Roseanne Solway v Paw Boy Pty Ltd T/A Ghanda Clothing

[2017] FWC 4694

[2017] FWC 4694

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roseanne Solway
v
Paw Boy Pty Ltd T/A Ghanda Clothing
(U2017/7013)

COMMISSIONER LEE MELBOURNE, 15 SEPTEMBER 2017

Application for an unfair dismissal remedy - extension of time - application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 4 August 2017. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Ms Roseanne Solway (the Applicant) claims that she was unfairly dismissed from her employment with Paw Boy Pty Ltd T/A Ghanda Clothing (the Respondent).

[2] The Applicant was dismissed from her employment with the Respondent on 20 March 2017 which is not in contest. The Applicant lodged an unfair dismissal application on 2 April 2017 matter U2017/3531 (the first application). The first application was lodged within the statutory timeframe provided in the Act.

[3] The Applicant discontinued the first application on 16 May 2017, a day prior to a scheduled conciliation on 17 May 2017 to be conducted in the matter. The Applicant advised the Fair Work Commission (the Commission) via email that the application was withdrawn on 16 May 2017. Her evidence was that her fiancé, Mr Abel, sent the email on her behalf from her email address. 44 days later on 29 June 2017 the Applicant lodged a second unfair dismissal application. The second application is the application before me, which was listed for Jurisdiction (Extension of Time) Conference/Hearing before me on 4 August 2017. The second application was lodged 80 days outside the statutory time period. The Applicant appeared and gave evidence on her own behalf and Mr Abel, the Applicant’s fiancé also gave evidence on behalf of the Applicant. Ms Rachel Rudd appeared for the Respondent and Mr Josh Rudd gave evidence on behalf of the Respondent.

[4] The law to be applied is set out in s.394(2) and s.394(3) of the Act as relevant to this application. In short, the application must be made within 21 days after the dismissal took effect. The Commission, pursuant to s.394(3) of the Act, can allow a further period for the application to be made if it is satisfied that there are exceptional circumstances taking into account a range of factors, being:

(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.

[5] In dealing with these matters the consideration is whether or not there are exceptional circumstances within the meaning of the Act. As set out above, 394(3)(a) and (f) of the Act provide that a further period can be allowed. The term “exceptional circumstances” was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty).¹ It is not necessary for me to set out what was said in that case in detail, however I note the decision made clear the meaning of “exceptional circumstances” in the context of the Act at paragraph 13 and paragraph 15 and I rely on and adopt that approach in determining this matter.

[6] I will now give consideration to s.394(3)(a)-(f) of the Act. Firstly, the reason for the delay. The Applicant needs to provide a credible reason for the whole of the delay. I am satisfied the first period of the delay up until 16 May 2017 can be explained by the fact that the Applicant had lodged an unfair dismissal application, being the first application. That was discontinued on 16 May 2017 and there was then a further 44 days until this second application was lodged with the Commission. The reason provided by the Applicant for withdrawing the first application is that she was intimidated, confused and overwhelmed. Further, she experienced serious anxiety and panic attacks. There are psychologist reports in evidence that indicate the Applicant does indeed have mild depression and is rated high on the scale of levels of anxiety. The Applicant submitted in her evidence that since 16 May 2017 she has sought further emotional support, her mental health has improved and she is now confident to proceed with an unfair dismissal application.

[7] Mr Abel gave evidence in terms of his statement that the Applicant had symptoms of depression, no motivation, no energy, lack of concentration and was sleep deprived. His evidence was that the symptoms were so severe that she could not continue with the initial unfair dismissal application. Mr Abel claimed that this continued for weeks on end, and on numerous days that the Applicant’s depression was so bad she would not get out of bed for the whole day and that she has worked very hard to rebuild her mental health over the past two months. During the hearing Ms Rudd asked Mr Abel how long after 16 May 2017 the Applicant’s depression was so bad that she would not get out of bed for the whole day to which he replied up until roughly a week from when she lodged this application.

[8] Medical evidence was provided by the Applicant, however none of the evidence relates to the period after 16 May 2017 in any direct sense. There is a medical certificate covering the period 10 March 2017 to 17 March 2017 and a mental health plan that was completed on 10 March 2017. There are consultation notes dated 10 March 2017 and 21 March 2017, that is appendix 6 and appendix 30 to the Applicant’s witness statement. Further, appendix 23 to the Applicant’s witness statement is a report from a psychologist, Matt Nolan which is dated July 2017, however relevantly indicates the Applicant attended three sessions, 16 March, 30 March and 4 April 2017 and it is in that report that the assessment of the Applicant’s symptoms of her mental illness being moderate depressive and severe anxiety are quoted. I note that there is no evidence of any consultations with medical practitioners since 4 April 2017 although the Applicant gave evidence during the hearing that she had again commenced seeing a psychologist more recently. Relevantly the Applicant confirmed during the hearing that all the medical evidence she sought to submit in the case was included in the materials.

[9] I am satisfied based on the Applicant’s evidence and the evidence of Mr Abel, combined with the earlier evidence about depression and anxiety that the Applicant continued to struggle with her mental health in the period after 16 May 2017. However the medical evidence does not support a finding that the Applicant was unable to lodge an unfair dismissal application during the period, 16 May to 29 June 2017. Moreover, the Applicant’s own evidence is that she has submitted a number of job applications since 16 May 2017, leading up to around the time she lodged the second unfair dismissal application. I have taken into account Mr Abel’s evidence that the Applicant’s depression was so bad she could not get out of bed for the whole day, and his clarification on cross-examination that that type of situation continued up until close to when the Applicant lodged the second application. However, I note that this is broadly consistent with the Applicant’s own evidence, the essence of which was that during that period after 16 May 2017, she had some good periods and some bad periods. This is consistent with the fact that during better periods the Applicant was able to submit a number of job applications.

[10] The Applicant is to be commended for her efforts in submitting the job applications and ultimately her success in obtaining further employment. However, it is evident that the mental health issues she was still experiencing during that time did not impede her from lodging those job applications. Against that background I am not satisfied the Applicant’s mental health issues, which are certainly evidenced and existed, are of a level to satisfy me that they were a barrier to her lodging her second application during that period. Nor are the general references to a lack of legal support an acceptable reason for the delay. Lack of legal representation is not a basis for finding that there is an acceptable reason. Overall I am not satisfied that there is an acceptable reason for the whole of the delay in lodging this application and that weighs against granting an extension of time.

[11] The criterion at s.394(3)(b) of the Act is whether the person first became aware of the dismissal after it had taken effect. There is no doubt the Applicant was aware of the dismissal that took effect on 20 March 2017. This is a neutral consideration in this matter.

[12] In terms of section 394(3)(c), any action taken by the person to dispute the dismissal, the Applicant did take action to dispute the dismissal. The Applicant lodged an unfair dismissal application on 2 April 2017 within 21 days of the date of her dismissal, although one has to take into account that having done so she discontinued her application. The Applicant gave evidence as to the reasons why she elected to discontinue her first application.

[13] In addition, the Applicant emailed the Respondent the day after she was dismissed, evidenced at appendix 15 to the Applicant’s witness statement. It would be an understatement to say her most serious concern was in relation to the manner of her dismissal. In this email the Applicant indicated that she has “worked her heart out and given the job to her all” only to be “kicked when she was down”. Further, she asserted that quite clearly it was a simple case of unfair dismissal and that she was mentally in a really bad place on 10 March 2017 because of stress. In every respect this was clearly an effort by the Applicant to dispute the dismissal. I have taken that into account and the fact that the Applicant did quite clearly take action to dispute the dismissal at that early stage weighs somewhat in favour of granting the extension. Although it has to be measured against the fact that despite that context the initial application was discontinued and then there was a further 44 days until the second application was made.

[14] As to s.394(3)(d) of the Act and whether there is prejudice to the employer, including prejudice caused by the delay, the Respondent made submissions that there is prejudice. It is well established that the onus is on the employer to demonstrate in evidence that there is prejudice arising from the delay. The Respondent has not provided any particular evidence on that point. The Respondent has expressed concern that they have had to prepare for the earlier conciliation which was cancelled because the Applicant discontinued the first application. The Respondent indicated they sought some legal advice around that time but did not provide any evidence to that effect. Further that there are a number of potential witnesses who have left the organisation which would make things difficult for them in terms of prosecuting the case. I have taken this into account and I have also taken into account that this matter concerns an 80 day delay in total which is quite a significant period in time. It has been held in previous cases that a long delay gives rise to a general presumption of prejudice. Overall, I am satisfied that there would be some prejudice to the Respondent, although I do not give this significant weight.

[15] In terms of s.394(3)(e) of the Act, the merits of the application, there has been extensive material submitted. The Applicant was dismissed for reasons that are asserted by the Respondent to be linked to claims about her performance. The Applicant, for her part, vigorously disputes those claims about her performance. The Applicant submitted that she was dismissed on sick leave. It seems from the evidence that the Applicant was dismissed the day after she returned from sick leave. There are allegations made by the Applicant about the difficulty of performing her role because a relative of the Respondent was employed, that there were difficulties in managing this and unequal treatment. The Applicant referred to evidence of previous assessments of her performance being at a high level. Against that, the Respondent submits that there is ample evidence to demonstrate that there is a valid reason for the dismissal related to the Applicant’s performance.

[16] There is a real question that arises as to, and there is a contest on this fact, about whether the Applicant was given an opportunity to improve her performance. I note that the Applicant when asked during cross-examination about whether she had performance issues put to her in a meeting which was held with another employee. It is clear on the Applicant’s evidence that there were no questions raised about her performance at that time, however there is clearly a factual dispute on this point. In any case I note if the circumstances were such that performance issues were raised on no more than one occasion and the employee was then dismissed upon return from sick leave some time after that then, without something more, that would present difficulties for a Respondent defending a claim of unfair dismissal.

[17] However, overall there are significant issues of contested fact around all of those circumstances and it is not possible nor necessary or desirable to embark on a detailed consideration of the substantive case as submitted by the Respondent. 2 I agree that is the appropriate approach to take. Having regard to the evidence as it is, in terms of merits, it is certainly the case that the Applicant’s case is not without merit; however, I am unable in the circumstances to go beyond that and subsequently I consider this to be a neutral consideration.

[18] As to s.394(3)(f) of the Act, there are no particular issues that arise in consideration of the factor as to fairness between the person and other persons in a similar position in this matter. To be clear, there could be circumstances where an Applicant discontinues an application and then recommences a further application. Depending on the factual matrix it may well be possible that there are exceptional circumstances that would lead to an extension of time being granted, however each case turns on its own facts.

[19] In conclusion, I am not satisfied that there is an acceptable reason for the delay and that weighs against granting the extension of time. The Applicant became aware of the dismissal when it took effect and this is not in contention. This is a neutral consideration. The action that the Applicant took to dispute the dismissal does weigh marginally in favour of granting the extension given the totality of the circumstances. Overall I am satisfied that there is some prejudice to the employer though it is not significant and that weighs marginally against granting the extension. The merits of the application are also a neutral factor. I am not in a position to determine that the merits are so strong as to otherwise overwhelm an unacceptable reason for the delay. Finally, there is no particular consideration that arises under section 394(3)(f) of the Act.

[20] Taking into account all of the relevant factors I am not satisfied that there are exceptional circumstances for the delay. As the application was made out of the statutory time period, the application is dismissed. 

[21] An order giving effect to this decision has previously been published in PR595154.

COMMISSIONER

Appearances:

R Solway on her own behalf for the Applicant

R Rudd for the Respondent

Hearing details:

2017.

Melbourne:

4 August.

Final written submissions:

27 July 2017

1 Nulty v Blue Star Group (2011) 203 IR 1

 2   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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