Ms Oxana Tamaza v Bureau of Meteorology

[2013] FWC 6081

[2013] FWC 6081

FAIR WORK COMMISSION

DECISION

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

Ms Oxana Tamaza
v
Bureau of Meteorology
(U2013/1129)

COMMISSIONER BOOTH BRISBANE, 26 AUGUST 2013

Application for relief from unfair dismissal.

[1] Ms Oxana Tamaza (the Applicant) made application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). The application was electronically lodged in the early hours of 10 April 2013 Melbourne time. The Respondent, the Commonwealth of Australia, employed the Applicant at the Bureau of Meteorology (the Respondent) in Brisbane. The application is dated 4 April 2013 and states that both the date of notice of dismissal and the effect of the dismissal was 13 March 2013.

[2] The Respondent argues that the Applicant brought her application 7 days outside the 21 day time allowed by s.394(2)(a) of the Act. The Applicant seeks an extension of time (although she also argues dismissal was effected at a later date). The Respondent submits there are no exceptional circumstances and accordingly the Fair Work Commission (the Commission) should not grant further time under s.394(3).

[3] This decision concerns solely the preliminary jurisdictional point as to whether the application has been validly brought and if further time should be granted.

[4] The Applicant commenced work with the Respondent in June 2009 as a meteorologist. She took annual leave for the period 6 November 2012 to 18 December 2012 to travel to India to settle her son into boarding school. On 5 December 2013 she requested an extension of leave until 15 April 2013 due to difficulties her son was experiencing. The Respondent through the Applicant’s manager refused to extend leave for the entire time, but did grant an extension of leave without pay until Friday 18 January 2013 to return to work the following Monday, 21 January 2013.

[5] Throughout the ensuing weeks the Applicant continued to request additional leave without pay and also to argue for a half-time role, job sharing with a colleague, at a different workplace. It is apparent that she had experienced some work difficulties at the Brisbane workplace in the past as she was on a graduated return to work program. She exhibited medical and other certificates indicating some health problems predating her departure to India and later in India.

[6] The Respondent’s refusal of additional leave was based in part (on the evidence adduced by Mr Milner, the Bureau’s Manager–People Services) to facilitate the Respondent’s return to work and for “operational reasons (related to GFE training)”. The part-time work proposal at a different workplace was considered irrelevant to the decision about additional leave.

[7] On 15 January 2013, the Applicant was advised by her manager she was definitely required to return to work on Monday 21 January 2013, and told that failure to do so:

… will mean that your absence will be considered unauthorised and, as such, I am required to report such absence to the People Management Branch who will take action under Clause 33.1 of the Bureau's Enterprise Agreement 2011–2014 which states: Where an ongoing employee has been on extended unauthorised absence or has been on unauthorised absences for frequent short periods, his or her employment may be terminated by the Agency Head.

[8] The Applicant on 17 January 2013 repeated her request for an extension of unpaid leave until 15 April 2013, and for the job sharing arrangements. She asked for her email to be forwarded to Mr Milner. Mr Milner replied on that same day again declining the requested extension of leave, and reinforcing that failure to resume duty in Brisbane on 21 January 2013 could lead to termination of employment. The email stated:

if you are dissatisfied with the outcomes of this primary review, you may seek a secondary review by the Merit Protection Commissioner (MPC). An application for second review must be lodged within 60 days of the date of this email… You should note, however, that you will be required to … resume duty on 21 January 2013, as any application you make to the MPC does not operate to stay this employment action.

[9] The Applicant was granted a further short extension of leave without pay, to return to duty on Thursday, 24 January 2013 following some confusion in another email. On 22 January she requested a further extension of her Manager until 31 January 2013 citing illness, and undertaking to produce a medical certificate. Her Manager responded by email that day requesting urgent production of the medical certificate as he was unable to approve personal leave longer than 3 days without medical evidence. He reiterated that Mr Milner had required her to report for duty by 9am on 24 January 2013.

[10] The Respondent exhibited two medical certificates presumably obtained from the Applicant covering the period 18 January to 31 January 2013. It is unclear from the evidence when The Applicant provided the certificates. She provided a Microsoft Word document purporting to be emails showing that on 27 January 2013 she promised to deliver them as soon as she had access to a scanner, and apparently did deliver them by email on 30 January.

[11] The Applicant failed to report for duty as required on 24 January 2013, and on that same day the Respondent instituted disciplinary proceedings by way of a letter headed "Suspected breach of the APS Code of Conduct" sent by email to the Applicant. (APS means the Australian Public Service.) She was afforded an opportunity to respond, and did so on 31 January 2013.

[12] On 14 February 2013 the Director’s delegate, Mr Whitehead again wrote to the Applicant communicating the determination he had made about the suspected breach. He detailed the evidence he had reviewed including The Applicant’s response, and his consideration of it. He found that the Applicant had breached the APS Code of Conduct. He referred the matter to Ms Vicki Middleton who held delegation from the Director about disciplinary sanctions, for consideration of what sanction was appropriate, ranging from reprimand to termination of employment. The Applicant was again informed of her right of review to the MPC, and offered access to employee assistance.

[13] Ms Middleton wrote on 22 February 2013 to the Applicant. The letter included detailed consideration of possible mitigating and aggravating factors, concluding that termination of employment was the appropriate sanction. The Applicant was asked to provide any comment by close of business on 1 March 2013, and again offered employee assistance. The Applicant responded by email also dated 22 February and further emails of 23, 25 and 27 February 2013. On 1 March 2013 she forwarded a medical certificate concerning her son’s ill health.

[14] On 13 March 2013, Ms Middleton wrote notifying the sanction, including detailed consideration of the emails sent by the Applicant. The letter stated:

3. Based on the above considerations, therefore, and for the reasons contained in my letter to you of 22 February 2013, I have decided to apply the following sanction for your breaches of the APS Code of Conduct that were notified in the advice from Mr Whitehead of 14 February 2013:

Under section 15(1)(a) of the Public Service Act 1999, termination of employment.

4. I have decided to terminate your employment under section 29(3)(g) of the Public Service Act 1999 , on the ground of a breach of the Code of Conduct. My decision takes immediate effect, and you will be paid for three weeks in lieu of notice in accordance with the Fair Work Act provisions.

5. You will soon receive further correspondence from the Bureau, outlining your final entitlements and exit arrangements.

6. You have legal rights in respect of the termination of your employment, including the right to make an unfair dismissal application to the Fair Work Commission within 21 days of your termination of employment. (emphasis added)

[15] The 21 days after the termination meant a timely application was required by Wednesday 3 April 2013.

[16] The Applicant dated her application 4 April 2013. It is assumed that she had completed the document, comprised of Form F2 and attachments, totalling 32 pages, on or before that date. It was then electronically filed in the Commission. The email generated in response to the filing displays the time and date as 3.26am on 10 April 2013 Melbourne time, which would have been 10.56pm on 9 April 2013 in India.

[17] The Applicant submits several explanations for the application being late and argues there are exceptional circumstances that support additional time being granted under s. 394.

She submits that she had a:

health breakdown late 18th March but on the 22nd it became worse. Since Dr already gave me certificate to the 25th he said he will extend it from that date until 31st January. 1

[18] The Respondent urges that the stress caused by the disciplinary proceedings and termination of employment cannot be amount to exceptional circumstances. It refers to Bruce-Morich v BHP Billition Iron Ore Pty Ltd. Mr Bruce-Morich lodged an application for unfair dismissal remedy late, the time then being 14 days. He asserted that his ill-health, low self-esteem, poor well-being and dire personal circumstances amounted to exceptional circumstances. Cloghan C found:

… It should go without saying that, for most employees, being dismissed is not a positive experience - that is the norm. Dismissed employees, having made the decision to seek a remedy for alleged unfair dismissal have 14 days to implement that decision by filing an application in the Commission. The “bottom line” to use a colloquial expression, is that, despite any negative feelings and the practical consequences of being dismissed, the dismissed employee has to implement their decision to challenge the fairness of a dismissal - and do so, within 14 days. …

The negative financial, emotional or physical impact of being dismissed is, unfortunately, the norm and is not exceptional. 2

[19] The Applicant’s evidence affords her a medical certificate only until 31 March 2013. There is no evidence of medical issues after that date, namely from 1 April 2013.

[20] The Applicant also submits that both her children were sick. She submits that this remained the case ‘before, during and after the 21 day period’.

[21] Medical certificates provided by the Applicant described the children's illnesses, and it appears on the basis of this certificate that at least one if not both of the children was sick from 9 March to 22 April 2013.

[22] The Applicant says this was an aggravating factor in filing that application not earlier than the 10 April 2013. However during that time, the Applicant must have completed her application, dated 4 April 2013, and assembled the attachments during the time the children were sick. The relatively more simple task of filing electronically was not done for another five or six days.

[23] The Applicant submits that she had internet connectivity problems during March, April and May. She attaches the following from her complaint to her internet service provider:

I am using MTS Internet since November 2012 and for the last month it has been so slow that even Gmail and Facebook cannot be loaded, or loaded slow and with interruptions - what to say that no video could be downloaded. Speed is 0 to 56Kbps.

[24] She does not complain that internet services were such that she had lost communication completely and provides no specific evidence of communication difficulties during the period leading up to her filing. Her own evidence is that she filed on 9 April 2013 (possibly 10 April Melbourne time). She says in her submissions in reply:

As soon as I received Respondent’s reply from my email on 9th of April– I have lodged the Application for unfair dismissal immediately [sic]; and

As soon as I received the response from the Bureau I have lodged the Application to FWA (on the very same day); and

There was no correspondence from me before 9th of April … because I was waiting for the Respondent’s “final arrangements” so I could find out full information of what I can object to (in relation to dismissal)… So, it was action of the Respondent which led me to filing on 9th of April.

[25] From 9 April 2013 various exchanges took place between the Applicant and representatives of the Respondent concerning final payment and adjustments thereto. These emails were detailed, displaying a high level of engagement and consideration by the Applicant of her circumstances, challenging certain deductions and seeking explanations.

[26] The Applicant explains the delay in lodging in her submissions in reply as follows:

To consider employment finalised I have been waiting for the "final arrangements" (not only payouts) from the Bureau as it was stated in the Respondents letter from 13th of March [sic].

[27] She then quotes paragraph 5 from the letter of 13 March 2013 and states "I assumed I had to wait for that official correspondence". That correspondence appears to have taken place on 11 April 2013, the date on which she received her final pay, and 8 May 2013, when adjustments to the final pay were explained to her.

[28] However it is clear from on her application that she knew the dismissal was effective from 13 March 2013, and she had been expressly advised in the notice of her rights to apply to this Commission within 21 days.

Consideration

[29] The Applicant’s claim that she was not dismissed until the further documentation referred to in paragraph 5 of the letter dated 13 March 2013 cannot be accepted. The letter is clear in paragraph 4 that termination took effect from the date of the letter. Further the application itself identifies 13 March 2013 as the date of both notice and dismissal, indicating that the Applicant had no doubt as at the date of the application when the dismissal took effect.

[30] The application, while dated 4 April 2013 (which would still be out of time) was actually lodged on 10 April 2013 Melbourne time, seven days out of time. It must be concluded that the application was lodged out of the time allowed.

[31] The Act allows the Commission to extend time under s.394(3) as follows:

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

394(3)(a) Reasons for delay

[32] The Applicant says she was living in rural parts of India during the extensive email exchanges that took place between mid-December 2012 and the date of her application. She suffered from internet connection difficulties, lack of access to email and other technology shortcomings. Both she and her children were ill and she was stressed by the negative turn of events regarding her employment. Further, she says she misunderstood when the dismissal took effect having regard to the exit documentation.

[33] The Respondent submits that termination was clear from 13 March 2013, even though the final payment and the explanation of adjustments took place at later dates. I agree. The Applicant may have been confused about the effect of the post-termination documentation, but the test is an objective one, the view of a reasonable person in the Applicant’s position with knowledge of the background of dealings between the parties: see Fardell v Coates Hire Operations Pty Ltd 3; Moses v TattsBet Limited.4

[34] A reasonable person could not misunderstand the effect of the letter of 13 March 2013. The Applicant herself states that date in her application. It is noteworthy she dated the application 4 April 2013 (a Thursday) but did not lodge until the following Wednesday. No evidence explaining this apparent anomaly was adduced. The Respondent submits it shows the Applicant was able to lodge from 4 April 2013 at the latest.

[35] As to communication difficulties, the Applicant engaged in numerous email exchanges and appears not to have missed any of the Respondent’s emails. No doubt remoteness in India and poor quality internet services made communication more difficult than for someone living locally. But the Applicant managed to communicate effectively, and I cannot conclude that her presence in India and the slowness of the internet connection meant she could not lodge a timely application.

[36] The Applicant also asserts in mitigation of the delay that she and her children were ill and that she suffered from considerable stress dealing with the disciplinary process. The Respondent cited several authorities indicating that ill health on its own is not exceptional circumstances.

[37] The fact that the application was prepared, and the detailed attachments compiled during the period of the children’s illness shows that the Applicant was in a position to lodge despite their health problems.

[38] As to her own health issues, her evidence indicates she was no longer covered by medical certificates after 1 April 2013, and indeed by three days after that date had completed the detailed application.

[39] On the Applicant’s own evidence, while she was facing a range of health, family and technology issues, none of these alone or in combination prevented her from taking significant steps in her own interest. It follows she was capable of making the application in a timely way.

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

[40] The Applicant became aware of the dismissal on 13 March 2013 on receipt of the Respondent’s letter, and was clearly advised of the 21 day time limit in that letter.

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

[41] The Applicant took no particular steps after 13 March to dispute the dismissal other than lodging the present application. She suggests that Koromilas v Martland International Pty Ltd 5 is relevant to her case. That was a matter heard ex parte when the Respondent employer did not attend. Time was extended, in part because the Applicant had lodged material with the Fair Work Ombudsman and mistakenly thought that she had thereby initiated unfair dismissal proceedings. The case is not relevant to the present circumstances.

394(3)(d) Prejudice to the employer

[42] The Respondent makes no submissions on this factor, and there is no basis on which to assert prejudice.

394(3)(e) Merits

[43] The Respondent undertook a detailed public service process in moving towards the ultimate sanction. Each step along the way is dealt with in the practised precision one might expect of a government agency. The relevant evidence is gathered, identified, analysed and reviewed. The Applicant is afforded opportunities to be heard and offered employee assistance. A small extension of leave was granted when a miscommunication might have led the Applicant into believing a reprieve had been given on the return date.

[44] The Applicant, among other things:

a) disputes that she breached the Code of Conduct;

b) suggests the Respondent failed to communicate properly with her while she was overseas on leave;

c) submits that it was unfair to dismiss her while she was ill;

d) suggests that the Respondent had pre-determined that she would be dismissed;

e) raises language and cultural issues and difficulty with obtaining Australian legal advice from India;

f) submits that she was treated harshly and disproportionately by being dismissed.

[45] This decision is not about whether or not the Applicant would be successful in her application. It is concerned only with merit as a factor in granting additional time.

[46] The Applicant’s case is not fully made on the material before me, but it cannot be said to be devoid of merit or bound to fail.

394(3)(f) Fairness

[47] The parties made no submissions as to fairness and this factor must therefore be neutral on the material before the Commission.

Conclusion

[48] The Act allows extra time to be granted, but only if there are exceptional circumstances considering the statutory factors.

[49] The prejudice and fairness factors are neutral.

[50] I find that her case does not lack merit or is bound to fail. Accordingly this factor is at least neutral.

[51] On the available evidence, the Applicant did nothing in particular after 13 March 2013 to dispute the dismissal and cannot raise exceptional circumstances on that basis.

[52] In terms of the reasons for delay, the Applicant clearly suffered some difficulties. She was located in India, with poor communications and relatively poor access to the internet. Her illness, family issues and the illness of her children are relevant factors. However, her own medical evidence runs no later than 31 March 2013. Her email communication over this time remained timely, detailed and lucid. Despite all the difficulties, she composed a detailed application no later than 4 April 2013, but still did not lodge for another five or six days. These factors show she that was capable of composing a valid application and lodging it in a timely way, but she did not do so. Further, she knew the date of dismissal to be 13 March 2013 and had been put expressly on notice by the Respondent of the 21 day time limit.

[53] The evidence as presented by the Applicant does not amount to exceptional circumstances within the meaning of s.394.

[54] Exceptional circumstances have not been made out. Accordingly additional time is not granted and the application must be dismissed.

COMMISSIONER

 1   presumably meaning 31 March.

 2   [2013] FWC 2910 at paragraphs 35 and 37.

 3 [2010] NSWSC 346 at paragraph 82.

 4   [2013] FWC 5043 at paragraph 18 and 19.

 5   [2013] FWC 1053

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