Tina Anthea Davis v South32 Worsley Alumina Pty Ltd
[2023] FWC 3301
•8 DECEMBER 2023
| [2023] FWC 3301 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tina Anthea Davis
v
South32 Worsley Alumina Pty Ltd
(U2023/9834)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 8 DECEMBER 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Ms Tina Anthea Davis (the Applicant) made an application to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with South32 Worsley Alumina Pty Ltd (the Respondent).
The Respondent has objected to the application on the ground that the application is out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Permission to appear
I received submissions from both parties on the question of representation before the Commission. Both parties sought to be represented and neither party objected to the other being represented.
Both parties made relevant submissions addressing sections 596(2)(a), (b) and (c) of the FW Act. I need only find one of the circumstances in s596(2) to be relevant and I was persuaded by the submissions of both parties on the issue of complexity and the advantages for the Commission in allowing representation in circumstances where a jurisdictional objection is being heard. As such, I based my decision to allow both parties to be represented on s596(2)(a).
Witnesses
The Applicant gave evidence on her own behalf. The Respondent relied upon its submissions and as such did not call any witnesses.
Submissions
The Applicant filed submissions in the Commission on 9 November 2023. The Respondent filed submissions in the Commission on 23 November 2023. Reply submissions were filed by the Applicant on 27 November 2023.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 14 September 2023.
When was the application made?
It is not in dispute, and I so find, that the application was made on 9 October 2023.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 14 September 2023. The final day of the 21-day period was therefore 5 October 2023 and ended at midnight on that day. As I found above, the application was made on 9 October 2023.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 5 October 2023. The delay is the period commencing immediately after that time until 9 October 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Submissions and Evidence
The Applicant submitted that the delay was due to two separate issues. The first issue was that, as a member of the Australian Nursing Federation (ANF) she had sought legal advice and representation from her Union. While such advice had been arranged, it had been arranged for 6 October 2023, which was a time after the 21-day period had expired. The Applicant nonetheless submitted that she had lodged her application at the earliest opportunity after having received legal advice.
The Applicant further submitted that she had been suffering from poor mental health in the period prior to her termination and that certain events in the period shortly before her termination, such as a car accident and the first anniversary of her son’s death, had exacerbated her levels of distress. With these underlying issues, her termination had a serious impact on her mental health such that, as confirmed in her reply submissions, her medical condition seriously impacted her ability to lodge her application within the 21-day period.
The Respondent submitted that with respect to the issue of the delay in getting advice arranged by the ANF, the Applicant had, in the first instance, not specified when she originally contacted the ANF. The Respondent further noted that the Applicant was not seeking to rely on representative error. It was the Respondent’s submission that the delay in speaking to a lawyer was fundamentally caused by the Applicant’s inaction, and her failure to obtain timely legal advice was not an exceptional circumstance.
In addressing the Applicant’s contention regarding the state of her mental health, the Respondent noted in the first instance the finding of the Full Bench of the FWC in Ellikuttige v Monee Valley Racing Club Inc. (Ellikuttige)[6] where the Full Bench noted that evidence of hardship or unfortunate personal circumstances, including mental illness, will not alone lead to a conclusion that exceptional circumstances exist. The Respondent also cited the decision of Deputy President Bell in Gandhi v Guardian Community Early Learning Centres Pty Ltd[7] which noted that the evidence must establish that the applicant’s personal circumstances were such that they prevented or seriously impeded their ability to lodge their application.
It was the Respondent’s submission that the medical evidence tendered in evidence went no further than providing a diagnosis of the Applicant’s condition. That diagnosis was submitted by the Respondent to fall short of being evidence that the applicant’s condition was such that it prevented or seriously impeded the Applicant from lodging her claim within the allowed time period. In support of this proposition, the Respondent directed my attention to the findings of the Full Bench in Miller v Allianz Insurance Australia Ltd t/z Allianz (Miller)[8], where the Full Bench found that a diagnosis that provided no evidence with respect to an Applicant’s ability to lodge a claim was not capable of constituting exceptional circumstances.
Notwithstanding the findings in Miller, at the hearing I questioned the Respondent on this submission on the basis that it would not always be necessary for a medical diagnosis to explicitly specify all of the restrictions created by a medical condition, as some of these restrictions might be self-evident. The Respondent’s reply was that while it may be possible in certain cases to draw an inference from a diagnosis, such an inference cannot be drawn if other evidence demonstrates that such an inference would be misplaced. The Respondent submitted that as there was evidence that the Applicant was able to perform a number of functions, such as corresponding with her Union and undertaking some research on the internet, that evidence weighed against an inference that her diagnosed condition prevented her from lodging an application.
The Respondent further submitted that the timing of the Applicant’s appointment with her psychologist and the report of her condition at that time suggested that she continued to experience depression and stress at the time she filed her application on 9 October 2023, leading to the conclusion that her condition did not in fact prevent her from lodging the claim. The Respondent also submitted that the events outlined in the Applicant’s submissions such as the car crash and the anniversary of her son’s death both occurred prior to her termination and that there was no evidence of a clear causal link between those events and the Applicant’s inability to lodge her application in time.
In her reply submissions, the Applicant contested the Respondent’s submission that she was still suffering depression and stress on 9 October 2023, being the day on which her application was lodged. The Applicant submitted that her mental condition on 9 October 2023 had improved compared to the day of her dismissal and during the 21-day period post-termination.
In her evidence, the Applicant stated that her health had deteriorated rapidly following her dismissal and that she had visited her GP on the day after the dismissal and also contacted her psychologist. Her evidence was that she could not eat, sleep or function normally, albeit that she did not specify the period during which she experienced these symptoms. She stated that she suffered from mental stress and depression “during the weeks” that followed her termination. She also noted in her evidence that there were other factors at play in her life at the time, including her deceased son’s birthday and issues with her daughter. In summary, she noted that her mental state at the time of dismissal and during the 21 days that followed affected her ability to lodge her claim.
With respect to the involvement of the ANF, the Applicant’s further evidence was that her case had been considered by the legal team at the ANF and that they had declined to represent her. The Applicant stated that she had been able to see a lawyer arranged for her by the ANF, but not until 6 October 2023 after which time she submitted her application at her earliest opportunity.
Under cross-examination, the Applicant was not able to recall the precise date on which she first contacted the ANF for assistance but stated that it had been at some time in September. She clarified that the ANF had not declined to represent her in the first instance, but that she had been told this after “a few” phone calls and “several” emails, all of which had taken place prior to her discussion with a lawyer on 6 October 2023. In reply to the Respondent’s question, the Applicant confirmed that she had, in the period prior to meeting with her lawyer, done some research on the issue of unfair dismissal applications by visiting the website of the FWC. She further conceded that through this research she was aware, prior to 6 October 2023, that there was a 21-day time limit for lodging an application for an unfair dismissal remedy.
During the hearing I asked the Applicant if either her General Practitioner or her Psychologist had prescribed any additional or modified treatment for her depression following her dismissal and she confirmed that they had not. She further confirmed that during the period between 15 September 2023 and 6 October 2023 she had spoken to her psychologist on no more than three occasions. I also asked the Applicant about whether she had been advised by the ANF that there was a 21-day limit for lodgment. She confirmed that she herself had raised this with the ANF in an endeavour to ensure she was able to see a lawyer prior to the expiry of the time limit, albeit that the ANF were subsequently unable to arrange such a consultation within the 21-day time period.
Consideration
I turn firstly to the Applicant’s submission regarding her interactions with the ANF. The Applicant was unable to provide a precise date on which she first contacted the ANF. As such, it is difficult to determine on the evidence before the Commission why her eventual interview with a lawyer, arranged by the ANF, took place after the expiry of the time limit. However, that is not especially relevant in the circumstances. As submitted by the Respondent, the Applicant is not seeking to rely on Representative error. Rather, it appears to me that the Applicant is seeking to contend that there should be some latitude granted on the basis that the Applicant lodged her application at the earliest opportunity following her interview with a lawyer. I do not accept that this is a sufficient ground to weigh in favour of an extension.
It is clear that the Applicant was aware of the time limit and indeed her evidence was that she herself had raised it with the ANF. While it is perhaps understandable that the Applicant was anxious to receive legal advice prior to lodging her claim, it is nevertheless the case that she was aware that by waiting for such advice, she would be forced to lodge her claim outside of the time limit. In such circumstances, it was open to the Applicant to submit a claim within the time limit using such knowledge as she had gained about the process from the FWC website. This leads into the other of the Applicant’s contentions, namely that she could not in fact have lodged a claim due to her mental condition.
In no way would I wish to trivialise or seek to downplay the Applicant’s experience of depression, stress and anxiety. However, it falls to the Commission to determine if her condition was such that it prevented, or seriously impeded, her ability to make a claim within the time limit. The medical evidence suggests that she was indeed suffering the effects of poor mental health, but consistent with the finding in Miller as set out above, this diagnosis does not of itself mean that she was incapable of lodging a claim within the time limit. The Applicant, by her own admission, undertook a number of phone calls and exchanged a number of emails with the ANF regarding her claim. She was able to research unfair dismissals on the FWC website and convey her knowledge of the time limit to the ANF. This suggests that she was capable of undertaking a range of activities regarding her dismissal, and I am not satisfied that she could not have also completed and lodged an application.
In considering this issue, I also contemplated the submission from the Respondent, which was essentially that there was no evidence that the Applicant’s mental health improved in the period between 5 October 2023 and 9 October 2023 such that while she was incapable of lodging a claim at the beginning of that period she was capable of doing so by its end. The Applicant’s advocate sought to press the point that by 9 October 2023 the Applicant had recovered sufficiently to lodge her claim in her closing submissions. In answer to my question in response to this submission, she was unable to direct me to any evidence before the Commission to support this assertion. Based on the lack of evidence and assessed on balance of probabilities, I can not find that there was an improvement in the Applicant’s mental state in that four-day period such that she was capable of lodging on 9 October 2023 but not on 5 October 2023.
In summary, while I accept that the Applicant was indeed suffering from mental health issues, and that there were a number of factors in her life that were affecting her mental wellbeing, I do not accept that she was incapable of or seriously impeded from making her application. As such, I find that the delay in lodging her application was due to the inaction of the Applicant. This weighs against granting an extension.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
Submissions
The Applicant made no submissions on how the Commission should treat this matter. The Respondent submitted that the Applicant being notified of her dismissal on the same day that it took effect weighs against granting an extension.
Consideration
I am not persuaded that the Applicant being notified of her dismissal on the day it took effect should be regarded as weighing against granting an extension and I regard this matter as being neutral in my consideration of an extension.
What action was taken by the Applicant to dispute the dismissal?
Submissions
The Applicant submitted that she took action to dispute the dismissal by providing a response to the show cause letter issued to her by the Respondent prior to terminating her. The Respondent submitted that the Applicant took no action between 15 September 2023 and 6 October 2023 to dispute her dismissal.
Consideration
At the hearing, I asked the Applicant about the submission that responding to a show cause letter should be regarded as disputing the termination, on the basis that it took place prior to termination and the case findings on this issue focus on actions taken by an applicant subsequent to their termination. The Applicant was unable to direct me to anything that suggested that she had taken any steps to dispute her dismissal with the Respondent after her termination other than by lodging her application. As such, I do not find that the Applicant took any action to dispute the dismissal. This matter weighs against granting an extension.
What is the prejudice to the employer (including prejudice caused by the delay)?
Submissions
The Respondent submits that it would suffer prejudice if an extension of time were granted. In response to my questioning at hearing, the Respondent clarified that this prejudice was, in essence, the legal fees incurred by the Respondent in being required to deal with the extension of time issue. It was the Respondent’s submission that if the application had been lodged in time, then the matter would have proceeded for conciliation and possibly a hearing, but the intervening step of a hearing to determine the extension of time would not have been required.
The Applicant submitted that the delay in lodging the form was limited to four days and, as such, if the Respondent was to suffer any prejudice, such prejudice would be minimal.
Consideration
I am not persuaded that it would be appropriate to regard the legal costs incurred in dealing with the extension of time issue as being such a prejudice to the Respondent as to weigh against granting an extension of time. I would firstly note that the Respondent is under no obligation to incur legal costs and could have used its own personnel to deal with the matter. Secondly, if this proposition was to be accepted, then in each and every case where an extension of time is considered, the Respondent could claim prejudice to itself based, essentially, on its attendance. In the circumstances I regard this matter as neutral in my consideration of an extension of time.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[9] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application. This matter is thus neutral in determining whether an extension should be granted.
Fairness as between the Applicant 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. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reason for the delay, being the inaction of the Applicant;
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[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]
As I found above, of the matters in s.394(3) of the FW Act to be considered in determining whether exceptional circumstances exist, two weigh against granting an extension and the remaining four are all neutral. Accordingly, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
B McGovern for the Applicant.
B Pole for the Respondent.
Hearing details:
2023.
Perth.
November 30.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [31].
[7] Gandhi v Guardian Community Early Learning Centres Pty Ltd [2023] FWC 1678 at [39].
[8] Miller v Allianz Insurance Australia Ltd t/z Allianz [2016] FWCFB 5472 at [22].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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