Penelope Catchlove v Financial Services Institute of Australasia

[2021] FWC 6169

[2021] FWC 6169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Penelope Catchlove
v
Financial Services Institute of Australasia
(C2021/4438)

COMMISSIONER YILMAZ MELBOURNE, 21 OCTOBER 2021

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time denied.

[1] On 9 July 2021, Ms Penelope Catchlove lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against the Financial Services Institute of Australasia (FINSIA). Ms Catchlove commenced employment as a Business to Business Marketing Communications Manager on 10 August 2020 and her last day of work was on 3 December 2020.

[2] Ms Catchlove submits that she was dismissed following a period of stress leave after having her work critiqued in group meetings. She submits that her dismissal is in contravention of ss.344 - undue influence or pressure and 352 - temporary absence.

[3] Ms Catchlove submits that some six months after her dismissal she realised that she was still suffering psychological trauma as a result of her dismissal.

[4] I scheduled the extension of time hearing for 20 September 2021. At the hearing, Ms Catchlove was self-represented, and legal representation for FINSIA was denied.

[5] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 217 days after the 21-day statutory time limit.

Applicant’s submissions

[6] Ms Catchlove submits that she was employed on a 12-month contract with FINSIA and while she had completed much of the required work, she submits that her work was “overly scrutinized and unfairly critiqued” in group meetings and this resulted in stress and anxiety. 1 Further she submits that the negative behaviour towards her and her “unnecessary and unwarranted dismissal” resulted in long term psychological trauma which she did not fully realise until some six months after her dismissal. On 24 June 2021, Ms Catchlove submits that she suffered a breakdown while at a temp job and she continues to experience anxiety at interviews.2

[7] Ms Catchlove submits that she had sought counselling support prior to her dismissal to reduce her anxiety from her experience and has continued to obtain support post her dismissal. It is after receiving ongoing treatment that Ms Catchlove submits that she was better equipped to file the general protections’ application on 29 July 2021.

[8] Ms Catchlove submits the behaviour towards her, and her dismissal contravened the general protection provisions of the Act in terms of:

•  S.344 undue influence or pressure, and

•  S.352 temporary absence.

Respondent’s submissions

[9] FINSIA submit that Ms Catchlove was not dismissed because she took a period of sick leave, it says it dismissed her during her probation period, which it was entitled to do.

[10] FINSIA denies that it had contravened the general protection provisions of the Act as alleged and submit that Ms Catchlove has failed to establish exceptional circumstances which would justify an extension to her application.

Consideration

[11] General protections applications involving dismissal must be made within 21 days.

[12] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[13] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 3 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 4

[14] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[15] The general protections involving dismissal application was lodged with the Commission on 29 July 2021, 217 days late.

[16] Ms Catchlove submits that the delay in the application was due to her focussing on her mental health and reducing her anxiety and depression, and that she was not fully aware of the impact of the dismissal in the 21 days following dismissal. 5

[17] The application was not made within the 21--day limit because of her fragile mental state and lack of ability to deal with any formal proceedings to dispute the dismissal.

[18] Ms Catchlove submits that she tried to move forward and forget the job at FINSIA, however, with the mental breakdown in June 2021, she realised that she was still dealing with ongoing trauma. She submits that the application was made on 29 July 2021, after her treatment improved her mental state to make the application.

[19] Ms Catchlove tendered in evidence a letter from her consulting psychologist which was undated but states that Ms Catchlove’s anxiety and depression “left her immobilised and ill prepared to take the matter further in a formal way.” The letter goes on to state that Ms Catchlove met with her on five occasions since July.

[20] After Ms Catchlove advised during the hearing that she had additional medical evidence to support her application, an adjournment was granted to allow her to file her material. A second day of hearing was schedule to allow Ms Catchlove to speak to her evidence and for FINSIA to reply.

[21] The additional evidence tendered by Ms Catchlove was a letter from her medical practitioner that confirms inter alia that she was seeing a counsellor through the Employment Assistance Program and was subsequently seeing a psychologist regularly. The general practitioner also states that Ms Catchlove was given a medical certificate to cover her absence from work from 25 November 2020 – 2 December 2020 after she complained she was being bullied and was distressed by work.

[22] FINSIA submit that Ms Catchlove has failed to provide evidence of exceptional circumstances to warrant an extension of time. It further submits that the medical evidence tendered fails to provide any support for the extension of time application.

[23] There must be a credible reason for the delay. 6 Ms Catchlove relies on her mental health condition as the reason for the delay. It is accepted that applicants will often feel trauma or some form of mental distress from a dismissal, however, this is not enough to justify an extension of time.7 The medical evidence tendered by Ms Catchlove confirms that she accessed medical support in respect to her mental health, although there is no evidence to explain why the application was made some 7 months after the dismissal. There is no evidence that she was incapacitated from making an application either within the 21-day statutory time frame or for the six months after the 21 day limit. While I accept on the evidence that Ms Catchlove experienced mental health symptoms, the evidence does not justify an extension. The bar is high in extension of time applications, Ms Catchlove did not provide a credible explanation, nor can I conclude that there are exceptional circumstances for the entire period of the delay to satisfy the requirements of an extension of time.

Steps taken to dispute the termination

[24] Ms Catchlove submits that she did dispute her termination of employment with an email that she sent on 4 December 2020 to the CEO and HR Manager. She submits that the email disputed the decision to dismiss her employment and she expressed how badly she had been treated. She states that she did not receive any response to her email. 8

[25] FINSIA challenge the statement that Ms Catchlove took steps to challenge her dismissal. It states that the emailed letter asks that it be “noted” and does not seek a response. FINSIA submit it had not heard from Ms Catchlove until receipt of the general protections application some seven months later. 9

[26] Ms Catchlove attached her email to her outline of argument. The email does detail Ms Catchlove’s concerns and disappointments of her time working at FINSIA and more specifically in the period that she reported to her new manager. The email also details the range of projects that she worked on and the supportive feedback she received from her former manager and team. The email does not specifically seek a response, but rather requests that her email to be added to her file.

[27] The email can be characterised as expressing Ms Catchlove’s disappointment with time at FINSIA, at best the email mildly disputes her dismissal but does not take her dispute to any further level. Having considered the email letter and the fact that Ms Catchlove took no further action until lodging her application many months later, this consideration does not weigh in her favour.

Prejudice to the employer

[28] Mr Catchlove submits that granting an extension of time will not cause FINSIA disadvantage or unfairness on the basis that it incurred legal costs which it would have done even if her application was lodged within the required time. 10

[29] FINSIA submit that a long delay gives rise to a general presumption of prejudice and a period of seven months weighs against granting an extension. It further states that Ms Catchlove has not articulated the proscribed reason for the termination. It submits it dismissed her during a period of probation for failing to meet required standards and performance objectives and to defend the matter it will suffer prejudice unreasonably and needlessly if required to bear the cost of preparing material in response to an application that cannot succeed.” 11

[30] The onus to establish an extension of time rests with the applicant and a long period is a consideration where the purpose is to ensure a fair trial of the merits. With the effluxion of time, certain factors may affect a fair trial such as availability of key witnesses or the lack of documentary evidence. There is no suggestion that FINSIA is prejudiced in respect of its ability to defend its position with evidence, however, even where there is a lack of prejudice, this consideration does not weigh in the applicant’s favour to grant an extension. This consideration does not weigh in Ms Catchlove’s favour.

Merits of the application

[31] The parties dispute the circumstances leading to the termination of employment.

[32] Ms Catchlove submits that she was informed that her dismissal was due to a restructure, which she disputes. She states that the timing of her dismissal coincided with her return from a period of “stress leave”.

[33] In the short period of employment, Ms Catchlove submits that she delivered her projects and for some where she had little to no experience she nevertheless delivered. She submits that she was given little guidance, support or training and her work was criticised in group settings. This criticism she described was “destructive” rather than “constructive”. In her final two weeks of employment, before the final restructure decision, she states that she reported to another manager that openly demonstrated a lack of support for the work of the marketing team.

[34] In relation to the period post announcement of restructure and prior to her dismissal, Ms Catchlove submits that she prepared correspondence for her new manager, which she submits was reviewed by HR, she sought from her manager guidance on how they could work co-operatively. Despite this initiative, Ms Catchlove states that it resulted in an extension to her probation period of one month. This extension she says heightened her anxiety and stress.

[35] In relation to the grounds for the general protections application Ms Catchlove does not elaborate on the grounds other than citing the timing of the dismissal with her return from sick leave.

[36] FINSIA submit that due to an organisational restructure and her failure to meet particular standards and performance objectives, Ms Catchlove was dismissed during her probation period. It submits that Ms Catchlove’s application relies on s.344 of the Act, which is misconstrued because no safety net entitlements or flexibility arrangements were in place in respect to her employment. In respect to Ms Catchlove’s sick leave, FINSIA deny that it was a reason for her dismissal.

[37] While merit is not ordinarily tested in an extension of time application, Ms Catchlove provided no evidence nor articulated clearly how the general protections provisions were contravened in respect to her period of employment or dismissal, other than asserting that her dismissal was due to her taking a period of sick leave. The medical evidence from the general practitioner confirms a period of personal sick leave. Ms Catchlove refers to the manner in which her work was critiqued which caused her anxiety and stress but did not elaborate how the behaviour contravened the general protections provisions. In such circumstances it is difficult to ascertain whether Ms Catchlove has a meritorious case to weigh in her favour for an extension of time. Clearly the evidence will be contested should the matter proceed, but little was provided to sway a view that there is a case to answer. On balance of the submissions, I do not conclude that merit weighs in Ms Catchlove’s favour.

Fairness between the person and other persons in a like position

[38] Ms Catchlove did not particularly address this consideration.

[39] FINSIA submit that the Commission has declined to accept late applications where the delay is less than in this matter, and it would be unfair to all other employees should the application be granted.

[40] Neither party referred to any other employee in a similar situation, instead both parties referred to this consideration in general terms. I accept that there is no other employee in a like position to compare with Ms Catchlove’s circumstances. For these reasons I do not find this consideration to weighs in Ms Catchlove’s favour, rather the consideration is neutral.

Conclusion

[41] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[42] It is on the balance of the considerations that I have decided to deny an extension of time.

[43] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Ms P. Catchlove for herself

Ms H. Brown for the Respondent

Hearing details:

2021
Melbourne (by telephone)
20 September

Printed by authority of the Commonwealth Government Printer

<PR735091>

 1   Applicant’s outline of argument: extension of time at Q1d.

 2   Ibid.

 3   [2011] FWAFB 975.

 4 Ibid at [13].

 5   Applicant’s outline of argument: extension of time at Q1d.

 6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 7   Rose v BMD Constructions Pty Ltd[2011] FWA 673.

 8   Applicant’s outline of argument: extension of time at Q1e.

 9   Respondent’s outline of argument: extension of time at Q1e.

 10   Applicant’s outline of argument: extension of time at Q1f.

 11   Respondent’s outline of argument: extension of time at Q1g.