Renae Lane v CLS Pty Ltd as Trustee for the CLS Trust
[2023] FWC 1260
•20 JUNE 2023
| [2023] FWC 1260 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Renae Lane
v
CLS Pty Ltd as Trustee for The CLS Trust
(U2023/3375)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 JUNE 2023 |
Application for an unfair dismissal remedy
The issue and outcome
On 19 April 2023, Ms Renae Lane (the Applicant) applied for an unfair dismissal remedy having been dismissed by CLS Pty Ltd ATF The CLS Trust (the Respondent) on 15 March 2023. The Respondent objected to the unfair dismissal application on the basis it was made outside of the statutory time limit prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three matters are not relevant for present purposes.
The Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are taken into account.
It is noted that with the consent of the parties, I allowed an amendment to the name of the Respondent pursuant to s 586 of the Act. Further, having conferred with the parties in conference and acknowledging it was the Applicant’s preference to have the matter determined on the papers, I acceded to that request in light of the Respondent’s agreement to such approach and there not being a factual dispute. However, with respect to the materials filed, clarification was sought from the Applicant as to whether she had authored handwritten notes and a handwritten Form F2, which although filed in accordance with the directions, the handwritten Form F2 was not the application that was ultimately lodged. The Applicant confirmed that she had.
The Applicant’s application was made 14 days outside of the statutory period. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision.
Background
The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are as follows.
Whilst the Applicant filed a witness statement, for the most part it traversed issues arising in her former workplace rather than addressing those factors in s 394(3) of the Act, which had been highlighted for the parties in the directions issued on 11 May 2023.
The evidence shows that on 1 March 2023, the Applicant was notified that her employment was terminated. It is observed that on the Form F3, the Respondent states that the dismissal took effect on 15 March 2023. The notice of termination stated:
As of Wednesday, 1 March 2023, you are being given notice of Termination of your employment.
On multiple occasions you have been called into the office to discuss your work performance and personal attitude which resulted in the change of your employment status from Floor Manager to Sales Assistant. Unfortunately, even after these discussions and multiple attempts to help you rectify the issues your performance hasn’t improved.
I would like to thank you for all your work and I am disappointed that we could not have come to a better resolution in regards to your previous management role which I believe is the cause of your angst.
Based on the length of your service your notice period is 2 weeks in lieu of receiving this notice.
…[2]
Prior to the Applicant’s dismissal, and according to the Applicant, she had been demoted from a full-time store manager to part-time or casual.[3]
The Applicant appears to have been assisted in lodging her application by a Ms Kirsty Shalders (Ms Shalders). Ms Shalders purports to be the Applicant’s support person, not her representative, but nevertheless she completed the Applicant’s Form F2 which was filed online (not the handwritten Form F2). Having sought clarification from the Applicant, the Applicant confirmed that Ms Shalders prepared the Form F2 on her behalf and under her instruction.
In addition to the preparation of the Form F2, Ms Shalders appears to have also assumed responsibility for providing submissions to this Commission in respect of the extension of time application. It is those submissions that are now traversed.
The main reason cited for the Applicant’s delay in filing her unfair dismissal application within the statutory period is the Applicant’s inability to complete the application as a direct result of her suffering from mental illness.
Ms Shalders explained that she was contacted by the Applicant’s mother on 18 April 2023 and informed that the Applicant was having difficulty completing her unfair dismissal application.[4] On 19 April 2023, Ms Shalders completed the Form F2 on the Applicant’s behalf under her instruction. Ms Shalders noted that whilst the Applicant understood the application had been filed late, Ms Shalders and the Applicant did not realise how late it was as they had not counted weekends and public holidays within the timeframe.
The Applicant relied upon several documents to support her contention regarding her incapacity to complete her unfair dismissal application within the requisite period.
The first document was a Mental Health Plan dated 14 February 2023. The Mental Health Plan set out that ‘CBD and counselling’ were planned.[5] The second document was a Crisis Management Plan dated 14 February 2023 that outlined four strategies when dealing with a crisis.[6] The third document was a ‘DASS21 Assessment’ dated 14 February 2023.[7] The fourth document was a medical certificate dated 14 February 2023 that certified the Applicant unfit for the period of 14 February 2023 to 20 February 2023 and acknowledged the establishment of the Mental Health Plan and referral to a counsellor.[8]
The Applicant included in her evidence correspondence from Dr Poonam Ghimire to a Dr Stephanie Jones at Brecken Health Care regarding seeking an opinion and management. The correspondence was dated 20 April 2023.[9] Also provided was a medical certificate from Dr Su Yadanar Wynn of Brecken Health Care, dated 4 May 2023, which set out, amongst other matters:
…Unfortunately, her condition got worse in between and unable to actively chase up the appointment [presumedly with the psychologist] and to navigate the application for fairwork [sic]. She came in with her support worker today who has assisted her in that matters [sic]… Thank you for considering the Renae’s submission for fairwork [sic].[10]
The Applicant filed documents to support her contention that she had attempted to file her unfair dismissal application. This included the Applicant’s handwritten notes that showed that on 9 March 2023 the Applicant had established, through enquiries with the Fair Work Ombudsman and Wageline, that she was ‘covered by National’.[11] Her handwritten notes also include references to the Employment Law Centre and other legal providers, and the question as to whether to lodge an unfair dismissal or unlawful termination application.
Included in the Applicant’s documents was an email dated 20 March 2023 time stamped 4:51 PM to ‘[email protected]’.[12] The email referred to a phone appointment that had been scheduled for 21 March 2023 and attached copies of employment records such as payslips, a medical certificate and a termination letter, albeit the Applicant noted in the email that she was waiting for a copy of her employment contract to be sent through.[13]
Further handwritten notes compiled by the Applicant show that as of 21 March 2023 the phone call had taken place and listed were the actions that the Applicant could take, which included:
National Employers Fair Work
Easiest – Most Suia Unfair Dismissal
Do qualify… Fulfilled first steps…
Form #2 21 days doesn’t include public holidays
Online $75
Fair Work does not investigate… They go off what parties…[14]
Ms Shalders submitted that Ms Lane does not have adequate resources (e.g., a computer, word processing software, relevant technologies), which in her view created another barrier the Applicant needed to overcome to make her application. Ms Shalders noted that given the Applicant’s medical condition it was not appropriate for the Applicant to access public resources like the library and therefore Ms Shalders expressed that she was at a loss as to what could have been offered to the Applicant to have assisted her further.
Extension of time
For the Applicant’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. As noted, s 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[15] It is accepted that 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, can be considered exceptional.[16]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[17]
3.1 Reason for the delay
The Applicant’s last day of employment was 15 March 2023 and her unfair dismissal application was made on 19 April 2023, some 14 days late.
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[18] 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 the applicant’s favour, however, all of the circumstances must be considered.[19]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[20] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[21]
In respect of the delay, Ms Shalders explained that when she had assisted the Applicant, she miscalculated the length of the delay period as did the Applicant, having not appreciated the reckoning of time in respect of weekends and public holidays.
In Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’. The Full Bench said that:
In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[22]
It is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[23] However, on this point it is relevant to note that as of 21 March 2023, the Applicant was aware that the Form F2 was required to be filed within 21 days (although the Applicant had noted it did not include public holidays).
The Applicant submitted that at the time of her dismissal she was suffering with mental health issues. The medical documentation referred to at paragraph [15] of this decision predates the date of dismissal, and whilst the Applicant was placed on a Mental Health Plan as of 14 February 2023, such plan is not indicative that the Applicant lacked mental capacity to complete the Form F2 during the statutory period or within the period of the delay. For example, it is evident that in or around 21 March 2023, the Applicant made enquiries regarding the making of an unfair dismissal application.
It is convenient at this juncture to address other medical documentation relied upon by the Applicant. As detailed, the Applicant included in her evidence correspondence from Dr Poonam Ghimire to a Dr Stephanie Jones at Brecken Health Care regarding an opinion and management.[24] The referral letter is, however, dated after the Applicant’s unfair dismissal application had been lodged.
Similarly, the Applicant also provided a medical certificate from Dr Su Yadanar Wynn of Brecken Health Care dated 4 May 2023, a date after which the unfair dismissal application had been lodged on 19 April 2023. The medical certificate spoke to the Applicant’s condition worsening therefore making the Applicant unable to navigate the application for ‘fairwork’ and thanking the Commission for ‘considering the Renae’s submission for fairwork [sic]’.[25]
It appears that the Applicant intentionally sought a medical certificate from a general practitioner to excuse the delay in filing her application – the delay period pre-dating the medical certificate. The medical assessment and subsequent issuance of a medical certificate was not garnered during the delay period, therefore the assessment by the medical practitioner is dependent not on observations of the Applicant at the relevant time (delay period), but on her self-reporting (after the delay period). In such circumstances I consider the medical certificate to be of less probative weight than a contemporaneous medical report or assessment that was unsolicited. To explain further, it is evident from the medical certificate that the general practitioner was advised that the purpose of the letter was to evince that the Applicant was not sufficiently capable to make her application within the statutory time frame, and to advise this Commission: (a) why that was the case; and (b) to adjure that the Applicant be given special consideration based on the information provided in the letter.
I have considered Ms Shalders’ evidence that she assisted the Applicant to complete the unfair dismissal application on the request of the Applicant’s mother, and that the Applicant did not have access to a computer and relevant technologies. I have in addition considered what appears to be the handwritten note of the Applicant’s mother and her sibling.
However, it is observed that within the Applicant’s documents was an email that she had sent to the Respondent on 14 February 2023 attaching a medical certificate. It would therefore appear, at least as of 14 February 2023, the Applicant had access to technology that allowed her to email and to include an attachment to that email.[26] In her evidence, Ms Shalders also speaks to the Applicant having received contact via Facebook from the partner of Ms Chelsea Atherton (the Store Manager of the Respondent) on 5 May 2023.[27] It again follows that as of 5 May 2023, the Applicant had access to technology sufficient to permit her to see Facebook messages.
The Commission has gone to great lengths to ensure that the process of making an unfair dismissal application is simple – adopting the use of plain language in its forms, in addition to permitting the submission of an application by telephone in some circumstances. Therefore, I am unconvinced that a lack of technology on the Applicant’s behalf impeded the process of submitting the unfair dismissal application. Further, in light of all the evidence, I am unconvinced that the Applicant’s mental health issues provide a plausible explanation for the period of the delay.
Whilst I have considered the delay as the period beyond the 21-day period, regard has been had to the circumstances from the date the termination of employment took effect. Considering the totality of the evidence, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the period of the delay in lodging her application.
Accordingly, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
3.2 Whether the person first became aware of the dismissal after it had taken effect
I am of the view that the Applicant became aware of her dismissal on 1 March 2023, with it taking effect on 15 March 2023. This was confirmed in a letter of the same date. The Applicant therefore had the full 21-day period to lodge her application for an unfair dismissal remedy. This weighs against the grant of an extension of time.
3.3 Action taken by the person to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to lodging the application on 19 April 2023. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
3.4 Prejudice to the employer
It is not apparent that the Respondent has asserted any prejudice. It is noted that a ‘lack of prejudice is a positive factor but not a major factor’ in considering exceptional circumstances.[28] I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances of this case.
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[29] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[30]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[31] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. As such, the merits in this case are a neutral factor.
3.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[32]
Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, as such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
Based on the evidence before me, the Applicant has not provided a satisfactory explanation for the delay in making her application. The remaining matters I need to consider tell against the application for an extension of time or are otherwise neutral. In these circumstances, having considered all submissions, I am unconvinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.
The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] PR763166.
[2] Digital Hearing Book Part 2, 30 (DHB Part 2).
[3] Ibid 29.
[4] Email from Ms K Shalders to the Chambers of Vice President Catanzariti dated 5 May 2023 (Applicant’s Submissions).
[5] DHB Part 2 (n 2) 23.
[6] Ibid 24.
[7] Ibid 25.
[8] Ibid 27.
[9] Ibid 38.
[10] Ibid 40.
[11] Ibid 48.
[12] Ibid 35.
[13] Ibid.
[14] Ibid 55.
[15] (2011) 203 IR 1, 5 [13] (Nulty).
[16] Ibid 6 [13].
[17] (2018) 273 IR 156, 165 [38] (emphasis in original).
[18] Ibid 165 [39].
[19] Ibid.
[20] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[21] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[22] Nulty (n 15) 6 [14].
[23] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].
[24] DHB Part 2 (n 2) 38–9.
[25] Ibid 40.
[26] Ibid 26.
[27] Ibid 7.
[28] Caire v Imscan Technologies[2013] FWC 3154, [16].
[29] (1997) 140 IR 1.
[30] Ibid 11.
[31] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[32] [2015] FWC 8885, [29].
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