Ms Michelle Bear v The Personnel Group

[2015] FWC 1058

[2015] FWC 1058

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Michelle Bear
v
The Personnel Group
(C2014/8480)

COMMISSIONER ROE MELBOURNE, 12 FEBRUARY 2015

Application to deal with contraventions involving dismissal - jurisdiction: extension of time.

[1] Ms Bear was dismissed by the Personnel Group on 7 November 2014. She lodged an application for general protections involving dismissal on 29 December 2014. The Application was lodged approximately 30 days after the 21 days provided for making such an application.

[2] Ms Bear acknowledged in her application that it was being made beyond the 21 day time period. On the form she included the following:

“NB. LATE LODGEMENT OF APPLICATION

Due to nervous breakdown, Post traumatic stress, severe depression and anxiety I have not been able to lodge this application within 21 days and I attempted to negotiate and resolve with employer before lodgement,. I apologise for delay.”

[3] The parties are not based in a capital city and to avoid delays and costs I suggested that Ms Bear provide material in support of her application for an extension of time in writing to see if it was possible to determine the matter without the need for a hearing. The parties supported this approach.

[4] Ms Bear made the following submission on 19 January 2015:

“Requesting extension of time please based on the following circumstances:

*I contacted the CEO of The Personnel Group on 24/11/2014 to attempt to resolve the dispute however did not receive a reply from the CEO until 15/12/2014 (beyond the 21 days.)

*Due to termination of employment I was unable to fund a solicitor so needed to research Fairwork and submit my application without legal assistance which was time consuming.

*Employment termination was instantaneous and unexpected and I was in shock for some time afterwards thus unable to think clearly and rationally.

*After employment termination I suffered a nervous breakdown which rendered me barely able to make decisions let alone make an application.

*Since termination I have suffered from increased anxiety and depression and insomnia affecting my ability to perform day to day duties and paperwork.”

[5] I wrote further to Ms Bear and suggested that she should provide some further detail of her illness and how it prevented her from making the application. In response on 20 and 23 January 2015 Ms Bear provided information about her visits to medical practitioners and the medication which she was prescribed.

[6] On 24 November 2014 which was 17 days after the dismissal Ms Bear wrote to the Personnel Group. The Personnel Group provided a copy of that correspondence which read in part:

“After research with FAIR WORK and a number of different law firms it has been confirmed there is a very strong case for UNFAIR DISMISSAL (if not GENERAL PROTECTIONS CLAIM), however I would prefer to give TPG the option to resolve BEFORE the application is lodged with the Fair Work Commission as this can be a time consuming process.”

[7] I provided Ms Bear with an opportunity to provide further evidence of her incapacity and its link to the lateness of her application. Ms Bear responded that she was unable to do so.

[8] It would be inappropriate to make a decision without a hearing where it is necessary for my decision to make a finding about contested facts. However, I am satisfied that I am able to make a decision in this case without relying upon contested facts.

[9] I have drawn the following conclusions about the reasons for the delay advanced by Ms Bear based upon what Ms Bear has said in her application, in her submission and in her letter to the employer of 24 November 2014.

● Ms Bear was able to contest her dismissal with the employer in a letter within the 21 day time limit.
● Ms Bear was able to “research with fair work and a number of different law firms” in the 17 days after the termination and prior to the expiry of the 21 day limit.
● Ms Bear was aware that she could make a general protections or an unfair dismissal application in the 17 days prior to the expiry of the 21 day limit but chose not to do so but instead to contact the employer and seek to negotiate a settlement with the employer.
● It is common for applicants to have to submit their own application without the support of a solicitor and the completion of the form is not particularly onerous or time consuming.
● Ms Bear attended her general practitioner twice during the period between the dismissal and the end of the 21 day period. She also attended a counsellor on the day of the termination.
● Ms Bear may have suffered from shock at the dismissal and increased anxiety and depression and insomnia. Ms Bear may have been functioning at a reduced level of efficiency during this period and may have had some difficulty focusing on paperwork. However, the evidence does not support a conclusion that she was incapacitated and functioning at such a reduced level as to be unable to submit a general protections application. The correspondence with the employer of 24 November 2014 supports this conclusion.

[10] I am satisfied that Ms Bear did take some action to contest the termination during the 21 day period. I consider this to be a neutral factor.

[11] I do not consider that there is any particular prejudice to the employer. The employer was on notice that an application may be made and the length of delay is significant but not very long. This is a neutral factor.

[12] The granting of an extension of time in the circumstances of this case would not be so unusual as to raise issues of fairness as between the person and other persons in a like position. This is a neutral factor.

[13] Both parties assert that they have a strong case. However, neither party provided any detail of the evidence which would support their case. I am not in a position to make a judgment about the merits of the case other than to say that if the allegations of Ms Bear were made out then there is some chance she might be successful. This is a neutral factor.

[14] Having addressed each of the factors in Section 366(2) of the Act I am satisfied that exceptional circumstances do not exist that justify the granting of the extension of time. I decline to grant an extension of time. The Application is therefore dismissed and an order to that effect will be published.

COMMISSIONER

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