Roxanne Beveridge v Paradise Pizza

[2020] FWC 367

[2020] FWC 367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roxanne Beveridge
v
Paradise Pizza
(U2019/11763)

COMMISSIONER RIORDAN SYDNEY, 19 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 15 October 2019, Ms Roxanne Beveridge (the ‘Applicant’) lodged an application, pursuant to s.394 of the Fair Work Act 2009 (the ‘Act’). The Applicant commenced employment with Paradise Pizza (the ‘Respondent’) in September 2018 and claims that her employment was terminated by the Respondent on 27 August 2019. The Applicant was employed as a casual delivery driver.

[2] Section 396(a) of the Act states that the Fair Work Commission (the Commission) must determine whether the application was made within the period required by Section 394(2) of the Act. Section 394(2) of the Act reads as follows:

“(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 Applicant asserts that her dismissal took effect on 27 August 2019. If this was the case, her application should have been lodged no later than 18 September 2019. The Application was therefore lodged 27 days late.

[4] The Respondent has raised a jurisdictional objection in relation to the late lodgement of the application. A telephone hearing was conducted on 23 January 2020. In the course of the hearing it became apparent that the Applicant may not have been actually dismissed. The Respondent claims that the Applicant simply “walked out.”

Dismissal

[5] As this is an unfair dismissal application, the Applicant must establish that they were dismissed and that the dismissal was harsh, unjust or unreasonable. Section 386 of the Act defines the term “dismissed” in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[6] It is not in dispute that the employment relationship ceased as a result of a discussion on the night of 27 August 2019. As a part of her witness statement the Applicant produced the following recollection this discussion.

“JANE (Respondent): I was talking with someone today and your name was brought up in conversation and they said have you still got her working for you don’t you know sheis on methadone and she sells it too

ROXANNE (Applicant): Who said that ?

JANE: I cant tell you that.

ROXXANNE: If someone is talking crap about me I have the right to know.

JANE: I cant tell you who said it.

ROXANNE Yeah well when I said to you someone told me you got bustered selling 101 plants you made me tell you side it and you were going to sue for slander, I have a right to know whose talking shit about me.

JANE: Im not going to tell you who said it now whats going on are you on it and selling it?

ROXXANNE: If you want to listen and believe gossip that’s up to you im not going to stand here and be accused of that and have shit spoken about me that’s untrue so if you believe gossip gee if I have listen to what I have heard about you I never even would of applied for the the job.

JANE: Is that all you have t say about it ?

ROXXANNE: yeo it is but knowing you ,you will believe gossip.

I didn’t get a response from Jane so I turned way walking out”

(submission reproduced as submitted)

[7] The Respondent’s evidence roughly corroborates the Applicant’s version of events. The Respondent’s recollection of the Discussion was that it concluded when “Roxanna picked up her bag and left screaming at me,” with words to the effect of ‘you can stick your job.’

[8] The Applicant claims that after this incident the Respondent made no attempt to contact her and ask her to come back to work. The Applicant gave evidence that when a similar altercation had previously occurred, the Respondent called the Applicant the following day and asked her to come back to work. The Applicant acknowledged that she did not attempt to contact the Respondent and ask about her next shift or future employment.

[9] On the evidence before me, it appears that the employment relationship was not terminated on the employer’s initiative, thus the Applicant was not dismissed as defined by s. 386 (1)(a) of the Act.

[10] The question remains whether the Applicant was forced to resign in a manner that satisfies s. 386 (1)(b). The Applicant’s only relevant submission in this regard is that the Respondent had previously stated that she would not employ someone who was using methadone. The Respondent did not contradict this contention.

[11] I am satisfied that the Respondent made the comment that she would not employ anyone who was taking methadone. As a result, I am in no doubt that the Applicant would have been dismissed had she answered the Respondent’s question in the affirmative on 27 August 2019. Without reaching a final determination on the issue, I am satisfied that the Applicant has an arguable case that this scenario satisfies the broad criteria of a constructive dismissal sufficiently for the purposes of this proceeding. This additional jurisdictional issue will need to be determined in the future if the Applicant is granted an extension of time to lodge her application

Out of Time

[12] As identified earlier, section 394(2) of the Act determines the statutory time limit for an unfair dismissal application. Section 394(2) of the Act reads as follows:

“(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).”

[13] As the Application was lodged outside of the twenty-one-day timeframe prescribed by s.394(2)(a), I must be satisfied that exceptional circumstances exist in order to grant a ‘further period’ for the Applicant to submit her application. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) reads as follows:

“(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.”

[14] The principles defining an exceptional circumstance are well established. A Full Bench of Fair Work Australia in Nulty v Blue Star Group[2011] FWAFB 975 (Nulty), held:

“[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.”

Section 394(3)(a) - reason for the delay

[15] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis)noted at [39]

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly (sic) a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However (sic) the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”

[16] The Applicant advanced three reasons for her delay. Firstly, she was unaware that she was able to file an unfair dismissal application for remedy. Secondly, she believed that she was only able to file a completed application and she didn’t know the Respondent’s business information. Thirdly, she suffers from a mental health condition.

The Applicant was unaware of the procedural requirements of making a claim

[17] The Applicant claimed that at the time of her dismissal she was not aware she was able to apply for a remedy under the Act. Further to this claim, the Applicant stated that at some point around a week after she was allegedly dismissed, she was informed of her rights under the Act by her friend Ms Innes. It is unclear on the evidence whether the Applicant was made aware of the statutory time limit when she was informed of her ability to make a claim under the Act.

[18] It is well established that ignorance of the statutory time limit is not, of itself, an exceptional circumstance. The Full Bench in Nulty, said:

“[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.”

Belief that the form must be complete

[19] It was the Applicant’s evidence that she believed that in order to lodge her Form F2 it must be complete. It is true the Commission website encourages applicants to submit completed application forms, however, it is also true that it stresses the importance of filing your application on time. There is no section of the Act or any provision in the Fair Work Commission’s Rules that state that an application will not be accepted unless complete. An applicant waiting for a respondent to provide their business details is not a satisfactory reason to delay the submission of their application.

Mental health

[20] The Applicant claimed that she suffers from a depressive illness and that the alleged dismissal aggravated her condition causing her to be temporarily debilitated and thus unable to submit her application on time. The Applicant submitted a number of medical certificates that state that the Applicant was suffering from a non-descript ‘Medical Condition.’ The Applicant provided a further medical certificate from Dr. Mariyam Wells which states that the Applicant uses medication and that this medication does not impede her ability to drive. An accredited mental health nurse that works at the Applicant’s medical centre wrote a letter stating that the Applicant suffers from a depressive illness and the “depressive illness has impacted her ability to attend to daily tasks and impeded her ability to deal with matter in a timely manner.”

[21] With respect to an applicant’s mental capability to prosecute a claim, Deputy President Sams in Underwood v Terra Firma Pty Ltd[2015] FWC 1387, said at [12]:

“While I am sympathetic to the applicant’s mental condition, elevated levels of stress and anxiety consistent with an adjustment disorder do not positively demonstrate that the applicant was incapable of lodging his application, within the 21 day timeframe. Indeed many dismissed employees suffer from elevated levels of stress and anxiety following termination of their employment. On one view this is unexceptional rather than exceptional.”

[22] In contrast to the above decision, Deputy President Sams in Scott v Steritech Pty Ltd t/a Steritech [2019] FWC 2970 (Steritech), found that when mental illness becomes incapacitating it may be considered a factor that weighs in favour of a finding of exceptional circumstances. The Deputy President said at [95] – [97]:

“[95] True it is that apart from the consultations on 16, 19 and 23 August 2018 with Dr Ikramova (within the 21 day period) there was no express medical evidence that Mr Scott was unable to undertake normal tasks during this period. In fact, as Steritech submitted, quite to the contrary; he was meeting with a lawyer, speaking by phone to Mr Trotman, had filed a workers’ compensation claim and spoken to Workcover during this period.

[96] However, from the uncontested evidence of Dr Slack, Mr Trotman, Mrs Scott and Mr Smith, and from my observation of Mr Scott when he was describing how he felt at the time, it could not seriously be said that Mr Scott had been functioning normally. To varying degrees, the witnesses (and Dr Slack) refer to a person who was not coping at all with having been dismissed. The fact he was hospitalised for a month in September/October 2018 was obviously the most severe manifestation of a dismissed employee progressively reaching a point of almost total despair. The respondent did not (correctly, in my view) submit, or even speculate, that his deteriorating mental condition was not a direct result of his dismissal.

[97] That being so, I am satisfied that the psychological impact on Mr Scott as a result of his dismissal, after 15 years’ service, was not in the same ‘ball park’ as the usual stress and anxiety experienced by most dismissed employees in the post dismissal period. It follows that I find Mr Scott’s circumstances fell well outside what might objectively be considered to be a person’s usual, ordinary or commonly encountered post dismissal circumstances. This factor tells in favour of a finding of ‘exceptional circumstances’ and the granting of an extension of time.”

(My emphasis)

[23] It is unfortunate that the Applicant suffers from poor mental health and that she had an adverse reaction to her dismissal. However, the medical evidence provided stops short of proving that the Applicant’s mental health condition is debilitating. In the absence of this medical evidence it cannot be said that the Applicant suffered distress that could objectively be considered unusual, unordinary or uncommon. I note that the Applicant threatened the Respondent with legal action in the days after her termination, so she was obviously not hospitalised or confined to her bed.

[24] I am not satisfied the Applicant has provided a credible reason for the delay in the application.

[25] I have taken this into account.

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[26] The Applicant was aware of her dismissal at the time it took effect.

[27] This is a neutral consideration that I have taken into account.

Section 394(3)(c) - any action taken by the person to dispute the dismissal

[28] Other than attempting to obtain the business information of the Respondent for the purpose of filing an application with the Commission, including the threat of visiting a lawyer to obtain legal advice, the Applicant did not dispute her termination directly with the Respondent.

[29] This is a neutral consideration that I have taken into account.

Section 394(3)(e) - the merits of the application

[30] It would be inappropriate for me to make any findings on this contested matter without a hearing on the evidence. A Full Bench of the Australian Industrial relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[31] This is a neutral consideration that I have taken into account.

Section 394(3)(d) - prejudice to the employer

[32] Neither the Applicant or the Respondent made any submissions with respect to the employer being prejudiced as a result of this application.

[33] This is a neutral consideration.

Section 394(3)(f) - fairness as between the person and other persons in a similar position

[34] Neither the Applicant or the Respondent made any submissions with respect to fairness as between the Applicant and other persons in a similar position.

[35] This is a neutral consideration.

Conclusion

[36] Taking into account the obiter in Nulty, whilst sympathetic to the Applicant’s medical issues, I am not satisfied that the Applicant has identified any reasons or issues which could be regarded as “exceptional circumstances” which would warrant the granting of an extension of time. It is apparent that the Applicant was conscious of her rights when she advised the Respondent that she was “going to see a lawyer” and that she would be taking this further.

[37] It is also relevant that the Applicant’s friend had advised her of her capacity to bring an unfair dismissal application 7 days after her employment concluded yet the Applicant did not file her application for another 41 days.

[38] The situation of the Applicant is not “out of the ordinary course, unusual, special or uncommon.”

[39] The Application is dismissed.

[40] I so Order.

COMMISSIONER

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