Ms Leah Green v Members Alliance Resources Pty Ltd

[2014] FWC 1752

[2014] FWC 1752

FAIR WORK COMMISSION

DECISION

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

Ms Leah Green
v
Members Alliance Resources Pty Ltd
(U2013/13125)

COMMISSIONER BOOTH DARWIN, 19 MARCH 2014

Application for relief from unfair dismissal - extension of time issue.

Leah Green v Members Alliance Resources Pty Ltd

[1] Ms Leah Green (Ms Green) lodged an application alleging unfair dismissal on 2 September 2013 after being dismissed on 5 August 2013 from employment with Members Alliance Resources Pty Ltd (Members Alliance). She had been employed with Members Alliance in various capacities since 7 November 2011.

[2] Members Alliance objects to the application on the grounds that it was lodged after the 21 day time period allowed under s394 of the Fair Work Act 2009. Ms Green accepts her application was lodged out of time but says there are exceptional circumstances warranting the the Fair Work Commission’s (Commission) exercising its discretion to allow a further period to her under s394(3).

[3] Ms Green represented herself. She submitted that several factors contributed to the delay in her lodging the application. She exhibited a medical certificate from her general practitioner, Dr Wilson, stating in part that “she was overwhelmed by her difficult circumstances and her normal reaction to this”.

[4] The circumstances that Ms Green says amount to exceptional circumstances include:

● spinal surgeries undertaken in 14 September 2012 and 20 September 2012 after a non-work injury;

● being on strong medication;

● failure by the employer to properly accommodate her return to work;

● a dispute with her supervisor over commissions;

● feeling humiliated and in tears after a conversation with a supervisor and being told to go home;

● the stress of the termination of the employment relationship;

● relocating her place of residence on 21 July 2013 to a temporary residence, and between 6 and 13 August 2013 to another property; and

● poor access to mobile and internet facilities during the moves until 27 August 2013.

[5] She also exhibited a medical certificate dated 31 July 2013 certifying her fitness to return to work after absence on sick leave. Further, she submits that she made contact with “Fairwork” on 5 August 2013.

[6] Members Alliance was represented by D.O.R. Legal, Solicitors. Submissions made on the Members Alliance’s behalf nominate the following dates as dates on which Ms Green resigned:

● 25 July 2013 by informing colleagues she was resigning and by email stating “I will not be returning” to work;

● 27 July 2013 by returning her security pass;

● 5 August 2013 by verbal resignation to MAPI’s chief executive and other senior managers, and followed up by a letter stating the effective date of termination is 6 August 2013;

● 8 August 2013 by “confirming her prior resignations by email”.

[7] Ms Green in her submission appears to accept that the employment relationship came to an end on 5 August 2013, meaning her application was lodged 27 days after the dismissal took effect.

Exceptional circumstances

[8] Unless the Commission finds there are exceptional circumstances, and in its discretion allows a further period, there is no valid application to be considered. The six factors listed in s.394(3) are highly prescriptive and are the only power the Commission has to extend time. See Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [16].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 extensively canvassed the meaning of “exceptional circumstances” for s.394(3), concluding:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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.

394(3)(a) Reasons for delay

[10] Ms Green’s submissions included a number of factors that she says made it difficult for her to make application in time. They are summarised in paragraphs 3 and 4 above. She was no doubt distressed about the altercation with her supervisor and stressed by the end of her employment with Members Alliance. However, as Dr Wilson points out, feeling overwhelmed is a normal reaction to such a dramatic series of events. Shock and trauma at being dismissed is not exceptional circumstances (Rose v BMD Constructions Pty Ltd[2011] FWA 673) and even illness requiring hospitalisation for part of the period is not exceptional (Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWAFB 5933).

[11] Relocating residence twice was no doubt a burden as were poor mobile and internet coverage. Ms Green did however engage in email correspondence with her former employer during that period, and she exhibits several detailed emails that she wrote and sent during the 21 day period. This included questioning the various decisions taken by her former employer, including changes to the commission structure.

[12] While Ms Green faced difficult, even complicated circumstances that made lodging an application more difficult than it might otherwise have been, the reasons for delay are not exceptional circumstances in the special sense used in the Fair Work Act 2009 (the Act).

394(3)(b) When applicant became aware of dismissal

[13] Ms Green accepts she was dismissed on 5 August 2013 and was aware of the dismissal on that day or the next day by letter dated 6 August 2013. This factor is neutral.

394(3)(c) Action taken to dispute the dismissal

[14] Ms Green does not dispute the dismissal, other than to hold that it was unfair or done improperly to make way for her manager’s daughter-in-law. I find this factor neutral.

394(3)(d) Prejudice to the employer

[15] Members Alliance submits it will be prejudiced by extra time because it would have to defend the application. Given the short delay and the continued employment of the key players, there is no prejudice to the employer.

394(3)(e) Merits

[16] Members Alliance submits that Ms Green’s case cannot be strong because it says that she resigned and was not dismissed. That would be a matter of contested facts at a hearing. Even though the weight of evidence on the jurisdictional question appears to support Members Alliance’s contention, the application cannot be said to lack merit or be bound to fail. This factor is neutral.

394(3)(f) Fairness

[17] No submissions were made about fairness and this factor is neutral.

Consideration

[18] The major consideration is whether Ms Green’s explanation for the delay in lodging her application established exceptional circumstances. Ms Green’s reasons for delay, though significant and extensive are not exceptional. During the same 21 day period she was able to send detailed email correspondence. The combination of the reasons for delay and that Ms Green was capable of and sent emails leads to a conclusion that there are no exceptional circumstances warranting the exercise of the Commission’s discretion to extend time. Other factors detailed above do not disturb this finding.

[19] For these reasons, exceptional circumstances are not established.

[20] The application is dismissed.

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