had taken any steps to dispute her dismissal. In the circumstances, this weighs against a finding of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)

1. Prejudice to the employer will go against the granting of an extension of time.[13]

1. Neither party contends there is prejudice to the Respondent caused by the delay. The mere absence of prejudice is not necessarily a factor that would point in favour of the granting of an extension of time. However, in all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were to be granted and consider this criterion to be neutral.

Merits of the application – s.366(2)(d)

1. Ms Thomson commenced her employment with the Respondent as an early childhood educator on 8 May 2023.  During the period of employment, the Respondent submits Ms Thomson’s initial three-month probationary period was extended for a further three months due to unsatisfactory performance. The Respondent submits it had a valid reason to dismiss Ms Thomson due to her ongoing poor performance.

1. Ms Thomson submits she was dismissed for raising work related concerns.  The concerns raised by Ms Thomson included amongst other things that she had not received her superannuation contributions, was working a 40 hour week plus overtime as a casual employee however she was not being paid for the additional two hours and she had been sent to lunch early which consequently entitled her to a further 30 minute break.  Ms Thomson submits after raising these concerns with the Financial Officer she received an email which she described as “nasty”.  Ms Thomson believes the email was sent to her in error.

1. A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application. Accordingly, I have not done so and I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

Fairness as between the person and other persons in alike position – s.366(2)(e)

1. This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past.

1. As outlined earlier in this decision Ms Thomson relies on the decision in Ovenden in support of her Application for an extension of time. 

1. The Respondent submits that the decision in Ovenden can be distinguished from the present matter because the factual circumstances in both matters are significantly different.

1. I accept the submissions of the Respondent. I find this criterion weighs against the granting of an extension of time.

Conclusion

1. In establishing whether exceptional circumstances exist, the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission to be circumstances which need not be unique, unprecedented, or very rare; but cannot be circumstances that are regular, routine, or normally encountered.[14]

1. A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to the contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

1. Having considered the evidence and submissions as they relate to each of the criteria set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

1. An order[15] to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

K Thomson, Applicant.
J O’Brien of the Respondent.

Hearing details:

2023.
Melbourne (by Video):
December  11.

[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].

[2] [2014] FWCFB 2288 at [21].

[3] Halls v McCardle and Ors [2014] FCCA 316.

[4] [2014] FWCFB 2288 at [21].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [18].

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [45].

[8] [2010] FWA 3863.

[9] [2015] FWCFB 287 at [15].

[10] Underwoood v Terra Firma Pty Ltd[2015] FWCFB 3435 at 15.

[11] Underwoood v Terra Firma Pty Ltd[2015] FWCFB 3435 at 16.

[12] [2018] FWCFB 901 at [45].

[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67IR 298, 299-300.

[14] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [25]; citing R v Kelly [2000] 1 QB 198, 208; cited in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [13].

[15] PR769757.

Printed by authority of the Commonwealth Government Printer

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