Roisin Sutcliffe v BGIS Pty Ltd
[2024] FWC 3061
•5 NOVEMBER 2024
| [2024] FWC 3061 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Roisin Sutcliffe
v
BGIS Pty Ltd
(C2024/3779)
| COMMISSIONER P RYAN | SYDNEY, 5 NOVEMBER 2024 |
Application to deal with contraventions involving dismissal – application made out of time – circumstances not exceptional – application dismissed
Introduction
This decision concerns an application by Ms Roisin Sutcliffe (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 states that she was dismissed from employment with BGIS Pty Ltd (Respondent) with effect from 17 May 2024. The Application was made at 12:01:46am on 8 June 2024.
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.[1] The period of 21 days ended at midnight on 7 June 2024. Therefore, the Application was made 1 minute and 46 seconds outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.
Upon the allocation of the matter to my Chambers, I directed the parties to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.
The matter was heard before me on 3 October 2024. The Applicant was self-represented. The Respondent was represented by its Human Resources Business Partner, Ms Dana Comben.
The following materials were admitted into evidence:
· Witness Statement of Applicant dated 10 September 2024 (Hearing Book at p.80-81) (Exhibit A1);
· Applicant’s Bundle of Documents (Hearing Book at p.93-110) (Exhibit A2);
· Termination letter dated 17 May 2024 (Hearing Book at p.84-86) (Exhibit R1); and
· The Commission’s acknowledgment email dated 10 June 2024 (Hearing Book at p.87-89) (Exhibit R2).
The Applicant also gave evidence at the hearing.
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.366(2).
Exceptional Circumstances
Although the Application was filed out of time by only a very small margin, the Commission can only extend the period within which an application to deal with dismissal dispute 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.[2] 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.[3]
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.[4]
I now consider these matters in the context of the Application.
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.[5]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]
The Applicant relies on the following reasons for the delay:
· Technical difficulties;
· Her Mental Health/incapacity; and
· The impact of her father’s terminal illness.
Relevant Background
In early 2024, the Applicant was diagnosed with a mental health condition and commenced regular medical appointments which are ongoing.
On 13 March 2024, the Applicant was placed on a performance improvement plan (PIP).
On 14 May 2024, the Applicant attended a meeting to ‘show cause’ as to why her employment should not be terminated. Later that day, the Applicant created an account through the Commission’s Online Lodgment Service (OLS) commenced working on the Application. The Applicant said she did so because she considered that dismissal was inevitable.
On 17 May 2024, the Applicant was dismissed from her employment on 17 May 2024.
Sadly, the next day the Applicant received the devastating news that her father, who resided in England, was diagnosed with a terminal illness.
The Applicant stated that the combination of her dismissal and the news of her father’s illness led to a deterioration in her mental health condition.
The Applicant stated that her father’s illness required her urgent attention, causing her immense emotional distress and mental exhaustion. The Applicant stated that she spent weeks coordinating her father’s care arrangements with her family located in the United Kingdom.
The Applicant stated that in addition to dealing with the news of her father’s illness and coordinating care arrangements, throughout the 21-day period she was taking steps to improve her mental health and was regularly working the Application. The Applicant stated this included undertaking extensive research and summarising over 180 files into the information contained in the Application.
On 7 June 2024 (the last day of the 21-day period), the Applicant commenced working on the Application at around 10:00am. The Applicant stated that by this stage she had prepared about 25 drafts and was feeling overwhelmed. The Applicant took a break and went for a walk.
At approximately 9:00pm, the Applicant continued working on the Application and attempted to submit the Application at approximately 10:30pm. In her evidence before the Commission, the Applicant stated that each time she attempted to submit the Application the screen would go blank. The Applicant said she repeatedly refreshed the page until the Application was accepted at 12:01:46am on 8 June 2024. However, in her written submissions the Applicant filed in advance of the hearing the Applicant stated that the Commission’s “system froze briefly as I attempted to file my claim.”
Reason for the delay - consideration
Where an applicant is seeking to establish exceptional circumstances on the basis of technical difficulties in lodging an application before the Commission, that party will bear the evidentiary onus to adduce evidence of the nature and extent of those difficulties.[7]
In Giles v Coal Train Australia Pty Ltd[8], Deputy President Asbury (as the Vice President then was) stated:
[38] Notwithstanding this I accept that an Applicant seeking to establish exceptional circumstances on the basis of technical difficulties associated with lodging the application, is required to provide evidence to establish the nature and the impact of those difficulties. At very least, an Applicant assertion such difficulties should provide evidence about when attempts were made and what those attempts consisted of including documentary evidence where it is available. For example, in Arch v Insurance Australia Group Services Pty Limited there was evidence of technical issue associated with a maintenance closure of the Commission’s portal at or around the time that the Applicant established that he was attempting to lodge his application. The Applicant provided sufficient evidence of the time at which his attempts were made including copies of a partially completed application sufficient to establish that he did attempt to lodge it a time when he reasonably believed that the Commission’s portal was not functioning and that this was the only way to lodge his application.
[39] In the present case there is insufficient evidence about the attempts made by the Applicant to file her material and when she made those attempts. The incomplete application, while being validly made, does not contain information to enable conclusion to be reached or inference to be drawn as to when it was prepared, to support the Applicant’s assertions that she attempted to lodge it on 23 or 24 January 2020. As a result, there is no credible explanation for the delay in lodging the application. The lack of a credible explanation for the delay in filing the application is a matter that weighs against the exercise of the discretion to grant a further period for the application to be made.
The Applicant has not provided any evidence beyond the bare assertion that she experienced technical difficulties attempting to the lodge the Application on the evening of 7 June 2024. This is despite her claims that she repeatedly refreshed the system over a 90-minute period with the 21-day deadline looming. This aspect of the Applicant’s oral evidence is also inconsistent with her prior written submission that the system “froze briefly”. Furthermore, I have reviewed the Commission’s case management system and observe that other applications were lodged through the OLS during the same period.
In the absence of supporting evidence, I am not satisfied that the technical difficulties described constitute an acceptable or reasonable explanation for the delay.
In relation to the Applicant’s mental health condition, it is well established that where medical incapacity is relied on, there should be compelling medical 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.[9]
The Applicant agreed that there was no evidence before the Commission demonstrating that she was incapacitated to such an extent that it prevented the filing of the Application. However, the Applicant stated that she could obtain that evidence if it was needed. In my view further evidence of that nature would not assist her.[10] Medical evidence, like any other evidence, is a relevant consideration to be taken into account together with all the other available information before the Commission. The other available information before me is that throughout the 21-day period the Applicant was regularly working on the Application as well as arranging for the care of her father. Although the Applicant had to deal with the difficult but not uncommon circumstance of family illness, in my view the delay was attributed to the Applicant’s insistence on perfecting the Application which she ultimately left to the last minute. The Application, the substance of which consists of 6 short paragraphs, could have been filed much earlier.
Reason for delay - conclusion
I am not satisfied that the reasons relied on by the Applicant, whether considered individually or collectively, constitute an acceptable or reasonable explanation for the delay.
The absence of an acceptable or reasonable explanation for the delay weighs against 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.[11]
However, 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.[12]
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to the making of the Application. This factor weighs against a conclusion that there are exceptional circumstances.
s.366(2)(c) – Prejudice to the employer
Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, 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 and can be broadly summarised as follows.
The Applicant’s employment was dismissed due to unsatisfactory performance. The Applicant denies that her performance was not unsatisfactory and contends that the Respondent tampered KPI scorecards and failed to provide sufficient support. Furthermore, the Applicant contends she was placed on the PIP in response to the complaints she had raised.
The Respondent contends the Applicant failed to meet the requirements of the PIP. The Respondent states it also took into consideration previous disciplinary outcomes including the failure to follow directives and the disclosure of confidential matters to clients.
It follows that the merits of the Application turn on contested points of fact and/or law. Accordingly, 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
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’. 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, I am not satisfied that there are exceptional circumstances.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).
Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
R. Sutcliffe, the Applicant.
D Comben for the Respondent
Hearing details:
2024.
Sydney:
3 October.
[1] See s.366 of the Fair Work Act 2009.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [13].
[3] Ibid.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Ibid at [38]-[39].
[7] Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan [2019] FWCFB 5104 at [43].
[8] [2020] FWC 2274 at [38]-[39].
[9] Victor Blanco v White Bathroom [2021] FWC 4694 at [44]-[51]; Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd [2023] FWCFB 113 at [26]-[28], citing Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285.
[10] Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37].
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[12] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].
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