Sharon Gillies v Mindarie Regional Council

[2018] FWC 5508

[2018] FWC 5018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for an unfair dismissal remedy

Sharon Gillies
v
Mindarie Regional Council
(U2018/5775)

DEPUTY PRESIDENT COLMAN MELBOURNE, 5 SEPTEMBER 2018

Application for an unfair dismissal remedy – application filed out of time – no exceptional circumstances – application for a further period declined – application dismissed

[1] This decision concerns a jurisdictional objection raised by Mindarie Regional Council (the Council) to an application by Ms Sharon Gillies for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act).

[2] Ms Gillies worked as a customer service officer in the Council’s ‘tip shop’, in which suitable recycled goods are sold to the public. On 14 November 2017, she was summarily dismissed for having allowed customers to take items from the shop without paying for them, and selling items for less than their marked price. Ms Gillies denies the allegations. Her unfair dismissal application contends that there was no valid reason for her dismissal, that she was denied procedural fairness and that her dismissal was unfair. She seeks an order for reinstatement and compensation for lost income.

[3] The Council objects to Ms Gillies’ application on a jurisdictional ground, namely that her application was not lodged within 21 days after her dismissal took effect, as required by s 394(2)(a).

[4] The Council’s jurisdictional objection was heard before me on Friday, 31 August 2018. Ms Sonia Cherico, human resources officer, appeared and gave evidence for the Council. Ms Gillies was represented, with permission, by a paid agent, Mr Mullally.

Extension of time

[5] It was common ground that Ms Gillies was dismissed on 14 November 2017, and that her unfair dismissal application was lodged on 3 June 2018. Section 394(2) of the 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 Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 5 December 2017. Ms Gillies’ application was lodged 5 months and 28 days late. She asks the Commission to allow a further period for the application to be made.

[6] 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’. The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),2 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.3 Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s 365 of the Act, its reasoning is applicable also to s 394(3). 

[7] Section 394(3) requires the Commission to 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.

[8] I will deal with the above matters in turn.

Reason for the delay

[9] 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 4 or reasonable explanation.5

[10] Ms Gillies contended that following her dismissal she was extremely anxious and stressed. She was concerned about her financial future and her mental health. 6 She was worried that the Council would refer its allegations to the police. She said that it was only in March 2018, after obtaining a police clearance, that she felt able to take action regarding her unfair dismissal.7

[11] On 21 March 2018, her representative, Mr Mullally, filed an unfair dismissal application in the Western Australian Industrial Relations Commission (WA Commission). The Council raised a jurisdictional objection, on the basis that it was a body corporate that was covered by a federal award and enterprise agreement, and that it operated in the federal, not the state industrial relations system. It also noted that the application was made out of time. Ms Gillies discontinued her application in the WA Commission on 18 April 2018.

[12] Ms Gillies said that Mr Mullally then advised her to obtain medical assistance for stress and anxiety. He decided not to make an unfair dismissal application in the Commission until he had received a report from Dr Norman, a psychologist, about her condition. The report was received on 1 June 2018. Mr Mullally lodged Ms Gillies’ federal unfair dismissal application on 3 June 2018. 8

[13] Ms Gillies contends that the reason for the delay in the present case is essentially twofold: her poor mental health following her dismissal,and representative error.She says that the latter arose fromthe decision by her representative, Mr Mullally, to lodge an unfair dismissal application in the state instead of the federal jurisdiction, and then from his decision to wait for the report from Dr Norman before lodging the federal unfair dismissal application. 9

[14] In relation to Ms Gillies’ mental health, the report of Dr Norman states that her symptoms of depression and anxiety were in the extreme range, and that he considered her to suffer from a psychological injury as a result of her dismissal. 10 He said that her symptoms were consistent with an acute stress reaction, followed by an adjustment-related depressive episode,11 and that ‘it was likely that her judgement around making a decision to challenge her dismissal was impaired, within the 21 days required to submit an unfair dismissal claim.’ The report does not state that her judgement remained impaired after the 21 day period, however, I am prepared to accept that on a fair reading of the report as a whole, it can be concluded that Dr Norman did consider that Ms Gillies’ judgement remained impaired.

[15] I have taken into account Dr Norman’s report, and in particular his assessment that Ms Gillies’ depression and anxiety were in the extreme range. I note however that the report does not say that Ms Gillies’ mental health condition prevented her lodging her unfair dismissal application, or that it seriously impeded her doing so. Further, it is evident from the report that Dr Norman was specifically asked whether Ms Gillies’ psychological problems ‘prevented her’ from taking any action in relation to her dismissal. 12 It was in answer to this question that Dr Norman stated his opinion that Ms Gillies’ judgement was likely impaired. I also note that in December 2017, Ms Gillies took a casual job for a period of 2 weeks. Ms Gillies submitted that the job distracted her from her worries. However, her casual employment also indicates that, even if her judgement was impaired following her dismissal, she was able to function at a level sufficient to work. In all the circumstances, I do not consider that Ms Gillies’ medical condition provides a reasonable or acceptable explanation for the delay.

[16] I accept that Ms Gillies was acting on the advice of Mr Mullally when she filed her application in the WA Commission, and I take this into account. However, by the time she filed her application in the WA Commission, more than three months had already passed since the expiry of the 21 day period. Even after the jurisdictional mistake was identified and the application in the WA Commission was discontinued, there was further delay in filing the federal unfair dismissal application. A decision was made to await the report of Dr Norman, which forms part of Ms Gillies’ materials in this matter. This too was the result of her following advice from her representative, and I have taken this into consideration.

[17] It is well-established that representative error may constitute a reasonable or acceptable explanation for delay. However, it is only the delay since her engagement of Mr Mullally’s firm in March 2018 that is explained by representative error. For the period prior to this point, I do not consider there to be a reasonable or acceptable explanation for delay. In Stogiannidis¹³a Full Bench of the Commission noted that 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.¹⁴

[18] In my opinion, Ms Gillies has not provided an acceptable or reasonable explanation for a substantial part of her delay in lodging her unfair dismissal application. In all the circumstances, I consider that this weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[19] Ms Gillies’ application states that she was notified of her dismissal on the same day that it took effect. The Council agrees. As a consequence, Ms Gillies had the full period of 21 days to lodge an unfair dismissal application. This is not a case where the person became aware of the dismissal after the date on which it took effect, and therefore did not have the full benefit of the 21 day period for lodging an unfair dismissal claim. This consideration therefore does not weigh in favour of an extension of time.

Action taken to dispute the dismissal

[20] In her submissions, Ms Gillies does not point to any particular actions she took to dispute the dismissal prior to the filing of the state unfair dismissal claim in March 2018. This is obviously a step taken to dispute the dismissal, but one taken at a late stage. In my view, this consideration does not weigh in favour of an extension of time.

Prejudice to the employer

[21] The Council contended that it would suffer prejudice if an extension of time were granted because the person who was employed as chief executive officer at the time of the dismissal has now retired. The Council further contended that the evidence trail becomes thinner over time, and the task of running its defence to the unfair dismissal more difficult. However, it was not suggested that the former CEO would not be available to give evidence, and although there would be some inconvenience accruing to the Council, I do not consider that it would suffer prejudice if an extension of time were granted. Nevertheless, the mere absence of prejudice is not itself a factor that would warrant or tell in favour of the grant of extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[22] The Act requires me to take into account the merits of the application in considering whether to allow a further period.

[23] In October 2017, the Council received written reports from two staff members raising concerns that goods were being stolen from the tip shop and sold for less than full value. Following an investigation, which included viewing closed circuit television, the Council concluded that Ms Gillies had allowed customers to take items without paying for them, and had sold items for less than the specified price. It presented its allegations to Ms Gillies in a meeting on 14 November 2017. The Council considered that Ms Gillies had not offered any plausible explanation, and summarily dismissed her.

[24] For her part, Ms Gillies strongly denies the allegations. In particular, she says that the day after her dismissal, the particular customer who had been implicated in taking goods from the shop called the Council and admitted taking items, also explaining that Ms Gillies had no knowledge of the theft. However, the Council contends that the customer later retracted this statement.

[25] These matters, and the merits more generally, would need to be tested, including under cross-examination, if an extension of time were granted and the matter were to proceed. Much would depend on findings of fact. There is insufficient material before me to make any detailed assessment of the merits. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell for or against an extension of time. I consider the merits of the case to be a neutral consideration. 

Fairness as between the person and other persons in a similar position

[26] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Ms Gillies and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion in relation to extension of time

[27] The time limit that applies to the exercise of a person’s right to bring an unfair dismissal application reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there will be some cases where a late application should be accepted, namely where there are exceptional circumstances.

[28] Having regard to all of the matters that I am required to take into account under s 394(3), I am not satisfied that exceptional circumstances exist. None of the factors weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[29] I decline to grant an extension of time under s 394(3). Accordingly, Ms Gillies’ application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

P. Mullally for Ms Gillies

S. Cherico for Mindarie Regional Council

Hearing details:

2018.

Melbourne with telephone link to Perth

31 August

 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [14]

 2   [2011] FWAFB 975

 3   Ibid at [13]

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 5   Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP, at [16]

 6   Applicant’s submissions at [13]; Applicant’s witness statement at [13]

 7   Applicant’s witness statement at [16]

 8   Applicant’s witness statement at [22]

 9   Applicant’s witness statement at [23]

 10   Pages 2 and 4 of Dr Norman’s report

 11   Page 4 of Dr Norman’s report

 12   See question 3 on page 4 of the report of Dr Norman, Attachment SG-5 to the witness statement of Sharon Gillies

13 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

14 Ibid at [39]

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