Victoria Baker v Kurri Kurri Community Centre Incorporated

[2015] FWC 295

[2015] FWC 295

The attached document replaces the document previously issued with the above code on 13 January 2015.

This document has been altered to replace the final sentence in paragraph [28] as former sentence was incorrect and correct the appearances of both parties.

Dale Ramsey

Associate to Commission Stanton

Dated 13 January 2015

[2015] FWC 295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Victoria Baker
v
Kurri Kurri Community Centre Incorporated
(C2014/5319)

COMMISSIONER STANTON NEWCASTLE, 13 JANUARY 2015

Application to deal with contraventions involving dismissal - general protections application - extension of time - no exceptional circumstances - application dismissed.

[1] Ms Victoria Baker (the applicant) has applied for a general protections remedy pursuant to s.365 of the Fair Work Act 2009 (the Act) against Kurri Kurri Community Centre Incorporated (the respondent).

[2] The respondent contends the applicant resigned her employment on 28 April 2014.

[3] The applicant filed her general protections application on 8 July 2014. The respondent opposed the application on jurisdictional grounds as it was filed 51 days late.

[4] Directions concerning the arbitration of the jurisdictional objection required the parties to file and serve all witness statement and related evidentiary material in support of their respective positions. The application was initially set down for conference / hearing on 13 October 2014. The application was subsequently listed for hearing on 11 November 2014 to suit the convenience of the parties. Given the nature of the materials before the Commission, the hearing proceeded as a determinative conference.

[5] Permission for the applicant to be legally represented was granted on the grounds that such representation would enable the case to proceed efficiently, particularly given the limited nature of the materials filed.

Applicant’s Case

[6] The applicant’s primary case was set out in an affidavit filed on 8 September 2014. 1 The applicant was not required for cross-examination. The affidavit largely dealt with the applicant’s employment with the respondent and included details concerning certain complaints made against her supervisor concerning alleged bullying which had caused her stress and anxiety.2 As a result of the alleged bullying, the respondent transferred the applicant to another work location for a period of three months. The applicant was subsequently relocated back to her original place of work. The applicant’s evidence was that she was not consulted prior the respondent’s decision to relocate her and that lack of consultation “resulted in me further increasing my psychological disorder.”³ At the time of her alleged resignation on 28 April 2014, the applicant was on workers’ compensation following a claim in respect of her work related anxiety and stress made on or around 10 March 2014.

[7] The applicant’s affidavit dealt largely with the merits of her case that she was constructively dismissed and did not specifically address the other matters the Commission is required to take into account when considering whether exceptional circumstances exist under s.366(2) of the Act to extend the time limit.

[8] The applicant contended she considered that she was dismissed on 18 June 2014 and the application was therefore filed within time. 4 In support of that proposition, the applicant stated a representative of the workers’ compensation insurer had told her that during the course of a telephone conversation with the respondent’s Chief Executive, Ms Sue Burston on 3 June 2014, Ms Burston had said her position had not been filled and “I was welcome to return to my pre-injury position in a separate office to the colleague who had bullied me.”5

[9] The applicant further stated that she made a complaint to WorkCover on 13 June 2014 concerning non-payment of wages for the period 10 March to 28 April 2014. Following that complaint, a planned meeting between the insurer’s return to work provider, the respondent and herself scheduled for 19 June 2014 was cancelled on 18 June 2014. Accordingly, the applicant considered that she was dismissed on that date.

Submissions

[10] The applicant’s position was that when she “resigned” on 28 April 2014, she “…had no idea that because she had resigned she was entitled to any redress under the Fair Work Act.” 6 Shortly thereafter on or about 25 June 2014, her solicitor informed her about the remedies available under the Act. The applicant submitted she was also suffering severe stress, anxiety and depression at that time.7

Respondent’s Case

[11] The respondent submitted the applicant had resigned on 28 April 2014 and was not an employee at the time she contended that she was dismissed on 18 June 2014. Moreover, the applicant was also not an employee at the time the contraventions are alleged to have occurred.

[12] The respondent acknowledged the applicant’s resignation in an email sent to her in the afternoon of 28 April 2014. 8 At no subsequent time had the applicant sought to rescind her resignation.

[13] On 30 April 2014, the applicant sent an email to the respondent requesting payment of pro rata long service leave: 9

I have spoken with the Fair Work Ombudsman and I have been advised that because my resignation was do (sic) to illness and incapacitation I am entitled to claim 5.732 weeks payment under the Fair Work Act.

The applicant also sought an Employment Separation Certificate “ASAP”.

[14] On 2 May 2014, the respondent wrote to the applicant enclosing two pay slips including advice that the long service leave claim had been paid by direct deposit. 10 An Employment Separation Certificate was also sent to the applicant.

[15] The application is significantly out of time and no adequate explanation has been put to explain that delay.

[16] Ms Burston had no recollectionof the discussion that she is alleged to have had with a representative of the insurer on 3 June 2014.

Consideration

Statutory Requirements

[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time if the Commission is satisfied that there are exceptional circumstances:

366 Time for application

...

(2) The FWC may allow a further period if the FWC is satisfied that there are

exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[18] When considering whether exceptional circumstances exist so as to warrant that an extension of time be granted, the Commission is required to consider and give weight to all of the factors outlined in s.366(2) of the Act when deciding whether the circumstances relied upon are circumstances sufficient to support the exception claimed.

Section 366(2)(a) - the reason for the delay

[19] Despite submitting her resignation on 28 April 2014, receiving an acknowledgement of that resignation and subsequently claiming pro-rata long service leave payments on the grounds that her resignation was due to her illness and incapacity, the applicant contends that she only became aware of her dismissal on 18 June 2014 when a meeting scheduled between the insurer, respondent and herself was cancelled. In that regard, the applicant’s evidence was that she had been informed by a representative of the insurer that on 3 June 2014, Ms Burston had said her position had not been filled and the respondent would welcome her return. Ms Burston had no recollection of this alleged conversation and in any event, the relevant representative of the insurer was not called to give evidence.

[20] I have given careful consideration to the applicant’s stated reasons for the delay and the assessment made by the return to work provider that the applicant at the time of time of an “initial assessment” undertaken on 29 May 2014 was suffering severe depression, anxiety and stress. I have also taken into consideration the observation made by the assessor that at that time of the assessment, the applicant reported she was not taking any medication and further:

Ms Baker was oriented to time, place and person. She appeared an accurate self-historian with appropriate recoil of relevant information requested. Ms Baker’s insight and judgement appeared intact with no obvious deficits in cognitive function noted. 11

[21] Having considered all the material and submissions of the parties, I find the applicant’s reasons for the delay in filing her application unexceptional. The evidence strongly suggests she resigned voluntarily on 28 April 2014. Mere ignorance of the remedies available under the Act and the statutory time limit set out in s.366 (1) of the Act are not exceptional circumstances.

Section 366(2)(b) - any action taken by the person to dispute the dismissal

[22] The applicant resigned and received payment for all outstanding entitlements some 8 weeks prior to 18 June 2014 which she alleges was the date of her dismissal. She was not an employee of the respondent at that time. There is no evidence that other than the filing this application, that the applicant took any action whatsoever to dispute her dismissal. Rather, the evidence before the Commission suggests that the applicant’s resignation was voluntary and the only post termination communication with the respondent was to claim a payment for pro-rata long service leave. There was certainly no communication from the applicant to the respondent stating that the resignation was a “heat of the moment” decision and that she sought to withdraw her resignation.

Section 366(2)(c) - prejudice to the employer (including prejudice caused by the delay

[23] There is no evidence before the Commission to establish that any prejudice would arise if an extension of time was granted.

Section 366(2)(d) - the merits of the application

[24] Having considered all the material, I am unable to find that in the circumstances of this particular case, the application has merit. The applicant resigned her employment voluntarily. In that regard, her subsequent dealings with the Fair Work Ombudsman concerning long service leave entitlements do not suggest that her cognitive ability was impaired at that particular time. It therefore follows that there is also no evidence that the workplace rights allegedly contravened by the respondent occurred when the applicant was an employee of the respondent.

Section 366(2)(e) - fairness as between the person and other persons in a like position

[25] I do not consider this particular consideration a relevant factor in this matter.

Are there exceptional circumstances to warrant an extension of time?

[26] In Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations 12 at [21] the Full Bench observed:

The test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances.

[27] In Nulty v Blue Star Group 13 the Full Bench considered the expression “exceptional circumstances” in the context of a general protections application. The Full Bench stated at [13] to [15]:

[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[28] I have considered all of the factors set out in s.366 (2) of the Act and have formed the view that there are no “exceptional circumstances” such that I should exercise my discretion and grant the extension of time sought by the applicant. The reasons for the delay relied upon by the applicant are not, on balance, “out of the ordinary course, or unusual, or special”. The application is dismissed. An order is contained with this decision - PR560001.

COMMISSIONER

Appearances:

For the applicant, Mr C Adams, Solicitor of Christopher Adams & Associates Pty Ltd.

For the respondent, Ms J Forward of Jobs Australia.

Hearing details:

2014

Newcastle

11 November

 1   Exhibit 1 - Applicant’s affidavit

 2   Ibid at para 17

3 Ibid at para 24

 4   Ibid at para 39

 5   Ibid at para 34

 6   Transcript at PN101

 7   Ibid at PN124

 8   Respondent’s submissions outline - Attachment B

 9   Ibid - Attachment E

 10   Ibid - Attachment C

 11   Applicant’s affidavit - Attachment L

 12   [2014] FWCFB 2288

 13   [2011] FWAFB 975

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