Rebecca Ramirez v Pinnacle Act Pty Ltd, Kurt Jaks, Richard Jaksch
[2024] FWC 638
•11 MARCH 2024
| [2024] FWC 638 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Rebecca Ramirez
v
Pinnacle ACT Pty Ltd, Kurt Jaks, Richard Jaksch
(C2023/6781)
| COMMISSIONER P RYAN | SYDNEY, 11 MARCH 2024 |
Application to deal with a dismissal dispute made out of time – circumstances exceptional – extension of time granted.
Introduction
This decision concerns an application by Ms Rebecca Ramirez (Ramirez/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
The Applicant is brought against Pinnacle ACT Pty Ltd (First Respondent), Kurt Jaks (Jaks/Second Respondent), and Richard Jaksch (Jaksch/Third Respondent).
In the Application, Ms Ramirez states that her dismissal took effect on 28 September 2023. However, the Applicant stated that she was only notified of her dismissal on 9 October 2023. The Application was made on 1 November 2023.
In its Form F8A Response, the Respondent objected to the Application on the ground that the Application was made out of time. The Respondent contends that the Applicant’s dismissal took effect from 28 September 2023.
Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2).
Based on the information set out in the Application, the Application was made at least 2 days outside the 21-day period. The matter was allocated to my Chambers to determine whether an extension of time will be allowed under s.366(2).
In accordance with directions issued by the Commission, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard on 18 December 2023. I exercised my discretion to grant permission to the parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) and (c) of the FW Act. The Applicant was represented by Ms B Nolan. The Respondent was represented by Mr J McLean.
The following witness statements and documents were admitted into evidence:
· Witness statement of James McIntyre, Governance Advisor to the First Respondent, dated 28 November 2023 (Exhibit 1);
· Witness statement of Wenta Hatcher-Leahy, Return to Work Coordinator for the First Respondent dated 27 November 2023 (Exhibit 2);
· Witness statement of the Applicant dated 27 November 2023 (Exhibit 3);
· Bundle of Employee Records (Exhibit 4);
· Documents produced by the Applicant pursuant to Order (PR768927) (Exhibit 5);
· Documents produced by the First Respondent pursuant to Order (PR769102) (Exhibit 6);
· Applicant’s Medical Certificate dated 6 December 2023 and attachments (Exhibit 7); and
· Witness statement of Richard Jaksch, Director of the First Respondent, dated 5 December 2023 (Exhibit 8).
The Applicant also gave evidence at the hearing.
For the reasons that follow, I grant an extension of time under s.366(2).
Relevant Background
The First Respondent trades as Flexible Australia (Flexible), an organisation specialising in public and private infrastructure maintenance and cleaning.
On 20 February 2023, the First Respondent entered into a service agreement with Ambr Dev X Pty Ltd (Ambr) for the provision of information technology services. The Applicant is the sole shareholder and the company secretary of Ambr.[1] Pursuant to the service agreement, the Applicant was identified as a senior consultant of Ambr and had a designated Ambr email address, (redacted)@ambrdevx.com.au.[2]
From 1 April 2023 to 30 June 2023, the First Respondent engaged the Applicant as a contractor through an entity known as Integrity Solutions Consulting Pty Ltd (ISG).[3] The Applicant is a director of ISG.[4]
From 1 July 2023, the First Respondent employed the Applicant in the role of General Manager - Operations. The Applicant was paid a salary of $270,270.00 per annum plus superannuation.[5] The First Respondent provided the Applicant with a designated Flexible email address, (redacted)@flexibledrain.com.
The First Respondent’s employee records included contact details for the Applicant comprising her address, mobile telephone number and a private email address that was different to her Flexible email address and her Ambr email address.[6] The First Respondent sent the Applicant’s payslips to the Applicant’s private email address.[7]
Although the Applicant commenced employment from 1 July 2023 and started receiving salary payments on a fortnightly basis, there were ongoing negotiations regarding some of the terms and conditions of her employment throughout July and August. There is a dispute between the parties as to the extent to which certain terms and conditions may have been agreed. At this stage of the proceedings, it is sufficient to observe, without making any finding, that the documents exchanged between the parties throughout these negotiations included a contractual notice period of three months.[8]
During the Applicant’s employment with the First Respondent, the service agreement between Ambr and the First Respondent remained on foot and the Applicant retained her positions as sole shareholder and the company secretary of Ambr.
On 24 August 2023, the Applicant commenced a period of leave, which included overseas travel to Japan.[9] The Applicant was due to return to work on 11 September 2023.[10]
On 25 August 2023, the Applicant received an email from Mr Jaksch directing her to stop working whilst on leave.[11]
On 1 and 5 September 2023, Mr Jaks sent correspondence to the Applicant and the Applicant’s partner, Mr Andrew McMaster who was also employed by the First Respondent confirming acceptance of their resignations.[12] The Applicant stated that upon receiving that correspondence, she experienced a severe panic attack accompanied by a state of depression and anxiety.[13]
On 5 September 2023, the Applicant sent email correspondence to Mr Jaks and Mr Jaksch in which she denied resigning from her employment with the First Respondent. The Applicant also raised a number of other issues and proposed a meeting for the issues to be discussed.[14]
On 9 September 2023, the Applicant returned to Australia.[15]
On 10 September 2023, was admitted to Canberra Hospital. The discharge summary states that the Applicant was experiencing swelling and pain in her left leg after being bitten by a deer in Japan and chest pain. The report also noted the Applicant’s past medical history in relation to attention-deficit/hyperactivity disorder (ADHD) and that she last took her ADHD medication on 28 August 2023.[16]
The Applicant did not return to work on 11 September 2023, remaining on personal leave.[17]
On 14 September 2023, Mr Jaks sent correspondence to the Applicant rescinding acceptance of what he previously understood was the Applicant’s resignation. Mr Jaks stated that he was of the understanding that Mr McMaster and the Applicant were resigning from their employment following a discussion with Mr McMaster. [18]
On 18 September 2023, the Applicant notified Mr Jaks and Mr Jaksch that she was certified unfit for work the period from 17-23 September 2023.[19]
On 21 September 2023, the Applicant attended a follow-up appointment with her general practitioner and was advised by her general practitioner to file a workers compensation notification. The Applicant completed and filed a workers compensation notification with QBE later that day. The date of injury is recorded as 1 September 2023.[20]
On 22 September 2023, the Applicant informed Ms Hatcher-Leahy of her ‘situation’.[21]
On 25 September 2023, the Applicant submitted a medical certificate to Ms Hatcher-Leahy which certified her unfit for work from 25-29 September 2023.[22]
On 28 September 2023, Mr Jaksch sent correspondence to the Applicant’s Flexible email address and the Applicant’s Ambr email address. The subject of the email was “Letter of Termination” and attached correspondence titled “Termination of your Employment.” The letter of termination referred to a deterioration of the working relationship between Ambr and the First Respondent. The letter relevantly stated:
The [First Respondent] has therefore decided to terminate your employment with immediate effect, given we have lost the trust and confidence in your ability to act in the [First Respondent’s] best interests. Therefore, in accordance with the National Employment Standards, the [First Respondent] will shortly pay you out one week in lieu of notice, together with any outstanding accrued annual leave. A final payslip will also be provided to you reflecting these payments.[23]
On 28 September 2023, the First Respondent sent a payslip for the period of 14 September 2023 to 27 September 2023 to the Applicant’s personal email address. The payslip records nil payment was made as the Applicant had insufficient personal leave accrued.[24]
On 3 October 2023, the Applicant (using her private email address) and Ms Hatcher-Leahy exchanged email correspondence as follows:[25]
· At 10:09am on 3 October 2023:
Hi Wenta,
Not sure if I sent this copy or not, sorry. It replaces all the previous certificates and covers till my next GP appointment.
Also, I didn’t get paid last week, are you able to follow this up with whoever is looking after pay roll and get them to process this please,
Regards,
Bec
· At 12:47pm on 3 October 2023:
Hi Bec,
From my understanding you have run out of sick leave and personal leave - Do you know if you have AL?
Wenta
· At 1:26pm on 3 October 2023:
Hi Wenta,
It’s my understanding that workers comp does not come out of annual or sick leave. Has the process been changed since then or is it just my claim that is being treated differently?
I appreciate your assistance to find out what’s happening.
Regards,
Bec
· At 2:25pm on 3 October 2023:
I have not yet received a notification of lodgement or a claim number from QBE for you yet
Wenta
On 3 October 2023, the First Respondent sent a payslip for the period of 28 September 2023 to 11 October 2023 to the Applicant’s personal email address. The payslip records the following categories of payment:
· Annual Leave (Remaining balance): 34:4613 hours;
· Time in lieu of notice: 40 hours.[26]
It is relevant to note that as of 3 October 2023, Ms Hatcher-Leahy was not aware that the First Respondent had sent the “Letter of Termination” to the Applicant’s Flexible email address and the Applicant’s Ambr email address.[27]
On either 3 or 4 October 2023, the Applicant became aware that a payment had been made to her, but it was not the usual amount.[28] At 3:15pm on 4 October 2023, the Applicant (using her private email address) sent the following email correspondence to Ms Hatcher-Leahy:[29]
Hi Wenta,
My bank is now showing that a payment went in, but its not the normal amount
Regards,
Bec.
At 12:06pm on 6 October 2023, the Applicant (using her private email address) sent correspondence to Ms Hatcher-Leahy and Mr Pascale Bartone, a workers compensation case manager employed by QBE, stating:[30]
Hi All,
Please find attached current medical certificate. I’m also following up on my pay as it didn’t get paid, then I got paid some of it. I’m not sure who is looking after pays at the moment.
Regards,
Bec.
The attached medical certificate states that the Applicant was assessed on 6 October 2023 and records the diagnosis as “exacerbation of depression and anxiety from work related stress on the background of complex PTSD.” The medical certificate states that the Applicant is unfit for work from 7 October 2023 to 28 October 2023.[31]
Later that day, the Applicant had a telephone discussion with Ms Hatcher-Leahy during which the Applicant was advised by Ms Hatcher-Leahy that her employment had been previously terminated.[32] The Applicant subsequently contacted Mr Bartone to discuss her employment status in the context of her workers compensation matter and was advised that QBE was not aware that the Applicant’s employment had been terminated.[33]
At approximately 1:00pm on 9 October 2023, the Applicant (using her private email address) sent correspondence to Ms Hatcher-Leahy which stated:[34]
Hi Wenta,
Just following up from our conversation on Friday where you advised I had been fired, are you able to send me a copy of the letter please, Pascale has said he also does not have a copy.
Regards,
Bec.
At 4:15pm on 9 October 2023, Mr McIntyre sent correspondence to the Applicant’s private email address which relevantly stated:[35]
As requested, please see attached the scan of the Termination Letter addressed to your business emails and sent to you there on 28 September 2023, save that it is sent to you today at your personal email address.
The email correspondence attached the ‘Letter of Termination’ dated 28 September 2023.[36]
Later that evening, the Applicant registered an account through the Commission’s Online Lodgment Service and commenced completing the Application.[37]
The Applicant stated that sometime prior to 9 October 2023, she made a number of enquiries with legal or advisory firms, and that arising out of those enquiries she was advised by at least one firm to cease performing any work and to stop accessing work related emails. The Applicant stated that based on that advice she ceased accessing her Flexible email and Ambr email accounts, except that she would intermittently access the junk folder of her Ambr email to ensure that no emails inadvertently caught and deleted.[38]
The Applicant denied that she saw the Letter of Termination email prior to 9 October 2023, and confirmed that she did not access the inbox of her Ambr email account over the period of 28 September 2023 until 9 October 2023.[39]
When did the dismissal take effect?
As stated above, the parties are in dispute about when the Applicant’s dismissal took effect.
Summary of the Applicant’s Submissions
Although the Applicant accepted that the employment relationship had been severed, the primary position advanced by the Applicant was that the Application was premature because the Respondent did not comply with the statutory and/or contractual notice period.
The Applicant cited the decision in Southern Migrant and Refugee Centre Inc v Shum (No 3)[40], and submitted that it is a precondition to a lawful dismissal that the notice requirements are complied with, whether they arise under contract or the National Employment Standards (NES).
The Applicant submitted that the documents exchanged between the parties indicate that the parties agreed to a notice period of three months and, in the absence of the provision of three months’ notice (or payment in lieu), the Application is premature. The Applicant submitted that where there is a premature application, the threshold issue of an extension of time falls away, as the Commission has discretion to waive an irregularity in relation to the premature nature of the Application under s.586.
In response to a question from the Commission, it was submitted for the Applicant that the Commission must determine the issue as to the relevant contractual period of notice, but even if the notice period was one week under the NES, that requirement was not met as of 9 October 2023, and therefore the Application is still premature.
In the alternative, the Applicant submitted that the date of dismissal is the date the Applicant became aware of her dismissal, namely 9 October 2023. In support of this submission, the Applicant cited the decision of a Full Bench of the Commission in Ayub v NSW Trains.[41]
Summary of the Respondents’ Submissions
The Respondents submitted that it is a highly suspicious proposition that the Applicant did not access her Ambr email inbox over the period of 28 September 2023 to 9 October 2023, but did access the junk folder. The Respondents submitted that even on a cursory review of the Applicant’s Ambr email inbox, the Applicant would have been aware of the email titled “Letter of Termination”. The Respondents submitted that the obvious inference is that the Applicant was reviewing her Ambr email inbox and therefore, the date of dismissal was 28 September 2023.
In the alternative, the Respondents submitted that the date of dismissal was 6 October 2023, being the date Ms Hatcher-Leahy informed the Applicant that she had been previously dismissed.
The Respondents submitted that irrespective of whether the date of dismissal was 30 September, 6 October, or 9 October, the Application is out of time.
The Respondents submitted that the Applicant’s submission that the dismissal was not effective because of an alleged failure to comply with the contractual or statutory notice period conflates the concepts of termination of the employment relationship and termination of the contract. The Respondents also cited the decision in SMRC v Shum at paragraphs [205]-[206], where Justice Snaden stated:
205 As is readily apparent, Ms Shum’s submissions on ss 117 and 119 of the FW Act proceed on the premise that any illegality in the notice of termination of her employment had the consequence that her employment was not terminated on the date on which that notice was given to her, namely 19 June 2017. She maintains that it was instead terminated on the date on which SMRC made payment in lieu of notice to her, being 23 June 2017.
206 That premise is misconceived. A dismissal effected contrary to the requirements of s 117(2) of the FW Act is not void or otherwise of no effect. It is simply effected in contravention of the requirements of that section. That reality potentially visits other consequences, including exposure to relief in the nature of civil penalties and compensation under pt 4-1 of the FW Act. But it does not follow that employment that is terminated in contravention of s 117(2) continues as though not terminated at all. It does not.
The Respondents submitted that the decision in SMRC v Shum is a complete answer to any suggestion that the dismissal was not effective.
Consideration – when did the dismissal take effect?
It is well established that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[42]
In circumstances where an employee is informed of their dismissal by email, the Full Bench in Ayub held:
[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.
Section 14A of the Electronic Transactions Act 1999 (ETA) provides as follows:
Time of receipt
(1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b)the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i) the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii)the addressee has become aware that the electronic communication has been sent to that address.
(2)For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
(3)Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.
(Emphasis added)
The electronic address designated by the Applicant for the purposes of her employment was her personal email address.[43] That is the electronic address to which the First Respondent forwarded the Applicant’s payslips.
The consequence of the Applicant designating her personal email address is that, in the absence of any evidence that the parties agreed to vary the effect of s.14A of the ETA, the time of receipt of the electronic communication at another electronic address is the time the electronic communication has become capable of being retrieved and the addressee has become aware that the electronic communication has been sent to that address.
There is no evidence that the Applicant became aware that the letter of termination was sent to her Flexible email address on 28 September 2023 or that she subsequently became aware that it had been sent there during the period of 28 September 2023 to 9 October 2023.
There is also no evidence that the Applicant became aware that the letter of termination was sent to her Ambr email address on 28 September 2023 or that she subsequently became aware that it had been sent there during the period of 28 September 2023 to 9 October 2023.
While the Applicant accessed her Ambr email account over the relevant period, I accept her evidence that any access was limited to the intermittent checking of the junk folder for the following three reasons.
First, the Applicant’s gave clear and unbroken evidence that she did not access the Ambr inbox.
Second, the Applicant was ordered to produce emails that were sent, forwarded or deleted from the Ambr email address inbox. There were no documents produced indicating activity that was inconsistent with the Applicant’s evidence, and there is no suggestion that the Applicant did not comply with the Order.
Third, I have set out the evidence of the Applicant’s communications and interactions with Ms Hatcher-Leahy and Mr Bartone in late September/early October. There is no suggestion in any of those communications that the Applicant was aware that the letter of termination had been sent to her Ambr email address on 28 September 2023, or that she subsequently became aware that it had been sent there during the period of 28 September 2023 to 9 October 2023. Nor was it put to the Applicant under cross examination that those communications were fabricated to conceal any knowledge of the communication. To the contrary, those communications are consistent with the Applicant’s evidence that she was not aware of the letter of termination, or otherwise aware that she had been dismissed. Importantly, after being informed by Ms Hatcher-Leahy on 6 October 2023 that she had been dismissed, the Applicant requested a copy of the letter of termination, followed-up that request on 9 October 2023, and received the letter of termination to her personal email address at 4:15pm on 9 October 2023.
In relation to the Respondent’s alternative submission that the date of dismissal was 6 October 2023, the evidence does not go any higher than Ms Hatcher-Leahy informing the Applicant that the First Respondent had purportedly dismissed her on 28 September 2023. By informing the Applicant of that, Ms Hatcher-Leahy was not giving (fresh) notice of termination. Accordingly, I do not accept the date the dismissal took effect was 6 October 2023.
I also do not accept the Applicant’s submission that the Application is premature or that the dismissal was not effective because of an alleged failure to give notice or payment in lieu and that I am required to determine the contractual term relating to notice of termination. As stated by Justice Snaden in SMRC v Shum:
A dismissal effected contrary to the requirements of s 117(2) of the FW Act is not void or otherwise of no effect. It is simply effected in contravention of the requirements of that section. That reality potentially visits other consequences, including exposure to relief in the nature of civil penalties and compensation under pt 4-1 of the FW Act. But it does not follow that employment that is terminated in contravention of s 117(2) continues as though not terminated at all. It does not.[44]
A similar view was expressed by a Full Bench of the Commission in Metropolitan Fire and Emergency Services Board v Garth Duggan[45]as follows:
…The purpose of s.117 is to ensure that employees are given clear and adequate notice, or payment in lieu thereof, of the termination of their employment by their employer. In contrast, we consider the policy and purpose of ss.382(a) and 383(a)(i) is to provide an employer with a period of time to assess a new employee and for the employee to know by the end of the six or 12 month period (depending on whether the employer is a small business employer) whether, on the one hand, their employment will be ongoing and they will be protected from unfair dismissal or, on the other hand, their employment is to be terminated and when such termination will occur. The provisions enable an employer to decide whether or not to dismiss an employee during their minimum employment period without the risk of being subjected to an unfair dismissal claim. Equally, if an employee is not dismissed or given notice of their dismissal during the minimum employment period, the employee knows that they will be afforded the protection of the unfair dismissal provisions of the Act.
[32] In summary, it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.
[33] Accordingly, a notice of termination which does not comply with s.117 of the Act may be effective to bring about the termination of the employment relationship and may constitute “notice of the dismissal” within the meaning of s.383(a)(i) of the Act. Construing the Act in this way is consistent with the purpose of the relevant provisions, as set out above.
Accordingly, and for the foregoing reasons, I find the date the dismissal took effect was 9 October 2023 when the Applicant received the letter of termination to her personal email address. In coming to this conclusion, it is not necessary to do so, and I do not, make any findings as to the quantum of any contractual notice period, or whether the Respondent complied with any contractual or statutory notice period.
Length of Delay
The Application was filed on 1 November 2023. The period of 21 days ended at midnight on 30 October 2023.
The Applicant submitted that the Application was only filed one day outside the 21 day period as the day of filing is not counted. Although it was submitted that there were authorities to this effect, no specific authority was cited, and I am not aware of any authority supporting that proposition.
While the issue of whether the length of the delay is one day or two days will have little impact on this matter, to the extent it is necessary, I reject that submission. As the Respondent submitted, the effect of that submission is that an application made 22 days after dismissal would not be out of time.
Having regard to my conclusion that the date the dismissal took effect was 9 October 2023, the Application was made two days outside of the 21 day period.
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[46] Exceptional circumstances may 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 can be considered exceptional.[47]
The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[48]
I now consider these matters in the context of the Application.
s.366(2)(a) – Reason for the delay
The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[49]
The Applicant’s Evidence
In response to question 1.4 of the Application, the Applicant explained the reason for not making the Application within 21 calendar days of the dismissal taking effect as follows:
The Applicant was unaware of the termination until 9 October and was awaiting the response to their Worker’s compensation claim filed 21 September, and officially acknowledged on 27 September.
The formal notification of termination was sent 28 Sept 23 to work-based emails that the Applicant was not accessing due to being on Worker’s Compensation leave with an assessment no capacity made on 26 Sept 23 by Dr Eugene Tshibangu MD, of 1/26 Benham Street Chisholm 2905.
In her evidence in chief, the Applicant stated that she commenced preparing the Application on the evening of 9 October 2023. The Applicant stated that while she was preparing the Application, she exchanged some email correspondence with QBE in relation to her workers compensation matter in which Mr Bartone referred to QBE being required to make a liability decision within 28 days.[50]
The Applicant stated that she confused the reference to 28 days in the workers compensation correspondence with the 21 day period in which to file the Application, and at the time of making the Application, she thought that she was still within time.[51]
The Applicant stated at as a result of her ongoing medical conditions and prescribed medication, she experiences dizziness, confusions, slowed responses and reactions, increased forgetfulness and excessive drowsiness.[52]
The Applicant also stated that she has had to cease taking her ADHD medication which has affected her ability to recall dates/perceive time, resulted in a shortened attention span and reduced cognition.[53]
The Applicant relied on two letters titled “medical certificate confirming illness” prepared by Dr Roshan Dalpadado.
The first letter is dated 21 November 2023. It refers to the period of 1 September to present and states, inter alia:[54]
As her treating GP, I can confirm that the patient has been experience diminished cognitive capacity, reading comprehension, diminish problem-solving ability, disrupted sleep cycle and time awareness, reduced stress threshold, a panic response to conflict and emotional dysregulation.
…
….
Due to the above reasons related to a serious illness, [the Applicant] has taken longer than expected to complete the application.
The second letter is dated 6 December 2023. It refers to the period of 1 September to present and states, inter alia:[55]
As her treating GP, I can confirm that the patient has been experience diminished cognitive capacity, reading comprehension, diminish problem-solving ability, disrupted sleep cycle and time awareness, reduced stress threshold, a panic response to conflict and emotional dysregulation.
Evidence to suggest this clinical conclusion include:
- DASS 21 – Depression, Anxiety, Stress Scale - reports extremely severe ratings for all three elements
- K10 Assessment of Mood – 47/50 - suggests a high clinical severity of depression and anxiety symptoms
- Phoenix Institute PTSD Questionnaire - full score completing criteria for PTSD diagnosis.
Further to this, she is also on Mirtazapine 30mg (increased to 45mg) at night, which has cognitive side-effects of sedation and fatigue. Additionally, she is taking Seroquel 25-50 mg when she has panic attacks, which has a sedating effect as well. She is experiencing daily panic attacks, which also compromises her cognitive ability to complete reports.
Finally, due to persistent high blood pressure, I have seen fit to temporarily halt ADHD medications (hypertension can be a side effect). This in turn, has the not so desirable effect of poor focus, poor time awareness and fatigue as well.
Attached to the second letter were copies of the DASS 21 – Depression, Anxiety, Stress Scale, the K10 Assessment of Mood – 47/50, and Phoenix Institute PTSD Questionnaire. These reports are each dated 6 December 2023 and relate to the Applicant’s condition as at that date or in the period between 6 November 2023 and 6 December 2023. I have placed no weight on the attached reports as they relate to a period after the Application was made.[56]
Under cross examination, the Applicant readily accepted/agreed that over the period of 9 October 2023 to 1 November 2023:
· She commenced preparing the Application on 9 October 2023;
· She researched various legislative provisions and the general protections jurisdiction, including calculating alleged overtime and damages figures. In preparing the Application, the Applicant had some assistance from family members and friends;
· She completed about 4-5 workers compensation forms in the period of 21 September to 31 October 2023;
· She liaised with QBE in relation to her workers compensation matter.
However, during the proceedings, the Applicant provided the following evidence in relation to the impact of her various conditions and side effects of medication:
PN315
Ms Ramirez, you obviously didn’t have this full draft of the application prepared on 9 October, did you?---No. God no.PN316
Were there a number of drafts you prepared along the way?---No, I just - I worked in the one document and just kept working on it in between sort of - I’d work on it and research, and then, you know, as my anxiety played up I’d have to take a pill. That would then knock me out, and I’d sleep, and then I’d get up and work on it again. So I just - I was very hyper fixated on it, which is a side effect of my autism. ADHD is hyper fixation, so I just - I wanted to get this finished, I wanted to get it done, and so I just worked on it and - - -
…
PN407
So the period of 28 September until 9 October, Ms Ramirez, you say that you weren’t checking your AMBR Dev X email account during that time?---I was intermittently checking the emails to make sure nothing got caught into the spam box, but with the change of medication days melded. I don’t know what day is Arthur or Martha. I have to set multiple alarms to tell me, to remind me to do things. So I couldn’t - - -
…
PN591
When you talked about being hyper fixated, with respect to your autism and the ADHD, what do you mean by ‘hyper fixation’?---That I sat up for hours reading the Fair Work Act and researching and just not leaving my desk, not sleeping and just sitting there with the intent to try and get it done as quick as possible but, as my panic attacks would get to a point that I couldn’t control them, I needed to take my medication. I’d then take that, which would then make me sleep and then as soon as that had wore off I’d get back up and just do it again. So I was just sitting, constant working on this from the time that I found out till the time that I submitted it, in amongst, you know, going to doctor’s appointments and having medication changed and jumping through all the hoops that needed to be done for workers compensation and trying to put in references and things for that, referrals for the different medical places and things like that. So it’s just I needed to get it finished and so that was the goal, was to get that finished. So it was from the time that I found out, I didn’t stop until I’d finished.PN592
If you worked on it with this amount of tenacity, why did it take you more than 21 days?---Well, because of having to take the medication every time my anxiety went through the roof, I take the medication which would make me sleep and that knocks me out for, depending on the dose, it’d knock me out for, you know, the first time was a couple of days I slept for like two days, and then it kind of got down to big chunks of 8 to 12 hours and then, you know, I’d sort of wake up and I’d be groggy, I’d have to wait till, you know, it’s kind of worn off and I’m cognisant enough to then sit down and try and continue fumbling through it. Like it was just those constant like I’m in a constant state of panic and stress and I try and manage that of my own accord and I don’t like having to rely on medication so I try and push through to make myself get better, until I’m really not okay and can’t do any more and then take the medication. I know that that’s just going to make me useless and put me to sleep.
Summary of the Applicant’s Submissions
The Applicant submitted that the combined effect of her unmedicated ADHD and the side effects of her current medication had the effect of causing confusion in that the Applicant conflated the workers compensation 28 day liability acceptance period with the 21 day period to make the Application.
The Applicant submitted that it was not case that she was incapacitated for a particular period and then regained capacity, but rather the effect of her various conditions and the side effects of her medication resulted in the confusion as to the time limit and that it took longer for her to complete the Application.
Summary of the Respondents’ Submissions
The Respondents submitted that miscalculation (without more) or ignorance and confusion are not sufficient reasons for a finding of exceptional circumstances. The Respondents referred to the various activities the Applicant engaged in over the 23 days between 9 October and 1 November, including the level of detail set out in the Application. In this respect the Respondents submitted that the Applicant has comprehended the interplay between the Sex Discrimination Act 1984 and the FW Act and grappled with concepts such as vicarious liability and assessorial liability.
In terms of the letters provided by her general practitioner, the Respondents submitted that these should be afforded limited weight. The Respondents submitted that at their highest they refer to diminished comprehension and cognitive capacity. The Respondents submitted that there is no detail about when the general practitioner saw the Applicant and they do not state that her condition prevented her from filing the Application within the 21 day period.
The Respondents further submitted that there is a gap in her medical certificates between 28 October 2023 and 1 November 2023.
The Respondents submitted that the reason for delay does not give rise to the requisite “exceptional circumstances”.
Reason for the delay - Consideration
The Applicant relies on her medical conditions and their unmedicated/medicated side effects.
In Victor Blanco v White Bathroom[57] (Blanco), Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
[44] 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 to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] 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.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] 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.
[48] 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.”
[49] 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.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that 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 without proper and specific medical evidence.[51] 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, Beard 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 Beard, Underwood and Merhi); and
(iv)an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
[Footnotes omitted; Emphasis added]
I agree with the summary of principles set out by Deputy President Easton in Blanco, that if a medical condition or incapacity is relied on, there should be supporting evidence demonstrating that it had a material impact upon an applicant’s capacity to file an application within the statutory time limit and that an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.[58]
In this matter, the Applicant contends that the impact of unmedicated ADHD and the sides effects from her current medication caused her to experience dizziness, confusion, slowed responses and reactions, increased forgetfulness and excessive drowsiness, diminished ability to recall dates/perceive time, shortened attention span, and reduced cognition. As a result of this, the Applicant confused timeframes and took longer to complete the Application, which was compounded by her hyperfixation.
The Applicant’s evidence as to her experience is consistent with the side effects set out in her general practitioner’s letters. I accept her evidence. While miscalculation of the 21 day period, without more, will not generally be accepted as an acceptable and reasonable explanation,[59] in this case, the more is the impact of the Applicant’s complex medical issues and the side effects of prescribed medication.
Accordingly, I am satisfied that the Applicant has an acceptable and reasonable explanation for the delay. This weighs in favour of a conclusion that there are exceptional circumstances.
s.366(2)(b) – Action taken to dispute the dismissal
Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[60]
It is not in dispute that the Applicant did not take any action to dispute the dismissal prior to making of the Application. However, it was submitted for the Applicant that action includes “omissions” and that despite the absence of action taken by the Applicant, the employer ought to have known that any dismissal would be contested, having regard to the factual background leading up to the Applicant’s dismissal.[61]
I do not accept that submission. In Hunter Valley Developments Pty Ltd v Cohen[62], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[63]
In the absence of any positive action taken to dispute the dismissal, this factor weighs against a conclusion that there are exceptional circumstances.
s.366(2)(c) – Prejudice to the employer
Neither party submitted that the Respondents would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondents, if an extension of time were to be granted.
However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.
s.366(2)(d) – Merits of the Application
The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.
It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
s.366(2)(e) – Fairness as between the person and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[64] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”[65] and “who have filed applications in time”.[66]
In her written submissions, the Applicant submitted that while there were no other persons in the same position, there were at least two former employees who, “but for access to legal representation prior to their dismissal would have been in the same position”. However, beyond the level of generalisation, the Applicant did not demonstrate how the cases of those former employees were relevant to this consideration.
In oral submissions, the Applicant submitted that fairness as between the Applicant and other persons involves a comparison of cases of similar facts. In this respect, the Applicant submitted that a diagnosed mental health issue that affects the ability of an applicant to make an application within a prescribed period is a matter weighing in favour of a finding that there are exceptional circumstances. In support of this submission, the Applicant cited the decision of the Commission in Ellis v Melton Sire Council.[67]
The Respondents cited the decision of the Commission in Whittle v Redi Milk Australia Pty Ltd[68] and submitted that the matter of fairness between persons and other persons in a similar position should be approached on the basis that relates to the same employer and the same underlying issues. The Respondents submitted that there were no individuals from the same employer in a comparable position.
Having regard to the history of this criteria and the submissions of the parties, I consider this factor to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’.[69] Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant and the Respondents, I am satisfied that there are exceptional circumstances.
In undertaking this evaluative assessment, I have taken into account each of the matters set out in s.366(2)(a) to (e). The most persuasive matter in the circumstances of this case is that the Applicant has provided an acceptable and reasonable explanation for the delay in making the Application.
I also consider that it is appropriate in the circumstances of this case to exercise my discretion to extend the time for the Application to be made. The period for the Application to be made is extended to 1 November 2023.
An Order to that effect will be issued with this Decision.
COMMISSIONER
Appearances:
B. Nolan, of counsel for the Applicant
J. McLean, of counsel for the Respondent.
Hearing details:
2023.
Sydney (via Microsoft Teams video-link):
18 December.
[1] Exhibit 8 at [8], Annexure RJ1, Annexure RJ2.
[2] Exhibit 8, Annexure RJ2 at clause 7.
[3] Exhibit 8 at [10].
[4] Exhibit 3 at [2].
[5] Exhibit 3, Annexures A, B and G; Exhibit 6 (Hearing Book at pp.188-205).
[6] Exhibit 4 (Hearing Book at p.92).
[7] Exhibit 3, Annexures G and J.
[8] Exhibit 3, Annexure B at clause 20; Exhibit 6 (Hearing Book at pp.188-205 at clause 11.2); Exhibit 8 at [13]-[16], Annexure RJ3.
[9] Exhibit 3 at [13], Annexure O; Exhibit 8 at [18].
[10] Exhibit 6 (Hearing Book at p.220).
[11] Exhibit 3 at [14].
[12] Ibid; Exhibit 6 (Hearing Book at p.221).
[13] Exhibit 3 at [15].
[14] Exhibit 3 at [16]; Exhibit 6 (Hearing Book at p.219-220).
[15] Exhibit 3 at [17].
[16] Exhibit 3 at [18]-[19], Annexure O.
[17] Exhibit 3 at [18], [21], Annexure C.
[18] Exhibit 3 at [20]-[21], Annexure C.
[19] Exhibit 3 at [22]-[23], Annexure D.
[20] Exhibit 3 at [24]-[25].
[21] Exhibit 3 at [26]; Exhibit 2 at [3].
[22] Exhibit 3 at [27]-[28], Annexure F; Exhibit 2 at [7].
[23] Exhibit 6 at [23], Annexure RJ4.
[24] Exhibit 3 at [29]-[30], Annexure G.
[25] Exhibit 3 at [32]-[33], Annexure H; Exhibit 2 at [7]-[9]
[26] Exhibit 3 at [38]-[39], Annexure J.
[27] Exhibit 2 at [9].
[28] Exhibit [37]-[38].
[29] Exhibit 3, Annexure H.
[30] Exhibit 3 at [35]-[36], Annexure I.
[31] Exhibit 3, Annexure I.
[32] Exhibit 3 at [40]; Transcript at PN572-PN573.
[33] Exhibit 3 at [41].
[34] Exhibit 3 at [42]-[43], Annexure K.
[35] Exhibit 3 at [44]-[45], Annexure L.
[36] Exhibit 3, Annexure L.
[37] Exhibit 3 at [47]; Transcript at PN229-PN230.
[38] Transcript at PN412-PN418.
[39] Transcript at PN407-PN408, PN475-PN484.
[40] [2022] FCA 481 (SMRC v Shum) at [192].
[41] [2016] FWCFB 5500 (Ayub) at [17].
[42] Burns v Aboriginal Legal Service of Western Australia (Inc) (Print T3496) at [24].
[43] Exhibit 4 (Hearing Book at p.92).
[44] SMRC v Shum at [206].
[45] [2017] FWCFB 4878 at [31]-[32].
[46] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[47] Ibid.
[48] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[49] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[50] Exhibit 3 at [48]-[50], Annexure M.
[51] Exhibit 3 at [61].
[52] Exhibit 3 at [58].
[53] Exhibit 3 at [56]-[57].
[54] Exhibit 3, Annexure P.
[55] Exhibit 7.
[56] Exhibit 7.
[57] [2021] FWC 4694 at [44]-[51].
[58] See also Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd [2023] FWCFB 113 at [26]-[28]; Manoj Ellikuttige v Moonee Valley Racing Club Inc.[2018] FWCFB 4988 at [29]-[31]; Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37]-[38].
[59] Samantha Kelsall v Kingston City Council[2023] FWC 2925 at [17].
[60] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[61] Transcript at PN838-PN848.
[62] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.
[63] Ibid at [19].
[64] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].
[65] Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090 at [19].
[66] Ivan Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 at [38].
[67] [2012] FWA 1033.
[68] [2016] FWC 3773.
[69] See paragraph [80] above.
Printed by authority of the Commonwealth Government Printer
<PR772244>
16
0