Simone Norris v Carey Community Resources Inc

[2021] FWC 5243

[2021] FWC 5243

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simone Norris
v
Carey Community Resources Inc.
(U2021/6366)

COMMISSIONER WILLIAMS PERTH, 25 AUGUST 2021

Application for an unfair dismissal remedy.

[1] Ms Simone Norris (Ms Norris or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Carey Community Resources Ltd trading as Jump Carey Early Development (the Respondent or Jump).

[2] The Applicant states that she was notified of the dismissal on 4 June 2021 and that this took effect on 18 June 2021. The application to the Commission was made on 20 July 2021.

[3] It appears that the application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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 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.”

[5] Consequently, the Commission directed the Applicant to provide a written response to the matters to be considered under section 394(3) of the Act. The Applicant provided a written response, and the Respondent has also provided a response to the application, including the extension of time question.

[6] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Background

[7] The application as filed states that the Applicant was notified of her dismissal on 4 June 2021 and that the date her dismissal took effect was 18 June 2021.

[8] The Respondent advises that a termination letter was emailed to the Applicant on 4 June 2021 and the Respondent paid the Applicant two weeks’ pay in lieu of notice and consequently the Applicant’s dismissal took effect on 4 June 2021. The Applicant agrees she received this email in her inbox on 4 June 2021.

[9] I am satisfied that the Applicant’s dismissal took effect on 4 June 2021.

The reason for the delay

[10] In her application, Ms Norris explains the reason for the delay in making the application as follows.

[11] She had to wait for the report from her specialist then she sought legal advice. Her appointment with the lawyer was on 19 July 2021 who advised her to lodge the application form herself.

[12] The day after the Commission had directed the Applicant to provide a response in writing explaining why she believes there were exceptional circumstances warranting an extension of time being granted the Applicant emailed her doctor as follows.

“Seb and I are really hoping that you might be able to help us with this. As you can see my application was 11 days late.

I personally wasn’t even capable of organising the paperwork and submitting it and couldn’t go through with it as it was also overwhelming with everything that was going on. Seb insisted due to the principle of it and tried to get it done for me while he was still working full-time. Neither of us thought there would be a time limit of 21 days for committing a crime. Is there anything brief you could write in your words as to why I couldn’t get it done on time. I believe my report from the specialist has been sent to you outlining my limitations. Clearly I couldn’t get it done on time and I believe my condition played a part in this.”

[13] In her application Ms Norris has nominated Sebastian Kavanagh as her representative, whom I assume is referred to in the above email to her doctor as “Seb”.

[14] The Applicant’s doctor, Dr Dinesh Kodumpilli Bhaskaran, as requested by Ms Norris in her email provided her a letter, dated 6 August 2021, which the Applicant relies on in her submissions and which relevantly reads as follows.

“I understand that she did not submit her paperwork to Fair Work Commission on time.

She is diagnosed with Moya Moya Disease and Type I diabetes mellitus and is under specialist care. She suffers from difficulties with attention and executive functioning. She struggles when dealing with new information and have trouble in performing complex activities independently.

Recent dismissal from her employment put her in lots of psychological stress. She told me that all these conditions affected her ability to go through the paperwork and get it done on time. I support her request to extend the time period for lodging an unfair dismissal application” (Underlining added).

[15] Relevantly the Applicant’s submission to the extent that it addresses the issues relevant to section 394(3) of the Act is that on 4 June 2021 she received an email from Jump notifying her that her employment was terminated. She had an appointment with a medical specialist on 5 June 2021 and received this report on 19 June 2021. On 19 June 2021 she noticed the email from Jump. She did not know she was going to be terminated via email and was not looking for it.

[16] The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an Applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist. 1

[17] What is before the Commission in this instance is a letter from the Applicant’s doctor that states Ms Norris has diagnosed conditions which affect her attention and executive functioning and that she struggles when dealing with new information.

[18] The doctor then repeats what Ms Norris self-reported in her email, that she believed her health conditions played a part in her not completing the paperwork on time.

[19] There is no suggestion that Ms Norris consulted the doctor during the 21-day time limit nor during the period between the expiration of the 21 days and when the application was made.

[20] There is no indication that the doctor had knowledge of what is required to complete an unfair dismissal remedy application.

[21] This letter from the doctor is not an independent medical assessment of the Applicant’s lack of capacity to make this application within in the period between 4 June 2021 and 20 July 2021.

[22] A Full Bench of the Commission in Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, with respect to medical evidence provided to a Commissioner considering whether or not there were exceptional circumstances warranting an extension of time to make an application, held as follows:

“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.”  2

[23] It is relevant that unfair dismissal remedy Applicants do not have to complete the Commission’s forms or paperwork to make their application.

[24] Rule 9 Telephone applications, of the Fair Work Commission Rules 2013 (Cth), allows a person wanting to make an unfair dismissal application to the Commission to make the application by telephone. The Commission must then prepare a written application for the person based on the telephone application and give the written application to the person who must then within 14 calendar days sign the application and lodge it with the Commission.

[25] Rule 9(6) of the Fair Work Commission Rules 2013 provides that, subject to the person paying the application fee or being approved a fee waiver, the application is taken to have been made on the day that the person telephoned the Commission to make the application.

[26] Consequently, I am not satisfied that on the evidence provided that the Applicant’s state of health was itself an exceptional circumstance nor was it an acceptable reason for the delay in making the application.

[27] The Applicant’s submission does not explain why her nominated representative, Seb, was apparently unable to complete the application on time on her behalf as she mentions in her email to her doctor.

[28] It is also apparent from this email that the Applicant was unaware that there was a 21-day time limit for her to make an application. It is well-established that simply being unaware of the 21-day time limit is not an exceptional circumstance nor is it an acceptable reason for making a late application.

[29] Finally, returning to the reasons for not making her application on time that the Applicant included on her application, there is no reason why the Applicant had to wait for the report from her specialist before she made her application nor is there any explanation why she had not sought legal advice prior to meeting with her lawyer on 19 July 2021, which was well after the 21-day limit had passed. Neither of these explanations involve exceptional circumstances nor are they either or together an acceptable reason for the delay in making this application.

Did the Applicant first become aware of the dismissal after it had taken effect?

[30] The Applicant’s submission says she did not see the Respondent’s email sent to her on 4 June 2021 until 19 June 2021 because she did not know she was going to be terminated via email and was not looking for it.

[31] Generally, where an employee is advised of their dismissal by email, the presumption is that an employee will have had a reasonable opportunity to become aware of their dismissal if the email is received in the inbox of the employee’s usual email address. 3

[32] So, in this case I am satisfied that the Applicant had a reasonable opportunity to be aware that her dismissal had taken effect on 4 June 2021 when the Respondent’s email was received.

[33] In any event, the fact the Applicant was unaware of this until 19 June 2021 of course does not explain the full period of delay. Even having become aware on 19 June 2021 of her dismissal the Applicant took more than 21 days from this date to make her application.

Any action taken by the person to dispute the dismissal

[34] There is no evidence that the Applicant took any action to dispute her dismissal other than the making of this application.

Prejudice to the employer (including prejudice caused by the delay)

[35] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[36] As is often the case, without the matter being fully argued, it is difficult for the Commission to determine whether the merits of the application do or do not support an extension of time. Consequently, I view the merits of the application as a neutral factor in this decision.

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

[37] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[38] The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[39] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Fair Work Commission and must be dismissed.

[40] An Order [PR733157] to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR733156>

 1   Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285.

 2 Ibid., [22].

 3   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [55].