Patricia Ward v Service Stream Pty Ltd
[2025] FWC 592
•28 FEBRUARY 2025
| [2025] FWC 592 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Patricia Ward
v
Service Stream Pty Ltd
(U2025/136)
| DEPUTY PRESIDENT CROSS | SYDNEY, 28 FEBRUARY 2025 |
Application for an unfair dismissal remedy
On 4 January 2025, Mrs Patricia Ward (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Service Stream Pty Ltd (the Respondent). The Applicant commenced her employment with the Respondent on 11 June 2024. The Applicant claimed that she was notified of her dismissal on 10 December 2024 and that it took effect on that same day.
Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. An application for a remedy should have been lodged by 31 December 2024. The Application was therefore lodged outside of the time prescribed and was lodged 4 days after the last day on which such an application could have been made.
On 30 January 2025, the matter was allocated to my Chambers and on that same day Directions were issued to determine the programming of the matter. The Directions were:
FINAL DIRECTIONS
[1] This matter is listed for Hearing before Deputy President Cross at 2:00PM on 28 February 2025 to hear and determine the questions of the effective date of dismissal and whether to extend the time for filing (the Jurisdictional Issue).
[2] By no later than 4:00PM on 7 February 2025 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
· The reason(s) for the delay;
· Whether the Applicant first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position.[3] By no later than 4:00PM on 14 February 2025 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.
[4] By no later than 4:00PM on 21 February 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.
Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.
The Applicant provided a statement and attached a bundle of email correspondence. The Respondent filed statements from Mr Chris Macheras and Mr Mark Ward.
The Hearing took place on 28 February 2025 at 2.00pm over Microsoft Teams. The parties relied on their materials filed.
Background
The Applicant commenced employment with Service Stream Maintenance Pty Ltd (the Respondent) on 11 June 2024. Her role was that of an Administration Officer, under the supervision of Mark Ward, the Service Delivery Manager. Importantly, the Applicants Contract of Employment was signed on 7 June 2024 and contained a provision which relevantly read:
3. Probation period
a. If you are a new employee, your employment is subject to the satisfactory completion of a probationary period of six months from the Commencement Date.
b. During this period, either party may terminate your employment by giving one week’s notice, or at the Company’s election, by payment in lieu of one week’s notice.
The Applicant proceeded on a period of personal leave on or around 28 November 2024. Throughout this period, the Applicant had outlined mental health issues. The Respondent provided her access to an employee assistance program.
The Respondent cited performance issues as the primary reason for the Applicant’s dismissal. Specific issues included outdated certification, unprocessed claims and a high volume of errors and inaccurate work.
Due to the Applicant’s underperformance in her role, the Respondent terminated her employment, on 10 December 2024. The Applicant was notified of her dismissal on that same day via a phone call from Mark Ward, followed by a termination letter sent at 5:27 pm on the same day. The email relevantly stated:
Dear Trish,
RE: Service Stream -Termination of employment
Your probation period with us at Service Stream is due to end on December 10, 2024. There have been several attempts over the past few months to assist and support you in closing the gaps in the performance of your role. To date, there has been no significant improvement in your performance.
I write to confirm that Service Stream have decided not to continue your employment beyond your probationary period. As a result, your employment will end on December 10, 2024.
You will be paid one week in lieu of notice.
You are required to return all Service Stream property including IT equipment and your building
access key within 48 hours of receiving this letter. If any of your property is at a Service Stream office, please let me know and I will arrange to have this property returned to you.We also acknowledge that you have raised concerns about a toxic workplace culture which we take very seriously and therefore would like you to kindly provide us with further detail so that we can investigate.
We wish you the best in your future endeavors and thank you for your contribution to the business.
The Applicant contended that her dismissal was unfair, citing mental health issues exacerbated by workplace bullying and a toxic work environment. She also mentioned that she was not provided with adequate support from the HR department.
The Respondent raised two jurisdictional objections, being that:
1. The application was lodged out of time, exceeding the 21-day limit prescribed by section 366 of the Act; and
2. The Applicant did not meet the minimum employment period of six months required for protection from unfair dismissal under section 382 of the Act
I am to only deal with the jurisdictional objection pertaining to the out of time issue.
Consideration
Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:
“(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).”
As the Application was lodged outside of the 21-day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:
“(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.”
It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.
Reason for the delay
When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 stated at [30]:
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”
Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.
The Applicant incorrectly noted on her Form F2 that her Application was being lodged within the 21 day timeframe. The Applicant submitted that she was experiencing severe mental health issues due to workplace bullying and a toxic work environment. She mentioned that her mental health deteriorated significantly over a period of five months, which affected her ability to function normally.
The Applicant admitted to miscalculating the 21-day period within which she needed to lodge her application, but submitted:
1. Due to my Mental health I was in a bad way and could not function mentally, it took me about 2-3 weeks before I could even function with some normality which was the first week in January and by this stage I tried to contact the Law Society who did not return until the 6/01/25 but I thought on the Saturday I should apply and then I seen I had only had 21 days to submit my claim and I did not calculated the days correctly.
The Applicant did not provide adequate evidence in relation to her mental health. In any event, I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[1], where the majority (Watson VP and Smith DP) observed:
‘[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.’
[Emphasis added]
On 13 December 2024, however, the Applicant sent the Respondent a detailed email acknowledging the dismissal and outlining complaints regarding her employment. It is clear the Applicant was aware of her dismissal and was able to communicate after it in the manner of the email of 13 December 2024, that provided:
Good Morning mark,
Firstly I would like to thank you :) I know you had been placed in a very awkward position.
My role with Service Stream was doomed from about a month into my role. I did not have access or Logins to all the programs which I required to be trained correctly.
April had typed up instructions (which some were incorrect) which made it difficult also. April would get very frustrated with me and would be really short with me, I had got to point where I didn’t want to ask her anything as I was concerned about the response I would get whether it be the way I was spoken too or the way I was treated. April would also say read your notes or reach out to somebody. I was at the stage (about 2 months) that every time she spoke my stomach would turn fearing she was talking to me but she would be on the phone.
My mental health started to deteriorate hence the silly mistakes as my head would be spinning out of control.
I had asked Mark for help & Tony so I would do it the way they advised and April would have a go at me and I told her that I was advised off Mark or Tony and she told me not to listen to them which I thought was extremely disrespectful as they were our Managers but I was too scared to say anything!
Mark had heard on a couple of occasions the way she would speak to me, the rest of the time when Mark was out of the office!
I had a few breakdowns over the period of time so I increased my medication so I could tolerate working in the toxic environment but over time that was not helping either as the situation did not improve.
There was one time when April had a go at me so I had walked out the back in tears and when I stopped crying I came back into the office and asked her did she know what it felt like to not want to live anymore!!
The only person who ever told me I was doing a good job was Sabooh a little praise goes a long way but unfortunately the Wollongong thrives on negativity.
I had this unrealistic thought that Service Stream prided themselves on no tolerance for bullying in the workplace and people’s Mental Health!! April always told me that Service Stream do not care about your Mental Health or workplace bullying!
The grief I received when I returned from getting married and my short honeymoon as I cut it short to help mark out as it being EOM but while I was off no one else was completing my role - traffic control, non-standard and restoration claims, invoices and Greentree errors. I knew the importance of getting everything entered for EOM I even worked over the weekend but I still had not completed the traffic control claims which I was going to complete on the Monday I went home sick and started to complete my work from home but because I went home feeling really sick due to my Mental Health mark advised me that I could not work from home or the office so therefore I could not update the cost report which I had all intentions of doing so.
My mental health has deteriorated to the point where five months of being mistreated has led me to feel degraded, useless, no self-esteem and stupid!! My husband continually asks me am I ok has I am not myself and he is very concerned!
As a result of this I am now without a job and as a result I have no income to pay bills or my mortgage!!
Working at service stream has been the worst experience I have ever encountered my whole life.
Regards
Trish Ward
The above email, sent three days after the dismissal, discloses that at least at that time, the Applicant was more than capable of asserting her rights. In the absence of any medical evidence, I am unable to find that the Applicant’s mental health deteriorated so significantly as to affect her ability to function normally.
In all the circumstances, the Commission cannot be satisfied that the Applicant’s stated reasons for filing her Application out of time are of substance, or constitute exceptional circumstances, as contemplated by the statute. This is a factor that weighs against the Applicant.
Whether the person first became aware of the dismissal after it had taken effect
For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 10 December 2024, when she received both a phone call and an email. This is not a relevant factor in this matter.
Action taken by the person to dispute the dismissal
No parties made any submissions on this point. I consider this to be a neutral factor in this matter.
Prejudice to the employer
The Respondent made no particular submission regarding this consideration. Accordingly, I consider that this is a neutral factor in my consideration.
Merits of the application
It is appropriate to note that a consideration of the merits of an Application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited.[2]
I note, however, that the Respondent raised the further jurisdictional objection in its Form F3, noting that the Applicant’s employment does not meet the minimum employment period. In the Mr Brian Prigge v Manheim Fowles Pty Ltd,[3] the Fair Work Commission emphasized the strict adherence to the minimum employment period as stipulated under section 383(1)(a)(ii) of the Act. Specifically, the decision highlighted that the minimum employment period must be completed “immediately before the dismissal” takes effect.
Despite the above issues, I cannot make any findings on contested matters without a hearing on the evidence.
In the matter of Kornicki v Telstra-Network Technology Group[4] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[5]
I adopt the reasoning of the Full Bench of the Commission in relation to the consideration of merits. I consider that this is a neutral factor.
Fairness between the person and other persons in a similar position
Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.
Conclusion
As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight was the absence of any acceptable reason for delay. That factor weighed in the Respondent’s favour.
I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.
DEPUTY PRESIDENT
Appearances:
Mrs P Ward, the Applicant.
Mr C Macheras, on behalf of the Respondent.
Hearing details:
28 February 2025.
2PM.
Microsoft Teams.
[1] [2015] FWCFB 287, at para [15].
[2] Print T2421, at [14].
[3] [2010] FWA 28, at para [7].
[4] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[5] Ibid.
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