[2017] FWC 1383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Brown
v
Dr Eric Colin Scott
(U2016/13530)

COMMISSIONER CRIBB

MELBOURNE, 31 MARCH 2017

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] Ms Rebecca Brown (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The application is in relation to the alleged termination of her employment by Dr Eric Colin Scott (the Respondent, Dr Scott).

[2] On 18 November 2016, the Respondent advised of two jurisdictional objections - that the application was out of time and that the Applicant was not dismissed.

[3] A hearing of the Respondent’s out of time objection was held on Friday 13 January 2017. Ms Brown was represented by Mr J Douglas, solicitor and Dr Scott by Mr A Dearden, solicitor. Both Ms Brown and Dr Scott gave evidence at the hearing.

[4] This decision deals with the Respondent’s out of time objection only.

Legislative framework

[4] Section 394 of the Act sets out the requirements for making an application and also the basis on which an extension of time may be granted. Section 394(3) is as follows:

“(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

(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.”

The evidence

Ms Brown

[5] It was Ms Brown’s evidence that:

She drafted a response on 31 October 2016 to Dr Scott’s email of 27 October 2016 with the help of her father. 1 This was because she did not know how to respond to it.2

It was confirmed that her father was known to Dr Scott. 3

She did not recall an account being paid to the AMA. 4

It was confirmed that Dr Scott has alleged that he is legally blind. 5

She recalled Dr Scott saying that he had gone hiking, had jogged home from work and had gone to the gym each day. It was said that all of that was unaided. 6

It was confirmed that she was absent from work on 14 October 2016 and that she returned to work on 17 October 2016. 7

On 17 October 2016, her first interaction with Dr Scott was at around 10:00 a.m. Ms Brown agreed that, at that time, Dr Scott raised his concerns about the $100,000. She rejected any wrongdoing. Dr Scott then had a meeting. She went back to her desk and started dealing with the materials to show Dr Scott that his apprehensions were wrong. 8

Dr Scott saw a patient at 11:00 a.m. and then another at 11:30 a.m. Around midday, she presented Dr Scott with a folder and said that this proved everything and then gave Dr Scott the keys. 9

She then explained to Nicole and Rina what she had done and why Dr Scott’s concerns were wrong. 10

She was concerned for her health and safety and was upset and so left the premises. She sat in the car park for fifteen minutes speaking to her husband before she drove home (about 50 km/1 hour). 11

When she has spoken to her husband he was angry. Like her, he did not know what to do. 12 She had discussed what had occurred with him.13

On 20 October 2016, Rina emailed her regarding some queries about the work. She recalled the email and confirmed that she had responded. 14

She confirmed that her emailed response back to Rina was from her iPhone and that her responses to each of the queries was based on her recollection. Ms Brown thought that the response may have taken her fifteen minutes. 15

She agreed that there was a further email later that day and confirmed that there were no other exchanges with anyone else employed by Dr Scott at that time. 16

She did not speak to her father about what had happened on 17 October 2016 until sometime after but before 31 October 2016. 17 She had only told her father and her husband.18

Her father assisted with her response to Dr Scott’s email on the day she sent it (31 October 2016). This was because she was too upset and did not know what to do. 19

Her father was the General Manager of The Victoria Clinic (where Dr Scott has his rooms) and Ms Brown agreed that her father, who knew Dr Scott, could have contacted Dr Scott about what had happened. Ms Brown explained that her father had wanted to talk to Dr Scott but she had asked him not to. This was probably a week after the incident when she had told her father what had happened. She had spoken to her father about a week after the incident and then again when she received Dr Scott’s email on 31 October 2016. 20

Between 17 October 2016 and 27 October 2016 (when she decided to, and went, to the doctor), she struggled to get out of bed and did not do anything. 21 Ms Brown confirmed that the doctor gave her a medical certificate which she attached to her email in reply to Dr Scott on 31 October 2016.22

It was stated that she did not receive a response to the email and so had followed up with Dr Scott on 7 November 2016 regarding payment of her personal leave. 23

She had followed up with Dr Scott on the advice of her father with whom she had continued to consult after 31 October 2016. She did not discuss options with her father. She had simply told him what had happened, what the email said and he gave her his advice. 24

On advice from her father, she had sent the 7 November 2016 email. 25 Ms Brown had discussed with her father bringing a constructive dismissal claim against Dr Scott. This was probably in the first conversation (24 October 2016) with her father. When she told him what had happened, her father had believed it was unfair. Her father had repeated that advice on 31 October 2016 when he was helping her prepare a response to Dr Scott. Her father had continued to give her advice about what he thought was in her best interests during that period. Her husband had done the same.26

Her father had introduced her to Mr Douglas, her legal representative, and she thought that they had worked together previously at The Melbourne Clinic. 27 She believed that her father and Mr Douglas had had a conversation the same day that she had spoken to Mr Douglas.28

She was given Mr Douglas’ phone number and so made contact with him just prior to 6:00 p.m. on 8 November 2016. Mr Douglas called her at about 6:00 p.m. on 8 November 2016 and they agreed to meet the following day, in the afternoon on 9 November 2016. During Mr Douglas’ telephone call, she had spoken briefly about her concerns and the type of advice she was seeking. 29

Following the meeting between herself and Mr Douglas, Mr Douglas wrote a letter to Dr Scott. She filed an unfair dismissal claim on 10 November 2016. 30

She had suffered, and continued to suffer, an adverse psychiatric condition as a consequence of the exchange with Dr Scott on 17 October 2016. Ms Brown described her condition as very low motivation, very upset, anxiety and very bad panic attacks. 31

It was stated that her condition had not tapered off and so she had not been able to seek further employment or to effectively socialise or anything else. Ms Brown said that she had become insular. 32

She said that it had got worse prior to Christmas. 33 Ms Brown confirmed a photograph of herself and her husband at her sister-in-law’s 30^th birthday party in early/mid November. Ms Brown maintained that her medical condition had got worse during this period. Ms Brown also identified a photograph of herself, a week or two prior to Christmas, on the roof putting up Christmas lights with her children.34

Ms Brown maintained that she was telling the truth and that the photos did not mean that she was not suffering. Ms Brown explained that her sister-in-law’s party had been organised prior and she was not going to pull out and she had not stayed all night so the photo did not explain anything. In terms of the Christmas decorations, Ms Brown said that she was trying to pull herself together for her kids at Christmas. With respect to the emails, Ms Brown stated that she had replied because she was confused as she thought she didn’t have a job and then she received a letter asking to explain why she hadn’t been at work. 35

She confirmed that she was charged by Victoria Police, on 15 December 2016, with seven criminal offences in relation to Dr Scott. 36

Dr Scott

[6] Dr Scott gave evidence that:

He confirmed that one of the medications in Ms Brown’s health plan was Valium – an anxiety relieving medication. 37

He described his condition as having developed, from when he was a teenager, as progressive central blind spots which meant that he did not have any central vision only peripheral vision. 38

In terms of sporting activities, he had represented Australia in cross country skiing and biathlon as a disabled athlete. He also goes hiking and does some trail bike riding (not on a motorbike). 39

On 14 October 2016, two Healthscope employees attended his rooms to provide administrative assistance. This was as a result of him not responding to emails from the professorial unit or to a number of referrals from the referrals services. Dr Scott said that he thought that it would be a good idea to have a look at the computer and see what the difficulties were. 40

He agreed that it could have waited until Ms Brown returned the following day. 41

He disagreed that Ms Brown would bring in, in manual form, the data in relation to the financials. It was recalled that he had done that for a little while but he had not continued with that. 42

He was informed on 14 October 2016 that there was about $100,000 in outstanding debtors (over 90 days). This was as a result of a colleague’s husband backing up his computer including the accounts. 43

He had found it hard to believe and was upset. 44

On 17 October 2016, he was not aggressive towards Ms Brown when he spoke to her about the $100,000 in outstanding debt. 45 Dr Scott recalled that he felt anxious about discussing it with Ms Brown as it was very difficult to bring up.46

He did not yell at Ms Brown when he spoke to her. 47 Dr Scott said that he was in a consulting room and had patients to see.48

A further two Healthscope employees attended his office to help sort out the discrepancies on 17 October 2016. Dr Scott recalled that he was at a meeting between 10:30 a.m. and 11:00 a.m. He had then spoken to Nicole (an accounts manager at the hospital) who looked at the computer and told him that there was over $100,000 of unsubmitted accounts. Dr Scott recounted that he had returned to his rooms and told Ms Brown that Nicole and Rina would be coming over to help sort things out. He had then seen a patient. 49

Ms Brown was said to have been defensive in her response. This was because Ms Brown had replied that she felt like leaving straightaway, that she didn’t want to be spoken to like that and that he was making accusations and was generally hostile and Ms Brown said that she did not really want to discuss any of it in any sort of constructive manner. 50

He thought that Ms Brown was defensive, not because of his abusive conduct towards her, but rather that it was more to do with Ms Brown being in the process of being found out about her thefts for which she has been charged. 51 At the time, he did not know why Ms Brown was so defensive as he was not aware of the alleged theft.52

Due to Ms Brown’s ongoing absence, he did not know what to do so he had contacted the AMA for advice. He joined the AMA soon after the event. 53

Ms Brown had left, handing him the keys, which indicated that she was leaving. Ms Brown had not provided a letter of resignation and he was receiving requests for sick leave. Dr Scott said that this was why he needed advice. 54

He agreed that he had joined the AMA because he had realised the seriousness of the incident on 17 October 2016 and he needed advice. 55

His email to Ms Brown on 27 October 2016 was the AMA’s suggested wording based on what had happened and his instructions to them. 56

At the time, he was not aware of whether Ms Brown had any accrued entitlements. This was because Ms Brown kept those records. 57

He disagreed that the reason Ms Brown was suffering a medical condition was because of his conduct towards her on 17 October 2016. 58

He denied putting any money into Ms Brown’s account. He did not know how that had occurred except from the police evidence. 59

Submissions

Applicant

[7] It was submitted that the considerations required came down to the reason for the delay and whether the Applicant has a strong arguable case. It was stated that, based on the evidence that there was an exchange between Dr Scott and Ms Brown on 17 October 2016. Ms Brown's version of events was said to be that the exchange was of a highly abusive nature. It was explained that, as a consequence, Ms Brown left the workplace, sat in her car for fifteen minutes and then drove home. The evidence of Ms Brown was stated to be that she was confined to the house and in bed and had difficulty getting out of bed prior to seeing her medical practitioner on 28 October 2016. 60

[8] With respect to a satisfactory explanation for the whole period, Mr Douglas submitted that there was no possible explanation other than Ms Brown was suffering from a severe medical condition. A mental health plan had been developed as a consequence and Ms Brown was said to continue to suffer from that medical condition. 61

[9] In terms of the second issue (whether Ms Brown has an arguable case), it was submitted that Ms Brown did. This was on the basis that, as evidenced by the medical evidence, Ms Brown was abused by Dr Scott to the extent that she had to leave the office and sit in her car before she drove home. As a result, it was stated that Ms Brown had been in the hands of the medical practitioner since then. It was said to be a fact that Ms Brown has been charged by police in relation to matters unrelated to the issue of outstanding debtors. As Ms Brown was charged on 15 December 2016, Mr Douglas indicated that it was quite understandable that Ms Brown's medical condition had been exacerbated. 62

[10] The Applicant contended that it was reasonable for the Commission to infer that, up until Ms Brown went to see her medical practitioner, Ms Brown was suffering from a medical condition such that she could not make an unfair dismissal claim. 63 It was argued that the evidence was that, on 28 October 2016, Ms Brown was suffering from a medical condition. Ten days later, Ms Brown was able to consult with a legal practitioner which resulted in a letter being forwarded to Dr Scott the next day. Because there was no response, an unfair dismissal claim was filed the next day. The explanation for the delay for the whole period was contended to be the Applicant's medical condition i.e. that Ms Brown was suffering from a psychological injury from the date of her termination.64

[11] In relation to the issue of constructive dismissal, it was argued that Dr Scott's email of 27 October 2016 was self-serving as it could be read that maybe the employment was continuing and so should be given no weight. 65 What was argued to be critical was what had occurred on 17 October 2016 and it was contended that it was a constructive dismissal. Therefore, the email of 27 October 2016 and Ms Brown's response email did not alter that situation and so should be given no weight. The Applicant argued that she thought that she had been terminated on 17 October 2016 and so was confused when she received an email which asked where was she.66

[12] Finally, it was submitted that Ms Brown was suffering from a psychological injury from the date of her dismissal. The injury was so severe that Ms Brown was unable to consult with her medical practitioner until 28 October 2016 and could not provide instructions to her solicitor until 9 November 2016. In addition, it was argued that the email from Dr Scott on 27 October 2016 added to Ms Brown's confusion about her employment circumstances. This whole situation was said to constitute an exceptional circumstances. 67

Respondent

[13] On behalf of the Respondent, Mr Dearden set out the chronology of events as follows:

On 14 October 2016, Ms Brown advised Dr Scott that she was unable to attend work due to a family crisis. 68

In Ms Brown's absence, two Healthscope employees attended Dr Scott's rooms to provide assistance and identified a number of emails and referrals from The Melbourne Clinic which did not appear to have been brought to Dr Scott's attention. Dr Scott subsequently became aware that there were numerous outstanding accounts. 69

There was an exchange between Dr Scott and Ms Brown on 17 October 2016 about these matters. 70

On 20 October 2016, Ms Brown wrote an email responding to questions from Rina. 71

[14] It was argued that it was apparent from the response that Ms Brown had the cognitive function to respond to questions about Dr Scott's practice. Ms Brown's response was described as detailed, exhibiting a significant degree of recollection and specificity which imparted a large amount of information. 72

[15] The Respondent submitted that Ms Brown's response email to Rina did not support Ms Brown's contention that she was in such a state that she could not get out of bed. It was argued that, if that had been the situation, Ms Brown would have responded curtly and not in the detailed and comprehensive way in which she did. 73

[16] With respect to the exchange on 17 October 2016, it was stated that it took place at approximately 10am that morning. Ms Brown had then stayed at work for over two hours and had been angry enough to put together a folder to prove that Dr Scott was wrong. The Respondent contended that this evidence by Ms Brown did not support the contention that Ms Brown was in such a state that she could not do anything. 74

[17] It was also contended that Ms Brown's evidence that she did not start driving until fifteen minutes after she left work, during which she rang her husband and then drove for 50 km/1 hour home, did not fit with the submission that Ms Brown was in such a state that she could not do anything. 75

[18] In addition, the Respondent argued that Ms Brown's evidence that she had her first conversation with her father on 24 October 2016 and then about 31 October 2016 and subsequently was not consistent with her alleged mental state. It was also stated that Ms Brown had said that she had talked her father out of contacting Dr Scott himself and had been able to engage with her father about what had happened. 76

[19] However, the Respondent indicated that it was only on 28 October 2016 that Ms Brown had provided a medical certificate. It was stated that the medical certificate provided simply that Ms Brown was suffering from a medical condition. This was said to not constitute a diagnosis in relation to any psychological injury by the medical practitioner. 77 It was argued that Ms Brown was attempting to rely on the mental health plan prepared by the Registrar GP on 11 November 2016. Reference was made to the second page of the mental health plan which stated that Ms Brown had normal cognition and thinking. The mental health plan was said to not be a medical report but a mental health plan.78

[20] The medical certificate dated 11 January 2017 was referred to by the Respondent and it was said to be a record of a statement made by Ms Brown that she attributed the cause of her condition to what had occurred on 17 October 2016. The Respondent submitted that there was no medical statement that said that Ms Brown was in a state which prevented her from pursuing an unfair dismissal claim. 79 Two authorities were cited by the Respondent in relation to this contention.80

[21] It was argued by the Respondent that, throughout the whole of the period, Ms Brown could have challenged the termination of her employment. It was stated that Dr Scott's evidence was that he was not quite sure what had happened. He had relied on the AMA to prepare what was necessary to be sent to Ms Brown. The Respondent submitted that, if Ms Brown was able to engage with her father in relation to responding to Dr Scott's email, Ms Brown was able to seek advice regarding challenging the alleged termination. Rather, Ms Brown was said to have provided a medical certificate to Dr Scott and then, on 7 November 2016, had followed up with a request for payment. 81

[22] The Respondent stated that, if one considered one's employment to have ended, one did not seek payment of personal leave after the alleged date of termination. Dr Scott was stated to have believed that Ms Brown was genuine and had responded appropriately in relation to how the medical certificate was to be treated. The Respondent argued that Ms Brown's actions were consistent with her employment being on foot. It was acknowledged that Ms Brown had left the office on 17 October 2016. However, it was contended that there had not been conduct that would have caused the employment to have been brought to an end. The Respondent argued that Ms Brown had accepted that by responding on 31 October 2016 and then by following up the payment of her personal leave. 82

[23] The Respondent submitted that the Applicant is not to be believed. This was on the basis of inconsistency between Ms Brown's evidence about, on the one hand, her mental state which had got a bit worse probably just prior to Christmas and, on the other hand, the Facebook photos and Ms Brown's ability to engage with the two Healthscope employees who were assisting Dr Scott and also engaging with her father and her husband. In relation to her father, it was argued that Ms Brown had talked to her father seven days after the event and then three or four days after that and had been able to instruct her father in relation to Dr Scott. 83

[24] It was contended that Ms Brown was able to assist herself and that Ms Brown had people around who were able to assist her. The Respondent stated that Ms Brown's husband had told her on the first day to challenge the termination and her father similarly at least on 24 October 2016. Further, it was indicated that Ms Brown's father had introduced her to Mr Douglas. It was argued that Ms Brown was not marooned by herself or unable to help herself. 84

[25] Finally, in relation to the Applicant's evidence that Dr Scott's email of 27 October 2016 had added to her confusion and that she continued to be so upset that she could not respond to it, it was stated that Ms Brown had responded to the email on 31 October 2016 and had provided assistance to two Healthscope employees on and from 17 October 2016. The Respondent argued that, rather than raise confusion, the email of 27 October 2016 was intended to clarify the nature of the employment relationship between Ms Brown and Dr Scott. Further, it was contended that there was no evidence that the 27 October 2016 email was a credible reason for the whole of the period of delay. 85

Considerations and conclusions

[26] I will deal with each of the requirements of section 394(3) in turn.

Section 394(3)(a) - reason for the delay

[27] It was submitted on behalf of Ms Brown that Ms Brown suffered a psychological injury as a result of Dr Scott’s alleged abuse on 17 October 2016. The psychological injury was said to have commenced on 17 October 2016 and was so severe that it prevented Ms Brown from consulting her medical practitioner until 27 October 2016 and a lawyer until 9 November 2016.

[28] The Respondent’s contention was that there was no medical evidence to support the Applicant’s claim. Further, it was argued that Ms Brown’s evidence in relation to her actions, following her alleged dismissal, did not support her claim that she was unable to file an application due to the psychological injury that she had suffered as a result of the incident on 17 October 2016.

[29] The medical documentation provided by Ms Brown included:

A medical certificate dated 28 October 2016 which stated that Ms Brown was unable to work from 28 October 2016 to 11 November 2016 due to a medical condition. 86

A GP Mental Health Care Plan (Assessment and Plan) dated 11 November 2016. The Patient Assessment section noted generalised anxiety and panic disorders and anxiety – 28 October 2016. It also noted under Personal History – never had issues with coping with stress previously and under Relevant Physical and Mental Examination – normal cognition, and thinking, no suicide ideation. Anxiety Symptoms was stated to be panic attacks, overthinking and worrying; difficulty sleeping; tremors. “Sudden loss of job with no good reason given/fighting to get her termination payment” were two of the four issues listed under Main Problems. 87

Mental Health Care Plan section identified generalised anxiety/adjustment disorder and panic disorders as the two problems/diagnoses. 88

A referral to Ms Zardo for Ms Brown, dated 11 November 2016, which stated that Ms Brown had four weeks history of anxiety and panic attacks related to the sudden loss of her employment. 89

A medical certificate dated 9 December 2016 which stated that Ms Brown had presented since 28 October 2016 with marked anxiety symptoms and recurrent panic attacks that started secondary to the unexpected loss of employment. 90

A medical certificate dated 11 October 2017 which repeated the symptoms set out in the medical certificate of 9 December 2016 above. This medical certificate also indicated that, according to Ms Brown, the symptoms started from 17 October 2016 triggered by a work incident. 91

[30] There were three medical certificates provided by Ms Brown. The first one (dated 28 October 2016) stated that Ms Brown was suffering from a medical condition from 28 October 2016 to 11 November 2016. The second medical certificate (dated 9 December 2016) stated that Ms Brown had presented since 28 October 2016 with marked anxiety symptoms and recurrent panic attacks that started secondary to the unexpected sudden loss of employment. A Mental Health Plan had been prepared and Ms Brown had been referred to a psychologist. The last medical certificate (dated 11 October 2017) certified that Ms Brown was suffering from the same symptoms as set out in the second medical certificate with the addition of low mood and difficulty sleeping. The certificate also stated that, according to Ms Brown, the symptoms started from 17 October 2016 triggered by a work incident.

[31] A Mental Health Plan, dated 11 November 2016, was also provided by Ms Brown which listed the same symptoms as in the medical certificates that followed it together with the observation that Ms Brown had normal cognition and thinking.

[32] Also before the Commission is the email that Ms Brown sent to Rina, on 20 October 2016, in response to questions from Rina about the workings of Dr Scott’s rooms. This email covered a wide range of matters from bank statements through inpatient billing, prescriptions and the location of an office manual. The email shows a high level of detailed recollection of the operations of the office. The email was written three days after the incident on 17 October 2016.

[33] In addition, it was Ms Brown’s evidence that, after the conversation between Dr Scott and herself on 17 October 2016, she had spent two hours putting together material which refuted the allegations that Dr Scott had made. As well, before Ms Brown left the office, her evidence was that she spoke to the two Healthscope employees and explained the situation to them from her perspective.

[34] I have not been persuaded that Ms Brown has provided a reasonable explanation for the whole of the delay. Neither the medical documentation nor Ms Brown’s evidence supports the contention that the exchange on 17 October 2016 resulted in Ms Brown being incapable of filing an unfair dismissal claim within time. The medical certificates provide a diagnosis of Ms Brown’s medical condition but do not indicate that, as a result, Ms Brown was incapable of making an unfair dismissal claim. The Mental Health Plan of 11 November 2016, in fact, states the opposite – that Ms Brown had normal cognition and thinking. Therefore, the evidence does not support the submission that Ms Brown was so severely injured psychologically that she was incapable of making an application within time.

[35] This weighs against a finding that there are exceptional circumstances.

Section 394(3)(b) – aware of the dismissal after it had taken effect?

[36] It was argued by the Respondent that Ms Brown claimed that her employment ended on 17 October 2016. Therefore, it was said that this must be the day Ms Brown became aware of the purported dismissal. 92

[37] On the other hand, the Applicant submitted that Ms Brown was aware of the end of her employment relationship on 17 October 2016. However, it was stated that Ms Brown was confused by the Respondent when Dr Scott sent the email of 27 October 2016. 93

[38] It is apparent from Ms Brown’s evidence that she considered that her employment with the Respondent ended on 17 October 2016. Therefore, in terms of section 394 (3)(b), it follows that Ms Brown first became aware of the dismissal at the time it took effect. This is a neutral factor in terms of a finding that there are exceptional circumstances.

Section 394(3)(c) – action taken to dispute the dismissal

[39] On the evidence before the Commission, it appears that Ms Brown wrote to Dr Scott on 31 October 2016 in response to an email from Dr Scott on 27 October 2016 in relation to Ms Brown’s absence from work. Ms Brown’s email of 31 October 2016 attached a medical certificate for two weeks. On 7 November 2016, Ms Brown followed up her request for sick leave pay. Dr Scott replied on 7 November 2016 advising that the medical certificate did not cover the period of 18 – 27 October 2016 and asking whether Ms Brown would like to take annual leave or unpaid leave. Ms Brown then instructed her legal representative to write to Dr Scott on 9 November 2016. An unfair dismissal application was filed on 10 November 2016.

[40] Although there was email correspondence from Ms Brown to Dr Scott prior to her solicitor’s letter on 9 November 2011, the content of the emails does not seem to constitute Ms Brown disputing the dismissal. Ms Brown’s contact with Dr Scott was not initiated by Ms Brown but rather by an email from Dr Scott. Ms Brown does not appear to have disputed the dismissal until Mr Douglas’s letter to Dr Scott on 9 November 2016 which was followed the next day by the filing of the application. On balance, this weighs slightly against a finding that there are exceptional circumstances.

Section 394(3)(d) – prejudice to the employer

[41] It was argued by the Respondent that, as a small business employer (with one employee), it had already been put to the time and expense of responding to Ms Brown's unfair dismissal claim and participating in conciliation. The Respondent contended that it would suffer further time and expense in having to defend the claim if an extension of time was granted. 94

[42] The Applicant held a different view and submitted that the Respondent did not suffer any disadvantage or it would not be substantial, if the extension of time (for three days) was granted. 95

[43] On the basis of the material before the Commission, it would seem that the Respondent has been required to prepare for and participate in, an extension of time hearing which would not have been the case if the application had been lodged within time. This weighs slightly against a finding of exceptional circumstances.

Section 394(3)(e) – merits of the application

[44] The Respondent submitted that Ms Brown was not dismissed but that she voluntarily resigned. This was on the basis that there was no action on the part of the Respondent that intended that the employment relationship or have that probable result. 96 It was stated that Ms Brown did not consider there to be a constructive dismissal to the extent that Ms Brown obtained a medical certificate on 28 October 2016 which was submitted on 31 October 2016 and for which she chased payment on 7 November 2016. The Respondent contended that, if one is dismissed, one does not seek the payment of wages following the purported termination date.97

[45] Further, it was stated by the Respondent that Ms Brown was charged by Victoria Police on 15 December 2016 in relation to the alleged unauthorised transfer of funds from the Respondent's accounts to her own and the misuse of the Respondent's credit card. 98 The Respondent contended that there was no doubt that, if the charges had been brought against Ms Brown, her employment would have been terminated summarily. It was stated that, in any event, the employment would have been brought to an end on or about 15 December 2016 in relation to the discoveries that were being made.99

[46] Finally, in relation to the assertion that Dr Scott's email of 27 October 2016 was self-serving, the Respondent rejected this assertion and stated that this proposition had not been put to Dr Scott. It was recalled that Dr Scott's evidence was that he did not know what to do and so had engaged the AMA who had helped with that email. 100

[47] On behalf of Ms Brown, it was submitted that Ms Brown has a substantial constructive dismissal case based on having been exposed to substantial abuse as a result of which, Ms Brown suffered psychological injury. This was said to have made Ms Brown's continued employment impossible. It was stated that Ms Brown's medical condition only arose after the abuse on 17 October 2016. Ms Brown's medical practitioner was stated to have said that Ms Brown’s symptoms only arose after her dismissal and that the condition was prevalent for about four weeks. It was argued that this was evidence that the abuse on 17 October 2016 occurred. 101

[48] Further, it was submitted that Ms Brown was never given an opportunity to respond to the false allegations. The Applicant contended that, if Dr Scott had not been abusive towards her, Ms Brown could have responded and her response would have meant that her employment was likely to continue. Therefore, the failure to give Ms Brown an opportunity to respond was more than a technical breach. 102

[49] There are significant factual and jurisdictional disputes between the parties that cannot be resolved at this time. As some of these concern the Respondent’s second jurisdictional objection and others go to the merits of the application, I am not able to make a final determination on those matters. Therefore, I consider the merits of the claim to be a neutral consideration.

Section 394(3)(f) – fairness between the Applicant and other persons

[50] The Respondent argued that to grant an extension of time would significantly advantage the Applicant over other persons whose applications have been dismissed due to a lack of exceptional circumstances. 103

[51] There was no evidence before the Commission that there were any persons in a similar position. I consider this criterion to be neutral.

Section 394(3) – are there exceptional circumstances?

[52] It was submitted on behalf of Ms Brown that the whole situation constituted exceptional circumstances. This was on the basis that Ms Brown was suffering from a psychological injury from the date of her dismissal. This was said to have been so severe that Ms Brown was unable to consult with her doctor until 28 October 2016 nor with a legal practitioner until 9 November 2016. In addition, it was contended that Dr Scott’s email on 27 October 2016 had confused Ms Brown in relation to her employment situation.

[53] On the other hand, the Respondent argued exceptional circumstances did not exist in this case. This was on the basis that there was no medical evidence or statement to support the Applicant’s contention that she was in such a state that it prevented her from filing an unfair dismissal claim on time. Further, it was argued that Ms Brown’s actions were consistent with her employment being on foot and that Dr Scott’s email of 27 October 2016 was sent to clarify the employment relationship rather than confuse things. It was also contended that the email of 27 October 2016 did not provide a credible reason for the whole of the period.

[54] Under section 394(3) of the Act, the FWC can extend the time for the lodging of an

unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in section 394(3)(a) - (f). Only if the Commission is satisfied that there are exceptional circumstances can the Commission then exercise its discretion to decide to grant an extension of time.

[55] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star

Group Pty Ltd 104(Nulty) 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.” 105

[56] I respectfully adopt the approach by the Full Bench in Nulty in relation to the meaning

of exceptional circumstances.

[57] Having considered all of the matters in section 394(3)(a) - (f), I am not satisfied, on

balance, that there are exceptional circumstances as described in the quote in paragraph 55 above. The lack of a reasonable explanation for the delay is not outweighed by the neutral factors which include the merits of the application. I therefore decline to grant an extension of time.

[58] Accordingly,Ms Brown’s unfair dismissal application is dismissed. An order to this effect will be issued separately.

Appearances:

J Douglas of Maddison & Associatesfor the Applicant

A Dearden of Hall & Wilcox for the Respondent

Hearing details:

2017.

Melbourne:

January 13.

1 Transcript PN 64 - 67, 90 - 91 and 125

2 Ibid PN 68

3 Ibid PN 88 - 89

4 Ibid PN 81

5 Ibid PN 82

6 Ibid PN 83 - 84

7 Ibid PN 92 - 93

8 Ibid PN 96

9 Ibid PN 97

10 Ibid PN 99 - 100

11 Ibid PN 101 - 107 and 122 and Exhibit A2 at paragraph 11

12 Ibid PN 139 - 140

13 Ibid PN 166

14 Ibid PN 110 - 121

15 Ibid PN 147 - 150

16 Ibid PN 151 - 153

17 Ibid PN 123 - 125 and 135

18 Ibid PN 128 - 130

19 Ibid PN 126 - 127, 170 and 267 - 269

20 Ibid PN 131 - 138, 143 and 169

21 Ibid PN 154 - 155

22 Ibid PN 160

23 Ibid PN 161 - 162

24 Ibid PN 167 - 168

25 Ibid PN 171

26 Ibid PN 175 - 181

27 Ibid PN 182 - 184

28 Ibid 186 - 201

29 Ibid PN 202 - 211, 274, 276 - 277 and 276 - 277 and Exhibit A2 at paragraph 15

30 Ibid PN 212

31 Ibid PN 220 - 222

32 Ibid PN 223 - 226

33 Ibid PN 242 - 243

34 Ibid PN 244 - 254 and Exhibit R3

35 Ibid PN 262

36 Ibid PN 227 and 235 and Exhibit R1

37 Ibid PN 310 - 311

38 Ibid PN 317

39 Ibid PN 322

40 Ibid PN 324 and Exhibit R5 at paragraph 7

41 Ibid PN 325

42 Ibid PN 327

43 Ibid PN 328 - 329

44 Ibid PN 330 – 331, 333, 335, 337 and 339 - 340

45 Ibid PN 332 and 336 and Exhibit R5 at paragraphs 12 and 29

46 Ibid PN 338

47 Ibid PN 343

48 Ibid PN 346 and 348

49 Ibid PN 341 - 342

50 Ibid PN 344 and Exhibit R5 at paragraph 13

51 Ibid PN 349 - 350, 355 and 359

52 Ibid PN 356 - 357

53 Ibid PN 360 - 366 and Exhibit R5 at paragraph 18

54 Ibid PN 367

55 Ibid PN 370

56 Ibid PN 371 - 372

57 Ibid PN 381 - 382

58 Ibid PN 386

59 Ibid PN 387 - 388 and 390 and Exhibit R5 at paragraph 26

60 Transcript PN 400 – 402

61 Transcript PN 403

62 Transcript PN 405 – 407

63 Transcript PN 408

64 Transcript PN 408 and 413-414 and Exhibit A1 at paragraph 7

65 Transcript PN 410

66 Transcript PN 411 – 413 and Exhibit A1 at paragraph 9

67 Exhibit A1 at paragraphs 7 – 9

68 Exhibit R4 at paragraph 7

69 Exhibit R4 at paragraphs 8 – 9

70 Transcript PN 417 and Exhibit R4 at paragraph 10

71 Transcript PN418 and Exhibit R4 at paragraph 13

72 Transcript PN418 - 425 and Exhibit R4 at paragraph 13

73 Transcript PN 420-425

74 Transcript PN 426-427

75 Transcript PN 427

76 Transcript PN 428

77 Transcript PN 429 and Exhibit A2 at Attachment RB2 and Exhibit R4 at paragraphs 30-31

78 Transcript PN430-433 and Exhibit R4 at paragraphs 32 – 34

79 Transcript PN434-437 and Exhibit R4 at paragraph 34

80 Exhibit R4 at paragraphs 37-38

81 Transcript PN438-441 and Exhibit R4 at paragraphs 14-15

82 Transcript PN 441-444 and Exhibit R4 at paragraphs 24-27

83 Transcript PN 445-448

84 Transcript PN449

85 Exhibit R4 at paragraphs 39-44

86 Exhibit A2 at attachment RB 2

87 Exhibit A1 at attachment RB4

88 Exhibit A1 at attachment RB 5

89 Exhibit A1 at attachment RB 6

90 Exhibit A1 at attachment RB 7

91 Exhibit A1 at attachment RB 9

92 Exhibit R4 at paragraphs 45-46

93 Exhibit A1 at paragraph 10

94 Exhibit R4 at paragraphs 49-50

95 Exhibit A1 at paragraph 12

96 Transcript PN 453 and Exhibit R4 at paragraphs 4, 24 and 51-52

97 Transcript PN 453

98 Transcript PN 454 and Exhibit R4 at paragraphs 54-55

99 Ibid

100 Transcript PN 450

101 Exhibit A1 at paragraphs 13-14

102 Exhibit A1 at paragraphs 15-18

103 Exhibit R4 at paragraph 56

104 [2011] FWAFB 975

105 Ibid at [13]

Printed by authority of the Commonwealth Government Printer

Rebecca Brown v Dr Eric Colin Scott

[2017] FWC 1383

31 MARCH 2017

DECISION