Ms Kerry Berthun v Creche and Kindergaten Pty Ltd T/A C&K Clinton Community Childcare Centre

[2012] FWA 8050

[2012] FWA 8050

FAIR WORK AUSTRALIA

DECISION

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

Ms Kerry Berthun
v
Creche and Kindergaten Pty Ltd T/A C&K Clinton Community Childcare Centre
(U2012/10587)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 19 SEPTEMBER 2012

Summary: application for an unfair dismissal remedy - s.394 - childcare centre - behaviour - whether application competent - state of mind - whether Applicant rendered utterly incompetent.

[1] This is an application by Ms Kerry Berthun (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”), and about which a question of the competence of the application has arisen owing to non-compliance with s.394(2)(a) of the Act.

LEGISLATIVE CONTEXT

[2] Section 394(2) of the Act provides as follows:

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

[3] Section 394(3) of the Act provides as follows:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

BACKGROUND

[4] By way of background, the Applicant was an employee of Creche and Kindergarten Pty Ltd trading as C&K Clinton Community Childcare Centre (“the Respondent”). It was an agreed fact that the Applicant was dismissed from her employment on 10 May 2012. It was further agreed that the dismissal took effect on that same day. Finally, it was an agreed fact also that the Applicant did not lodge her application until 14 June 2012.

[5] The Applicant's application was therefore lodged some 20 days out of time.

[6] The question arises as to whether the tribunal should exercise its conditioned discretion so as to allow the application pursuant to s.394(2)(b) of the Act.

[7] A hearing on this question was conducted in Brisbane on 12 September 2012.

EVIDENCE AND CONSIDERATION

[8] The Applicant’s evidence was that she was so affected by the dismissal as to be incapable of acting reasonably until such time as she made her application (on 14 June 2012).

[9] The Applicant claimed that she was unable to leave the house for several weeks following the dismissal. The Applicant's partner and a personal friend attested to their subjective assessment of the severity of the Applicant’s state of mind after her dismissal.

[10] The Applicant also claimed that she was made aware by her partner of the time limitation applying to the application, but was unable to focus upon the circumstances to give effect to such an application.

[11] The Applicant contended she had some experience of depression, though she was unable to produce any material evidence of this condition at the time of the hearing. An unsigned medical certificate was provided and was taken into evidence. The certificate was dated 5 July 2012 (the day of the unsuccessful conciliation conference) and referred to the Applicant’s asserted condition and the time period over which she asserted it extended.

[12] The Applicant’s evidence presented difficulties.

[13] As mentioned immediately above, there is no evidence of any medical professional standing to attest to her apparent state of mind following the dismissal. It is difficult to discriminate at an evidentiary level between a temporarily depressed state of mind in which an individual retains elemental functionality and a state of mind where the individual is utterly disempowered and rendered incapable of conducting ordinary transactions.

[14] The Applicant and her witnesses would have me believe her state of mind resembled the latter category. But absent any professional evidence, I am unwilling to so characterise the Applicant’s state of mind at the relevant time.

[15] In any event, there are other or additional reasons for me so concluding other than just the absence of professional medical or psychological evidence. There are evidentiary issues that tend to suggest that the Applicant was not rendered utterly disempowered during the time period within which an application ordinarily would have been made.

[16] The Applicant was of the view that she took action to dispute the dismissal for the purposes of s.394(3)(c) of the Act through the agency of her partner. It was her partner who made complaints about the manner in which the Applicant had been dealt with to the Respondent and to the Respondent’s Chief Executive Officer (“CEO”). The Applicant stated that she had given her partner the CEO’s e-mail address to effect the complaint on her behalf. The Applicant condoned and supported this action taken on her behalf. The Applicant’s evidence was that her partner had expressed their disappointment at the dismissal interview that the termination was harsh.

[17] It seems to me to be somewhat at odds with the claim that the Applicant was disempowered and rendered effectively incompetent to nonetheless perform such a role, be aware of such efforts being carried out on her behalf, and to extend her support to such a course of action.

[18] If the Applicant was sufficiently alert to and had aided the processes her partner had initiated to complain about and challenge the circumstances of the dismissal and had supported those actions made on her behalf, then it would follow that an application under s.394 of the Act would equally have been capable of being lodged. The form, of course, may be lodged by a representative and it requires little exertion in relation to the information and details required.

[19] The Applicant also stated that she made her decision in late May 2012 to make her application for an unfair dismissal remedy. The date of lodgement of the application, however, was 14 June 2012 and the application itself was signed on 8 June 2012:

What date did you identify that an application must be made within 14 days? When did you first - when did that first come to your attention?---My partner constantly reminded me of that - the cut off time, but being in the state of mind that I was in, I kept refusing to do it, and I told him that I would do it in my own time, which I proceeded to do that towards the end of May, and then posted it off.

You said you did that at the end of May you posted it off?---Correct.

Is that right?---That is correct.

You're application is - where you have your signature - your application is dated 8 June 2012, not the end of May?---Sorry, I'm - - -  1 [My emphasis]

[20] There appears to be a considerable unexplained gap in time between the time at which the Applicant claimed that she was in a state of mind that enabled her to exercise her rights under the Act (end of May 2012) and file her application (at the end of May 2012), and the actual date of lodgement (14 June 2012) of the application.

[21] The Applicant’s evidence was not always easy to reconcile. She also stated that she had been compiling information for the application for some weeks prior to her decision to file the application:

Right. But in response to my question, you said before you took these steps in the end of May but your application is signed 8 June?---It took me a few weeks to compile that Fair Work Australia on what I wanted to do in it.

Sorry. Let me ask you a question there. What took you a few weeks? What did you say?---Compiling the information that I needed to put in the Fair Work Australia information.

So it took you a few weeks to compile the information for Fair Work Australia, is that your evidence?---That is correct.

So you were compiling information for a few weeks. What sort of information were you compiling for a few weeks?---Going through and writing down after everything had happened and after I consoled myself into a bit more - better state of mind. I went through and listed everything that had happened in the events of my employment and of the termination date. Then I could actually go in and decide unfair dismissal on what Act I was going to pursue it under. 2

[22] Here the Applicant is suggesting, it appears, that she was compiling information about her dismissal prior to making the application. On her immediately prior evidence (as cited) and which she did not recant, that exercise would have taken place in a period of time (“a few weeks”) before the end of May 2012. Even if the Applicant was taken to have been confused as to her chronology for the purposes of giving evidence, the Applicant would have spent “a few weeks” prior to 8 June 2012 compiling information about her dismissal before making her application.

[23] I add further that this is not a case, for the purposes of s.394(3)(b) of the Act where the Applicant first became aware of the dismissal after it had taken effect. There are no circumstances arising in this case that need to be taken into account.

[24] It does not appear to me that there is any evidence either that there is any prejudice to the Respondent (for purposes of s.394(3)(d) of the Act) arising from allowing the application in a further period other than that described at s.394(2)(a) of the Act.

[25] In respect of the requirement to take into account s.394(3)(e) of the Act, I have not been in a position to take into account the merits of the application. The Respondent effected the dismissal for reasons of the use of offensive language and aggressive conduct in a childcare centre, which was witnessed by staff and children. The Applicant believes that her dismissal followed a course of bullying and harassment on the part of her employer and staff.

[26] The probity of the competing claims has not been tested in an arbitral environment, and as a consequence it is neutralised for purposes of the exercise of discretion that is currently under consideration.

[27] There are no circumstances that are relevant to the purposes of s.394(3)(f) of the Act as there is no one in a similar position as the Applicant and in relation to whom any issue of relative fairness arises.

CONCLUSION

[28] On the weight of the evidence before me, it appears to me that the Applicant was not so utterly incompetent so as to be incapable of lodging an application in the terms as required. I accept on its face evidence that the Applicant was particularly distressed by the circumstances which had befallen her. But her conduct subsequently does not suggest such an extreme state of mind as to be completely unable to attend to a simple application procedure.

[29] The evidence, generally, does not suggest that the Applicant was utterly unable to focus on her intentions during the time period within which an application should have been made.

[30] Firstly, there is no medical professional evidence that the Applicant’s state of mind was such that she was rendered incapable of making an application within the required period of time.

[31] And secondly, despite her apparently distressed state of mind, the Applicant was motivated sufficiently to support and aid her partner in contesting her employer’s decision to dismiss her; she was aware of (and not oblivious to) the statutory time period within which an application must be made; and she spent some weeks prior to 8 June 2012 (indeed, if not earlier) compiling information about the circumstances of her dismissal.

[32] It seems to me, given her level of engagement with the issue of her dismissal, that the Applicant ought to and could have acted to preserve her rights (by lodging an application) within the 14 day period.

[33] In all, there are no exceptional circumstances arising in relation to the Applicant’s situation that would warrant me exercising my discretion in her favour and allowing the application in another period of time other than that prescribed at s.394(2)(a) of the Act.

[34] For this reason, I dismiss the application under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K. Berthun for herself.

Mr G. Weaver of the Creche & Kindergarten Association Limited for the Respondent.

Hearing details:

2012.

12 September.

Brisbane.

 1   Transcript of proceedings dated 12 September 2012 at PNS 66-69.

 2   Transcript of proceedings dated 12 September 2012 at PNS 76-80.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR529290>