Ms Michele Hearn v Multicultural Communities Council Gold Coast

[2011] FWA 7110

[2011] FWA 7110

FAIR WORK AUSTRALIA

DECISION

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

Ms Michele Hearn
v
Multicultural Communities Council Gold Coast
(U2011/8696)

COMMISSIONER CRIBB MELBOURNE, 19 OCTOBER 2011

Application for unfair dismissal remedy – jurisdiction – extension of time.

[1] This decision arises from an application by Ms Michele Hearn (the applicant), under section 394 of the Fair Work Act 2009 (the Cth) (the Act), for an unfair dismissal remedy in respect of her dismissal by the Multicultural Communities Council Gold Coast (MCCGC) (the respondent). The application was lodged on 8 June 2011 which was 1 day outside the statutory time limit

[2] The application did not proceed to a conciliation conference as the respondent lodged a jurisdictional objection to the application on 6 July 2011. The grounds of the objection were, inter alia, that the application had been lodged out of time.

[3] The hearing of the extension of time application by Ms Hearn was held on Wednesday 14 September 2011. At the hearing, Ms Hearn represented herself whilst MCCGC was represented by Mr A Coull, solicitor. Ms Hearn gave oral evidence as did Mr N Steere, Executive Manager of the respondent.

APPLICANT

Evidence and submissions

[4] Ms Hearn provided a written statement 1 together with a number of attachments.

[5] It was Ms Hearn’s evidence that her youngest son was about 22 years old and that he lived in Darwin. Ms Hearn said that he did not live with his father and he had not lived with either of his parents since he was 19. 2

[6] Ms Hearn stated that she had needed her last salary cheque from MCCGC so that she could pay the $70 lodgement fee for her application. She indicated that she had spoken to lawyers and asked if she was eligible for free legal advice. She did not take up the option of attending one of their open sessions until after she had put her application in and was aware that MCCGC had obtained a lawyer. Ms Hearn also indicated that she had not had a lawyer acting for her in respect of her application concerning her husband and his violence. 3

[7] In her written statement, Ms Hearn set out details of her personal situation and argued that what had happened over the past 18 months were exceptional circumstances. They included:

• In September 2009, her then husband left their marriage and took virtually everything. 4



• In May 2010, she was required to move out of her home, on 48 hours notice, to enable it to be sold. The purchasers wanted to take immediate possession and rent until settlement. 5 They were unable to settle and, as a result, she and her husband are facing bankruptcy.



• She seeks legal advice regarding how bankruptcy would affect her. 6



• She had been, for a long time, the victim of domestic violence. Mounting pressure from the bank regarding the property. Was also dealing with daily psychological and emotional trauma from her husband via email and telephone. This was getting too much for her as his violence was escalating. 7



• In December 2010, she flew to Sydney to see her two adult sons and was only allowed 12 hours access to the boys by her husband over 3 - 4 days. 8



• On 27 December 2010, her husband sent her vile texts and made several phone calls threatening to kill her partner and her. 9



• In January 2011, the bank sells the house for significantly less than what she and her husband owed on it. 10



• On 8 February 2011, her husband threatens her partner’s job via email. 11



• On 12 May 2011, she received a letter of demand from the bank. The bank started bankruptcy proceedings. 12



• Following writing to the bank, she is advised on 18 May 2011 that the bank will not send her bankrupt. 13



• On 19 May 2011, she received an email from her husband saying that he wanted to send some men round to her home. 14



• On Friday 20 May 2011, her husband telephoned and started threatening that he would release certain of her work emails to the management committee if her supervisor did not dismiss her. He had obtained the emails by hacking into her email account. 15



• She went to the police station to get an intervention order against her husband and then onto the court. At first, she did not file the documents because she was advised that there was a period of five days when she would not have court protection. She did file the documents. 16



• She returned to work nervous and visibly shaken about what may happen. She advises the staff about what to do if an emergency occurs.



• In response to a message she left on her supervisor’s mobile, at the end of the day (20 May 2011), she received a call from her supervisor and told him about her husband’s threat to release the sensitive emails unless he dismissed her. Her supervisor told her that he is disappointed and will think about it. 17



• She “sat on the edge of my seat” for the next five days about what ramifications applying for an intervention order would have and also worrying about whether her husband would carry out his threats. 18



• On Monday 24 May 2011, she has a conversation with her supervisor about going to court later that morning. He said that she needed to do something about the emails as she had stolen company documents and broken organisational confidentiality. 19



• She is clear that her supervisor wants her to resign to prevent her husband releasing the documents and him suffering embarrassment as a result. 20



• She got very upset and yelled at him. He repeated that she had stolen company documents and broken confidentiality. So, she typed up a very brief letter stating that she had resigned. 21



• She went to court later that day (24 May 2011) and, as she was walking out, got a call from a friend who then offered her a short term and low paying job. 22



• The night of 24 May 2011, she received a text from her husband wanting to confirm her address so he could send some big guys round. 23



• On 29 May 2011, she received a very upsetting phone call from her youngest son. 24



• On 2 June 2011, her youngest son called again and “rips into me” about his superannuation. He threatens her with lawyers and tells her that she should take out an intervention order against him too. 25



• On 3 June 2011, she realises that the job had been misrepresented to her and that she was out of pocket as a result. 26



• Her eldest son called over 4 - 5 June 2011 and is very upset about her having taken out the intervention order. 27



• She is “sweating” on her last pay from MCCGC arriving so she can pay for her unfair dismissal claim. 28

[8] It was submitted by Ms Hearn that she met the test of “exceptional circumstances” because:

• At the time of her “dismissal” she had been dealing with death threats and physical threats from her husband.



• She had been dealing with the effects of the intervention order on her youngest son.



• She was being paid less than her rent and travel costs to work in her new position so therefore had to rely on her last pay from MCCGC to lodge the application. It was not deposited until the night of 7 June 2011. 29



• She had to deal with the assault on her integrity and honesty by her supervisor regarding the allegations that she had stolen documents and broken confidentiality plus continuous calls from her previous staff about rumours to this effect.



• She was reeling from the thought that she had saved her supervisor’s job but that he had forced her to leave to save him embarrassment. 30

[9] With respect to the criteria regarding when she was made aware of the dismissal, Ms Hearn stated that she was forced to “quit”. 31 She said that she had disputed the dismissal as soon as she could lessen the threats, stop the attacks by her son and could pay the lodgement fee for the claim.32 Ms Hearn argued that her application was late by one day and that she had lodged her claim before the start of business on 8 June following funds becoming available.33 In terms of the merits of her application, Ms Hearn contended that she was not thinking straight due to the threats and the questioning of her honesty and integrity. She said that she had told her supervisor that those particular documents were kept off-site.34

[10] The witness statements of Mr Luke Eisenhuth 35 and Mr Stephen Eisenhuth36 were tendered in support of her evidence regarding her personal situation.

RESPONDENT

Witness Evidence

Mr Steere

[11] Mr Steere is Executive Manager of the Multicultural Communities Council Gold Coast and had been Ms Hearn’s direct supervisor. 37 He provided a written statement for the proceedings.38

[12] Oral evidence was given by Mr Steere that Ms Hearn had resigned on the morning of 24 May 2011 following a discussion between Ms Hearn and himself. He recalled that he had tried to dissuade her from resigning, both in his office and when she was walking towards the car. 39 Mr Steere stated that, on 24 May 2011, he had not accused Ms Hearn of stealing documents and breaking confidentiality. Rather, he had said that she had broken his confidence.40

[13] In his written statement, Mr Steere gave his account of the events that led up to 24 May 2011. It was Mr Steere’s evidence that:

• On 20 May 2011, he received an email from Ms Hearn telling him to call her on her mobile and that it was “highly confidential”. 41



• He phoned Ms Hearn and was advised that her husband had hacked into her email account and had accessed sensitive work emails. Ms Hearn also told him that her husband was threatening to release the emails. 42



• Prior to the telephone call, he was not aware that Ms Hearn was storing MCCGC emails or information off site. He had not authorised her to do so 43



• On 23 May 2011, he texted Ms Hearn asking “What mess am I coming back into?” and asked her to telephone him before 5.00pm on that day. 44



• Ms Hearn had texted back saying that she was going to court the next day to obtain an intervention order against her husband. 45



• Early on Monday 24 May 2011, he had a conversation with Ms Hearn. Ms Hearn had told him that she was going to get an intervention order partly to prevent the release of the sensitive emails. This was because Ms Hearn felt that her husband may still carry out his threat. 46



• During the conversation, he told Ms Hearn that she had broken his confidentiality. He did not say that she had to do something about this. 47



• Ms Hearn had responded by yelling at him and behaving aggressively. 48



• In response, he had softened his words by stating that an unauthorised third party had broken his confidence and that she had not protected these documents. 49



• Ms Hearn had then typed a letter of resignation and given it to him. 50



• He told Ms Hearn to take a breath and reconsider and also, when he followed her out to the car park, he told her to “settle down”. 51



• When it was obvious that Ms Hearn was not going to change her mind, he asked if he could give her a lift anywhere. 52



• Later on 24 May 2011, he advised MCCGC staff that Ms Hearn had resigned effective immediately. He did not say to MCCGC employees that Ms Hearn had stolen MCCGC documents. 53

Submissions

[14] Mr Coull submitted, on behalf of the respondent, that the reasons given by the applicant for the delay in lodging her application related to her personal circumstances. This “real family pathology” had been going on for 18 months and it was accepted that “by any one standard, it’s tragic”. 54 It was further stated that Ms Hearn had clearly been resilient and had been able to conduct herself in the workplace over that time.55 However, it was contended that these issues did not amount to “exceptional circumstances”. Mr Coull argued that many people are confronted by domestic disharmony with having to leave a marriage and children behind. In this case, it was stated that Ms Hearn’s children were young adults who were fully functioning and managing for themselves.56

[15] Further, it was argued that Mr Steere tried to persuade Ms Hearn not to resign and to be very clear about what she was doing. Mr Coull said that the applicant had tendered her resignation in writing. 57

[16] It was submitted that there was prejudice to the employer and also disruption. This was because the organisation was one which fulfilled a good social role and it did not need to have its financial and other resources diverted to dealing with this application. Additional prejudice occasioned by the delay was not claimed by the respondent. 58

[17] With respect to the merits of the application, the respondent contended that Ms Hearn had resigned and had obtained new employment. 59 As well, it was said that, on a very subjective and personal level, it was understood that the applicant felt that her application had merit. However, it was stated that it did not. Further, Mr Coull indicated that Ms Hearn would not be the first person to resign and regret it.60

[18] It was stated that the applicant had resigned and had made no attempt to dispute the “termination” 61

[19] With respect to the issue of fairness as between the applicant and other persons in a like position, Mr Coull argued that there were no issues of relative fairness and that Ms Hearn was treated no differently to another person in the same position. It was stated that MCCGC could not have been a more sympathetic employer. 62

[20] Finally, the respondent submitted that the Tribunal ought not exercise its discretion to accept Ms Hearn’s out of time application. It was argued that the applicant had not established that the reasons for the delay constituted exceptional circumstances. Mr Cull contended that the applicant’s own pathology may have made her personal situation worse than perhaps as reasonably to be expected. However, that factor did not necessarily outweigh the other five factors. 63

CONCLUSIONS AND CONSIDERATIONS

[21] With respect to the statutory framework for the making of an unfair dismissal remedy application, section 394(2) of the Act provides:

“(2) [Standard time limit] 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).”

[22] Section 394(3) provides:

(3) [Extended time limit] 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.”

[23] I will deal with each of these factors in turn.

Reasons for the delay s.394(3)(a)

[24] The applicant’s reasons for the delay concerned her financial situation and her personal circumstances. It was Ms Hearn’s evidence that she could not afford to file her application until she had received her final pay from MCCGC. This had come through on the night of 7 June 2011 and she had consequently made an application at 8.27 am on 8 June 2011. She had also spoken to Fair Work Australia on 6 June 2011 regarding financial hardship. As she was employed, she said she was told that she did not qualify for financial hardship. 64

[25] The second reason concerned events that were happening in her personal life and which had been going on for the 18 months prior to her resignation from MCCGC. Ms Hearn stated that she was dealing with threats to her person from her husband and one of her sons. She said that her supervisor was attacking her honesty and integrity and that there were sustained questions about these things by her former work colleagues. 65 Further, she said that there was a loss of contact with her other son and that the new position had been misrepresented which resulted in her losing money.66

[26] On the other hand, it was submitted by the respondent, that the reasons provided by Ms Hearn do not relate to issues concerning the termination. Rather, the applicant relied disproportionately upon her personal circumstances which, although “it doesn’t make pretty reading” 67 were said to be particular to her and not necessarily to the workplace. Mr Coull indicated that neither a medical or a psychiatric report had been provided by Ms Hearn. In addition, MCCGC contended that domestic disharmony was something that many people today were confronted with.68 It was said that perhaps Ms Hearn’s individual pathology may have made her personal situation subjectively worse than perhaps could be reasonably expected. MCCGC also argued that Ms Hearn had not met the onus of establishing exceptional circumstances.69

[27] It was further submitted that the applicant had resigned her employment despite Mr Steere trying to persuade her not to and asking her to reconsider her decision. 70 Also, the applicant had quickly gained new employment which she says was misrepresented to her. It was the respondent’s view that that was something that could happen to anyone and it was not an excuse to allow her to have her late application accepted.71

[28] Finally, it was contended by the respondent that Ms Hearn had spoken to lawyers. As a qualified and intelligent person, she knew that there were legal facilities and advice available to her. 72 As well, the applicant had been able to conduct herself in the workplace over the previous 18 months, despite the very real family pathology that was occurring over that time.73

[29] I have considered carefully all of the material before me and I find that the applicant has provided an acceptable explanation for the delay.

[30] There were a series of events which, when taken together, provide a reasonable explanation for the delay. Five days before she resigned, Ms Hearn received an email from her husband threatening her with physical violence on the basis that her husband “....wants(s) to send some people around one night to you like you have done to me tonight.” 74 The next day (20 May 2011), her husband threatened to release her sensitive work emails to the Management Committee of MCCGC if Mr Steere did not dismiss her. Further, on the night of 24 May 2011, Ms Hearn received a text from her husband again threatening her with physical violence. On 2 June 2011, her youngest son verbally threatened her and told her that she should obtain an intervention order on him. At this point in time, Ms Hearn was within the statutory time limit by five days. Six days later, the applicant lodged her application following the deposit of her last pay into her bank account by MCCGC the previous night. Given all of these events, it is my view that the applicant has provided an acceptable explanation for the delay.

Aware of the dismissal - s.394(3)(b) and any action taken - s.394(3)(c)

[31] It was Ms Hearn’s evidence that she was forced to resign by her supervisor and that she disputed her dismissal as soon as she could lessen the threats, stop the attacks by her son and could pay the filing fee for her application. 75 From the applicant’s evidence, it also appears that she sought legal advice.76

[32] For the respondent’s part, Mr Coull submitted that the applicant had resigned and had made no attempt to dispute the termination. 77

[33] It would appear from the evidence that Ms Hearn filed an unfair dismissal remedy application and also consulted lawyers after she had done this. Apart from doing these two things, it does not seem that Ms Hearn took any other actions to dispute the dismissal/resignation.

Prejudice to the employer - s.394(3)(d)

[34] The respondent contended that there was no additional prejudice to the company other than the prejudice (and disruption) associated with an additional hearing. Therefore, I find that there is no other prejudice to MCCGC other than the usual prejudice which accompanies any granting of an extension of time.

Merits of the application - s.394(3)(e)

[35] There is a threshold issue in this matter regarding whether or not there was a dismissal at the initiative of the employer. It is common ground that Ms Hearn resigned on 24 May 2011 but she argued that she was forced to do so by Mr Steere. As there is a dispute between the parties regarding the content of the discussion between Ms Hearn and Mr Steere, on 24 May 2011, and in the absence of detailed oral evidence on this issue, it is not possible to say that the application is without merit.

Fairness as between the applicant and other persons in a similar position - s.394(3)(f)

[36] This factor is not relevant in this matter.

Are there exceptional circumstances s.394(3)

[37] The basis on which it is decided if the Tribunal’s discretion should be exercised to grant an extension of time is whether there are “exceptional circumstances” taking into account the factors considered in paragraphs 26 to 34 above.

[38] The term “exceptional circumstances” has been considered in a number of decisions of Fair Work Australia. A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 78 summarised various decisions which dealt with the meaning of “exceptional circumstances”. The Full Bench found that:

“[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.” 79

[39] I respectfully adopt this approach.

[40] Taking account of all of the factors set out in s.394(3) of the Act, I find that there are “exceptional circumstances” such that I should exercise my discretion and grant an extension of time. The situation that applied to Ms Hearn between 24 April 2011 and 8 June 2011 could be described as “out of the ordinary course, unusual, special or uncommon”. The applicant received separate threats of physical violence from her husband and from her youngest son. To receive such threats from one’s kin may well be regarded as “out of the ordinary course, unusual, special or uncommon”.

[41] Accordingly, Ms Hearn’s application for an extension of time is granted. The date for lodgement of her application is extended to 8 June 2011.

[42] An order 80 to this effect will be issued separately.

[43] The application will be referred for conciliation.

COMMISSIONER

Appearances:

M Hearn

A Coull for Multicultural Communities Council Gold Coast.

Hearing details:

2011.

Brisbane.

September 14.

 1   Exhibit A1

 2   Transcript PN 235 - 240

 3   Ibid PN 255 - 267

 4   Exhibit A1 at paragraph 5

 5   Ibid at paragraph 10

 6   Ibid at paragraph 13

 7   Ibid at paragraph 14

 8   Ibid at paragraph 16

 9   Ibid at paragraph 17

 10   Ibid at paragraph 18

 11   Ibid at paragraph 19

 12   Ibid at paragraph 21

 13   Ibid at paragraphs 22 and 24

 14   Ibid at paragraph 25

 15   Ibid at paragraph 26

 16   Ibid at paragraphs 28 - 30

 17   Ibid at paragraphs 27 and 33

 18   Ibid at paragraph 32

 19   Ibid at paragraph 35

 20   Ibid at paragraph 36

 21   Ibid at paragraph 37

 22   Ibid at paragraphs 39 - 41

 23   Ibid at paragraph 42

 24   Ibid at paragraph 45

 25   Ibid at paragraph 48

 26   Ibid at paragraph 49

 27   Ibid at paragraphs 50 - 51

 28   Ibid at paragraph 52

 29   Ibid at paragraph 9 no.4

 30   Ibid at paragraph 60 1 - 5

 31   Ibid at paragraph 9

 32   Ibid

 33   Ibid

 34   Ibid

 35   Exhibit A2

 36   Exhibit A3

 37   Exhibit R2 at paragraphs 1 and 3

 38   Exhibit R2

 39   Ibid at paragraphs 24 and 28 and Transcript PN 307 - 310

 40   Ibid at paragraph 17 and ibid PN 341

 41   Exhibit R2 at paragraph 11

 42   Ibid at paragraph 13

 43   Ibid at paragraphs 11 and 14

 44   Ibid at paragraph 15

 45   Ibid at paragraph 16

 46   Ibid at paragraph 17

 47   Ibid

 48   Ibid

 49   Ibid

 50   Ibid at paragraphs 19 - 21

 51   Ibid at paragraphs 24 and 28

 52   Ibid at paragraph 29

 53   Ibid at paragraphs 35 and 37

 54   Transcript PN 188

 55   Ibid PN 288 and 290

 56   Ibid PN 290

 57   Ibid PN 289, 296 and 370 and Exhibit R1 at paragraphs 10 and 12

 58   Ibid PN 371 and ibid at paragraphs 13 and 16

 59   Exhibit R1 at paragraph 17

 60   Transcript PN 371 - 372

 61   Exhibit R1 at paragraph 12

 62   Ibid at paragraph 19 and Transcript PN 372

 63   Transcript PN 295

 64   Exhibit A1 at paragraph 3

 65   Ibid at page 8

 66   Ibid at page 9

 67   Transcript PN 290

 68   Ibid

 69   Ibid PN 295

 70   Ibid PN 296 and 370

 71   Ibid PN 296

 72   Ibid PN 297

 73   Ibid PN 288

 74   Exhibit A1 - Attachment - email from Michael Hearn to Michelle Hearn dated 19 May 2011 at 9.00pm

 75   Exhibit A1 at page 9

 76   Transcript PN 266

 77   Exhibit R2 at paragraph 12

 78   [2011] FWAFB 975

 79   Ibid at paragraph 13

 80   PR515868

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