Ms Samantha Lock v General Assembly Australia T/A General Assembly
[2015] FWC 6036
•3 SEPTEMBER 2015
| [2015] FWC 6036 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Samantha Lock
v
General Assembly Australia T/A General Assembly
(C2015/526)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 3 SEPTEMBER 2015 |
Application to deal with contraventions involving dismissal; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to extend should be exercised; further period allowed.
Introduction
[1] Samantha Lock (Applicant) has made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Act) for it to deal with a general protections dispute involving a dismissal. The application was lodged on 12 March 2015 and concerns an allegation that adverse action was taken by General Assembly Australia (Respondent), being the dismissal of the Applicant on 18 February 2015, in contravention of s.340 of the Act. As the application is made outside the prescribed period by s.366(1)(a) of the Act, the Applicant asks the Commission to allow a further period in accordance with s.366(2) of the Act.
Background
[2] The Applicant commenced employment with the Respondent on 2 December 2014. I use the term ‘employment’ advisedly as there is a dispute between the parties whether theirs was a relationship of employer and employee or one of principal and contractor. Self-evidently, if the relationship was one of principal and contractor the ending of that relationship on 18 February 2015 was not a dismissal and so adverse action in the form of dismissal as alleged by the Applicant could not have been taken.
[3] In applications made under s.365 of the Act, it is not the Commission’s function to determine questions of jurisdictional fact such as whether there was a dismissal.1 However, the question is relevant in assessing the merits of the application having regard to the matters which the Commission must take into account in determining whether there are exceptional circumstances warranting the exercise of the Commission’s discretion to extend the time period within which applications of this kind may be made.
[4] The Applicant was engaged by the Respondent as a Front Lines Producer. The advertisement for the position in respect of which the Applicant applied, was described as ‘a part-time contractor position in Melbourne, AU’. The Applicant took steps to establish herself as a contractor by obtaining an ABN. The rate agreed for the services to be provided by the Applicant was $20 per hour.
[5] The position of Front Lines Producer required the Applicant to provide various services including:
● greeting students and instructors and checking them in for classes and events;
● setting up rooms for classes and events;
● tidying up before and after classes and events;
● assisting instructors with setup of projectors/presentations prior to class; and
● troubleshooting technical issues.
[6] The Respondent maintains that it was a critical element of the Applicant's position that she be reliable, timely and organised and at all times display strong customer service skills.
[7] It says that during the Applicant's engagement, it became apparent to the Respondent that the Applicant was not performing the services to the standard required by the Respondent. In particular, the Respondent maintains that the Applicant:
● arrived late on a number of occasions and was unable to greet students and instructors to check them in for class;
● on a number of occasions failed to set up rooms for classes and events as a result of arriving late and/or being disorganised;
● failed to tidy up before and after classes and events and restock supplies for the students and instructors; and
● spent time on Facebook in clear view of new students when she was supposed to be providing services to the Respondent.
[8] The Respondent asserts that on 18 February 2015 the Applicant was advised that she was no longer required in her contractor position. The Respondent says that it explained to the Applicant that the contract for services had been terminated effective immediately as a result of her inability to provide the services to the required standard.
[9] The Applicant maintains that the contractor arrangement was a sham and that the Respondent misrepresented that which in reality was an employment relationship, as one of principal and independent contractor. The Applicant disputes the reasons which are said to have resulted in the decision to terminate the relationship and says that the reason for the termination, which she maintains was a dismissal, was her exercise of a workplace right, namely making a complaint or inquiry in relation to payment.
Principles for allowing a further period with which applications may be lodged
[10] The Applicant’s dismissal took effect on 18 February 2015. This application should have been made within 21 days after the dismissal took effect, that is by no later than 11 March 2015. The application was lodged at 12:57am on 12 March 2015. The Commission has discretion to allow a further period. The discretion to allow a further period within which an application may be made will only be exercised if the Commission is first satisfied there are ‘exceptional circumstances’, taking into account:
● The reason for the delay; and
● Any action taken by the person to dispute the dismissal; and
● Prejudice to the employer (including prejudice caused by the delay); and
● The merits of the application; and
● Fairness between the person and other persons in a position.
[11] It is clear from the structure of s.366(2) of the Act that each of these matters be taken into account when assessing whether there are ‘exceptional circumstances’. Individual matters might not, when viewed in isolation, be particularly significant. So it is necessary to consider not only the matters individually, but to ask whether collectively the matters show that in a particular case there are exceptional circumstances. ‘Exceptional circumstances’ is not defined in the Act specifically, however it is generally accepted that ‘exceptional circumstances’ are circumstances that are out of the ordinary course, that are unusual, special or uncommon, but the circumstances do not need to be unique or unprecedented nor do they need to be very rare.
[12] I turn to consider the application to allow a further period.
Consideration
Reason for the delay
[13] The Applicant gave several reasons for the delay in lodging the application.2 These reasons are best set out in the following exchange recorded in transcript:
Ms Lock, can I ask you this, as I understand it your - just let me turn to your submission. Fundamentally, the reason you give for the delay is that it was your medical condition which prevented or contributed to you lodging your application on time?---Yes, sir.
Accordingly to the Commission's records, the application was received on 12 March 2015 and it was a day outside of the time prescribed. Can I ask you to - well, before you do that, are you able to tell me how it is that you lodged the application?---With the Fair Work Commission?
Yes?---I lodged the application online. I was aware that it was a 21 day period. The process of lodging the application was quite challenging for me, I didn't have any legal representation. I was aware from my own independent research that I needed to inform the employer of my grievances and I spent a lot of time educating myself as to where I stood, in order to lodge that informal claim to the employer, which I did within seven days of being dismissed.
That's the letter of demand that the employer refers to in its submission?---Yes, sir. I then gave the employer 14 days to respond because I felt 14 days was a fair period of time. So in total the time spent for me to lodge my informal letter of demand and complaint and the 14 days that I gave the respondent to respond came to 21 days, which to me was - yes, I guess quite challenging considering that I didn't have any legal representation. And on top of that I was finding it incredibly difficult to perform daily tasks and function effectively.
You will see in your application, if you turn to page 11, that the application was signed on the 9th?---I actually filled out this application online ahead of actually sending it.
Yes, and I accept that but it seems as though - well, you wouldn't sign and date it until you've completed the form. That's a fair assumption isn't it?---Yes.
It seems as though you completed the form by 9 March, which in Victoria at least was a public holiday, yes?---Yes, sir.
What's the explanation for the delay between 9 March and the date on which you filed it, which was 12 March?---The delay was due to hearing a response from General Assembly, the employer. I had - sorry, I didn't actually look at the date that I signed this application but I filled out this application ahead of time, knowing I guess that I should be prepared and stating where I stood. At the time from hearing back from the employer, I had recently arrived back from Sydney, which is where I had originally lived and it's where I had seen Dr Balafas and another psychologist, and it was also the period of time where I had moved into my new place of residence here in Melbourne and I had also just started university. I didn't have any internet connection in my home, so as I remember, when I filed this form it was during that time when I had just arrived back from Sydney and I believed that I had another day to file.
Ms Lock, is this a fair proposition: even if I accept that at or about that time you were suffering from a heightened anxiety and a heightened impact from a depressive illness, in and of itself that didn't prevent you from making the application because it seems, on the face of it at least, by 9 March you were certainly capable of completing the form?---Yes, sir.
And that what happened after that was that in effect you were waiting for your employer to reply to your letter of demand, that your life was otherwise busy because you were studying, and because you were - you had just moved house and you were still getting yourself organised in that place, and ultimately you thought that 12 March was in fact the last day you could file it?---Yes, sir. I mean I think that the fact that I did fill this form out and I had been prepared, knowing the small amount of time that I had, indicates that I was well intentioned and I - - -
Ms Lock, you shouldn't take anything that I'm suggesting as critical, I'm just trying to understand what actually caused the delay. It seems to me it was, from what you've indicated, there were a number of things that contributed to the delay but ultimately in your mind the last day that you'd calculated that you could file the application was 12 March. Is that a fair statement?---Yes, sir. I think that probably what added to the confusion, potentially, with the date is that with my condition, which you are welcome to speak to Dr Balafas about, much of the anxiety is to do with rolling panic attacks which can have me, basically, completely ineffective and debilitated for days. It means I can't sleep, I can't eat, I can't - essentially I just can't do anything, and it makes me entirely lose track of time, I'm not able to concentrate or do any task.
Ms Lock, you're under oath, so is it your evidence that during that period, say, between 9 March and 12 March, when you lodged the application, you were suffering from that?---Absolutely. That's why I went to Sydney to receive treatment.
When did you go to Sydney?---I went to Sydney, sorry, I don't have my diary with me right now. I would have gone to Sydney two times over that period and the second time I went to Sydney was probably just after I'd had completed the bulk of this form ahead of time.
Did you lodge the form electronically from Sydney or from Melbourne?---It would have been from Melbourne.
So by 12 March you were in Melbourne?---Yes, sir.
Were you in Melbourne on 11 March?---I'm actually unsure if I was in Melbourne or Sydney; I don't have my diary on me, I can't be definite about that.
When you give evidence that your mental illness and panic attacks manifest themselves in an ability to function that doesn't include travel?---Sorry, are you referring to if the travel between Melbourne and Sydney impacted on my ability to lodge the form?
My question really is whether - you gave evidence that during that period between the 9th and the 12th you were in the state that you indicated, panic attacks leading to an inability to function. What I'm asking is whether if you were travelling during that period does that - it seems as though the disability, or the symptoms of the disability, don't seem to impact your capacity to travel?---No, I'm able to travel. It's a short trip to Sydney and the reason why I went to Sydney was because I felt that for my sanity and mental health at the time I really needed to go to - as I said, I am from Sydney, I grew up in Sydney. My family GP and my psychologist and psychiatrist are in Sydney.
During that time presumably you would have booked airline tickets?---Yes, sir.
You did that online?---I should, yes, sir.
In relation to some of the other matters that I need to take into account, you wrote a letter of demand to your employer about a week after you were dismissed. Is that right?---Yes, sir.
Without disclosing the "without prejudice" basis of it you made certain demands in relation to your dismissal. Is that right?---Yes, sir.
You say that that letter of demand gave the employer 14 days within which to respond?---Yes, sir.
Are you able to tell me when precisely you sent the letter?---I sent the letter electronically on 25 February 2015 and I believe I delivered a physical copy to Bart Macdonald the day after, on 26 February.
But you sent it by email on the 25th?---Yes, sir.
Did you specify a date by which a response should be given or did you just say two weeks?---I believe I did. I sent the letter electronically 25 February and I stated, at the end of my letter, "If I do not receive a positive outcome from you within 14 days" - -
Within 14 days would be 11 March?---Yes, sir.
You say at the time you knew that there was a 21 day limit?---Yes, sir.
Is it your evidence that you calculated the timing of your letter, together with the response, to give you sufficient time in which to file the application?---Yes, sir.
At that stage you calculated that 21 days would expire on the 12th?---Yes, sir.3
[14] As is apparent from the above exchange a combination of factors are said to have contributed to the delay. These factors included the Applicant’s medical condition (diagnosed as anxiety and depression)4 and its impact on her capacity to cope and meet deadlines; the Applicant’s miscalculation of the time frame within which an application could be made; waiting for the Respondent to respond to the Applicant’s previous demands; and technical difficulties encountered in trying to lodge the application.
[15] Dr John Balafas is the Applicant’s treating physician. In addition to providing a medical certificate setting out the Applicant’s medical condition, Dr Balafas gave the following evidence:
THE DEPUTY PRESIDENT: All right. I will mark that document as an exhibit in these proceedings. I'll give it a number shortly. Now, I'm assuming, Dr Balafas, that you examined Ms Lock at a time contemporaneous with the preparation of that certificate?---Yes.
All right. Are you able to give me some details about that?---On that date?
On that date or at an earlier date?---Yes. I've got to refer to my - - -
Yes. That's alright?---Yes, I had examined her on that day when she actually come in and seen me, and we discussed – and there was a general physical examination done, but we, you know, discussed her issue with the ongoing anxiety problems and trying to treat the matter quickly and we had discussed how it's affected – or had been impacted by the issues she has with her employer, and subsequently how her anxiety had been difficult with her getting herself together and help her to lodge a claim in time. I believe we discussed it on that day.
Right?---These matters.
Okay. Can I ask you this, Dr Balafas - - -?---Yes, sure.
- - - did you examine or treat Ms Lock at any time during the period between 18 February 2015 and 12 March 2015?---I did not treat her during that period.
Okay. So, you're not able to express a view about the impact of her condition during that period, other than by reference to the history that Ms Lock may have given you during your consultation on 9 April; is that fair?---I had seen her on many occasions before and had a pretty good understanding of her issues.
Alright?---And so it was not a surprise to me, you know, on that date that she'd not been coping well.
Alright. And your evidence is that, in your medical opinion, her anxiety and depression affected her ability to make the application that she made within the time prescribed?---Yes. Look, I do. You know, again I'll – yes is the answer. But, again, it's fairly clear to me to see that she wasn't coping, that she was having problems with the employer which made her anxiety worse. Once her anxiety had got to a higher level, then, you know, she comes apart and really doesn't cope well at all, and being – a sign of that is not meeting deadlines. That's a typical sign of somebody not coping.5
[16] Later, Dr Balafas gave the following evidence:
MR KENNEDY: Can I ask Dr Balafas, then, that, I mean, given that he hadn't actually seen Samantha during the period up to 11 March, he doesn't actually know what mental state Samantha was in at that point in time; is that correct, Dr Balafas?
THE DEPUTY PRESIDENT: Dr Balafas, did you hear that question?---I believe it was I hadn't seen her in that period of time so I wasn't able to adequately assess.
That's the gist of the question, yes?---Yes. I don't think that's – I mean, that's – I didn't examine her during that period, but she clearly described to me when I had seen her, the history, and the history is as important as, you know, a physical examination, or, you know, if someone comes into your practice you're able to assess their state, their mood, their effect, you know, their level of – whether they're happy or they're sad, but just as important as that is the history. You know, and the history is not at odds at all with the history that I understand for her to have in the past. The history was in keeping and fit with my understanding of her mental health and problems, the complex problems she'd had with mental health.
MR KENNEDY: But generally Samantha is capable of functioning on a – well, a functioning level. She can, you know, prepare correspondence, she can attend University, she can arrange tickets to travel, examples to fly. You wouldn't say that there's any particular impairment that stops Samantha functioning generally well?---Well, she's competent and capable of performing intelligent tasks, but I've seen – you know, I have colleagues that have been cardiothoracic surgeons that their life has fallen apart from mental health issues that, you know, have not made it to work, that have not completed documents in time to, you know, to have their registration renewed, and, you know, I've seen people operating at an extremely high level that have fallen apart with mental health problems. You know, that have not been able to meet deadlines and meet their responsibilities or commitments. So it isn't at all surprising to me, and it actually fits her history.
So you've said in your certificate that Samantha suffers from anxiety and depression; is that correct?---She has a long history and I'm aware that she's had – she's been hospitalised and had big panic attacks. She's been diagnosed with complex post-traumatic stress disorder. There have been a number of psychiatric diagnoses in the past. I'm not a psychiatrist, I'm a GP. We'll state at that at the outset. But I am aware of her longstanding issues with anxiety and not coping well with stress.
Yes. Would Samantha being able to write correspondence or research legal issues, attend University, arrange to go to University, would that be inconsistent with her being, I suppose, incapacitated from her current illness?---Can you repeat that question, please?
What I'm putting to you is, during this hearing, there's evidence that's been given that, during the periods of 25 February through to 11 March, Samantha wrote lengthy letters to the respondent in this matter. She arranged to go to University, attended University, studied. She booked flights to fly to Sydney, and travelled back and forth to Sydney, and she seems to carry out a lot of activities during that period which would suggest that she was capable of functioning quite normally during that period. The fact that those activities were undertaken, would that indicate to you that she was functioning quite well during that period?---I think a differentiation needs to be made, you know, between lodging an application for something that's probably quite stressful to you to performing daily duties. For her to sit down and prepare a document, I don't know what the content of it was but I'm sure it would contain things that would make her upset, you know, and it would've been a stressful thing for her to, you know, undertaking a Court case. And I think that would have been quite hard to do, and that would've made her quite anxious, and that anxiety would have interfered with that in such a way that, you know, if she had been unwell with, let's say she had cholera, you know, for two weeks, that would have impaired her in preparing an application, and mental health is not unlike other medical conditions in that it can affect somebody's performance or ability to perform a task. And, again, you know, I believe that there should be a differentiation made about the nature of the task.
Yes. Okay. So how long have you been treating Samantha?
THE DEPUTY PRESIDENT: Dr Balafas, did you hear that last question?---No, no, sorry, I didn't.
No. That last question from Mr Kennedy was how long had you been treating Ms Lock?---I'm sorry, one moment. I've just got someone at my door.
That's all right?---Okay. Sorry about that. What was that question again?
The question from Mr Kennedy was how long had you been treating Ms Lock?---I've treated her back as far as 11 December 2013.6
[17] The Respondent submitted that fear and anxiety are not unexpected responses in circumstances where an employee has been terminated, and are not sufficient to justify an exercise of the discretion to extend time for making an application. It submitted that there is no suggestion that the Applicant was incapacitated during the 21 day time period. Rather, the Respondent says that the evidence indicates the Applicant was able to do a number of things in the 21 day time period, despite her alleged medical condition, including:
- writing a detailed letter of demand and complaint to the Respondent;
- searching the Commission's website to find out information about filing an unfair dismissal application;
- booking flights online and travelling between Melbourne and Sydney twice over the 21 day period;
- completing and signing the unfair dismissal application form by 9 March 2015, well within the 21 day time limit; and
- undertaking a full time master's degree of study.
[18] All of this is correct but does not take sufficient account of the evidence of Dr Balafas. His evidence was that to properly understand the effect on the Applicant of her medical condition in relation to the application it was necessary that ‘there should be a differentiation made about the nature of the task’.7 As is apparent from the evidence extracted earlier Dr Balafas’ medical opinion was that that:
‘. . . a differentiation needs to be made, you know, between lodging an application for something that's probably quite stressful to you to performing daily duties. For her to sit down and prepare a document, I don't know what the content of it was but I'm sure it would contain things that would make her upset, you know, and it would've been a stressful thing for her to, you know, undertaking a Court case. And I think that would have been quite hard to do, and that would've made her quite anxious, and that anxiety would have interfered with that in such a way that, you know, if she had been unwell with, let's say she had cholera, you know, for two weeks, that would have impaired her in preparing an application, and mental health is not unlike other medical conditions in that it can affect somebody's performance or ability to perform a task . . .’8
[19] Although Dr Balafas did not consult with the Applicant at or about the time that the application was lodged; he nonetheless expressed the opinion that he had ‘no doubt that this (the exacerbation of the Applicant’s anxiety and depression resulting from the termination) would have affected her ability to lodge the clain (sic) in the required time’.9 This assessment is given by Dr Balafas in circumstances where he had been treating the Applicant since December 2013.10
[20] I accept the Respondent’s submissions that the Applicant’s miscalculation of the timeframe and other reasons proffered as an explanation, in and of themselves, do not provide an acceptable explanation for the delay, however I am satisfied that, in the circumstances of this case, that the evidence of Dr Balafas establishes that the Applicant’s medical condition is likely to have contributed to her coping mechanisms and the capacity to meet deadlines, and that this is likely to have affected her capacity to lodge the application within time, noting that the application was in effect 58 minutes outside the time prescribed for lodgement. I also accept the Applicant’s explanation that she attempted to lodge the application before midnight (noting that the application had been signed by her some days earlier) but was unsuccessful as she could not upload certain supporting documents through the Commission’s eFiling system. 11 I am therefore satisfied that there is an acceptable explanation for the whole of the period of the delay. This is a factor which is to be weighed in favour of the Applicant.
Any action taken by the person to dispute the dismissal
[21] It is uncontroversial that the Applicant sent to the Respondent a letter of demand and complaint dated 25 February 2015. In that letter the Applicant raises the very issues that she agitates in this application. It is clear that the Applicant took steps before lodging the application to dispute the dismissal with the Respondent. This is a matter that weighs in favour of the Applicant.
Prejudice to the employer (including prejudice caused by the delay)
[22] The Respondent submitted that it has expended significant cost, time and effort in defending the application. The Respondent said that it should not lightly be put to the inconvenience and costs including time, resources and legal expertise required to defend a general protections application which lacks merit and is out of time.
[23] For reasons I will come to, it cannot be said at this stage the application lacks merit, however the prejudice that the Respondent has identified are the usual matters that any person forced to defend an application will face. No factors such as the passage of time and its impact on the recollections of potential witnesses or the unavailability of any particular witnesses were identified as prejudicial factors. Moreover, the Respondent has been on notice since 25 February 2015 that the Applicant disputes the ‘dismissal’ in the manner ultimately set out in her application. I am satisfied there is no real prejudice to the Respondent. However the absence of any prejudice is not a sufficient reason to allow an extension of time for filing an application. I regard this factor as essentially neutral in the circumstances of this case.
Merits of the application
[24] During the course of the hearing, I expressed the following the view as to the merits of this application:
THE DEPUTY PRESIDENT: I might just indicate this. It might assist the questions that need to be asked about the merit. As I explained at the outset, it’s not the commission’s role in general protections matters to determine the merits of an application and, indeed, there’s authority for the proposition that particularly jurisdictional objections such as whether or not the person was dismissed and whether or not the person was an employee, are matters that ultimately need to be determined by the court or in an arbitration before the Commission. Not at the stage where disputes are brought.
That said, I’m required to make an assessment about the merits of the claim as put. Can I say this, that I’m not going to make any particular findings of fact but it seems to me that an assessment of the facts – of the merits of the claim can be made simply on this basis. It seems to me that there’s sufficient dispute about the natures and terms of the employment relationship or the contractor arrangement to raise questions about whether a relationship was properly characterized as one of employment.
So to that extent, Ms Lock, it seems to me, has at least an arguable case, and I put it no more highly than that. But an arguable case that she was an employee, not an independent contractor. Ultimately, Mr Kennedy, you will appreciate the courts look at the substance of the relationship and not its form. There’s a lot of information about the form of the relationship and it may be that when a proper assessment is made about the substance of the relationship, that the substance will trump the form. That may be the case; it may not.
All I’m simply saying is that for present purposes, I think there’s sufficient doubt about that issue to make good an arguable case that Ms Lock was an employee. Now, given that, Ms Lock has identified that she exercised a particular workplace right or that she made complaints or inquiries in relation to her payment. There’s an arguable point that can be made that that was an exercise of a workplace right within the meaning of the Act. So that there’s no dispute that the employment came to an end. Sorry. There’s no dispute that the relationship came to an end.
The question is whether or not that amounted to a dismissal. That ultimately turns on the question of whether or not Ms Lock was an employee. For present purposes I’m prepared to accept there’s an arguable case that there was a dismissal and that, therefore, there’s an arguable case that there was adverse action taken.
Given that there’s an arguable case of adverse action taken, Ms Lock is able to point to the exercise of a right which arguably is the exercise of a workplace right within the meaning of the Act, and she makes the allegation that the reason for the termination of the arrangement or the employment was because of or for reasons that included the fact that she raised those issues.
That, put together, amounts to an arguable case that there has been a contravention of the general protections provisions. I use the term, Mr Kennedy, for your benefit – I’m sorry – as you would appreciate, arguable case in the legal sense. I’m not suggesting that it’s strongly arguable but simply that it’s arguable. I’m not sure that you would seriously quarrel with those propositions. So that for the purposes of my assessment of the merits, it seems to me that there’s an arguable case.
I’m not going to make any further findings on that basis, and I don’t think that the level of cross-examination, Ms Lock, with respect, is going to help me any further. Unless you have some other questions of Mr Macdonald and I’m not going to stop you from asking questions, but that’s basically where I’m likely to come down on that question. It’s probably the best you’ll do and it’s a factor that would normally weigh in your favour.12
[25] As I have indicated above, my assessment of the merits of the application is that the Applicant has an arguable case. Contrary to the submission of the Respondent, it cannot be said therefore to be lacking merit. In the circumstances this factor weighs slightly in favour of the Applicant.
Fairness as between the applicant and other persons in a like position
[26] The Respondent submitted that given the delay in lodging the application, there would be no unfairness between the Applicant and other persons in a similar position if the application were dismissed. It submitted that if an extension of time is granted, it would constitute a degree of latitude contrary to the prevailing legislative and precedential standard. It submitted that the Commission should not exercise its discretion to grant an extension of time in situations such as this where the Applicant was the author of his or her own demise.
[27] For the reasons earlier given I do not regard the Applicant to have been the author of her demise. This consideration is ultimately concerned with ensuring that consistent application of principle is achieved in determining whether an extended period of time within which to lodge an application should be allowed. But ultimately each case is to be assessed having regard to the circumstances particular to it. That said, where a medical condition is established by evidence as having, or likely to have had, an impact on the capacity of an applicant to lodge an application within time, this has been accepted by the Commission as providing a satisfactory explanation for the delay in other cases.13 The absence of medical evidence indicating the condition contributed to delay and assertions as to the effect of the medical condition, provided as an explanation for the delay, has resulted in that explanation not being acceptable.14 Given the medical evidence, a decision in this case not to grant an extension of time may well result in unfairness as between the Applicant and other persons in a like position. In these circumstances, this consideration weighs in favour of the Applicant.
Conclusion
[28] The statutory time limitation for the exercise of a right to bring a general protections dismissal related dispute application is essentially an expression of the Parliament’s intention to balance, on the one hand, the right to bring an application about a disputed dismissal; and on the other, the right of the former employer to continue with its business with some certainty after it has made a decision and to know that after the elapsing of a particular period, disputes about actions taken by it will no longer be agitated.
[29] The Parliament has struck that balance by assigning a 21-day time limit within which to make an application, but recognising that there will be circumstances which will warrant consideration by the Commission to allow an extension of time. Parliament has determined that it will only be in ‘exceptional circumstances’ that the Commission will give consideration to whether an extension of time should be granted. But the primary position is that applications should be made within the 21-day period.
[30] When I consider each of the matters set out in s.366(2), in the context of the evidence in this case and when I look at those circumstances collectively, I am satisfied that they establish there are exceptional circumstances in this case which warrant the consideration of the exercise of my discretion to extend the period within which the application has been made. The Applicant’s capacity to make an application within time was affected by her medical condition which impacted upon her coping skills and her ability to meet deadlines. The Applicant also made efforts to lodge her application before the time had elapsed. She had completed the application some days earlier. The Applicant disputed her dismissal with the Respondent, the general protections claim is arguable and in the circumstances of this case there might be unfairness to the Applicant compared to other persons in a like position if an extension of time were not granted.
[31] As to whether I should now exercise my discretion, I regard the fact that the application was lodged only 58 minutes outside of the time prescribed, together with the nature of the subject matter that will ultimately require determination, as factors which weigh in favour of the exercise of my discretion to extend time. No other factors which might weigh against the exercise of my discretion have been identified. I therefore propose to allow a further period within which this application may be made. That further period is extended to 12 March 2015.
[32] An order giving effect to this decision is separately issued in PR571498 and the application will now be dealt with in a conference pursuant to s.368 of the Act.
DEPUTY PRESIDENT
Appearances:
Ms S Lock in person
Mr A Kennedy for the Respondent
Hearing details:
2015.
Melbourne.
May 12.
August 19.
1 See Hewitt v Topero Nominees Pty Ltd[2013] FWCFB 6321
2 See Exhibit A1
3 Transcript (12 May 2015) PN 68-PN 97
4 Exhibit A2
5 Transcript (19 August 2015) PN 23-PN 32
6 Transcript (19 August 2015) PN 56-PN 67
7 Transcript (19 August 2015) PN 62
8 Ibid
9 Exhibit A2; Transcript (19 August 2015) PN 17 – PN 22
10 Transcript (19 August 2015) PN 67
11 See Transcript PN 166 – PN 173
12 Transcript (12 May 2015) PN 284 – PN 291
13 See for example Cornelius v Grant Chugg Plumbing Pty Ltd[2014] FWCA 2937, particularly at [12] – [13]
14 See for example Shaw v ANZ Group Limited[2014] FWC 3903, particularly at [23]
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