Qian Jing (Jamila) Chang v The University of Sydney
[2023] FWC 229
•6 FEBRUARY 2023
| [2023] FWC 229 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Qian Jing (Jamila) Chang
v
The University of Sydney
(U2022/11245)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 6 FEBRUARY 2023 |
Application for an unfair dismissal remedy – applicant dismissed for reasons of poor and unsatisfactory work performance during a period of extended probation – applicant issued with warning and placed upon a performance improvement plan prior to dismissal – application filed 2 days out of time – applicant relies upon pre-existing mental health condition that deteriorated post her dismissal as reason for delay – medical evidence relied upon by applicant unsatisfactory to explain delay – reasons for delay unsatisfactory – no exceptional circumstances – application dismissed
Introduction
On 24 November 2022, Ms Qian Jing (Jamila) Chang (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission). The Respondent to the Application is The University of Sydney (Respondent).
There is no dispute between the parties that the Applicant was dismissed within the meaning of s.386 of the Fair Work Act 2009 (Act). Nor is there any dispute between the parties that the Applicant’s dismissal took effect on 1 November 2022, and that she was notified of her dismissal in writing on that date.
In accordance with s.394(2)(a) of the Act, the Applicant should have filed her Application by 22 November 2022 to be within the 21-day time period. It follows that the Applicant has filed her Application 2 days late, or 23 days after her dismissal took effect.
An unfair dismissal application must be made within 21-days after a dismissal takes effect, or in such further time as the Commission may allow. The 21-day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect. Given that the Application in this matter has been filed 2 days outside of the statutory 21-day period, it is necessary that I determine whether to extend the time for the filing of the Application under s.394(2)(b) and (3) of the Act.
At the hearing, the Applicant appeared for herself, and Mr Ashley Fry, Director, Employment, Workplace Relations & Administrative Law, appeared for the Respondent.
Legislation
Granting an extension of time requires me to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, stated:
“[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.
[14]Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) [or s.394(2)(a)] is not an exceptional circumstance…”[1]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)], is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)] and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
(emphasis added)
The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
“394 Application for unfair dismissal remedy
…
(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.”
Each of the individual matters under s.394(3) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.[2]
In Mohammed Ayub v NSW Trains[3], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
Reason for delay[4]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[5] (Bianco Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of a delay.[7]
The Applicant (relevantly) made the following written submissions as to the reason for her delay in filing her Application:
“3. Prior to my employment at the University, I have pre-existing mental health issues which are well maintained and controlled.
4. …
5. From October 2022, my mental health illness began to gradually exacerbate …
6. In the last 2 weeks of October 2022, my mental health slowly deteriorated …
7. In the last week of October 2022, my mental health illness further deteriorated …
8. On 1 Nov 2022 I received the termination letter in writing from the University with the dismissal reason being unsatisfactory performance. Needed [sic] not to say that I was extremely upset and despondent.
9. From 1 Nov 2022, my mental health went downhill and I was not even able to attend daily routine such as grocery shopping, cooking and eating. I was teary and crying, unable to get out of the bed and house everyday. As a result, my mother flew from home country to Sydney to provide care and support on 5 Nov 2022.
10. On 9 Nov 2022, I had a phone consultation in my bed with the Employment Assistant Program Benestar who was aware of my circumstance since 5 Oct 2022 and hence advised me to lodge an unfair dismissal application to the Fair Work Commission if I were able to. Given the extreme low mood, motivation and interest, it was out of my capacity to even attend basic daily tasks, let alone to handle such complex and stressful task at the time.
11. On 10 Nov 2022, I went to see my psychiatrist Dr Nathan Fleisch who adjusted my medication to combat melancholic depression.
12. It usually takes about two to four weeks for the medications to kick in and take effect. On 23 Nov 2022, I was finally able to turn on my laptop to research unfair dismissal on the Fair Work website. I only discovered the 21-day deadline on the day so I immediately managed to submit the application around midnight at 12:35am 24 Oct 2022 …
13. On 24 Nov 2022, I went to see my psychiatrist Dr Nathan Fleisch again who adjusted my medication and provided me a medical certificate for the purpose of Centrelink claim. The medical certificate states that my “primary condition/diagnosis” are “major depression, attention deficit disorder, anxiety disorder, trauma, bipolar affective disorder” and the “date of onset” was “01/11/2022” which is the date of employment termination. It also outlines the symptoms of my mental illness being “low mood, lack of energy and motivation, helplessness, hopefulness, insomnia, poor concentration” which is expected to “affect my capacity to work or study” for “3-12 months”.”[8]
“27. … my mental illness fell well within the time frame from the employment termination date on 1 Nov 2022 to the 21-day deadline of the unfair dismissal application on 22 Nov 2022 supported by multiple medical letters and my mother’s witness statement …”[9]
The Applicant (relevantly) made the following oral submissions at the Hearing as to the reasons for her delay in filing her Application:
“Once I received the termination letter on 1 November, my mental health deteriorated to the point that I was unable to get out and attend basic life duties and life activities, including shopping, cooking, or even getting out of the bed. So I went to see my specialist for medical advice and medicine adjustment, and also my mother flew from her home country to Sydney to look after me and cook for me and provide primary care.
I was unable to - so I think on the 9th or 10th - 10th - sorry, on 9 November, I had a phone consultation with the EAP Benestar, who knew my case from early October, who also advised me to lodge an unfair dismissal application, but I wasn’t able to do any research or lodge the application due to my health condition at the time, so I didn’t turn on my laptop until about 22 or 23 November, and, on that day, I discovered there is a 21-day deadline, so I immediately lodged an application, I think at midnight, which is about a day late because it’s - the midnight deadline was - it’s counted as two days.
During that 21-day period, I’ve seen my psychiatrist twice for medical advice because I was severely ill with very limited mobility and I was - I had symptoms like low mood, low motivation, low interest and teary and crying and very despondent and hopeless. So, I wasn’t able to submit the application in time, but whenever - when I was able to, after the medication kicked in after two weeks, I improved a little bit and I was able to research and submit application on 23 or 24 November.”[10]
…
“So I received the termination letter on 1 November and, the next day, I emailed them, I emailed the university asking for a review, and the next day, on the 3rd, they have replied a review is not possible, and when I hear that, I was very disappointed and very sad about that because there’s no avenue for me to voice my side of the story. The manager, Emma Bowen, refused to or was not - like didn’t provide opportunity for me to hear my side of the story, and that I was very upset, so, yes, I think, to that extent, I was, yes, just been going downhill health-wise until my mum came on 5 November, and since then, I was, yes, very depressed because there’s no avenue for me to raise my voice.”[11]
In support of her submissions, the Applicant relies upon:
a) Letter from Dr Nathan Fleisch (Consultant Psychiatrist, United Consulting Rooms, Newtown, NSW) dated 23 December 2022 (Letter One), which reads:
“This is to certify that Ms Chang has been my client since January 2016. I am aware she is lodging an unfair dismissal application with Fair Work Commission.
Ms Chang submitted the application 2 days late. It was submitted 24th November. Ms Chang consulted me on the 24th November 2022. She exhibited severely low mood with significant psychomotor retardation, low energy and motivation levels and difficulty attending to her daily tasks.
I seek your consideration in this circumstance with regards to her application being 2 days late – which was as a result of her mental state.
Thank you.”
b) An update to Letter One, again from Dr Fleisch, dated 18 January 2023 (Letter Two), which reads:
“To Whom It May Concern,
This is to add to my previous letter.
Ms Chang was unwell from the 10/11/22 till the 24/11/22. This is reflected in my consultation notes. For example, it was noted that Mr Chang spent most days in bed, was not able to concentrate, she was teary, her sleep was interrupted
At that stage her medication was increased, however this culminated in interrupted sleep which further exacerbated his mental health tissues (sic).
This was a major factor in Ms Chang not being able to submit her unfair dismissal application on the 22/11/22. She did manage to submit it on the 24th November.
Thank you for understanding.
I may be contacted at any time should further clarification be required.”
c) A Centrelink Medical Certificate dated 24 November 2022 (Centrelink Certificate), signed off by Dr Fleisch, which:
i.covers the period 24 November 2022 to 24 February 2023,
ii.states that the Applicant cannot do any other work for more than 8 hours per week during the period 24 November 2022 to 24 February 2023;
iii.states that the Applicant’s diagnosis is “Major Depression, Attention Deficit Disorder, Anxiety Disorder, Trauma, and Bipolar Affective Disorder”, and
iv.provides that the Applicant’s symptoms are “low mood, lack of energy and motivation, helplessness, hopelessness, insomnia, and poor concentration”.
d) A witness statement from her Mother, Ms Lan Yang, dated 19 January 2022, which reads:
“1. I am currently residing with my daughter at the above address.
2. I flew to Sydney from China on 5 Nov 2022 to provide primary care to my daughter because she is experiencing severe mental illness.
3. I run various errands and provide meals to my daughter every day since I arrived in Sydney.
4. I see my daughter unable to get out of the bed, cook, eat, and complete basic life activities since I arrived in Sydney. I see her crying or being idle in bed most of the time from 5 Nov to 24 Nov 2022.
5. I tried my very best to encourage my daughter to get up and out to see Dr Nathan Fleisch on 10 Nov 2022. I managed to take her to the doctor’s clinic in Newtown.
6. I hope that Deputy President Boyce of Fair Work Commission to consider my daughter’s unfair dismissal application.”
My review of the documents relied upon by the Applicant from Dr Fleisch identifies that:
a) Letter One and Letter Two cover retrospective periods of time to their respective dates of issue.
b) The Centrelink Certificate states that the onset of the Applicant’s condition occurred on 1 November 2022. But this is in circumstances where the Applicant did not see Dr Fleisch, or otherwise consult with him, on 1 November 2022. In other words, Dr Fliesch’s assessment of the onset of the Applicant’s condition being 1 November 2022 could only be based upon what the Applicant told Dr Fleisch, and not his actual assessment of her on 1 November 2022.
c) Letter One is dated 23 December 2022, and refers to a consultation with the Applicant on 24 November 2022. It states that on 24 November 2022, the Applicant exhibited various symptoms, but does not otherwise certify the Applicant as being incapacitated (or unwell) during the period 1 November 2022 to 24 November 2022.
d) Letter Two is dated 18 January 2023. It states that the Applicant was “unwell” from 10 November 2022 to 24 November 2022, but does not otherwise certify the Applicant as being incapacitated during that period. The references to the Applicant spending most days in bed, being unable to concentrate, teary and having interrupted sleep are matters that the Applicant appears to have told Dr Fleisch as to her status (i.e. self-assessment information provided by the Applicant to Dr Fleisch).
e) Letter Two refers to the Applicant’s medication being increased, but does not state that the Applicant was incapacitated for any period of time as a result of this increase. Rather, it states that the Applicant’s sleep was interrupted and that further exacerbated her mental health issues (absent any reference to incapacity).
f) Dr Fleisch, in Letter Two, proffers an opinion as to the Applicant not being able to submit her Application on time (by 22 November 2022), and then notes that she “did manage to submit it on 24th November [2022]”. However, Dr Fleisch fails to explain the basis upon which the Applicant was suddenly able to lodge her Application on 24 November 2022, in circumstances where she was still “unwell” on both 23 and 24 November 2022 (i.e. according to Letter Two as authored by Dr Fleisch).
g) The Centrelink Certificate covers the period 24 November 2022 to 24 February 2023. It refers to the same medical condition and symptoms that the Applicant relies upon as supporting her reasons for delay in filing her Application. It does not state that the Applicant is incapacitated, but that she is unfit for work for more than 8 hours. I note that the Applicant has been engaging with the Commission in respect of these proceedings during the period 24 November 2022 to date (i.e. filing an unfair dismissal application, preparing and filing written submissions and evidence, and attending the Hearing).
Ms Yang’s statement sets out her observations of the Applicant during the period 5 November 2022 to 24 November 2022. However, these observations are not a basis upon which I am able to make a finding as to the Applicant being incapacitated. This is especially so in circumstances where:
a) Ms Yang’s statement does not identify any change in the Applicant’s condition on 23 and 24 November 2022, being the dates on which the Applicant completed her Application and filed it with the Commission; and
b) the Applicant relies upon the evidence of Dr Fleisch who states that the Applicant was unwell from 10 November 2022 (not 5 November as Ms Yang states) to 24 November 2022.
The Applicant has been at pains to point out that her medications were increased post her consultation with Dr Fleisch on 10 November 2022, and that it “usually takes about two to four weeks for the medications to kick in”. In other words, her explanation for the dramatic change in her capacity on 23 November 2022 was the result of her increased medication suddenly taking effect, enabling her to complete her Application and file it with the Commission on 24 November 2022. The difficulty with this assertion, however, is that Dr Fleisch makes no mention in Letter One or Letter Two of any change to the Applicant’s health status pre or post 24 November 2022, as a result of medications taking effect or kicking in, or otherwise.
Relevantly, how long it takes for prescription medication to take effect or kick in is not something that is notoriously well known. Rather, it will come down to the specific medication in question, and the circumstances and/or condition of the individual to whom it is prescribed. It is not an issue or fact that I am able to simply accept, or take notice of, absent cogent medical evidence in respect of the individual concerned.
The other difficulty with the Applicant’s assertions (or submissions) as to her purported incapacity is that she (herself) says that from 1 November 2022 she “was not even able to attend daily routine such as grocery shopping, cooking and eating. I was teary and crying, unable to get out of the bed and house everyday.”[12] Despite this, the Applicant emailed the Respondent requesting that her dismissal be reviewed on 2 November 2022. And the medical evidence she relies upon (Letter Two) states that she was “unwell”, not from the 1 November 2022, but from 10 November 2022, to 24 November 2022.
The Respondent (relevantly) made the following submissions in respect of the Applicant’s reasons for delay:
“15. In response to the Commission’s Directions dated 20 December 2023, Miss Chang did not provide any outline of submissions or witness statements, but she did provide the following two documents:
a. A letter from Dr Nathan Fleisch, Consultant Psychiatrist, United Consulting Rooms, dated 23 December 2022 which indicates, among other things, that Miss Chang has been his client since January 2016 and that the late lodgement of the unfair dismissal application was a result of her “mental state” (the December Letter); and
b. A medical certificate from Dr Fleisch, dated 24 November 2022, which indicates, among other things, that Miss Chang “is/has been unfit for work/study from 24 November 2022 until 24 February 2023” (the Centrelink Medical Certificate).
16. In addition, at part 1.6 of the Application to the Commission, Miss Chang provides the following explanation for the reason for the delay in lodging the application:
a. “I emailed HR on 2 Nov requesting an internal review of the decision from whom I was informed on 3 Nov “as you were in an extended probation period, you do not have access to an internal review of the decision”;
b. “On 9 Nov, Benestar, the provider of Employee Assistance Program, advised me to lodge an application to FWC”; and
c. “The constant workplace bully from my manager with the termination notification partially triggered and exacerbated an episode of major depression - see attached medical certificate.”
17. The Centrelink Medical Certificate indicated that Miss Chang is unfit for work from 24 November 2022 (being the date Miss Chang filed the Application with the Commission) until 24 February 2023. The Centrelink Medical Certificate does not, however, indicate she was unfit for work prior to 24 November 2022, or otherwise indicate she had a medical illness or incapacity that prevented her from filing her unfair dismissal application in the relevant time period.
18. While the December Letter indicates that Miss Chang’s late lodgement of her unfair dismissal application was a result of her “mental state”, it does not indicate she had a medical illness or incapacity that prevented her from filing her unfair dismissal application in the relevant time period.
19. The University submits that there is no medical evidence that establishes Miss Chang had a medical or other incapacity that prevented her from filing an application within the 21 day time period, or for the relevant period of the delay. In addition, the University submits that the information provided falls well short of establishing anything out of the ordinary course, or unusual, or special, or uncommon nor do they put forward a credible or reasonable explanation for the delay.
20. The reasons for the delay weigh against a finding as to the existence of exceptional circumstances.”[13]
I note that Letter Two, the Statement of Ms Yang, and the Applicant’s Written Submissions were all supplied post the foregoing submissions being filed by the Respondent. In other words, despite the Applicant carrying the onus to satisfy the Commission as to the existence of exceptional circumstances,[14] her case is essentially one in-reply (as opposed to one in-chief).
At the Hearing, Mr Fry, made the following oral submissions on behalf of the Respondent (dealing with the reply material relied upon by the Applicant):
“I might just focus in on the key pieces of medical evidence that the applicant relies upon and just look at those documents and make comments about them.
The first document I’m looking at now is the Centrelink medical certificate which is dated 24 November 2022. In that certificate, Dr Nathan Fleisch indicates that:
In my opinion, the patient is, or has been, unfit for work/study from 24 November 2022 to 24 February 2023.
It does not indicate that Ms Chang had a medical illness or incapacity that prevented her from filing her unfair dismissal application in the relevant time period.
Turning to the next letter, which is dated 23 December 2022, this letter relevantly states:
Ms Chang consulted me on 24 November 2022. She exhibited severely low mood with significant psychomotor retardation, low energy and motivation levels and difficulty attending to her daily tasks. I seek your consideration in this circumstance with regards to her application being two days late, which was a result of her mental state.
So that’s all it says. It does not indicate she had a medical illness that prevented her from lodging her application within the 21 days or the period of the delay.
Then, going to the updated letter, which was originally signed on 23 December but was updated on 18 January 2023, this letter states, among other things:
Ms Chang was unwell from 10 November 2022 till 24 November 2022.
Further in the letter, it says:
This was a major factor in Ms Chang not being able to submit her unfair dismissal application on 22 November 2022.
This letter is silent as to the period from 1 November to 9 November 2022 inclusive, and while it indicates that Ms Chang was unwell from 10 to 24 November and that this was a factor in her not being able to submit her application, by reference to the relevant principles, it does not establish that Ms Chang had a medical incapacity that prevented or stopped her from lodging her application within the 21 days.
I submit that the medical reasons advanced by Ms Chang are also inconsistent with her submissions that were filed on 19 January, and in particular I refer to paragraph 12 of the applicant’s submissions, which states:
On 23 November 2022, I was finally able to turn on my laptop to research unfair dismissal on the Fair Work website. I only discovered the 21-day deadline on the day, so I immediately managed to submit the application around midnight at 12.35 am on 24 October(sic) 2022.
Ms Chang first became aware of the 21-day time frame on 23 November. She then immediately worked on her application and submitted it at 12.35 am on 24 October(sic), which is despite being unwell according to the updated letter from Dr Fleisch dated 18 January 2023, which states that she was unwell from 10 November to 24 November 2022.
Those factors, combined with the statement that was made by Ms Chang during the course of the hearing this morning that on 1, 2, and 3 November, she was gathering emails in relation to this matter and the termination of her employment, so that fact, combined with the fact that she emailed the university on 2 November and attended to other matters during the relevant period, which have been admitted to in the evidence, in our submission, are not credible or reasonable explanations and, as such, the reasons for the delay as advanced by Ms Chang weigh against a finding as to the existence of exceptional circumstances.”[15]
In Bianco Mamo, Deputy President Easton outlined issues associated with illness and/or associated incapacity going to asserted reasons for delay in the filing of an application, as follows:
“[19] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[20] In Roberts v Westech IT Solutions Pty Ltd Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the applicant’s depression. The applicant provided advice from his doctor that included details of the applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the applicant’s mental health.
[21] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[22] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21-day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21-day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[23] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[24] 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.
[25] 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).”[16]
(footnotes omitted)
I concur with and adopt the foregoing principles,[17] and note that each case will come down to its own specific facts and circumstances.
Exceptional circumstances may be found to exist where an applicant has a medical or other incapacity established by probative medical evidence that prevents an applicant from filing an application within the 21-day time period and for the relevant period of the delay. [18]
Having regard to the matters, and my findings, set out at paragraphs [10] to [25] of this decision, I do not accept that the Applicant has provided “probative evidence” of an “incapacity” that “prevented” her from filing her Application within 21-days of her dismissal. Nor do I accept that the Applicant has provided probative evidence explaining:
a) the two-day delay in filing her Application; and/or
b) the basis upon which she was able to prepare her Application on 23 November 2022, and file it on 24 November 2022, in circumstances where, on the Applicant’s own medical evidence, she was still purportedly incapacitated on 23 and 24 November 2022, and there is no evidence of any change to that incapacity pre or post 24 November 2022 (i.e. beyond the Applicant’s own assertions that her medication suddenly took effect or kicked in).
In short, the medical evidence relied upon by the Applicant does not establish (in a probative sense) any incapacity on her part during the 21-day time period post her dismissal, or the two days post that 21-day time period.
All in all, on the evidence before me, I find that that the Applicant’s reasons, for the 2-day delay in filing her Application, are unsatisfactory. The reasons for delay relied upon by the Applicant do not, or do not sufficiently, explain her delay. I thus conclude that the Applicant’s reason for delay is such that it weighs against any finding as to the existence of exceptional circumstances in this case.
Whether the Applicant become aware of the dismissal after it had taken effect[19]
The Applicant was aware of her dismissal on the day that it took effect pursuant to a written termination letter dated 1 November 2022. She was also warned in writing on 16 September 2022 that if her performance did not improve, it would likely lead to her dismissal.[20] In other words, the Applicant’s dismissal on 1 November 2022 was a potential outcome that the Applicant was made aware of on 16 September 2022. I consider this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Action taken by the Applicant to dispute the dismissal[21]
The Applicant sought an internal review of her dismissal on 2 November 2022. This request for review was rejected by the Respondent on 3 November 2022 as the Applicant was dismissed during her (extended) probation period.[22] In other words, the Applicant had no right of internal review in respect of her dismissal with the Respondent. The Applicant made no further contact with the Respondent prior to filing her Application.[23] I consider this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Prejudice[24]
The next criterion to be considered is any prejudice to the Respondent occasioned by the 2 day delay. I am not aware of any such prejudice. Whilst the absence of prejudice is not uncommon, such absence is not a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[25] In this case, I treat this criterion as a neutral consideration.
Merits[26]
The Applicant was employed by the Respondent (as an Education Support Officer) for a period of less than 8 months. She was dismissed from her employment with the Respondent for reasons of unsatisfactory work performance in respect of key aspects of her role. In short, the Respondent says that the Applicant was unable to do the job as required by the Respondent (University), being the job that she was employed to do.
The particulars of the foregoing reasons for dismissal were articulated by the Respondent in the witness statement evidence of Ms Brenda Rostron, Senior HR Partner.[27] Specifically, Ms Rostron states:
“Despite the efforts to assist Miss Chang to improve her performance to the required standards during an extended probation period (which included regular meetings between Miss Chang and Ms Mullins), taking into account responses provided by Miss Chang, at the end of the Probation Monitoring Plan period, Ms Mullins formed the view that Miss Chang’s performance in the role had not met the required standards and had not sufficiently improved since she had been advised of the concerns. Ms Mullins was not satisfied that Miss Chang has the capacity to meet the requirements of the role and a decision was made to terminate Miss Chang’s employment on that basis.”[28]
The Applicant’s dismissal follows her poor or substandard performance during her probation period, giving rise to an extension of her probation period, and the issuing of a performance warning to the Applicant on 16 September 2022.[29] The performance concerns with the Applicant, as identified by the Respondent, included:
a) deficiency in completion of assigned tasks from end to end;
b) insufficient prioritisation of work and incorrect amounts of time being allocated to reflect task priorities;
c) deficiencies in managing time and workloads so as to ensure tasks are completed to meet operational needs; and
d) lack of understanding of effective communication delivery to the appropriate audience and key stakeholders.[30]
The performance warning issued to the Applicant (on 16 September 2022) was in the following terms:
“In this role it is expected that you are capable of performing to the above standards and therefore your work performance will continue to be assessed by Alexandra Mullins. Should your performance not improve to the requisite standard by 21 October 2022 or if you are unable to consistently perform to the required standard, your employment may be terminated at any stage during or at the end of your extended probation period, that is, 20 December 2022.
This letter has been given to you as a performance warning in accordance with clause 78 of the University of Sydney Enterprise Agreement 2018-2021.”[31]
The Applicant was also placed upon a structured and documented “Probation Monitoring Plan” on 16 September 2022 and given areas of focus for required improvement over a period of five weeks.[32]
The Respondent made the following submissions in respect of the merits of the Application (citations omitted):
“29. Miss Chang was employed pursuant to a continuing full-time contract of employment.
30. The University of Sydney Enterprise Agreement 2018-2021 (the Enterprise Agreement) applied to Miss Chang’s employment. Clause 78 of the Enterprise Agreement relevantly provides:
“At any time during the probation period, where a staff member’s performance or conduct is not meeting the required standard they will be informed of the deficiencies in their performance or conduct and the standards required of them. Where a staff member is at risk of having their employment terminated in accordance with clause 81, they will be given written notification to this effect. This clause does not preclude the University from terminating the employment of a staff member in accordance with clause 81(b) without such prior written notification where they have engaged in Serious Misconduct.”
31. Miss Chang’s employment was subject to a six (6) month probationary period which was extended because of concerns with regard to her performance in the role, and to provide an additional period of time within which to improve her performance to the required standards.
32. The performance expectations for Miss Chang were made clear to her throughout her employment, in particular through regular meetings between Miss Chang and her Supervisor, Alexandra Mullins, a Performance and Development Plan dated 21 April 2022 and by the documents referred to in paragraphs 34 and 35.
33. The initial probation period was extended by a period of 3 months, until 20 December 2022 by letter dated 16 September 2022. The letter clearly identified the performance concerns and areas of improvement required. This letter was also a performance warning in accordance with clause 78 of the Enterprise Agreement.17
34. To assist Miss Chang in improving her performance, a Probation Monitoring Plan was also issued which was for the period from 16 September 2022 to 21 October 2022.
35. After the performance warning letter was issued, weekly meetings took place and further support was offered to Miss Chang.
36. Ms Mullins came to the view that the Applicant did not have the capacity to meet the requirements of the role and the decision was made to terminate Miss Chang’s employment on that basis. This decision was made after taking into account relevant circumstances, including Miss Chang’s performance in the position and responses she had provided as part of the performance management process.
37. A letter was issued to Miss Chang on 1 November 2022 which confirmed the termination of her employment with effect from that date.
38. Whilst the University considers Miss Chang’s Application to be unmeritorious, the University accepts that it is not the role of the Commission to give detailed consideration of an Applicant’s substantive case for the purpose of determining whether or not to grant an extension of time to an applicant to lodge their application, and that in such circumstances, the merits of the Application are a neutral consideration.”[33]
The Applicant does not accept (or disputes) that she displayed any genuine performance or conduct concerns during her employment with the Respondent, and says that a majority of the criticisms or concerns raised against her are “untrue and unfair to me”.[34] In the Applicant’s Performance Improvement Plan, Ms Mullins notes that towards the end of the Applicant’s employment there was much “back and forth debate” between herself and the Applicant over what was appropriate, with Ms Mullins’ preferences as to how work should be conducted in some cases altogether disregarded by the Applicant.[35]
The principles stated in Kyvelos v Champion Socks Pty Ltd[36] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[37]
In Kornicki v Telstra-Network Technology Group,[38] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to an extension of time under the former s 170CE(8) of the (now repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an 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.”[39]
The merits of the Applicant’s case, by reference to the Respondent’s allegations of unsatisfactory performance, and the Applicant’s counter assertions and denials, were not tested before me (i.e. it is not the role of the Commission to “embark [upon] a detailed consideration of an Applicant’s substantive case” for the purpose of determining whether or not to grant an extension of time to an applicant to lodge their application).[40]
All in all, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[41]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[42] Neither party made any relevant submissions as to this criterion. Accordingly, I consider this criterion to be a neutral consideration.
Conclusion
Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
(a) one of the criteria, considered individually, points towards there being no exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no basis for me to be satisfied that exceptional circumstances exist (i.e. one criteria weigh against any finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[43]
On the basis of my reasons (and findings) set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances in this case. As a matter of law, I am therefore not in a position to exercise any discretion to grant the Applicant an extension of time to file her Application.[44] I dismiss the Application filed by the Applicant in these proceedings. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant appeared for herself.
Mr Ashley Fry, Director, Employment, Workplace Relations & Administrative Law, appeared for the Respondent.
[1] [2011] FWAFB 975.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[3] [2016] FWCFB 5500.
[4] Section 394(3)(a) of the Act.
[5] [2021] FWC 3903.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[7] Ibid, at [40].
[8] Submissions of Applicant, at [3]-[13]. See also Amended Form F2, 1 December 2022, Item 1.6.
[9] Ibid, at [27]. Amended Form F2, 1 December 2022, Item 1.6.
[10] Transcript, PN33 to PN35.
[11] Ibid, PN57.
[12] Submissions of Applicant, at [9].
[13] Respondent’s Submissions, 12 January 2022, at [15]-[20].
[14] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[15] Transcript, PN175 to PN190.
[16] [2021] FWC 3903, at ]19]-[25].
[17] See also, Donna Muir McMeeken v Action Industrial Catering Pty Ltd[2012] FWA 4035; Construction, Forestry, Mining and Energy Union v Crossy’s Crane Hire Pty Ltd (t/as Crossy’s Crane Hire)[2013] FWC 8866; Byrnes v Department of Broadband, Communications and Digital Economy[2012] FWA 7744.
[18] Traie Hansen v Supported Options In Lifestyle And Access Services Ltd T/A Solas [2016] FWC 5907, at [45].
[19] Section 394(3)(b) of the Act.
[20] Probation Extension and Performance Warning dated 16 September 2022 (Witness Statement of Ms Brenda Rostron, 12 January 2023, Annexure BR-5).
[21] Section 394(3)(c) of the Act.
[22] Witness Statement of Ms Brenda Rostron, 12 January 2023, Annexure BR-8.
[23] The EAP provider, Benestar, is not the Respondent: Applicant’s Submissions, filed 19 January 2023, at [18].
[24] Section 394(3)(d) of the Act.
[25] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[26] Section 394(3)(e) of the Act.
[27] Witness Statement of Ms Brenda Rostron, 12 January 2023.
[28] Ibid, at [12].
[29] Probation Extension and Performance Warning dated 16 September 2022 (Witness Statement of Ms Brenda Rostron, 12 January 2023, Annexure BR-5).
[30] Ibid.
[31] Ibid.
[32] Witness Statement of Ms Brenda Rostron, 12 January 2023, Annexure BR-6.
[33] Respondent’s Submissions, 12 January 2022, at [29]-[30].
[34] Submissions of Applicant, at [21]-[25]. See also electronic version of Attachment 22 to the Applicant’s Submissions where she makes highlighted comments to the commentary in the Probation Monitoring Plan that can be viewed when open in the Adobe program on a computer.
[35] See Applicant’s Performance Improvement Plan, 16 September 2022, under column item concerning “Deficiency with written and verbal communication, including unclear or unnecessary content in emails and in meetings”.
[36] (1995) 67 IR 298.
[37] Ibid, at 299 to 300.
[38] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[39] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[40] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[41] Section 394(3)(f) of the Act.
[42] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[43] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[44] Noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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