Payal Mistry v Sydney Trains T/A Sydney Trains
[2018] FWC 1159
•23 FEBRUARY 2018
| [2018] FWC 1159 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Payal Mistry
v
Sydney Trains T/A Sydney Trains
(C2018/242)
| DEPUTY PRESIDENT GOOLEY | MELBOURNE, 23 FEBRUARY 2018 |
Application to deal with contraventions involving dismissal.
Ms Payal Mistry alleged that the termination of her employment by Sydney Trains was in breach of the general protections provisions of the Fair Work Act 2009. Sydney Trains denies the allegation.
As Ms Mistry’s dismissal took effect on 26 September 2017, her general protections application lodged on 15 January 2018 was not lodged within 21 days of the dismissal.
The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[1] where the Full Bench said:
“[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." [Endnotes not reproduced]
(a) the reason for the delay;
Ms Mistry said she was forced to resign her employment because she was suffering from panic attacks and was being bullied at work. Ms Mistry said the reason for the delay in lodging her application was because she was in an emotional state with high levels of anxiety and depression. She said she was not able to deal with this issue until she was stronger. Ms Mistry said she had to leave Sydney and relocate to New Zealand and then she returned to Brisbane. She said had she lodged within 21 days her mental health would have suffered.
Ms Mistry’s resignation email noted that she was aware of the Fair Work Commission and she advised that she would be seeking compensation through the Commission. Further, in her earlier communication with Sydney trains, when she was trying to negotiate a resolution to the conflict, Ms Mistry was in receipt of legal advice and was aware of the general protections and bullying provisions of the Act.
While it is clear from the material filed by Ms Mistry that there were health issues associated with her work, she produced no medical evidence to support her claim that she was medically unable to lodge an application. I am not satisfied therefore that Ms Mistry has provided a reasonable explanation for the delay and this weighs against a finding of exceptional circumstances.
(b) any action taken by the person to dispute the dismissal;
Ms Mistry put Sydney Trains on notice that she considered that she had been forced to resign and put them on notice that she intended taking her claim to the Commission. However she then did nothing until she lodged this application. Her actions neither weigh in favour of or against a finding of exceptional circumstances.
(c) prejudice to the employer (including prejudice caused by the delay);
No evidence was called to support a finding of any prejudice to the employer. While a lack of prejudice alone is not sufficient to make a finding of exceptional circumstances, a lack of prejudice weighs in favour of such a finding.
(d) the merits of the application;
In the matter of Kornicki v Telstra-Network Technology Group[2] 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."[3]
For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case."[4]
In this matter, Ms Mistry will need to establish that she was dismissed. It is not challenged that Ms Mistry resigned her employment. In June 2017, Ms Mistry had been advised by Sydney Trains that the medical assessment advised that she could not work with her manager for six months. She was further advised that there had been a review of vacancies and there was no suitable alternative duties identified. Ms Mistry was advised that Sydney Trains was prepared to keep her position open for six months if she wished to take six months leave without pay during which time they would continue to search for suitable alternative duties.
Ms Mistry was advised that if she did not want to take this option, then Sydney Trains’ Termination of Employment on Medical Advice Procedure provided for termination on medical grounds where an employee with a workplace injury or illness is unable to return to their pre-injury position within six months from the date the employee became unfit for duty. Ms Mistry was advised that if she did not take leave without pay, then Sydney Trains would utilise the process set out in that policy. Ms Mistry then attempted to negotiate a resolution to this dispute. At the time Ms Mistry was in receipt of legal advice.
In her general protections application, Ms Mistry relied upon s.344, s.351 and s.352 of the Act.
In relation to s.344, she submitted that she was forced to resign as their behaviour was threatening and harassment. She said she was given a choice of leave without pay or medical termination.
It is not clear how Ms Mistry makes her claim under s.344. While the provision refers to undue influence and undue pressure that it is undue influence and undue pressure in relation to specific matters. None of the matters raised by Ms Mistry fall within s.344(a)-(e).
Ms Mistry says she was discriminated against on the basis of her mental disability. Ms Mistry complains that Sydney Trains was unable to deal with her mental disability.
Ms Mistry complains that she was sick for parts of 2016 and was on paid sick leave. Ms Mistry said that when she returned to work in 2017 her manager’s behaviour towards her changed. She said she always provided a medical certificate when she was off work.
Sydney Trains submitted that Ms Mistry’s claim is substantially without merit because she resigned her employment and there was no action on the part of Sydney Trains which directly or consequentially ended Ms Mistry’s employment. It submitted that there was no evidence that Ms Mistry was forced to resign. Sydney Trains submitted that there was no evidence that it discriminated against Ms Mistry. Further, Sydney Trains said Ms Mistry’s absence was not a temporary absence as she had been absent for six months.
There are factual differences between the parties in relation to what led to Ms Mistry’s resignation. It will be incumbent on Ms Mistry to establish that she was dismissed. If she is able to do this then Sydney Trains will be required to establish that operative reasons for the dismissal were not reasons prohibited by the Act.
I am not able to resolve these differences. On the material before me I consider this criterion neither weighs in favour of or against a finding of exceptional circumstances.
(e) fairness as between the person and other persons in a similar position.
I am not satisfied that there are any persons in a similar position. I consider this criterion to be a neutral consideration.
Conclusion
I am not satisfied that there are exceptional circumstances. The only criterion in favour of such a finding is the lack of prejudice to Sydney Trains. That is not sufficient to establish that there are exceptional circumstances. Ms Mistry’s application for an extension of time is dismissed and an order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
P. Mistry on her own behalf.
S. Moten for the Respondent.
Hearing details:
2018.
Melbourne, by telephone:
22 February.
<PR600660>
[1] [2011] FWAFB 975
[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[3] Ibid
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]
Printed by authority of the Commonwealth Government Printer
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