Ms Sarsha East v Jeld-Wen Australia Pty Ltd
[2022] FWC 316
•17 FEBRUARY 2022
| [2022] FWC 316 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s. 394 - Application for unfair dismissal remedy
Ms Sarsha East
v
Jeld-Wen Australia Pty Ltd
(U2022/1245)
| COMMISSIONER MIRABELLA | MELBOURNE, 17 FEBRUARY 2022 |
Application for an unfair dismissal remedy – unfair dismissal application filed out of time –circumstances not exceptional – application dismissed.
Ms Sarsha East was employed as a Creditor Officer by Jeld-Wen Australia Pty Ltd (Jeld-Wen) from 28 May 2012 until her employment was terminated with effect from 21 December 2021.
On 28 January 2022, Ms East applied for an unfair dismissal remedy. Applications of this kind must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Fair Work Commission (the Commission) allows.
To have filed her application within the 21-day period, Ms East had to have done so by midnight on 11 January 2022.
Ms East’s application was filed 17 days late. The question is whether an extension of time to file the application should be granted. Ms East asks the Commission to grant this extension of time. Jeld-Wen opposes this request.
After taking into account the views of Ms East and Jeld-Wen regarding whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter.[1]
Accordingly, at the conference on 16 February 2022, both Ms East and Jeld-Wen were self-represented. Ms East gave evidence on her own behalf.
Extension of time
Section 394(3) of the Fair Work Act 2009 (the Act) sets out a range of factors that are to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:
· the reason for the delay;
· whether the person first became aware of the dismissal after it had taken effect;
· any action taken by the person to dispute the dismissal;
· prejudice to the employer (including prejudice caused by the delay);
· the merits of the application; and
· fairness as between the person and other persons in a similar position.
An extension of time can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon” but not necessarily circumstances that are “unique, or unprecedented, or very rare”.
Relevant factors
Reason for the delay: For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 11 January 2022. The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.
The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an “acceptable” or “reasonable” explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour; however, all of the circumstances must be considered.[2]
Ms East cited several matters as reasons for her delay in lodging the application and relies on matters prior to and during the 21-day statutory period.
Ms East submitted that there were events and circumstances in combination that were outside of her control, and which negatively impacted and impaired her ability both mentally and physically to submit her application. Ms East submits that months of being subjected to unfavourable, unjust and unreasonable working conditions causing major stress for a long period of time followed by unexpected health conditions did not make her capacity to think or write possible.
Ms East submits that Jeld-Wen ignored their duty of care to her and her department for five consecutive months. She says that due to aggressive and poor management this resulted in staff members leaving abruptly. Ms East says that, exceptionally, they became a department of one manager and two staff to manage the workload for the department which continued for the majority of this five to six-month period. Ms East says that this impacted on her health and wellbeing, as she was burnt out and mentally exhausted. She says that she was not sleeping and was suffering anxiety, headaches and sickness. She says that a series of circumstances unfolded which contributed further to her depressive state.
· Ms East says that she was working long hours, mainly between ten-to-twelve-hour days continually for five months and without compensation and was expected to take on extra ledgers, calls and administrative work.
· Additionally, Ms East says that Jeld-Wen was changing computer systems from “TITAN” to “SAP” and it had poorly consulted and administrated the project, which was confirmed by the outsourced trainer Osoka. Ms East says that this meant what should have been three months of training was rushed up in a week.
· Ms East says that she had been personally attacked and abused on a few occasions resulting in her writing to the CFO complaints regarding poor management behaviour towards her.
· Ms East says that she asked for an extra resource to assist with the company’s expectations, and this was refused.
Ms East says that a major and contributing factor in the delay of preparing and filing her application has been the impact on her physical health over December 2021 and January 2022 due to the following events:
· 8 December 2021: She says that she had an adverse reaction to a Covid-19 vaccination causing her to be bedridden with chronic fatigue, flu-like symptoms and migraine headache.
· 20 December 2021: She says that her family member informed her that her father had been diagnosed with stage 4 cancer. This came as a sudden shock and left her inconsolable and depressed.
· 29 December 2021: Ms East says that another Covid-19 vaccination caused flu-like symptoms, migraine and chronic fatigue, and she says that she was bedridden for a week.
· 7 January 2022: Ms East says that she tested positive for Covid-19, leading to further Covid-19 symptoms additional to the symptoms she had been experiencing in December, but more severe, requiring her to be bedridden for two weeks.
· 9 to 10 January 2022: She says that due to her Covid-19 symptoms she ended up in the Royal Melbourne Hospital with a suspected blood clot to her brain. A scan was conducted at the hospital and did not show any blood clots. Ms East was released from the hospital after midnight on 10 January 2022.
· 20 to 26 January 2022: Ms East says that due to all the stress brought on by another medical condition described as of a “digestional nature”, which has caused her significant pain and currently being managed by the doctor, she is taking pain management of two codeine doses, three times a day which made her barely functional until 27 January 2022.
· In her oral evidence, Ms East says that she is still requiring assistance in respect of her gastrological condition and her mental health.
· 27 January 2022: In oral evidence, Ms East says that on 26 January 2022 she started to “get myself together and started putting my papers together”. The next day, on 27 January 2022, Ms East says that she spent half the day on the phone with a lawyer to submit an application and she says that they forgot to tell her that her claim cannot be submitted, and that she would be required to pay $3,500.00 immediately which she could not do as she was not employed and had no income at the time. She says that this was another day lost. It was Ms East’s evidence that, prior to this occasion, she had not turned her mind to filing an application.
In total, Ms East says she was bedridden for three weeks during the period from 29 December 2021 to approximately 26 January 2022. No medical evidence was submitted to support this claim, other than a photograph of prescribed medications of Voltaren Rapid and Comfarol Forte. She says that the condition she suffered from between 20 January and 26 January 2022 is still being medically managed by a doctor.
Ms East also says that she had no idea that she had only 21 days to submit an unfair dismissal application until 27 January 2022 when she first made contact with a lawyer.
I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The reason given for the delay is disputed by Jeld-Wen and is not supported by any medical evidence. Ms East says that both the cumulative health impacts of five to six months of a challenging workplace to November and subsequently weekly personal events contributed to her inability to lodge her application on time. Jeld-Wen disputes that in the five to six months leading to November it had ignored its duty of care through poor management and was aggressive towards Ms East. Much of Ms East’s evidence relates to the six months leading up to her dismissal and the impacts on her health as a result of what occurred in the lead up to 21 December 2022. While I accept that Ms East may have been ill during some or all of the period of the delay, absent any medical evidence detailing the impact the illness had on her capacity to lodge the application, I do not accept the explanation as preventing Ms East from lodging the application on time or at a time earlier than the date on which this application was lodged. I am not satisfied that Ms East provided an acceptable or reasonable explanation of the delay. Although the circumstances to which Ms East refers are difficult ones, I do not consider them to be exceptional.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: Ms East was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This factor does not weigh in favour of a grant of additional time to make the application.
Any action taken by the person to dispute the dismissal: Ms East submitted that she disputed the dismissal. Ms East says that she emailed Mr Murarotto, a Corporate Credit Controller at Jeld-Wen, on 20 December 2021 advising him of her refusal to participate in a requested Microsoft Teams meeting to discuss disciplinary action, because:
· She did not feel comfortable talking to him due to her feelings of previous abuse and mistrust; and
· She did not agree that she had engaged in any behaviour that warranted disciplinary action.
This submission is not relevant as it relates to communication the day prior to the termination. Other than seeking legal advice on 27 January 2022 and the lodgement of her unfair dismissal application, Ms East did not take any other action to dispute her dismissal.
I do not consider the steps taken by Ms East to constitute “action to dispute the dismissal”. I find that Ms East did not dispute the dismissal. In oral evidence, she said “I didn’t want to go back to that place”. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances and, in fact, weighs against a grant of additional time to make the application.
Prejudice to the employer: Jeld-Wen submits that it would suffer prejudice if an extension of time were granted and says:
“Everybody is afforded the same amount of time to submit an application and that it would be a disadvantage to any other employee in a similar situation to allow this application. Such a situation could be prejudicial to the employer (the Respondent), it would set a dangerous precedent and would undermine our rules and that of the commission, particularly as the Respondent has followed the mandate as set by the state Government of Victoria and the Chief Health Officer Mandatory Vaccination (Workers) Directions (CHO Directions) and the Fair Work Act.”
Ms East submits that there is not any prejudice to the employer in allowing the extension of time.
In all the circumstances, I do not find that any material prejudice would be suffered by Jeld-Wen if an extension of time were granted. I consider this to be a neutral consideration.
Merits of the application: The Act requires me to take into account the merits of the unfair dismissal application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. Ms East has a prima facie case, to which Jeld-Wen raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position: This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. In the present case, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I, therefore, consider this to be a neutral consideration.
Conclusion and disposition
Having regard to the matters I am required to take into account under s. 394(3), and all of the matters raised by Ms East, I find that there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s. 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
COMMISSIONER
[1] Fair Work Act 2009 (Cth), s 399.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at [38].
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