Pauline Ambrose v Target Australia Pty Ltd T/A Target Australia

[2015] FWC 314

[2015] FWC 314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pauline Ambrose
v
Target Australia Pty Ltd T/A Target Australia
(U2014/12591)

COMMISSIONER GREGORY MELBOURNE, 13 JANUARY 2015

Application for extension of time.

Introduction

[1] Ms Pauline Ambrose has been employed by Target Australia Pty T/A Target Australia (“Target”) as a Loss Prevention Officer since October 2012. She previously worked in similar roles elsewhere for approximately 20 years before joining Target. In August and September this year Ms Ambrose was off work for significant periods and subsequently made a stress-related workers’ compensation claim.

[2] On 26 August 2014 her employment was terminated. On 16 September she submitted an unfair dismissal application to the Commission by registered post. It was received the following day, one day after the requisite 21 day period set down in the Fair Work Act 2009 (Cth). Ms Ambrose submits the reason for the delay related to her medical condition, and her lack of understanding about Australia Post’s processes, and now seeks additional time in which to make her application.

[3] Mr A Denton and Mr W Spargo of Counsel were both given leave to appear under s.596(2)(b) on the basis it would be unfair not to allow the parties to be represented and their involvement could enable the matter to be dealt with more effectively.

The Issue to be Determined

[4] Section 394(3) of the Act 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) 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.” 1

[5] Therefore, are there “exceptional circumstances” involved in this matter, having regard to each of the matters in s.394(3) the Commission must take account of, to warrant it exercising its discretion to grant Ms Ambrose additional time in which to make her unfair dismissal application?

The Evidence and Submissions

[6] Ms Ambrose said a series of work performance issues were raised with her and other members of Target’s Victorian Loss Prevention team in April, May and June 2014 that left her “feeling very stressed and burnt out. I had difficulty concentrating.” 2 She took leave from 21 July to 5 August in the hope this would change the way she felt and eventually returned to work on 7 August 2014.

[7] Further work performance issues were raised with her then and she was given a first warning in a meeting on 8 August. She said this again left her in a state of stress, anxiety and uncertainty, and the following day she experienced a migraine and panic attacks and was unable to attend work. She states she then “broke down” on her way to work the following day and returned home. 3 She consulted her General Practitioner the next day and was provided with a medical certificate indicating she was unable to work until 15 August 2014.

[8] Ms Ambrose said her next rostered day at work was 19 August and she returned on that day “reluctantly.” 4 She continued to indicate:

“I had exhausted my sick leave. When I returned to work, I experienced panic attacks and anxiety attacks. I had a knot in my stomach, I felt nauseous and I was sweating.” 5

[9] She said she was told to “walk the floor” and later that morning apprehended two females who were apparently stealing goods from the store. 6 The police subsequently came and the apprehension took place without incident. She then went to lunch but on returning from her break observed 2 other women who she also believed were stealing goods. She watched them for approximately 90 minutes, and after they left the store approached them and asked them to return.

[10] She said they were initially calm but on being told they were under arrest made contact with her forcefully and became aggressive. Ms Ambrose said she was extremely distressed at this turn of events, however, the two women remained in the office until the police arrived. She was then told one of the women had made a formal complaint to the police claiming Ms Ambrose had scratched her arm. She subsequently provided a detailed statement to the police about the incident.

[11]
Ms Ambrose said she was then stood down on the next day after being informed there would be a thorough investigation into the incident. However, she was never interviewed or questioned as part of this investigation, or given the opportunity to provide her account of what had occurred.

[12] Ms Ambrose said she again attended an appointment with her General Practitioner on 22 August and again received a medical certificate indicating she was unable to work during the period from 22 August to 5 September.

[13] On 26 August she attended a meeting with her employer and was told the investigation had been completed and her employment contract was to be terminated because she had “breached company policy regarding apprehensions.” 7 She said she stated in this meeting that no one from Target had spoken to her as part of the investigation. She also said she had been particularly stressed, given it was her first day back at work after an extended period of sick leave. The termination letter given to her stated:

“This letter is to confirm that your employment with Target has been terminated, with effect from today, on the grounds discussed with you today, in particular, your serious misconduct, including your breaches of the Code of Conduct.” 8

[14] She said she saw her General Practitioner again on 28 August, who certified her as being unable to work from 28 August to 26 September 2014, and on the same day she also made a WorkCover claim. She also stated as a result of these events she continues to experience panic attacks, migraines, pains in her chest, and shaking episodes. She has also experienced nightmares and become disorganised.

[15] Ms Ambrose’s submissions also addressed the matters in s.394(3). She submits the delay in lodging was caused, at least in part, by her medical condition, namely adjustment disorders with mixed depression and anxiety. In this context her submissions referred to the decision in Rowe v V/Line Pty Ltd 9 where the Commission granted an extension of time in circumstances where the Applicant submitted his psychological illness constituted the reason for the delay in making application.

[16] Ms Ambrose also provided a certificate of incapacity signed by her General Practitioner, following an examination on 28 August 2014 as part of the preparation of her workers’ compensation claim. It indicated the diagnosis of her condition was anxiety, panic attacks, insomnia due to stress, and flare up of fibromyalgia. A letter was also handed up in the proceedings from her General Practitioner directed to the workers’ compensation investigator. It stated in part:

“Ms Ambrose has no previous history of panic attacks, it’s likely the duration of the injury (stress and anxiety) has started on 08/08/2014 and it is unpredictable how long it will continue for. It depends on proper work support, psychiatric treatment and psychological counselling.” 10

[17] It then stated she was to be referred to a psychiatrist for assessment and management and to a psychologist for counselling. It continued to indicate:

“After proper support and counselling her work capacity will be assessed and hopefully she will be able to go back to work after a few months.

Prognosis is good, provided that she receives the needed support at work hand in hand with psychological management.” 11

[18] Ms Ambrose also submits the fact the application was only lodged one day late is relevant. She submits she took the application to the post office on 16 September and asked for it to be sent by registered post, which she understood to involve a same day delivery process. In her mind the application was therefore lodged on what she believed was the last day of the 21 day period.

[19] Her submissions also acknowledge she managed to compile a very detailed application and associated supporting materials, but this was a difficult task and completed with the assistance of her daughter and a friend.

[20] She was also aware of her dismissal on the date it took effect. She also submits she took issue with the process gone through prior to her termination in the discussions that took place in the meeting on 26 August, and subsequently submitted her unfair dismissal application on 16 September. She also submits there is no prejudice to Target in extending the time in which to make application, given it was filed only one day late.

[21] Ms Ambrose also submits her application has “strong merits.” 12 She submits she was caught in a very volatile situation when the alleged incident occurred. She takes issue with Target’s view she failed to act in compliance with its policies and procedures, but also states this is a separate consideration to whether her dismissal was harsh, unjust or unreasonable. She also submits Target states she was terminated after an investigation it carried out but at no point did that process involve any interview or discussion with her. She also submits the police have confirmed there is no ongoing police investigation into the incident. The incident also occurred on her first day back at work after an absence of several days on stress-related sick leave.

[22] She also submits that given the nature of the allegations involving serious misconduct based on allegations of assault, the standard of proof is higher than what would normally be expected. Ms Ambrose also submits the Manager involved in the decision to terminate her employment, Mr Michael Martello, has also now said he is prepared to provide evidence on her behalf, indicating he believes her termination was unfair. Ms Ambrose accordingly submits the merits of the matter are a significant consideration and, at the very least, Target’s actions were disproportionate in all the circumstances.

[23] In regard to the merits of her application Ms Ambrose submissions continued to refer to the decision in the Jennings v Salvation Army (Victoria) Property Trust Incorporated 13 and the judgement of Marshall J in which His Honour made reference to the decision of Wilcox and Marshall JJ in Haining v Drake which concluded:

“At the end of the day, the person exercising the discretion has to make an overall judgment as to the appropriateness of extending the time. The extent and the cause of the delay will usually be factors relevant to that judgment; so also will other matters included in the summary, to the extent they apply to the instant case; and perhaps other matters as well. The acceptability of the applicant’s explanation for delay cannot be divorced from the effect of that delay on the respondent or other people. If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.” 14

[24] Ms Ambrose submits, in conclusion, that a combination of factors including her ill health, the minimal delay in filing, the previous lack of legal representation, and the genuine merits of the case are all factors that work in favour of the Commission exercising its discretion to extend time in which to make application.

[25] Target submits in response that none of the factors in s.394(3) support an extension of time being granted. In regard to the reason for delay it submits no medical evidence has been provided to substantiate that Ms Ambrose is suffering from an adjustment disorder, and she has not provided any explanation about why that condition prevented her from filing an application within the required timeframe. It accordingly submits she has failed to provide evidence of “exceptional circumstance” that can be said to be the reason for late filing of her application.

[26] Target also refers to the decision in Scuderi v Mount Isa Mines Ltd Limited T/A Xstrata 15 (“Scuderi”) to support its submission that being unfit for work, or unable to attend at work, is different from an incapacity or inability to file an unfair dismissal application within the requisite period.

[27] Target also submits Ms Ambrose has not provided any evidence or explanation about why she was able to prepare and mail the application, together with extensive supporting material on 16 September, but could not do so previously. It also submits that, in any case, the Commission has repeatedly found ignorance about the time period or the Commission’s procedures is not sufficient to justify an extension of time being granted.

[28] It also submits in period after the incident until the conclusion of the 21 day period following her termination Ms Ambrose was able to do a number of things.

• She attended at work on the day following the incident.



• She prepared a detailed statement to do with the incident and provided that to Target.



• She participated in the meeting on 26 August.





• attended a meeting with her general practitioner on 28 August, and made a claim for workers’ compensation on the same day.



• She was able to provide a comprehensive statement to the WorkCover investigator on 5 September in relation to her dismissal and the background to those events.



• She made contact with the Fair Work Commission to obtain advice about lodging an unfair dismissal claim.



• She made contact with a lawyer and made an appointment with the firm.



• She finally prepared and completed the application, together with the detailed supporting materials, by 16 September.

[29] Target also submits the decision in Rowe, relied on by Ms Ambrose, can be distinguished because the severe post-traumatic stress disorder suffered by the Applicant in that matter had existed for two years at the time of his dismissal, and was the reason for his dismissal. His termination also acted to exacerbate those symptoms. It also submits the decision in that matter was based on a finding the Applicant was incapable of making any rational decisions during the 21 day period following his termination because of the extreme severity of the post-traumatic stress disorder he suffered from.

Target submits instead the decision in Ms Susan Rose v BMD Constructions Pty Ltd 16(“Susan Rose”) is relevant to the present matter. It highlights two aspects of the decision. Firstly, 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 application. Secondly, for a medical reason to provide the basis of an extension of time it must be because the Applicant is incapacitated during the period. Target also refers to the decisions in Dormer v Rio Tinto17 (“Dormer”) and Gatt v Victorian Ombudsman18 (“Gatt”) in support of the submission that medical conditions, while unfortunate, are not sufficient evidence of incapacity and do not constitute “exceptional circumstances” that justify an extension of time being granted.

[30] Target acknowledges Ms Ambrose was informed on the day of her dismissal it was to be implemented with immediate effect. It also submits she did not take action to challenge her dismissal until 16 September, but acknowledges it has not suffered significant prejudice as a result of her delay.

[31] Target also submits Ms Ambrose’s dismissal was not harsh, unjust or unreasonable and she was dismissed for serious misconduct in that her apprehension and physical restraint of the two women breached Target’s policies and procedures. It also submits Ms Ambrose acknowledged this breach, while also emphasising she was upset and distressed after having just returned from an extended period of personal leave.

[32] Target also submits it is only “a highly meritorious claim” that should weigh in favour of granting an extension of time. It submits in this case this “high threshold” has not been met. 19 It points to Ms Ambrose’s own statement indicating she acted in breach of policy and procedure, and acted inappropriately by initiating contact with persons she had apprehended. She also acted inappropriately in preventing one of the women from making a phone call to her husband.

[33] Target also submits that while the situation might have seemed volatile, and Ms Andrews had already been involved in another apprehension earlier in the day, she is an experienced loss prevention officer and these incidents occur regularly and are an everyday part of the role.

[34] It also submits Ms Ambrose prepared a detailed statement about the incident which was taken into account in its consideration of its response. She was also given a chance to respond fully in the meeting held on the last day of her employment in circumstances where she knew Target was considering terminating her employment.

[35]
It also submits no regard should be had to the apparent change of heart from Mr Mantello, who has also now been dismissed by Target. It submits in those circumstances it is not surprising he now has a different view. It also submits the circumstances demonstrate Ms Ambrose was afforded appropriate procedural fairness. A serious allegation was made involving her. She was therefore stood down on full pay while it was investigated. A comprehensive statement provided by Ms Ambrose was considered as part of that investigation. A meeting was held with her. Everything was put to her in those discussions. She was given a chance to respond. At the conclusion of that process a decision was taken to dismiss her.

Consideration

[36] In coming to a decision in this matter the Commission is required to take account of each of the matters in s.394(3) of the Act. In addition, the question of what is required to constitute “exceptional circumstances” has been considered in a number of decisions of this Tribunal. For example, the Full Bench in the matter of Nulty v Blue Star Group Pty Ltd 20 concluded:

“[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 situation which is out of the ordinary course, unusual, special or uncommon.” 21

[37] I now turn to deal with this matter by reference to the considerations in s.394(3) the Commission must take account of, and authorities that are relevant to the determination of this application.

(a) the reason for the delay

[38] As indicated, Ms Ambrose submits the delay in lodging was caused, in large part, by her medical condition in that she was suffering from adjustment disorders involving depression and anxiety. She also submits she was of the belief that sending the application by Registered Post meant it would be delivered on the same day. If this were correct it would have been delivered within the 21 day time period, rather than 1 day late.

[39] The submissions provided on behalf of Ms Ambrose made reference to the decisions in John Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group 22 (“Ovenden”) and Kevin Rowe as examples of decisions where the Commission has been prepared to grant additional time in circumstances it submits are similar to those in the present matter. In the decision in Ovenden the Applicant was granted additional time in which to make application in circumstances where medical evidence was provided on his behalf to the effect he was unable to deal with the notice of termination at the time because he was suffering from depression and anxiety exacerbated by work stress. It also stated he was showing signs of post traumatic stress disorder and suffered from an intellectual impairment. The notice of termination was also given to him on 23 December, immediately prior to Christmas. In finding exceptional circumstances existed the Commissioner concluded:

“So far as the reason for the delay in filing is concerned, I am satisfied by the medical evidence supplied that the applicant was in no fit condition to deal with the matter until late January 2010. I am also satisfied that the manner in which the termination occurred, and the fact that the letter was supplied 2 days before the Christmas holiday break, exacerbated the situation.” 23

[40] In the decision in Kevin Rowe the application was lodged 7 days after the conclusion of the statutory time limit. However, in that matter the Commission found the medical evidence indicated the Applicant was not capable of making any rational decisions during the requisite time period. She stated:

“[94] Taking account of all of the factors set out in s.394(3) of the Act, I find that there are “exceptional circumstances” such that I should exercise my discretion and grant an extension of time. The situation that applied to Mr Rowe, following his dismissal, can be described as “out of the ordinary course, unusual, special or uncommon”. Mr Rowe had been suffering from PTSD for nearly two years prior to his dismissal and certificates of incapacity continued to be supplied by Dr Taylor after Mr Rowe was dismissed. Mr Rowe was dismissed as a result of his PTSD which then caused a deterioration in his health such that he was unable to make any rational decision. This meant that there was a delay in Mr Rowe lodging an application. The medical evidence, which, as indicated earlier in the decision is accepted by the Commission, indicates that Mr Rowe was not capable of making a rational decision in the period following his dismissal. This combination of factors could only be described as ‘out of the ordinary course, unusual, special or uncommon’. Given the particular facts of this matter, it is distinguishable from those cases where the Commission has previously found that an applicant’s upset and distress following their dismissal did not constitute ‘exceptional circumstances’.” 24

[41] Target made reference in response to various decisions where medical conditions and other associated reasons have been relied upon as the reason for the delay, but an extension of time has not been granted. It is also accepted that the submissions and evidence indicate Ms Ambrose had a medical certificate indicating she was not fit for work during the 21 day period following her dismissal. However, the issue in the present matter is not whether she was fit to be at work during this time, but whether she was able to do what is required to prepare and lodge an unfair dismissal application. The medical certificate provided by her General Practitioner, 2 days after her termination, makes no reference to incapacity other than for work. The evidence also indicates Ms Ambrose was able to do a number of things in the 21 day period, despite her medical condition.

[42] Target first referred to the decision in Ms Susan Rose v BMD Constructions Pty Ltd in which the Applicant argued an extension of time should be granted because she was suffering from shock and trauma as a result of her dismissal. In addition, she was not aware of the time limit for making application. Her application was lodged 13 days after the expiry of the applicable time period. The Applicant did not actually visit her doctor during this period, but attended after that time and was diagnosed as suffering from depression and anxiety. The Commissioner concluded, in rejecting her application for an extension of time:

“[9] 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 following the dismissal.

[10]It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.

[11]Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.” 25

[43] Target also referred to the decision in Scuderi in which the application was lodged 22 days after the requisite time period. In rejecting the application for an extension of time the Commissioner concluded:

“[41] The obligation on the Applicant in this matter is not to show he was unfit for work, but is instead to show he was not capable of taking the necessary steps to have an unfair dismissal claim lodged within 14 days justifying an extension of time. The difficulty for the Applicant in this case is that there is not strong evidence that this was the case. The Applicant did not call expert medical evidence and the medical certificates provided for the relevant time are not specific.” 26

[44] In Dormer the application was filed 11 days out of time due to a combination of circumstances. The Applicant said he was depressed at the time and his wife also suffered from significant health problems. In addition, he did not have other family or friends who could assist him in making application, and he was located in a remote camp without access to the internet or other assistance.

[45] In rejecting the application the Commissioner found the fact of moving premises was not to be considered out of the ordinary course, unusual, special or uncommon. She also concluded that various resources including libraries, telephone assistance lines, and community legal centres, are available to provide assistance to potential Applicants. She concluded:

“[35] I am similarly not satisfied that the Applicant was completely incapacitated by his mental condition such as to explain the delay. While unfortunate, a state of depression is not out of the ordinary course, or unusual, special or uncommon, after a person has been dismissed from their employment. There is no evidence that the Applicant required a period of hospitalisation. It appears that during the period, arrangements were able to be made regarding the Applicant’s accommodation.” 27

[46]
Target also referred to the more recent decision in Gatt v Victorian Ombudsman. In that matter the application was lodged 12 days after the statutory time limit had elapsed. The Applicant, firstly, submitted she had travelled overseas shortly after her dismissal, during which time she had limited access to the internet. She also said during the period after her dismissal she was suffering from extreme distress and had consulted a medical practitioner and psychologist. The Deputy President concluded, in response, the evidence did disclose the Applicant was likely suffering significant stress, and was possibly in a depressed condition for some or all of the period in question. However, he concluded:

“But it does not follow that this heightened level of distress had the result of impairing the capacity of the Applicant to make an application to the point where it explains the delay.” 28

[47] In coming to this conclusion he noted the Applicant had been able to make contact with the Fair Work Ombudsman in the period immediately following her termination, and made phone calls to a number of different law firms. She was also able to travel overseas and accessed the internet on at least one occasion during this time. He also noted there was no evidence she had consulted a medical practitioner about her distress while she was overseas, and did not do so until sometime after she returned. He also concluded it did not appear her decision making was impaired to such a degree as to provide an acceptable explanation for the delay and, further, there was no evidence her cognitive functioning was impaired to the extent she was unable to make application within the time period prescribed. He also noted that mere ignorance of the statutory time limit is not an exceptional circumstance, citing the decision of Nulty v Blue Star Group Pty Ltd as authority for this conclusion.

[48] In the present matter Ms Ambrose was dismissed by Target on 26 August after a period of time in which she had experienced stress and anxiety, and had been off work as a result for various periods. She was stood down on 20 August while an investigation was carried out into an incident that occurred on the previous day. On 22 August she received a medical certificate from her General Practitioner indicating she was unable to work for the period from 22 August until 5 September.

[49] She again attended her General Practitioner on 28 August and was provided with a medical certificate indicating she will was unable to work from 28 August to 26 September. The certificate indicated the diagnosis of her condition was variously anxiety, panic attacks, insomnia due to stress, and a flare-up of fibromyalgia. It also indicated she was to be referred to a psychiatrist for assessment and management, and to a psychologist for counselling.

[50] Ms Ambrose also submits she took the application to the post office on 16 September. She asked for it to be sent by registered post which she understood involved same day delivery. She accordingly submits that in her mind she had submitted the application on what would have been the last day of the 21 day period. She also acknowledges she did manage to compile a very detailed application and supporting materials during this period, but submits this was a difficult task and completed with the assistance of her daughter and a friend.

[51] I am not satisfied, firstly, that Ms Ambrose’s lack of understanding about the processes associated with sending by registered post provide significant support for her application, even though it was only received 1 day late. If she was aware and concerned about the 21 day time limit she should have been more careful in understanding the mail delivery processes and, if they were not going to enable the application to be received within time, she should have explored other obvious options. Sending by email, fax, or personal delivery would all have been readily available options to ensure the application was received within the 21 day period. Ignorance or lack of understanding about the processes associated with sending mail by registered post can be considered in a similar category to ignorance of the statutory time limits, which has not been found to constitute an “exceptional circumstance” that justifies the delay.

[52] A similar conclusion can be arrived at about her medical condition, particularly given the authorities referred to. This is not to downplay the significance of that condition, and its effects on Ms Ambrose, or the fact her condition may have been exacerbated by what she experienced at work. However, the submissions and evidence indicate she was clearly not incapable of making rational decisions in the 21 day period following her termination, as found to be the case in the matter of Kevin Rowe. The evidence, in fact, indicates she was able to do a number of things in that period, including preparing and making a workers’ compensation claim, and subsequently providing a comprehensive statement to the WorkCover investigator, which included a detailed statement about her dismissal and the background to those events. She also made contact with the Commission to obtain advice about lodging an unfair dismissal claim, as well as making contact with a lawyer for a similar purpose. She finally prepared a very detailed application, together with a range of supporting materials.

[53] I am satisfied in response that this situation can be compared to the circumstances dealt with by the Commission in the decisions in Susan Rose, and more recently Gatt v Victorian Ombudsman, where a combination of factors were relied upon by the Applicants in each case, but were not found to be circumstances that could be considered to be “exceptional.” In the present matter Ms Ambrose relies on her medical condition and her lack of understanding about Australia Post’s processes. However, she was able to do a number of other things in the same period and it appears nothing actually prevented her from making an application within the requisite period.

(b) whether the person first became aware of the dismissal after it had taken effect;

[54] This does not appear to be an issue of any significance in this matter. Ms Ambrose was informed on her final day at work she had been terminated.

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

[55] The principal evidence of the action taken by Ms Ambrose to dispute her dismissal was the filing of her unfair dismissal application. It was also evident at that point that a significant amount of work and preparation had gone into compiling the application and gathering the associated supporting materials. However, the evidence also suggests Ms Ambrose’s priority in the time immediately following her termination had been to prepare and lodge a workers’ compensation claim.

(d) prejudice to the employer (including prejudice caused by the delay);

[56] There will always be some prejudice to an employer if the discretion is exercised to grant additional time in which to make application, given the employer will then be required to prepare to respond to the application. However, given the delay of only one day in this matter the extent of any prejudice can be considered to be limited.

(e) the merits of the application;

[57] It is difficult to form a clear view about the respective merits of this matter. Target submits Ms Ambrose’s behaviour involved a significant breach of procedure which warranted summary dismissal. She denies any allegation of inappropriate behaviour and submits instead her behaviour was appropriate in what was a particularly volatile situation. She also submits, despite a police investigation into the alleged incident, no action has been taken.

[58] She also claims she was denied the opportunity to provide a detailed response to any of the allegations made against her, however, she did provide a detailed statement about the incident. She also submits another employee involved in her termination has indicated he now believes her dismissal was unfair, although it is also noted he is also no longer employed by Target and this situation may well explain his change of heart.

[59] As indicated, I am unable to form a clear view about the respective merits of the matter on the basis of the submissions and evidence now before the Commission. However, I also note that a Full Bench of the Commission has previously found that it is not necessary to embark on a detailed consideration of the substantive case in an application of this kind. 29 The Full Bench also noted in that matter that while the issue of merit is important, exercise of the discretion to grant additional time should have primary regard to the circumstances that led to the late lodgement.

(f) fairness as between the person and other persons in a similar position

[60] Neither party made submissions suggesting this consideration was of particular importance in the present matter.

Conclusion

[61] Ms Ambrose’s application was lodged only one day outside the 21 day time period. It could be argued this fact alone provides justification to exercise the discretion to grant additional time to her in which to make application. However, 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.

[62] I have considered all the evidence and submissions provided by the parties in this matter. I have also had regard to each of the considerations in s.394(3) I am required to take account of, and the authorities I consider relevant to the determination of this matter.

[63] In a similar manner to the decisions in Susan Rose and Gatt I am not satisfied the evidence in regard to Ms Ambrose’s medical condition, in particular, indicates she was incapable of making application within the 21 day period. She was clearly not incapable of making rational decisions during this period. The issues to do with sending the application by post were more to do with a mistaken belief or lack of understanding on her part, rather than any “exceptional circumstances.” Based on all the circumstances, and the authorities referred to, I am accordingly unable to conclude that “exceptional circumstances” exist in this matter to warrant an exercise of the Commission’s discretion to extend time in which to make application. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr. A Denton appeared on behalf of the Applicant.

Mr. W Spargo appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

24 October.

 1   Fair Work Act 2009 (Cth) at s.394(3)

 2   Exhibit D2 at para 11

 3   Ibid at para 21

 4   Ibid at para 24

 5   Ibid

 6   Ibid at para 26 and 29

 7   Ibid at para 46

 8   Ibid at attachment PA-9

 9   [2013] FWC 5415

 10   Exhibit D3 at page 1-2

 11   Ibid at page 2

 12   Exhibit D1 at para 16

 13 [2003] FCA 1193

 14 (1998) 87 FCR 248 at 250 as quoted in Jennings v Salvation Army (Victoria) Property Trust Incorporated [2003] FCA 1193

 15   [2011] FWA 7045

 16   [2011] FWA 673

 17   [2014] FWC 1509

 18   [2014] FWC 2711

 19   Transcript at PN169

 20   [2011] FWAFB 975

 21   Ibid at [13]

 22   [2010] FWA 3863

 23   Ibid at [29]

 24   Above ix at [94]

 25   Above n.xvi at [9]-[11]

 26   Above n.xv at [41]

 27   Above n.xvii at [35]

 28   Above n.xviii at [21]

 29   Kyvelos v Champion Socks Pty Limited (Print T2421)

Printed by authority of the Commonwealth Government Printer

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