Nicole Twomey v CVGT Australia Ltd

[2021] FWC 5956

[2021] FWC 5956

FAIR WORK COMMISSION

DECISION

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

Nicole Twomey
v
CVGT Australia Ltd
(U2021/7287)

DEPUTY PRESIDENT COLMAN MELBOURNE, 21 SEPTEMBER 2021

Application for extension of time (s 394(3)) – application dismissed

[1] This decision concerns an application by Ms Nicole Twomey for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Ms Twomey’s employment with CVGT Australia Ltd (company) was terminated on 4 December 2020. Section 394(2) of the Act states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 25 December 2020. Ms Twomey’s application was lodged on 17 August 2021, nearly eight months out of time. In order for Ms Twomey’s application to proceed, she requires the Commission to grant a further period of time within which to bring her application.

[2] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances.’ I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. I note that the requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is fair to do so.

[3] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: 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. I will consider each of these matters as they pertain to Ms Twomey’s application.

The reason for the delay (s 394(3)(a))

[4] The Act does not indicate the reasons for delay that might tell in favour of granting an extension of time however decisions of the Commission have referred to an acceptable or reasonable explanation. Ms Twomey contended that three matters prevented her from lodging her application within the 21-day period. First, Ms Twomey gave evidence that at the time of her dismissal she was suffering ‘stress and mental health issues’, and that since her dismissal she has been under the care and treatment of a general practitioner and psychologist. She said that following her dismissal she was an emotional wreck and barely able to function, aside from the day-to-day requirements of caring for herself and her daughter. Ms Twomey said that she was very concerned about the family finances, as she had been the breadwinner, and that her stress was compounded when in February 2021 the family had to leave its rental accommodation because she could not pay the rent.

[5] Ms Twomey submitted to the Commission a medical certificate issued by a Dr Emmanuel Beloved dated 2 November 2020, stating that Ms Twomey ‘has had some stress recently and this is affecting her mental health, she will be requesting stress leave from 02/11/2020 to /06/11/2020 inclusive’. Ms Twomey also submitted a letter from Dr Beloved dated 3 November 2020 referring her for psychotherapy. The letter stated that Ms Twomey had ‘issues with work that is causing her a lot of stress and anxiety’. Ms Twomey provided to the Commission another letter from Dr Beloved, dated 15 August 2021, in which the doctor stated that Ms Twomey had requested him to provide a letter ‘about the impact (of) losing her job … on her mental health and family’. The letter stated that Ms Twomey had presented in November 2021 with ‘work stress’, and that Ms Twomey had experienced ‘severe stress and a decline in her mental health since she lost her job at CVGT and she has to be commenced on medication to help her mood.’ The letter further stated that Ms Twomey had ‘complained of anxiety, symptoms of which still persist till date (sic) resulting in decline in social activities due to agoraphobia and loss of self-esteem’.

[6] I do not accept that Ms Twomey’s mental health problems prevented her from lodging her application. The letter from Dr Beloved does not say that this was the case. Further, the contention is incompatible with Ms Twomey’s evidence (discussed further below) that in early December 2020 she sought professional advice about her dismissal. Ms Twomey clearly had the presence of mind, and the physical and emotional ability, to obtain advice about her dismissal. Ms Twomey’s anxiety and agoraphobia did not prevent her from doing this and there is no reason to conclude that they would have prevented her from seeking a second opinion, or simply lodging her own application in the Commission. In this regard, I note that the F2 is a brief form requiring basic information to be provided. A fee must be paid, or a fee waiver application completed. Lodging an unfair dismissal application is a simple process.

[7] Secondly, Ms Twomey contended that she was prevented from lodging her application by significant personal circumstances, which, aside from her mental illness, included her having responsibilities for a young child and being forced out of her rental accommodation in February 2021 because she could not pay the rent. She was subsequently preoccupied with finding a place to live. These were difficult circumstances however I am not persuaded that they prevented Ms Twomey from lodging her application. Again, Ms Twomey was able to seek professional advice soon after her dismissal and to attend to her day-to-day personal affairs. Further, it was only in February 2021 that Ms Twomey had to move residence. By this time the 21-day period had long passed.

[8] Thirdly, Ms Twomey stated in her written submissions that she had been prevented from filing her unfair dismissal application by ‘misleading advice’ which had led her to believe that she was precluded from bringing a claim. Ms Twomey gave evidence that on 8 December 2020 she obtained legal advice from a Mr Michael Alkan at a firm called ‘HR Experts’. She said that Mr Alkan initially told her that she had been unfairly dismissed, but that later, after Ms Twomey emailed him the termination letter, Mr Alkan said that he would not be able to represent her because there were ‘multiple matters mentioned in the letter’. Ms Twomey’s evidence was that she had ‘felt that if he was not able to help … then [she] would expect to get the same opinion elsewhere’, and that she believed that she had no legal recourse against the company. Ms Twomey said that it was only on 26 July 2021, when she obtained further legal advice from her current solicitor, that she realised that she was able to make an unfair dismissal application. Ms Twomey said that from 26 July to 17 August 2021 she was not able to lodge her application because she was waiting for her doctor’s letter.

[9] I do not accept Ms Twomey’s submission that she was given misleading advice. It is not supported by her evidence. Ms Twomey said in her witness statement that Mr Alkan had advised her that he would not be able to represent her. Even if one infers from this statement that Mr Alkan did not believe Ms Twomey had a good case, this comes nowhere near constituting misleading advice or representative error. Ms Twomey did not say in her evidence that Mr Alkan had told her that she was precluded from bringing an application for an unfair dismissal remedy. Ms Twomey has not identified any reasonable basis for a belief that she had no recourse against her former employer, or her belief that if Mr Alkan could not help her, other advisers would be in the same position. Mr Alkan’s decision not to take Ms Twomey’s case did not prevent her from lodging an application. She could have sought, and indeed very belatedly did seek, a second opinion. Further, it is not the case that Ms Twomey lodged her application as soon as possible after obtaining the second opinion on 26 July 2021. There was no need to wait a further 22 days for the doctor’s certificate. This could have been provided later.

[10] In her F2 application document, Ms Twomey stated that the COVID-19 pandemic, together with lockdowns and restrictions, had precluded her from seeking a second legal opinion until July 2021. I reject this contention. Ms Twomey could have sought advice about her dismissal over the telephone or on-line, as many people have done during the pandemic.

[11] I am not satisfied that Ms Twomey has provided an acceptable or reasonable explanation for the delay. Although the circumstances to which Ms Twomey refers are difficult ones, I do not consider them to be exceptional. The reasons for the delay weigh against an extension of time in this case.

The considerations in s 394(3)(b), (c), (d) and (f)

[12] The following matters are in my view neutral considerations. First, Ms Twomey was notified of her dismissal on the same day that it took effect (s 394(3)(b)). Secondly, while Ms Twomey sought professional advice in December 2020 and then again in July 2021, these were not steps taken to dispute the dismissal (s 394(3)(c)) directly with her former employer. To the extent that these steps are relevant, I attribute them little significance. Thirdly, I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Twomey and other persons (s 394(3)(f)).

[13] As to the consideration in s 394(3)(d), the company contends that it is prejudiced by Ms Twomey’s delay, because three staff members who were involved in the dismissal are no longer employees of the company and are not available to respond to Ms Twomey’s evidence. Ms Twomey contends that there is no prejudice to the company, because the most important staff member involved in her dismissal was Mr Lachlan Coates, and the persons referred to by the company were not closely involved in her dismissal.

[14] In my view there is a risk that the company would, if an extension were granted, suffer some prejudice caused by the delay. Relevant witnesses can of course simply be summonsed to give evidence, however in this case there is a risk that the recollections of the witnesses may have faded over time. Although Ms Twomey’s recollection of events may have diminished also, I consider it more likely that she will have retained her memory of the circumstances surrounding her dismissal, particularly given that she sought legal advice shortly after her dismissal and would have been required in that context to reflect upon it. On the other hand, there is no reason to think that the persons whom the company seeks to call as witnesses, and who have since left the company, have thought about the circumstances of Ms Twomey’s dismissal since it occurred. Nevertheless, although I consider that there may be some prejudice to the company if an extension of time were granted, I consider that the extent of the prejudice is modest. It has not been established that the determination of disputed facts of central importance depends to any significant extent on the precise recollections of the witnesses in question. This leads me to conclude that ‘prejudice’ is a neutral consideration in this case. Even if I had concluded that the absence of any significant prejudice was a factor favouring an extension, it would not have altered my conclusion below.

The merits of the application (s 394(3)(e))

[15] Ms Twomey contends that her application has, at the very least, reasonable prospects of success. She submitted that the real reason for which she was dismissed was to cover up a complaint that she had made against her manager, Mr Coates, who she said had inappropriately attended her stepdaughter’s school in order to check whether Ms Twomey’s partner was using her company car. Ms Twomey contended that the other reasons for dismissal cited in the termination letter were without foundation: she had not misused company email facilities by sending personal emails; she had not used the internet excessively for personal use; the speeding fines she had incurred in the company car had been issued some 12 months earlier and could not support a decision to terminate her employment; any breaches of the company’s safe driving and vehicle policy were not serious enough to amount to a valid reason for dismissal; and her complaint against Mr Coates was not vexatious. Moreover, Ms Twomey said that she had not been warned about any performance issues.

[16] The company submitted that the reasons for dismissal referred to in the termination letter of 4 December 2020 were valid and substantiated reasons for dismissal. In particular, it said that Ms Twomey had sent personal emails from her work email address to the mother of her partner’s children, questioning her parenting methods, which led to the mother making a complaint to the company. It said that Ms Twomey had been using the internet at work to shop online and watch movies, and that Ms Twomey had contravened the company vehicle policy by repeatedly allowing her partner to drive her company car.

[17] The application to extend time is in the nature of an interlocutory application (see s 396). It is neither possible nor appropriate for the Commission to form any concluded view about the merits. The merits turn on disputed points of evidence that would need to be tested if an extension of time were granted and the matter were to proceed. Much would depend on factual findings. Ms Twomey has an arguable case with some prospects of success, as does the company. I consider the merits of the application to be a neutral consideration.

Conclusion

[18] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Ms Twomey did not advance an acceptable or reasonable explanation for the delay. None of the considerations in s 394(3) weighs in favour of an extension. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time, and I decline to do so. Ms Twomey’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

K. Packer for the applicant
M. Duncan for the respondent

Hearing details:

2021
Melbourne
20 September

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