Sarah Huston v Australian Financial Complaints Authority
[2022] FWC 207
•1 FEBRUARY 2022
| [2022] FWC 207 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sarah Huston
v
Australian Financial Complaints Authority
(U2021/12224)
| COMMISSIONER WILSON | MELBOURNE, 1 FEBRUARY 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
The Applicant, Ms Sarah Huston (Ms Huston), made an application for unfair dismissal in the Commission on 23 December 2021, seeking a remedy for unfair dismissal pursuant to s 394 of the Fair Work Act (the Act) from the Respondent, Australian Financial Complaints Authority (AFCA).
Ms Huston was notified of her dismissal the day it took effect on 29 July 2021. The timeframe for making an application prescribed by the Act is 21 days.[1] It follows that Ms Hutson made her unfair dismissal application 126 days out of time and she requires the Commission to allow further time for the application to be made under s 394(3) of the Act.
A hearing on the extension of time issue was held on 24 January 2022 (the Hearing). Ms Huston appeared on her own behalf.
In light of her health issues detailed below, I sought Ms Huston’s view as to her capacity to conduct proceedings by herself, which she confirmed, and I formed the view that she was capable to do so. No further issues were raised in relation to Ms Huston’s health during the Hearing. AFCA sought permission to be represented at the Hearing, which was granted by me pursuant to s.596(2)(a) of the Act. Ms Kaitlyn Gulle, Landers & Rogers, appeared on behalf of AFCA at the Hearing.
For the reasons set out below I am not satisfied on the material before me there are exceptional circumstances in Ms Huston’s case. Accordingly, I decline to allow an extension of time for the making of her unfair dismissal application.
BACKGROUND
Ms Huston commenced employment with AFCA on 17 December 2017 in the position of Case Analyst. She was subsequently promoted to Case Manager on 15 July 2019.[2] In January 2021, Ms Huston was moved to Financial Difficulties team, still working as a Case Manager. According to the position description, Ms Huston was responsible for managing complex complaints from consumers and small businesses that have not been able to be resolved directly with the financial firm. This requires investigating complaints, negotiating fair outcomes and preparing preliminary assessments.[3]
No issues arose in relation to the Ms Huston’s employment until January 2021 when her Manager, Mr Gavan Fairclough, initiated informal performance conversations because of his perception she had failed to close a number of cases for which she was responsible.
Noting that Mr Fairclough did not give evidence in these proceedings, which is not unexpected owning to the jurisdictional nature of the matter so far, Mr Fairclough commenced working with Ms Huston to address his concerns. Initially these were informal performance conversations, with Mr Fairclough asking Ms Huston in late March or early April 2021 to undertake a range of actions to progress her allocated cases. Mr Fairclough was concerned later in April that the tasks had not been actioned. Ms Huston says that in February 2021 she had reported certain health issues to her manager, including tiredness, lethargy, inability to concentrate and a lack of motivation. These things left her struggling to manage her workload and that she was feeling generally unwell and overwhelmed.
Mr Fairclough is reported as having encouraged Ms Huston during April to visit her general practitioner or contact AFCA’s employee assistance program. Ms Huston contacted her general practitioner and reported back to Mr Fairclough that the general practitioner felt her symptoms were minor and no tests were done.[4]
AFCA submits that Ms Huston’s work was changed slightly in April or May with an emphasis on conciliation work which it saw as being more aligned to Ms Huston’s professional interests. It also functioned as a means to address her motivation levels as well as to avoid the need to undertake formal performance management processes.
Towards the end of May 2021, and because AFCA did not see Ms Huston’s performance changing, Mr Fairclough advised her that a continuation of the situation would lead her being placed on a more formal Performance Improvement Plan. That led to a verbal warning being issued to Ms Huston in late June 2021, followed in turn by the introduction of a Performance Improvement Plan which would last for four weeks.
A process of monitoring Ms Huston’s performance was put in place and there were several conversations between herself and Mr Fairclough. After the Performance Improvement Plan was put in place, correspondence on 15 July 2021 reminded Ms Huston about the need to meet AFCA’s expectations and that the failure to meet requirements may lead to the termination of her employment. Further correspondence on 23 July 2021 noted that there had been a partial meeting of the plan’s expectations, but that the full objectives had not been met and again reminded Ms Huston that the situation may lead to the termination of employment.
On 29 July 2021 Ms Huston was dismissed in a meeting with Mr Fairclough and the People and Culture Advisor at the time, Ms De Luca. A letter of confirmation, sent the day after, on 30 July 2021, recorded that she was advised her employment would be terminated for several reasons namely a failure to meet outcome and timeliness targets; a failure to adhere to AFCA process; the failure to complete investigations; and a failure file and task management.
Ms Huston recollects that in the meeting she acknowledged she had not fully met the terms of the plan performance improvement plan “but noted the issues raised seemed petty” noting that she was very close to meeting the requirements.[5] She records that the representative from AFCA said it would not consider being close under the circumstances. Ms Huston also put forward as an alternative to dismissal that she was prepared to consider stepping down from the case manager role to that of case analyst in order to keep a job. This was refused by AFCA with the representative telling her that “because [she] had failed to meet the performance standards for a case manager and [she] was unlikely to meet the requirements the case analyst” it was not willing to offer her the chance to continue her employment. The termination letter records that Ms Huston would be paid four weeks pay in lieu of notice for the termination of her employment and that she would be paid any accrued but untaken entitlements.
Unfortunately, several months after the termination of her employment, on 22 November 2021, Ms Huston was diagnosed with a brain tumour requiring surgery which was carried out less than two weeks later on 5 December 2021.[6] Her present medical status includes that she is awaiting radiation therapy and will also require further brain surgery in the future in order to remove the remaining part of tumour.
Ms Huston submits in relation to the lateness of her unfair dismissal application that it was connected with her illness;
“I did not make my application within 21 days of being terminated because at the time and in the following months I was becoming increasingly unwell. I was not diagnosed with a brain tumor until 22 November 2021 – once I was diagnosed, I discovered that the symptoms affecting my ability to perform in my role were related to the tumor. The delay between diagnosis and lodging my FWC claim was due to the surgery on 5 December 2021 and my recovery.”[7]
Ms Huston argues that she had been losing visual acuity and concentration for some time, even while employed. Like many Victorian workers she had been working from home where she lives alone and that it would have been obvious to anyone who saw her at the time that she was not well even though she had not herself recognised that fact. Her evidence includes that her medical advisers “confirmed the tumour would have been affecting my body’s ability to function normally – my symptoms included tiredness, weight gain (an increase of 18kgs in 9 months) and memory loss”.[8]
In relation to the substantive merits of her unfair dismissal application Ms Huston submits her performance was greatly affected on the one part by her unrecognised and undiagnosed illness and on the other by an indifference on the part of Mr Fairclough about the problems she was experiencing and the symptoms she reported to him.[9] In the Hearing Ms Huston was critical of the fact that the length of her Performance Improvement Plan was very short, at four weeks, in comparison with others she knew of.
MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION
The 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”. Exceptional circumstances have been defined as 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.[10] 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.[11]
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.
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
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.
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
Reason for the delay
The 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 the applicant’s favour, however all of the circumstances must be considered.[12]
Two principal factors are put forward by Ms Huston for the delay in making her application for unfair dismissal; both are substantially connected with the illness she experienced. The first is that she felt quite unwell at the time she was dismissed on 29 July 2021 saying that she shut down after being dismissed. She had never been dismissed before and was not functioning in any way shape or form like a normal person. She withdrew and the time went by until she finally sought some medical assistance having an MRI only a few days prior to the diagnosis that she had a brain tumour. It did not occur to her at the time to take unfair dismissal application against her former employer and did not actively consider an application until her family encouraged her to do so.
The second factor, related to the first, is that having been diagnosed and then programmed for surgery she then focused on those medical needs instead of other matters.
Ms Huston’s surgery took place on 5 December 2021 and she was then discharged from hospital on or around 12 December 2021, with her unfair dismissal application being made on 23 December 2021. The last day for an unfair dismissal application to be made within time was Thursday, 19 August 2021.
Ms Huston’s evidence about the first factor includes that she became withdrawn in the way summarised above and also that her family encouraged her to consider an unfair dismissal application. AFCA submits that despite how she withdrew she had functional capacity, with Ms Huston accepting in her evidence that she had an interview for a job the same day of her MRI and that she did not proceed with the job application only because of the tumour diagnosis. AFCA further argues that Ms Huston’s medical arguments do not hold weight even for the period after her discharge from hospital and the date of eventual filing (a period of about a week and a half) suggesting she had some capacity to manage her affairs in that time.
The proposition that a medical illness caused a filing delay requires compelling medical evidence to that effect,[13] and there was none before the Commission in relation to either of the factors relied upon by Ms Huston. In order to accept evidence of this type, the Commission would expect to have an insight into the extent to which Ms Huston was incapacitated during the whole of the period following termination of employment.[14]
Because of this I do not accept Ms Huston’s statements as an acceptable explanation of the delay which took place. It is likely that in the period after termination Ms Huston remained vested with capability of some level, such as would not preclude the making of an unfair dismissal application either directly by herself, or on instructions either to a representative or family member.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Ms Huston was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is therefore a neutral consideration.
Action taken to dispute the dismissal
There is no material before the Commission demonstrating Ms Huston took any steps to dispute her dismissal, except for the filing of the application. This criterion therefore weighs against a finding of exceptional circumstances.
Prejudice to the employer
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[15] Further, a long delay gives rise “to a general presumption of prejudice”.[16]
AFCA argues that in this case there would be significant prejudice to it in the event that Ms Huston’s application for unfair dismissal was permitted to continue. In particular it argues that both Mr Fairclough, Ms Huston’s former manager, as well as the People and Culture Advisor who had been involved in the matter, Ms De Luca, have both since left AFCA’s employment which “therefore significantly limits the ability of AFCA to lead evidence in defence of the application”.[17] Despite this AFCA does not suggest that either person is now hostile to their interests or otherwise unavailable to be called as a witness in a merits hearing.
It is also the case that the length of the delay in making the application, of 126 days, with key events taking place months before the date of termination, means AFCA will suffer to some degree to the passage of time when it comes to recollections of witnesses.
On the basis of the limited material before me I view this criterion as weighing in favour of AFCA, but only marginally so.
Merits of the application
The merits of the application to which I must have regard concerns whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[18] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[19]
Ms Huston puts forward both that she was significantly unwell prior to being dismissed and that had she been physically seen by her manager her unwellness would have been obvious to him. That argument is likely overstated by Ms Huston since she does not say that she thought she was too unwell to work or that her symptoms were an indicator of a profound illness. Ms Huston also argues she was the subject of differential treatment on the part of AFCA when it came to decisions about instigation of performance management and the duration of the performance improvement plan.
The first matter, of her ill-health in the few months prior to dismissal and especially at the time of dismissal, is an entirely understandable matter to put forward. It would be inevitable that a person suffering a major undiagnosed illness with initially general symptoms would connect their later diagnosis with their earlier symptoms. Unfortunately, that does not elevate the case in an unfair dismissal application, since the search for whether or not there was a valid reason for termination of employment focusses both on what was known by the employer at the time as well as the things it did in response to its knowledge. At least on the state of the evidence seen so far, it is unlikely that Ms Huston would be successful in her arguments that this first matter demonstrated her dismissal was unfair.
The second matter, of whether Ms Huston was subject to decisions differential and thereby unfair decisions to instigate performance management and its duration may have some capacity to succeed, however would only succeed depending upon cogent evidence on the subject which, of course, is not presently before me.
As a result, in the absence of full argument of either party’s case, I regard this criterion as a neutral consideration in my decision.
Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.[20] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[21] In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues and who has been granted an extension of time for the making of a late application.[22] This is therefore a neutral consideration to my decision.
CONCLUSION
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms Huston, I am not satisfied that there are exceptional circumstances in this case, 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. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An order[23] to that effect is issued at the same time as this decision.
COMMISSIONER
Appearances
Ms Sarah Huston for herself
Ms Kaitlyn Gulle for the Respondent
Hearing details:
Melbourne (via video conference); 24 January 2022
Final written submissions:
18 January 2021
[1] Section 394(2) Fair Work Act 2009 (Cth).
[2] Exhibit R6, Witness Statement of Nadine Macleod, [5]; Hearing Book p 125.
[3] Ibid at [6].
[4] Exhibit A1, Witness Statement of Sarah Huston, p.2; Hearing Book, p.62.
[5] Ibid.
[6] Exhibit A4, Applicant’s Bundle of Documents, Medical Certificate; Hearing Book, p.73.
[7] Exhibit A2, Applicant’s Outline of Submissions (Objections), item 1d; Hearing Book, p.23.
[8] Witness Statement of Sarah Huston, p.2; Hearing Book, p.63.
[9] Exhibit A3, Applicant’s Outline of Submissions (Merits), item 6d; Hearing Book, p.55.
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[11] Ibid.
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[13] Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu Duo (Lynda) - [2018] FWCFB 1643, [38], [67.
[14] Ibid.
[15] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541; per McHugh J, pp.552 – 553.
[16] Ibid; per Kirby J, p.556.
[17] Exhibit R1, Respondent’s Outline of Submissions, [17]; Hearing Book, p.80.
[18] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[19] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[20] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[21] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
[22] Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].
[23] PR737938.
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