Nehme v Westpac Banking Corporation

[2015] FWC 21

[2015] FWC 21

DECISION

Fair Work Act 2009
s.365—General protections
Paula Nehme
v
Westpac Banking Corporation T/A Westpac
(C2014/6081)
COMMISSIONER GREGORY	MELBOURNE, 5 JANUARY 2015
Application for extension of time.

[1]        Ms Paula Nehme last worked for the Westpac Banking Corporation (“Westpac”) on 14

September 2012. Westpac says she resigned from her employment at that time. However, Ms

Nehme says that in all the circumstances she was left with no option but to resign.

[2]        On 27 August 2014 Ms Nehme filed a general protections application with the

Commission under s.365 of the Act. At the time she last worked for Westpac the prescribed

period for making such applications was 60 days. Since the beginning of this year that period

has been reduced to 21 days. In any event her application has been made almost 2 years after

Ms Nehme last worked for Westpac.

The Issue to Be Decided

[3] Section 366(2) of the Fair Work Act 2009 (Cth) provides that the Commission may

allow a further period in which to make application if it is satisfied there are exceptional

circumstances, taking into account:

“(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

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(e) fairness as between the person and other persons in a like position.”

[4]        Therefore, are there “exceptional circumstances” existing in this matter, having regard

to each of the matters in s.366(2) that I must take account of, to warrant the Commission

exercising its discretion to grant Ms Nehme additional time in which to make her general

protections application?
[2015] FWC 21
The Submissions and Evidence

[5]        Ms Nehme provided a statement that was set out in a letter dated 7 November 2014 in

support of her application. She also provided further sworn evidence in the proceedings.

[6]        At the time she last worked for Westpac Ms Nehme was located at the Northcote

branch in Melbourne. She states that during this period she was subjected to bullying at work

and subsequently sought to have this situation investigated. She also sought support from

other work colleagues. However, she states that despite her attempts to have these issues

investigated and resolved little was done, and she eventually came to the view that she had no

option but to resign her employment because of the impact of this behaviour on her.

[7]        She says the behaviour she experienced had a significant effect upon her which has

taken a long period of time to get over. She made reference to a loss of confidence, the

breakdown of a relationship she was in at the time, panic attacks, a lack of belief in herself,

and a reluctance to go to public places in the local area because of her concern about

confronting some of her colleagues at work.

[8]        She says it is only more recently that she has been physically and mentally capable of

proceeding with her general protections application and able to deal with the issues involved.

[9]        Ms Nehme also indicated in cross-examination that she has been employed by the

ANZ Bank since October last year. She also indicated that prior to this time she was

employed for 8 months by the Beirut Hellenic Bank.

[10]      Ms Nehme also provided a statement from her sister that made reference to many of

the issues Ms Nehme indicated were impacting on her, and on her ability to confront the

issues and ultimately pursue this application. She also provided a signed statement from a

friend, Ms Gulsum Unal. It indicated Ms Nehme had confided in her during the time she was

employed by Westpac, and had discussed many of the issues she was experiencing at that

time.

[11]      Ms Nehme also provided copies of 2 medical certificates which indicated that she had

ii

reported “feeling stressed at work.” The first certificate covered a period from 22 August

2012 to 7 September 2012. The second was for the days of 13 and 14 August 2012.

[12]      Westpac opposes the application. It referred to the decision in Nulty v Blue Star Group

iii

Pty Ltd (“Nulty”) in terms of what is required to find that “exceptional circumstances” exist

to warrant the exercise of the discretion to extend time in which to make application. It

submits Ms Nehme has not established the existence of those “exceptional circumstances” to

warrant an exercise of this discretion.

[13] Its submissions continue to deal with each of the matters in s.366(2) that the

Commission is required to take account of. It submits, firstly, the assertion that Ms Nehme

was medically unfit or not in a proper state of mind to make an application at an earlier point

iv

in time has not been supported by “compelling medical evidence.” It also notes that she has

been employed elsewhere in two different jobs since leaving Westpac, and her ability to

function in these roles contradicts her assertions she was unable to make the present

application until August of this year.

[2015] FWC 21

[14]      Westpac also submits that previous decisions of the Commission have found that

ignorance of the time limits for making application are not unusual or uncommon

circumstances and do not provide valid reasons for the delay in making application. It also

submits there is no evidence of any action being taken by Ms Nehme to dispute the dismissal,

apart from the present application, and this should also work against an exercise of the

Commission’s discretion to extend the time in which Ms Nehme can make her application.

[15]      Westpac also submits that the delay in making the present application creates

significant prejudice for it, particularly in terms of having to prepare to defend such an

application after such a long period of delay.

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[16] In regard to the merits of the application Westpac refers to the decision in Kyvelos in

which a Full Bench of the former Australian Industrial Relations Commission held that the

Commission should have primary regard to the circumstances which led to the late lodgement

in any consideration of an application for an extension of time. However, it also submits the

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present matter “is not a highly meritorious claim.” In this context it notes Ms Nehme will

first be required to establish she was dismissed, given its view that she resigned. It also

submits she has not established the basis of her general protections application, and it will

oppose any claim it took adverse action against her. Westpac also submits that another person

in her position should have been able to bring an application within the prescribed period.

Consideration

[17] As indicated at the outset s.366(2) requires consideration of each of the matters set out

in sub paragraphs (a) to (e). In addition, the decision of the Full Bench in Nulty is often cited

in terms of understanding what is required to find that “exceptional circumstances” exist to

justify an exercise of the discretion to extend time in which to make application. The Full

Bench stated in that matter at paragraph [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

vii

situation which is out of the ordinary course, unusual, special or uncommon.”

[2015] FWC 21

[18]      I now turn to deal with the circumstances involved in this matter by reference to the

conclusions of the Full Bench, and the considerations in s.366(2) that I must take account of.

(a) the reason for the delay

[19]      Ms Nehme provided a passionate explanation in the proceedings about the effect she

says the bullying behaviour had on her. She says it left her with no option but to resign from

her job at the Northcote branch of the Westpac Bank. She says its impact continued to have a

significant effect on her for some time afterwards, and it was only at a point nearly 2 years

after leaving the Bank that she felt “physically and mentally” able to proceed with this general

protections application.

[20]      I have no reason to doubt the evidence provided by Ms Nehme, although it is also

noted Westpac “denies any assertion in those documents that it or its employees have

breached the general protections provisions of the Act in relation to the Application’s (sic)

viii

employment” However, despite the impact on her that Ms Nehme attributes to this

behaviour, and it being the reason for the extended delay in making this application, it is also

noted she has been employed in two different jobs for much of the period since leaving

Westpac.

[21]      She stated that she initially gained employment, albeit at a lower salary level than she

was earning previously, with the Beirut Hellenic Bank where she remained for a period of 8

months. She indicated she continued to feel stressed as a result of what she had been through

during this time and eventually left that job because it wasn’t right for her. She was then

employed by the ANZ Bank in a call centre position which she described as a “sidestep”

compared to the work she had been involved in previously. However, she indicated she has

since been promoted and has now remained in employment with the ANZ Bank since October

2013.

[22]      Ms Nehme says that during this period she has regained “a lot of confidence and a lot

ix

of courage” and has, in effect, rebounded from the impact of the earlier bullying behaviour.

Nevertheless, the fact Ms Nehme has been in employment for most of the time since leaving

Westpac is at odds with the submission she has been physically and mentally unable to bring

a general protections application against her former employer until almost 2 years after

leaving that employment.

[23]      The medical reports provided by Ms Nehme also do not provide the kind of evidence

that would be expected to support the extended delay involved in this matter. Leaving aside

the fact both certificates contained mistakes as to dates, the first certificate makes reference to

her receiving a medical certificate for 2 days off work in August 2012 “as she was feeling

x

stressed at work.” The second certificate, which was apparently compiled on the day prior to

the hearing, and was read out from the witness box by Ms Nehme, states:

rd

“Ms Paula Nehme attended this clinic 23 of August 2012. Having recently resigned

from work she requested a medical certificate for work due to ongoing work stresses.

nd

A medical certificate was provided covering 22 of August 2012 to

st st

31 of August 2012. She presented again on the 31 of August 2012 as she still felt

stressed and unable to attend the following week. A medical certificate was provided

th xi

covering 3rd of September 2012 to 7 of September 2014.”

[2015] FWC 21

[24]      Again, it is not intended to downplay the significance of how Ms Nehme was feeling

at the time, and how she claims to have been affected by the earlier behaviour. However,

these medical certificates do not constitute the kind of emphatic or persuasive evidence that

would provide support and justification for the extraordinarily extended delay that is involved

in Ms Nehme making this application. It is also noted that the statement provided by Ms Unal

only refers to the period in which Ms Nehme was employed by Westpac. It makes no

reference to the period after that time.

(b) any action taken to dispute the dismissal

[25]      It appears, for all the reasons indicated already, that Ms Nehme did not take action to

dispute her dismissal until she lodged the present application in August of this year.

(c) prejudice to the Employer (including prejudice caused by the delay)

[26]      There is always going to be some prejudice to an Employer if an Applicant is granted

additional time in which to make application because the Employer will then have to deal

with and develop its response to that application. However, as Westpac submits the extended

delay in making application in this matter will undoubtedly compound that problem. Ms

Nehme last worked for Westpac in September 2012, more than two years ago. Employee

recollections of the circumstances involved will inevitably have been impacted by the time

that has elapsed since then. In addition, it is more than likely some of the participants are no

longer employed by Westpac. Clearly, the protracted length of the delay in making

application in this case is a significant consideration in the context of this matter.

(d) the merits of the application

[27]      There are also some significant issues involved in terms of the merits of the present

application. It is not contested that Ms Nehme resigned from her employment with Westpac.

She will therefore be required to establish, as a threshold matter if her general protections

claim is to proceed, that her resignation involved a situation of constructive dismissal.

[28]      Westpac also denies it took adverse action against Ms Nehme, or that any of its actions

were taken or motivated because she exercised a workplace right.

[29]      I am in no position to form a clear view about the respective merits of the matter,

given the limited submissions and evidence now before the Commission about these

circumstances. However, I also note that a Full Bench of this Commission has previously held

that the Commission is not required to embark on a detailed consideration of the substantive

xii

case in an application of this kind. The Full Bench noted in that matter, while issues to do

with the question of merit are important, the exercise of the discretion to grant additional time

should have principal regard to the circumstances that led to the late lodgement.
[2015] FWC 21
(f) fairness as between the person and other persons in a like position.

[30]      This consideration does not appear to be of significance in this matter.

Conclusion

[31]      I have already emphasised that the length of the delay in making application in this

matter is clearly out of the ordinary. The application was made just one month short of two

years after Ms Nehme last worked for Westpac. It is also noted that previous decisions of this

Tribunal have emphasised that the requirement to comply with prescribed time limits is not a

mere technical problem, but involves a failure to comply with substantive legislative

provisions. The legislation also makes clear that it is only in “exceptional circumstances” that

the Commission should exercise the discretion available to it to extend the time for making

application.

[32]      I also consider that the decision of Commissioner Roe in Ms Susan Rose v BMD

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Constructions Pty Ltd is relevant to the determination of this matter. In that matter the

Commissioner was dealing with a situation in which he found the Applicant was ignorant of

the relevant time limits for making application. The Applicant had also provided a medical

certificate stating her dismissal had produced anxiety and depression. Commissioner Roe

indicated in response at paragraph [9] of the decision:

“The evidence of the Applicant does not suggest that she was incapable of taking any

action in respect to her dismissal during the two weeks following the dismissal. She

was not hospitalised. She says that she was shocked and traumatised but there is no

suggestion of incapacity. The Applicant provided a medical certificate dated 16

December 2010 stating that ‘Susan Rose tells me she was dismissed from her job in

September 2010 and has reported to me this has produced anxiety/depression.’ This is

not strong evidence of incapacity to act during the two week period immediately

xiv

following the dismissal.”

[33]      In a similar manner I am not satisfied that medical certificates indicating Ms Nehme

was feeling stressed and unable to attend work in August/September 2012 provide strong

evidence of incapacity to act in the 2 year period that followed from that point.

[2015] FWC 21

[34]      I have considered all the evidence and submissions that have been provided by the

parties in this matter. I have also had regard to each of the considerations in s.366(2) that I am

required to take account of. There are particular issues involved in this application to do with

the respective merits of the matter, particularly Ms Nehme’s resignation from her employment

at Westpac. There are also particular issues to do with the prejudice to Westpac that would

result if an extension of time were granted, given the exceptional length of the delay in

making application in this matter. However, and perhaps most notably the evidence provided

in support of the reason for the delay is not sufficient to satisfy me Ms Nehme was actually

prevented by “exceptional circumstances” from making application, if not within the requisite

time period, at least at some point much earlier in time than when the application was actually

made. I am therefore satisfied that, in all the circumstances, there is no justification to

exercise the discretion to extend the time period for making application. The application is

therefore dismissed.

COMMISSIONER

Appearances:

Ms Nehme appeared on her own behalf.

Mr Chris Hill appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne and Sydney by Video:

19 November.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR559657>

ix

Transcript at PN59

x

Above n.ii

xi

Transcript at PN42

xii

Above n.v

xiii

[2011] FWA 673

xiv

Ibid at [9]

i

Fair Work Act 2009 (Cth) at s.366

ii

Exhibit N, Medical Certificate dated 11 November 2014 signed by Dr Mona Hanna of the Bulleen Plaza Medical Centre

iii

[2011] FWAFB 975

iv

Exhibit H at para 13

v

Kyvelos v Champion Socks Pty Limited (Print T2421)

vi

Above n.iv at para 30

vii

Above n.iii at [13]

viii

Above n,iv at para 6