Sandra Bailey v Powerhouse Loan Processing Pty Ltd
[2024] FWC 2931
•22 OCTOBER 2024
| [2024] FWC 2931 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sandra Bailey
v
Powerhouse Loan Processing Pty Ltd
(U2024/10191)
| COMMISSIONER P RYAN | SYDNEY, 22 OCTOBER 2024 |
Application for an unfair dismissal remedy — application filed out of time — circumstances not exceptional — application dismissed
Introduction
This decision concerns an application by Ms Sandra Bailey (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).
In the Application, the Applicant states that her employment with Powerhouse Loan Processing Pty Ltd (Respondent) was terminated with effect from 27 May 2024. The Application was made on 30 August 2024.
In its Form F3 Employer Response, the Respondent objected to the Application on the grounds that the Applicant resigned from her employment and that the Application was not made within 21 days of that date.
Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (Commission) allows pursuant to s.394(3). The period of 21 days ended at midnight on 17 June 2023. The Application was therefore made 74 days outside the 21-day period.
The application for an extension of time was heard before me on 17 October 2024. The Applicant was self-represented. The Respondent was represented by Mr T Spence of Counsel.
The following materials were admitted into evidence:
· Applicant’s submissions in Chief (Hearing Book p.54-114) (Exhibit A1);
· Applicant’s submissions in reply (Hearing Book p.161-214 (Exhibit A2); and
· Witness statement of Ms Samantha Casey, the sole director and shareholder of the Respondent (Hearing Book p.124-160) (Exhibit R1).
For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).
Relevant Background
The Respondent is a loan processing business for mortgage brokers. The Respondent was established by Ms Casey and her mother, Ms Teresa Schloithe, and commenced operation in July 2021.
On 1 September 2021, the Applicant commenced employment with the Respondent with responsibility for accounts payable, accounts receivable, and payroll. The Applicant is Ms Schloithe’s sister and Ms Casey’s aunty.
On 18 February 2024, Ms Casey directed the Applicant to exclude Ms Schloithe from “all management level communications.”
Ms Casey stated that Ms Schloithe ceased employment with the Respondent on 20 February 2024 following allegations of misconduct. The Applicant disputed this, contending that Ms Schloithe remains employed by the Respondent and is on personal leave.
For present purposes, it is not appropriate (or relevant) for me to determine whether Ms Schloithe remains employed by the Respondent.[1] However, I observe Ms Casey has issued various written communications which are inconsistent with her evidence that Ms Schloithe ceased employment on 20 February 2024. On 5 March 2024, Ms Casey sent Ms Schloithe a letter to show cause why her employment should not be terminated,[2] and on 21 May 2024 Ms Casey referred to Ms Schloithe as an “employee” with “employee access” to the Respondent’s systems[3] who “remains unfit for the workplace.”[4]
On 5 March 2024, the Applicant processed a period of paid personal leave for Ms Schloithe.
At 10:25am on 6 March 2024, Ms Casey sent correspondence to the Applicant which stated:
Hi SB,
As discussed, please cease communication with Teresa in relation to business matters with immediate effect. All management and queries and decisions for Powerhouse are to be directed to me so I can advise further.
Please ensure that if Teresa requests you to take action or provide you with information in relation to anything to do with Powerhouse, that you direct her to put it in writing in an email format and provide me with that correspondence.
At 3:10pm on 6 March 2024, Ms Casey sent further correspondence to the Applicant which stated:
Hi SB,
Following on from my earlier email, I wish to reiterate for clarity’s sake that my reasonable directive to you, as the sole Director and shareholder of Powerhouse, is that with immediate effect:
1. Any requests (verbal or otherwise) made by Teresa to you, must be responded with words to the effect of, “I am sorry Teresa I have no authority to deal with your request. Please put your email in writing to me and I will refer to Sam for a response.”
2. You are not to share any Powerhouse records, documents, files, systems, company access (digital or physical), property or information with Teresa unless I have given you prior express permission in writing; and
3. You are not to share with anyone matters regarding Teresa’s employment, sick leave or request to attend a show cause.
On 9 April 2024, the Applicant provided iCare with copies of Ms Schloithe’s payslips in relation to a workers compensation claim made by Ms Schloithe.
On 11 April 2024, Ms Casey rebuked the Applicant for not obtaining her permission prior to sending Ms Schloithe’s payslips to iCare. While Ms Casey ultimately accepted that the Applicant did not do anything wrong, she did not deny telling the Applicant that she was not a team player and that it was horrible in the office on the days the Applicant attended.
On 15 April 2024, the Applicant attended a medical appointment and requested a mental health plan and commenced seeing a psychologist from 1 May 2024.
On 2 May 2024, the Applicant attended the office and overheard Ms Casey advise a third-party representative that Ms Schloithe was no longer involved with the business of the Respondent. A short time later, the Applicant asked Ms Casey, “Did I miss an announcement? Because as far as I am aware, Teresa is on sick leave and not out of the business.” The Applicant stated that she did so, because she wanted the Respondent’s other employees to know that Ms Schloithe was still employed. Ms Casey took issue with the Applicant raising this matter in front of other workers.
On 6 May 2024, the Applicant met Ms Casey at a fast-food restaurant to discuss the events of 2 May 2024. It was agreed at this meeting that the Applicant would work from home.
On 8 May 2024, Ms Casey sent correspondence to the Applicant titled “Meeting Notes – 6th May 2024” which stated:
Hi SB,
I wanted to thank you again for catching up on Monday to discuss our current working relationship and some recent miscommunications and workplace interactions.
I really appreciated the transparency of our discussion and to learn that you are really committed to continuing to work with me and for Powerhouse. I was also very comforted to learn that despite your ongoing friendship with Teresa, your loyalty as far as work goes will remain with Powerhouse.
Topics we discussed:
·Feelings of disconnect between yourself and the team
·Feeling paranoid that you are being kept out of business matters
·Worry that you cannot take what I say at ‘face value’.
·Inappropriateness of questioning me in front of other employees
·Uncomfortable energy in the office
·Acceptance that there must be separation between personal feelings and professional obligations
·Acceptance from both sides that we should have taken the conversation 'offline'
·Moving forward to maintain a professional and harmonious working relationship
I believe we were able to resolve the above topics and feel that we can move forward with a harmonious working relationship.
As discussed, you feel that at this moment in time that you would like to work from home for all your working hours each week. I agree to this arrangement and confirm that the team can take over the job of scanning and uploading the Powerhouse Checklists to Broker Engine.
Although you do not have any duties which require you to attend the office, you are always welcome to work from the office at any time.
As discussed, I will let you know in advance of any potential team meetings so you may attend.
After setting out further directions regarding future communication with Ms Schloithe and iCare, Ms Casey stated:
I really appreciate our open and honest communication and hope that the recent unpleasant workplace dealings can be put behind us and we can re-focus on a professional and productive relationship.
Later that evening, the Applicant sent Ms Casey a response which relevantly stated:
Received and acknowledged.
On 17 May 2024, the Applicant arranged with Ms Casey to attend the Respondent’s office that afternoon to return some of the Respondent’s property on behalf of Ms Schloithe. There were no other persons present when the Applicant attended.
Unbeknown to the Applicant, Ms Schloithe attended the Respondent’s office on Sunday 19 May 2024 and left some items on Ms Casey’s desk including a letter which was described by Ms Casey as “threatening and intimidating.”
At approximately 7:00pm on 19 May 2024, the Applicant visited Ms Schloithe. Ms Schloithe told the Applicant that she had visited the Respondent’s office on two occasions earlier that day.
At approximately 9:06am on 20 May 2024, Ms Casey telephoned the Applicant and asked her if she had left anything on Ms Casey’s desk. The Applicant said no and informed Ms Casey that Ms Schloithe had attended the office on the previous day.
On 21 May 2024, Ms Casey directed the Applicant to provide Ms Casey with “full admin control and access” to the Respondent’s systems.
On 22 May 2024, Ms Casey sent correspondence to the Applicant informing her that she was stood down from her employment pending her attendance at a meeting on 24 May 2024 to discuss “several allegations of serious misconduct related to [the Applicant’s] actions over the weekend of 18 and 19 May 2024.” The allegations were set out as follows:
It is alleged that you:
1. knowingly permitted and facilitated Ms Schloithe to enter and access the Powerhouse workplace over the weekend of 18 and 19 May to remove property;
2. failed to notify me, prior to, during, or post, Ms Schloithe entering and accessing the Powerhouse workplace; and
3. admitted to me during a phone call at approximately 9:06 am on Monday, 20 May 2024 of knowing that Ms Schloithe had entered and accessed the Powerhouse premises over the weekend on two separate occasions to collect her “personal belongings”; and
4. knowingly and willingly ignored my earlier issued reasonable work directives regarding Ms Schloithe.
On 23 May 2024, the Applicant requested a copy of “directives” referred to in the allegations. Ms Casey did not respond to this request.
On 24 May 2024, the Applicant met with Ms Casey. The Applicant’s son-in-law, Jake Wilson attended as her support person. Ms Michaela Grima, an employee of the Respondent, attended with Ms Casey. In her evidence before the Commission, the Applicant stated that at the conclusion of the meeting, the allegations were found to be unsubstantiated. Ms Casey did not contest that. However, in response to the Applicant requesting to go back to work, Ms Casey stated that she needed the weekend to consider the matter.
On 26 May 2024, the Applicant sent correspondence to the Respondent stating that she was resigning from her employment and gave two weeks’ notice. The Applicant offered two suggestions for working out her notice period. Neither the letter of resignation nor covering email stated a reason for the resignation. However, in her evidence, the Applicant stated that the stress of being treated unfairly by Ms Casey was too much for her.
On 27 May 2024, Ms Casey sent correspondence to the Applicant accepting her resignation with immediate effect and making a payment of three weeks’ pay in lieu of notice. This correspondence also dealt with a range of other matters including the return of property, continuing obligations, and the offer of an additional ex-gratia payment. The Applicant refused the ex-gratia payment.
On 6 June 2024, the Applicant sent correspondence to Ms Casey requesting a copy of the “directives.”
On 12 June 2024, the applicant sent further correspondence to Ms Casey repeating her request for a copy of the “directives.”
On or around 14 June 2024, the Applicant made an enquiry for advice with the Fair Work Ombudsman and was referred to the Working Women’s Legal Service (WWLS).
On 14 June 2024, the Applicant made an online enquiry with the WWLS regarding Ms Casey’s failure to provide copies of the “directives.” The WWLS advised the Applicant that it gives advice to women who have experienced sexual harassment or gender-based discrimination in the workplace and does not provide general employment law advice. The WWLS referred the Applicant to the Employment Rights Legal Service (ERLS).
On 19 June 2024, the Applicant made an online enquiry with the ERLS regarding Ms Casey’s failure to provide copies of the “directives” and questioned whether the Respondent had (unlawfully) discriminated against her. The Applicant stated that she was subsequently advised by the ERLS that it could not assist her.
On 29 July 2024, the Applicant sent correspondence to Ms Casey requesting copies of payslips for the purpose of completing her tax return.
On 1 August 2024, the Applicant made a workers compensation claim. The Applicant stated that during the process of making this claim, she was advised by her doctors and her iCare case worker to seek legal advice.
On 21 August 2024, the Applicant telephoned the ERLS and asked to speak with a solicitor. Later that day, the Applicant received an email from the Inner City Legal Centre (ICLC) confirming an appointment on 29 August 2024.
On 29 August 2024, the Applicant spoke with a solicitor from the ICLC and was advised that although she had resigned from her employment, she should make an application for an unfair dismissal remedy and apply for an extension of time.
On 30 August 2024, the Applicant made the Application through the Commission’s online lodgment service.
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only 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.[5] 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.[6]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) 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 394(3) 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) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) 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 unfair dismissal application.[7]
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.[8]
The Applicant submits the following reasons for the delay:
· Mental distress following her resignation;
· Lack of knowledge of unfair dismissal laws; and
· That her case is unique and that she was unable to get advice/assistance.
Mental distress following her resignation
The Applicant submitted that she was suffering from mental distress following her resignation due to the “extreme pressure” to resign. This raises this issue of whether medical incapacity is an acceptable or reasonable explanation for the delay.
In Victor Blanco v White Bathroom,[9] Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:
[44] Sometimes an applicant’s medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.
[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O’Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant’s depression. The Applicant provided advice from his doctor that included details of the Applicant’s clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been “given the run around by the phone system which took some time to navigate around”, the effect of which appears to have been made worse by the Applicant’s mental health.
[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances “as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal.” In that matter the Applicant’s claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that “after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission”.
[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.
[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however “[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period.” The Full Bench affirmed the finding at first instance that the medical evidence “did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame” and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O’Callaghan in Roberts but found “the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context.”
[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her “major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder” primarily by reference to the psychologist’s assessment of the Applicant’s capacity to act. The Full Bench endorsed the finding at first instance that on the evidence “the appellant’s mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay.”
[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.
[51] In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant’s capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);
(iii) the evidence should positively demonstrate that the Applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and
(iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
[Footnotes omitted]
In Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd[10], a Full Bench of the Commission stated:
[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.
[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:“[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.
[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
[28] The Full Bench’s comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench’s comments in Zhang that ‘compelling medical evidence’ is required to support a conclusion that the reason for the delay was due to the individual’s medical condition. The Deputy President in the present matter had no medical evidence before her, let alone ‘compelling medical evidence’, to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant’s opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.
The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant’s capacity to make an application within the statutory time limit and that an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient.
Turning to the circumstances of this matter, there is no ‘compelling’ medical evidence that the Applicant was suffering from a medical condition or that it had a material impact upon the Applicant’s capacity to make the Application within the statutory time limit.
The only evidence beyond the Applicant’s self-assessment that she was suffering mental distress is a schedule of psychologist appointments that have taken place over the period of 1 May 2024 to 14 October 2024.
Even if it could be inferred from the schedule of psychologist appointments that the Applicant was suffering from a medical condition, that does not require the Commission to conclude that it rendered Applicant incapable of completing and lodging an application under the FW Act within the required time.[11] 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.[12]
The other available information relevant to my consideration of this matter is the Applicant’s evidence that she was able to make enquiries with various organisations by telephone and email. Furthermore, during the proceedings the Applicant agreed that during the 21-day period following the cessation of her employment she had access to the internet and could have accessed the Commission’s website and made an application.
Having regard to the evidence and submissions before me, I am not satisfied that mental distress (or medical incapacity) is an acceptable or reasonable explanation for the delay.
Lack of knowledge of unfair dismissal laws
The Applicant submitted that as she resigned, she did not know that she could make an application for an unfair dismissal remedy. The Applicant stated that she only became aware that she could so following her appointment with the ICLC on 29 August 2024.
To the extent the Applicant was not aware of her rights, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[13]
A simple internet search would have pointed the Applicant to the Commission’s website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application, including information relating to forced resignation.
I do not accept that lack of knowledge of unfair dismissal laws constitutes an acceptable or reasonable explanation for the delay.
Unique Case/difficulty in obtaining assistance
The Applicant submitted that her matter was a unique case of discrimination and that is why she was unable to obtain assistance. I do not accept this is an acceptable or reasonable explanation for the following reasons.
First, it is inconsistent with her explanation that she did not know that she could make an application because she had resigned.
Second, the Applicant’s requests for advice or assistance were primarily related to the issue of whether Ms Casey was required to provide her with copies of the Respondent’s “directives.” To the extent that the Applicant considered her matter was a unique case of discrimination, the delaying of making of an application for an unfair dismissal remedy whilst seeking, or waiting for legal advice, is not an acceptable or reasonable explanation.[14] As stated in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth):
2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.
(Emphasis added)
Third, as noted above, the Commission’s website has a range of information to assistant self-represented parties. The making of an unfair dismissal application is not a complex process. It is a process that many self-represented applicants navigate on a regular basis.
Reason for the delay - Conclusion
I do not accept the Applicant has provided an acceptable or reasonable explanation when the various reasons are considered individually or collectively. In the absence of an acceptable explanation, this circumstance weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It is not in dispute, and I so find that the Applicant was aware that her employment ceased on 27 May 2024 and therefore had the full period of 21 days to make the Application.
This factor does not weigh in favour of a conclusion that there are exceptional circumstances.
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.[15]
In Hunter Valley Developments Pty Ltd v Cohen[16], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[17]
It is not in dispute, and I so find that the Applicant did not take any action to dispute the dismissal prior to making the Application. In the absence of any action taken by the Applicant to put the Respondent on notice that the dismissal was disputed, this factor weighs against a conclusion that there are exceptional circumstances.
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.
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 Applicant contends that she was forced to resign because of conduct by the Respondent during the meeting on 24 May 2024. Although the Applicant was the subject of some tenuous allegations, she was ready to return to work at the conclusion of the meeting.
However, the Applicant stated that it was Ms Casey’s decision to consider the outcome of the 24 May meeting over the following weekend that gave her “no hope that she would be treated fairly”, and she decided to resign.
The Applicant agreed that she did not know what the outcome would be and there is no evidence that Ms Casey intended to terminate the Applicant’s employment or gave any indication as to what the outcome would be.
The Respondent submitted that the Applicant resigned of her own volition and that the Application is without merit.
Having regard to the material before and noting that this stage of the proceeding is essentially interlocutory, it is not apparent that the Applicant had no choice but to resign.
In my view, the merits of the Application are not strong. This does not weigh in favour of a conclusion that there are exceptional circumstances.
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.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).
The Application is dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Ms S. Bailey, the Applicant.
Mr T Spence, of counsel for the Respondent
Hearing details:
2024.
Sydney:
17 October.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Nulty) at [36].
[2] See Exhibit A2 (Hearing Book at p.212).
[3] See Exhibit A1 (Hearing book at p.71).
[4] See Exhibit A1 (Hearing book at p.63).
[5] Nulty at [13].
[6] Ibid.
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[9] [2021] FWC 4694 at [44]-[51].
[10] [2023] FWCFB 113 at [26]-[28], citing Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285.
[11] Weir v HydroChem Pty Ltd[2017] FWCFB 758 at [37].
[12] Ibid.
[13] Nulty at [14].
[14] Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [59]-[63]; Jaegar v Traffic Diversions Group[2016] FWC 1231 at [14]-[15], [27]-[28].
[15] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[16] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.
[17] Ibid at [19].
Printed by authority of the Commonwealth Government Printer
<PR780478>
0
11
0