Pippa McInnes v Oracle Group (Australia) Pty Ltd

[2021] FWC 6586

[2021] FWC 6586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pippa McInnes
v
Oracle Group (Australia) Pty Ltd
(U2021/9060)

DEPUTY PRESIDENT LAKE BRISBANE, 10 DECEMBER 2021

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

[1] Pippa McInnes (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Oracle Group (Australia) Pty Ltd (the Respondent).

[2] The question before me was whether an extension of time was required and, if so, whether such an extension should be granted. A hearing was held before me via Microsoft Teams on 25 November 2021, at which the Applicant appeared on her own behalf, and Annalise Thompson of O’Reilly Workplace Law appeared on behalf of the Respondent.

Background

[3] The Applicant was employed as an Executive Assistant and commenced employment on 2 October 2018. On 16 August 2021, the Applicant was suspended from her employment, on full pay, whilst an investigation into allegations against the Applicant was being undertaken. Regular communication ensued between the parties regarding the investigation and suspension.

[4] On 1 September 2021, the Respondent sent correspondence to the Applicant outlining the allegations made against her and requesting that she respond by 2 September 2021. The Applicant did not meet this deadline, and the Respondent sent a follow up email allowing her an extension until 12:00pm on 3 September 2021 to provide a response. Later in the day on 2 September 2021, the Applicant provided a detailed response to the allegations. On 3 September 2021, she forwarded the Respondent a copy of a medical certificate dated 1 September 2021. The medical certificate from Dr Fiona Burnell states as follows:

“I HEREBY CERTIFY that on 1st September 2021 I examined Mrs Pippa Allen (DOB 02/05/1979)

who in my opinion was suffering from a medical condition and will be unfit for duty up to and including 01/10/2021.

She states that the incapacity commenced on 01/09/2021.”

[5] On 7 September 2021, the Respondent issued the Applicant an “Outcome of investigation and direction to show cause” letter. The correspondence detailed the findings made and directed the Applicant to show cause as to why she should not be terminated by 5:00pm on Thursday, 9 September 2021. In the same correspondence, the Respondent stated:

“…We assume given your ability to provide detailed responses to the allegations on 2 September 2021 that you will also be able to provide a response to this letter within 2 days.

Failure to do so will mean that we will proceed with making a final decision without your response to this letter.”

[6] The Applicant responded to the correspondence dated 7 September 2021 where she also raised new allegations against the Respondent. On 13 September 2021, the Applicant was notified of her dismissal when the Respondent sent the Applicant the following correspondence:

“Dear Pippa,

Termination of your employment

The purpose of this letter is to confirm that your employment with Oracle Group (Australia) Pty Ltd (Oracle) has been terminated summarily today, 13 September 2021. The reason for your dismissal is that Oracle has decided, following an investigation, and considering your responses provided on 20 August 2021, 2 September 2021, and 9 September 2021, that you have engaged in serious misconduct by:

1. Accessing Chris McCall’s email account without authorisation or the knowledge of Oracle’s management, copying a private email and sending it to Lucy Howard on 13 August 2021, knowing that this email would damage the relationship between Chris and Lucy…

2. Discussing confidential matters, including changes to your role, with Brent Campbell on 8 July 2021 in breach of a lawful and reasonable instruction I gave to you on 7 July 2021 not to discuss these matters with anyone prior to my submitting a paper to Oracle’s Board. …

3. Secretly recording on your personal mobile device our private meeting on 7 July 2021, which occurred offsite due to the confidential nature of matters I discussed with you that day. …

…

Entitlements

As we consider your conduct amounts to serious misconduct, you are not entitled to pay in lieu of notice of the termination of your employment. You will be paid any wages and accrued annual leave up to and including 13 September 2021. This will be processed in your final pay on Friday, 17 September 2021.

We wish you the best for your future.

Yours faithfully,

Matthew Denehy
Group Managing Director…”

Was the application lodged within time?

[7] Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

[8] The Applicant lodged her application on 8 October 2021. She accepts that her application was made some 24 days after her termination and therefore outside of the 21 days required under s.394(2) of the Act.

[9] The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.

Should a further period be granted?

[10] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application be made:

“(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 like position.”

[11] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant. 1 In short, the authorities demonstrate that exceptional circumstances are those that are out of the ordinary course, unusual, special or uncommon but do not need to be unique, or unprecedented, or particularly rare. 2 They might include a single exceptional circumstance, a combination of exceptional matters, or a combination of ordinary factors which when viewed collectively can be considered exceptional. 3

[12] For the Applicant’s unfair dismissal application to proceed, it is necessary for her to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that exceptional circumstances exist, having regard to s. 394(3) of the Act.

[13] The Applicant submitted that she:

•  is suffering from depression, anxiety and panic attacks due to this situation and had been under a medical certificate dated 1 September 2021 which expired on 1 October 2021;

•  was advised by her medical practitioner to cease all communication with the Respondent whilst under the medical certificate for her mental health. However, due to the Respondent’s demand and constant reminder that she is obligated to respond, or she will be dismissed immediately, the Applicant submits she felt threatened into responding;

•  issued the Respondent a copy of the medical certificate which covered the period between 1 September 2021 until 1 October 2021 and reiterated that she had been ‘dealing with Depression, Anxiety and Panic Attacks due to this situation”; and

•  had been taking a medication called Valdoxan for her mental health condition. The medication caused side effects such as severe Restless Leg Syndrome which rendered sleep impossible. This resulted in receiving further medication of Temazepam and Doxylamine Succinate to try and assist in some relief and ability to sleep. This has caused her to experience a clouded mind and to be bed ridden for more than 48 hours at a time.

[14] For these reasons, the Applicant submits that exceptional circumstances exist and an extension ought be granted.

[15] As indicated above, the Respondent maintains that the Applicant has not demonstrated the existence of exceptional circumstances and that, accordingly, her application should be dismissed.

Consideration

Reason for the delay (s.394(3)(a))

[16] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 4 or a reasonable explanation.5 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted that:

“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 reliant matters and the assignment of appropriate weight to each.”  6

[17] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 7

[18] In the absence of any medical evidence from the Applicant outlining the specifics of her medical condition, medication in which she had taken to treat her condition, and the effects of each medication that had on her during the relevant period, I am unable to ascertain the state of condition the Applicant was in between 1 October 2021, when her medical certificate expired, and 4 October 2021, when her application was due. Without that, I must assume that she had recovered from the ailments she was suffering from during the term of that certificate.

[19] In any event, despite being covered by the medical certificate on 9 September 2021, the Applicant was able to provide a detailed and lengthy response to the Respondent regarding the findings of the investigation and show cause letter. I accept that she perhaps should not have been required to complete such a task whilst subject to the medical certificate. However, her completion of that response would suggest that she was also capable of completing a simple online unfair dismissal application form during that period. The Applicant provided no further evidence from the treating doctor regarding the medical condition or the possible effects of the medications that may explain why the Applicant would have difficulty completing the relevant application form. The Applicant did state that her doctor could provide further information however at the time of the hearing no further evidence was provided. Nor did she. I note that it is the Applicant that bears the onus to provide any evidence supporting her claim.

[20] Furthermore, in his recent decision of Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group, Deputy President Easton set out the applicable principles to determining whether an extension of time should be granted on medical grounds. In particular, his Honour stated that, in declining the request for an extension:

“It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit.

In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit (per Roberts and Underwood);

(iii) the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21-day time frame (per Underwood and Merhi); and

(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).”  8

[21] The Applicant has not expressly demonstrated that her medical conditions impacted her ability to comply with the statutory time limit. While I accept the Applicant was covered by a medical certificate for much of the period, as I have stated above, she was clearly able to respond in some way to the Respondent and therefore was likely capable of lodging an unfair dismissal application. Similarly, whilst the circumstances of an investigation and her termination were no doubt deeply felt by the Applicant, this alone does not provide a reason that would support an extension of time.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[22] The Applicant was notified of her dismissal, by way of email sent on 13 September 2021. The Applicant acknowledged receipt of the email and advised that she had returned all the Respondent’s property on 14 September 2021. This consideration therefore does not weigh in favour of an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

[23] There was no evidence put to me by the Applicant as to what actions were taken to dispute the dismissal other than the lodgement of the application on 8 October 2021. I consider this factor not to weigh in favour of an extension of time.

Prejudice to the employer (s.394(3)(d))

[24] The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 9 I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

[25] In Kornicki v Telstra-Network Technology Group, 10 the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.”

[26] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission “should not embark on a detailed consideration of the substantive case.” 11

[27] Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. However, on the basis of the limited material before the Commission, I am satisfied that the Applicant has at least an arguable case that she was unfairly dismissed given that the Respondent directed her to respond to a Show Cause notice whilst covered by a medical certificate and terminated her shortly after. Those actions by the Respondent may indicate a lack of procedural fairness. Accordingly, I find that this factor weighs in favour of the extension.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

[28] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 12. No examples were provided to me in evidence and so I weigh this factor neutrally.

Conclusion

[29] I am sympathetic to the Applicant given the Respondent’s actions in terminating her employment whilst she was on sick leave that was governed by a medical certificate. That action by the Respondent was poor and the Respondent should be cautioned against taking similar action in future. Notwithstanding that, I must confine myself now to the question of whether an extension should be allowed.

[30] Ultimately, balancing all the factors set out in s.394(3), I am not satisfied that there are exceptional circumstances warranting the grant of an extension of time. That is primarily because, though a medical certificate was in place for much of the 21-day period, during that time the Applicant was able to respond to correspondence from the Respondent in a timely and comprehensive manner. Whatever her limitations during that period which warranted the issuing of a medical certificate, they clearly did not amount to an incapacity to advocate for her own interests. The lodging of a Form F2 online does not require a full brief of evidence. It is a relatively basic document that secures an applicant’s right to prosecute their case. Even so, had the medical certificate covered the entire 21-day period, I may have been minded to grant the extension of time. However, the Applicant’s medical certificate covered until 1 October 2021. Given she was dismissed on 13 September 2021, she was required to file her application by 5 October 2021 to be within time. That means that there were three days between the expiration of her medical certificate and the last day on which she could file her application within time. The completion of a Form F2 could have been easily done in that period.

[31] Given the strictness applied by the Commission to the time limitations and for the reasons set out above, I am not satisfied that the circumstances of this case are exceptional so as to warrant the granting of an extension of time.

[32] Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736683>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 [13]; later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR [2019] FWC 25.

 3   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 [13].

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

 5   Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

 6   [2018] FWCFB 901 [39].

 7   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 8   Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group [2021] FWC 3903 [24] and [25].

 9   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 10   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 11   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].

 12   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 [31].