Thapanee Madissoo v International SOS (Australasia) Pty Ltd T/A International SOS

[2018] FWC 5669

[2018] FWC 5669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thapanee Madissoo
v
International SOS (Australasia) Pty Ltd T/A International SOS
(U2018/4951)

DEPUTY PRESIDENT BULL SYDNEY, 14 SEPTEMBER 2018

Application for an unfair dismissal remedy, extension of time required - no exceptional circumstances – application dismissed.

[1] Mrs Thapanee Madissoo has alleged she was unfairly dismissed when she was made redundant by her employer International SOS (Australasia) Pty Ltd effective from 6 March 2018. The applicant contended in her application that the redundancy was not a case of genuine redundancy as per s.385(d) of the Fair Work Act 2009 (the Act). The applicant sought as a remedy 3 months compensation to cover the period commencing from her dismissal until the time she had intended to commence maternity leave. 1

[2] The respondent opposed the application raising two jurisdictional points, the first being that the application was filed out of time and secondly that the termination of employment resulted from a genuine redundancy for which she was paid $29,180.63 as a redundancy payment. 2

[3] The applicant was notified of and provided with a letter advising of her impending redundancy on 2 March 2018, with her last working day being 6 March 2018. The applicant subsequently filed her unfair dismissal claim on 11 May 2018, some 2 months later.

[4] A hearing was held to consider the applicant’s request to file her application out of time. Both parties were granted leave for legal representation pursuant to s.596(2)(a) of the Act.

[5] The Act requires unfair dismissal applications to be filed within 21 days of a dismissal taking effect. Section 394(2) states:

“(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).”

[6] The application made by Mrs Madissoo is 45 days out of time. It can only proceed if an extension of time is granted based on the Commission being satisfied that ‘exceptional circumstances’ exist surrounding her late application.

[7] The provisions of the Act governing whether an extension of time should be granted are set out in s.394(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.”

(My emphasis)

[8] The expression ‘exceptional circumstances’ was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd³ where they stated:

“[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.”

[9] In the Full Bench decision of Mohammed Ayub v NSW Trains 4 the Full Bench described ‘exception circumstances’ in the context of s.394(3) as being a ‘very high bar’ and “strictly limited’.

[1] I now consider each of the factors set out in s.394(3) of the Act.

Reason for the delay s. 394(3)(a)
[2] Mrs Madissoo provided a witness statement 5 and gave oral evidence. She was employed as a Senior Procurement Officer Supply Chain on a salary of $93,840 gross.6 The substantive reasons relied upon in seeking an extension of time to file her application relate to the circumstances surrounding an IVF pregnancy and a previous miscarriage, together with her termination which impacted upon her ability to file an unfair dismissal application.

[3] Mrs Madissoo stated that she suffers from a condition called Polycystic Ovary Syndrome which diminishes fertility. In mid- 2017 following IVF treatment she fell pregnant, however in September 2017, she suffered a miscarriage. This resulted in grief where she struggled to sleep, concentrate and lost interest in other aspects of her everyday life. However the applicant was still able to perform her work duties by working from home which was to assist her to rest and recover from her symptoms. Mrs Madissoo remained working from home up until her final day of work on 6 March 2018.

[4] Mrs Madissoo and her husband subsequently decided to recommence IVF treatment and in December 2017 she fell pregnant. The applicant states she became distressed about the pregnancy and feared that she would miscarriage again, her child was born on 18 July 2018.

[5] On 22 January 2018, following pelvic pain and heavy bleeding, her obstetrician advised that she should continue to work from home for the remainder of her pregnancy in order to minimise physical activity. On 24 January 2018, the applicant advised her General Manager by email that she was pregnant and enclosed a medical certificate certifying her need to continue working from home for the duration of her pregnancy.

[6] In mid-February 2018, the applicant requested 2 weeks annual leave to be taken in late March and her Manager asked her to prepare a handover manual that other staff could use when covering for her during her scheduled annual leave and maternity leave. 7

[7] On 2 March 2018, at a telephone meeting with her General Manager she was advised that following a review of the medical services business (specifically her department), a number of roles in the Sydney office would be eliminated and replaced with similar roles in the Perth office.

[8] On 4 March, the applicant in conjunction with the husband decided it would be in her best interests to travel to Thailand to visit her family who would be able to support her and assist with the management of her pregnancy. Despite having abdominal pain, her obstetrician confirmed that she was fit to take the nine-hour flight from Australia. 8

[9] On 6 March 2018, the applicant states she finished working with the respondent and was required to hand over her role and duties to a person working in the Philippines. 9

[10] The applicant departed for Thailand on 7 March and remained there until 19 April 2018. In the applicant’s witness statement she stated she was confined to her family’s house where she remained on bed rest for the vast duration of her stay. Her outings were rare and made for the main purpose of visiting doctors when required. Mrs Madissoo provided evidence of her medical visits in Thailand. Mrs Madissoo’s evidence was that she continued to feel isolated and depressed for the duration of her time overseas and barely functioned. All she could think about was the well-being of her child and she became consumed with worry and stress.

[11] On 3 April 2018, she was contacted by a former colleague who told her that they had been offered a 3 month contract in the Sydney office to take over her role.

[12] Mrs Madissoo’s evidence was that her termination was the last of her concerns; her focus was solely on the maintenance of her pregnancy. 10 Prior to returning to Australia the applicant visited a private obstetrician due to strong abdominal pain who advised that her condition would not be worsened by the flight back to Australia which took place on 19 April.

[13] On about 7 May, the applicant stated she recalled waking up one day and thinking that she should start making plans for her child. This was the first time that she felt optimistic towards the future and making plans. She then took steps to pursue her unfair dismissal claim and contacted the Fair Work Commission and filed her application on 11 May 2018.

[14] The applicant’s case was not supported by any medical evidence stating that she was incapacitated to the extent she could not complete an unfair dismissal application. As stated above the applicant’s focus was on her pregnancy, her termination was the last of her concerns.

[15] The medical evidence was related to her requirement to work from home from January through to the end of June 2018, and that she had suffered stress and anxiety relating to her pregnancy complications. 11 Despite her pregnancy complications and fears; the applicant submits that she would have been able to have worked from home up until her period of confinement, but that her termination of employment exacerbated her medical condition, which would have prevented this.

[16] Mrs Madissoo has clearly demonstrated that she had medical issues with her pregnancy and that due to a previous miscarriage she was anxious and stressed. The evidence however does not support incapacity for a period of 66 days following her termination where she was unable to complete an unfair dismissal application.

[17] This was evident in cross examination where Mrs Madissoo accepted that while in Thailand between 7 March and 19 April she had access to a computer and a mobile phone that she used. She was able to perform limited work in her family’s shop, babysit her sister’s child, travel to a beachside resort for a weekend away, attend skin treatment for eczema, attend the local supermarket to make various purchases and have lunch with friends.

[18] Although these events were not undertaken full-time, they demonstrated the ability of the applicant to perform normal functions while pregnant.

[19] Other than the applicant stating that on or about the week commencing 7 May, when she awoke feeling that she could now think more clearly 12 leading to the filing of her claim on 11 May, no medical evidence supporting the assertion she was incapable of having done so earlier was provided.

[20] It is not a pre-condition to the grant of an extension of time that the applicant must provide a credible explanation for the entire period of the delay. 13 The applicant has demonstrated the need to attend medical appointments due to her pregnancy and associated complications. However the applicant has failed to provide a satisfactory explanation for significant periods of the delay following the expiration of the 21 day period in filing her application. There is no evidence that the applicant was incapable due to her medical condition to find time to file her application within the 21 day period allowed having decided to travel to Thailand for much of this period. The same reasoning applies to the 45 days following the 21 day period during which no action was taken. This is a factor that weighs against a finding of exceptional circumstances.

Awareness of the dismissal taking effect s.394(3)(b)

Mrs Madissoo’s dismissal was formally communicated to her on 2 March 2018 and confirmed in writing. There is no dispute that Mrs Madissoo was aware of her dismissal taking effect on and from 6 February.This is a factor that weighs against granting an extension.

Action taken to dispute dismissal s.394(3)(c)
[21] Mrs Madissoo took no steps to dispute her dismissal until contacting the Fair Work Commission in early May and filing her application on 11 May 2018. This is a factor that weighs against granting an extension.

Prejudice to the employer s.394(3)(d)
[22] There is no evidence that the respondent employer is likely to be prejudiced on account of an application not having been made by the due date. The absence of prejudice is a factor which weighs in favour of a finding of exceptional circumstances. 14

Merits of the Application s.394(3)(e)

[23] Both the applicant and respondent made limited submissions (as is appropriate in such applications) on the merits of the application. With the applicant pointing to why her dismissal wasn’t a genuine redundancy and the respondent stating why the dismissal was a case of genuine redundancy. Both parties made submissions on the merits of the application which would require testing through witness evidence to ascertain the veracity of the respective submissions. This is therefore a neutral factor.
Fairness between persons in similar position s.394(f)

[24] On the facts in this case, this is not a relevant factor.

Conclusion on extension of time

[25] Taking into account the matters specified at s.394(3)(a) to (f), insofar as they are relevant in the circumstances I am not satisfied that there are exceptional circumstances such as to allow a further period of 45 days for the substantive application to be made. For these reasons, the application for relief under s.394 of the Act is out of time. Accordingly the discretion in s.394(3) is not enlivened and the application to extend time is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms E Lemmetty Solicitor on behalf of the applicant

Mr J Arndt Solicitor on behalf of the respondent

Hearing details:

2018

Sydney

3 September

Printed by authority of the Commonwealth Government Printer

<PR700234>

 1   See 3.2 at [14] of F2

 2   Respondent's written submissions at [46]

3 [2011] FWAFB 975 at [13]

 4   [2016] FWCFB 5500

 5   A1

 6   See applicant's contract of employment attached to F2

 7 F2 at 3.2 [8] and [9]

 8   The applicant in her oral evidence stated the flight was 9 hours

 9 F2 at 3.2 [13]

 10   Paragraph[28] of exhibit A1

 11   Attachments A and C of exhibit A1

 12   A1 at [35]

 13   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [41] and [42]

 14   Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [66]