Robyn Keys v The Department of Veterans Affairs

[2015] FWC 1695

[2015] FWC 1695

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Robyn Keys
v
The Department of Veterans Affairs
(U2015/2592)

DEPUTY PRESIDENT SAMS SYDNEY, 16 MARCH 2015

Application for relief from unfair dismissal - application made ‘out of time’ - significant delay (722 days) - ‘show cause’ letter - acquiescence to dismissal - applicant dismissed for non-performance - mental illness - no ‘exceptional circumstances’ - application dismissed.

[1] This decision arises from an application to the Fair Work Commission (the ‘Commission’) for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Ms Robyn Keys (the ‘applicant’) was dismissed from the Department of Veterans’ Affairs (the ‘respondent’ or the ‘Department’) on 14 January 2013, on the grounds of non-performance. The applicant lodged her unfair dismissal application on 27 January 2015. The Act mandates a 21 day time limit for initiating an application for unfair dismissal remedy. The application was therefore lodged 722 days outside of the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy and the Form F3 Employer’s Response. The Commission has also considered the various documents attached to those Forms. On 6 February 2015, the Commission wrote to the applicant outlining the matters I am obliged to consider under s 394(3) of the Act, and asking her to provide a statement addressing those matters within 14 days. In response, the applicant emailed a two page statement on 19 February 2015. The applicant also provided a letter of two pages, which was received by the Commission the next day. Having considered this material, I issued an order refusing an extension of time and dismissed the application on 27 February 2015. What follows are my reasons for doing so.

STATUTORY PROVISIONS AND PRINCIPLES

[3] The relevant legislative framework, governing the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, a Full Bench of the Commission said:

‘[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. 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.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application. In other words, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission’s decision making process under s 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I turn now to each of the criteria set out under s 394(3) of the Act.

CONSIDERATION

Reasons for the delay (s 394(3)(a))

[6] In her email to the Commission, the applicant explained that she had delayed filing her unfair dismissal application because of her poor mental health. I have reproduced the applicant’s email below:

‘Exceptional circumstances

The medical certificate provided sets out the background facts and the circumstances that lead to my poor mental health at the time of the dismissal.
(In 2013 I had a concurrent physical injury which was the subject of a Comcare claim).
I was mentally unwell during the time leading up to and during the dismissal and for a lengthy period of time afterwards with bi-polar disorder.
I have a medical certificate covering the entire extension of time ("EOT") period.
During the EOT, my mental illness was so acute that I was hospitalised as a scheduled patient.
A symptom or characteristic of the illness is lack of insight. As a result of my illness, I did not have the capacity to take steps necessary to protect my rights at the time of the dismissal.
I filed for a remedy under part 3.2 of the Fair Work Act 2009 as soon as I regained capacity.

Prejudice

The employer was aware that I suffered from a mental illness (I had suffered a previous episode of bi-polar disorder for about 6 weeks on or about 1999).
Other than the episode referred to above and the relapse in 2012/2013 and shoulder injury, I have not been unwell in my 26 years of service with the employer.
After a period of absence, the employer dismissed me, unfairly. The employer has elected to rely upon my letter in response, a letter that no reasonable person would assume was written by a well person.
In light of the employer's wilful blindness regarding my situation, they should not now rely on procedural fairness to then oust me form (Sic) applying for an unfair dismissal remedy.
The employer is a large, public sector organisation with a dedicated HR and record keeping team, and can respond to my application as easily now as 2 years ago.

Merit

At the time of the unfair dismissal, I had approximately 1 year of sick leave accrued.
I had some unauthorised absence during the time I was symptomatic, but these absences ought have been treated as sick leave by the employer, given it was apparent to the reasonable person that I was unwell.
I had given 26 years of loyal and faithful service to the employer. I was an older woman who lived alone and was palpably unwell. I required help. The employer terminated me in these circumstances. I was socially isolated and it is not unreasonable to suggest that my illness was exacerbated by these events.
The dismissal was harsh, unjust and unreasonable on all the indicia set out in section 387 of the Act. It is also a relevant consideration that I was 56 years of age at the time of the dismissal and unwell. I have suffered terrible personal and financial detriment as a result of the termination of my employment.

I ask that time be extended.’

[7] The applicant provided another letter, which reiterated the reasons outlined by her in the above email. Attached to the letter was a statement from Dr Kevin Vaughan, a worker’s compensation claim made by the applicant and a letter written by her on 8 January 2013 to the respondent in which she purportedly acquiesced to the termination of her employment.

[8] I am not satisfied that the reason given by the applicant for the delay in lodging her unfair dismissal application, constitutes an ‘exceptional circumstance’, within the meaning of the Act. The applicant’s case primarily relied on a letter written by Dr Vaughan which outlined the extent of her mental illness. While I am sympathetic to the applicant’s mental condition, the letter provided by Dr Vaughan did not specifically address the medical reasons as to why the applicant was incapable of lodging an unfair dismissal application. In any event, Dr Vaughan’s assessment of the applicant’s mental state is confined to the period after 19 May 2014, when she first presented as his patient. The letter provides no information (nor could it have done) relevant to the period immediately following her dismissal in January 2013 - some 16 months earlier. Furthermore, the letter proceeded to explain the circumstances surrounding the applicant’s dismissal as described by her to Dr Vaughan. Dr Vaughan does not offer a medical opinion as to the connection between these circumstances and the reasons for the delay in filing the application.

[9] The applicant’s letter, received on 20 February 2015, gave further detail into her state of mind around the time of her dismissal. I have extracted the relevant parts of the applicant’s letter below:

‘I decided to go into work on 15th January 2013 to see if the Department had received my letter and to see if anything could be done to help me regarding the termination of my employment. I was then informed that my termination of employment letter had been signed the day before. I was very disappointed about this, I said good bye and left the building...

On 10th December 2014 I decided to visit my case manager Liz Szabo in person at my workplace to see if there could be at my workplace to see if there could be any conciliation or any form of redress to remedy my work situation.’

[10] Curiously, the applicant acknowledges that she was ‘disappointed’ when she discovered her termination on 15 January 2013. I cannot understand why, given the applicant’s ‘disappointment’, no further action was taken, either by herself or a representative on her behalf, until 27 January 2015 - over two years later. I also observe that the applicant stated she ‘did not question or challenge the decision to terminate [her] employment until December 2014’. The applicant acknowledges speaking to her case manager on 10 December 2014 about her dismissal. Given this date, the applicant provided no explanation as to why she further delayed lodging her application until 27 January 2015.

[11] As to the workers compensation claim, the evidence offered by the applicant disclosed that she had suffered a ‘sprain of shoulder & upper arm’. The applicant’s claim for workers’ compensation was approved on 5 February 2013, some nine days before the termination of her employment. The evidence in relation to her workers’ compensation claim does not support any reason as to why she was incapable of filing her unfair dismissal application. The Commission offers various methods of lodging an unfair dismissal application in order to assist applicants are who are affected by a physical disability. In addition to electronic lodgement, an unfair dismissal application may be filed in person at the Commission’s registry or by post. An unfair dismissal application can also be made by phone; See: Fair Work Commission Rules 2013 Rule 9. Furthermore, the applicant had the opportunity to nominate a representative (legal or otherwise) to assist her in the preparation of her unfair dismissal application. In any event, the applicant’s physical disability could not have been ongoing for two and a half years.

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

[12] The applicant acknowledged that she was aware of her dismissal on 14 January 2013 and that her dismissal took effect immediately from that date.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[13] The applicant did not specifically address this criterion. The applicant believed that her mental illness prevented her from taking ‘steps necessary to protect [her] rights’. As aforementioned, there is no evidence to indicate that the applicant’s mental illness rendered her incapable of lodging an unfair dismissal application or initiating alternative methods to dispute her dismissal. A delay of over two years must weigh against the grant of an extension of time.

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

[14] In respect to this criterion the applicant submitted:

‘The employer is a large, public sector organisation with a dedicated HR and record keeping team, and can respond to my application as easily now as 2 years ago.’

Given the significant period of time which has elapsed between the dismissal of the applicant and the filing of her unfair dismissal application, I am satisfied that the respondent would be exposed to considerable prejudice in the event that an extension of time was granted. This factor weighs against an extension of time being granted.

The merits of the application (s 394(3)(e))

[15] It is important for applicants to understand that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. In Kornicki v Telstra Network Technology Group P3168, a Full Bench of the Australian Industrial Relations Commission said:

‘The merits of the substantive 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.’

[16] The applicant addressed the merits of her dismissal in the following way:

‘When I was given notice that my employment was about to be terminated in January 2013, I sent in a response letter to the Department (Attachment 3) which upon reading, any reasonable person should have realised that I was not well and my capacities to respond in a meaningful way were severely impaired....

I believe the decision to terminate my employment was harsh and unfair. As a long standing staff member of 25 years I believe the Department could have looked at my track record and questioned why my actions were so much out of character to what they had previously been.’

[17] The applicant sought to characterise her letter of 8 January 2013 as being written by someone who was clearly unwell and ‘severely impaired’. The letter was in these terms:

‘Dear Roger,

Thank you so much for your letter and Happy New Year to you.

Money is tight for the Federal Government and I am also thinking of all the ways I can save some money.

As long as the Veterans are being looked after that is all that matters to me. I enjoy giving good customer service and if it is easier for DVA to terminate my services I’ll see if I can offer my client service skills in an other area of the community.

Thank you for writing to me. My arm is slowly getting better but I am learning patience and self control through this exercise. It is important that my arm gets back its full strength and that can only happen if I stop doing hard work around the house.

Hello to all my colleagues in DVA,

God bless,

Regards,
Robyn Keys. J.P.’

[18] The evidence of the respondent demonstrated that it had recorded a number of unauthorised absences of the applicant from work and had written to her on 7 January 2013 asking her to ‘show cause’ based on these absences. The evidence indicated that the respondent instituted a sound internal disciplinary procedure, as would be expected of a large Commonwealth Department. That disciplinary procedure was understandably abandoned upon the applicant’s assent to the termination of her employment on 8 January 2013. The respondent was not in a position to assess the applicant’s mental state at the time she requested the termination of her employment. Indeed, she gave no clue of any mental impairment. The ‘show cause’ letter issued on 7 January 2013 invited her to explain her absences from work. It would be difficult to conclude that the respondent’s reaction to the applicant’s refusal to give reasons for her absences, or her consent to her termination, resulted in her dismissal being ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act.

[19] While I am not medically qualified, it is not readily apparent (or at all) to me that the above letter was written by someone who was clearly unwell and ‘severely impaired’. On its face, the letter is friendly and conversational. It was in response to a ‘show cause’ letter which the applicant knew might well result in her termination. Given the applicant had previously suffered a breakdown in 1999 and she acknowledged the Department had supported her at that time, it is difficult to understand why she would not have raised, or even mentioned any mental health issues at the time of receiving the ‘show cause’ letter. It is little wonder that the Department took the same view as I do as to the applicant’s clear willingness to accept her termination of employment. The Department certainly could not have read into that letter that she was clearly unwell and ‘severely impaired.’

[20] In my view, a prima facie assessment of the material filed suggests that the applicant’s prospects of success are negligible.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[21] The applicant did not address this criterion. The evidence suggests that there were no other persons in a similar position to that of the applicant. This factor is a neutral consideration in this case.

CONCLUSION

[22] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant the Commission granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. In my opinion, the circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The length of the delay is very significant and must outweigh any merit (although I have not found any) to the applicant’s claim. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 27 February 2015.

DEPUTY PRESIDENT

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