Victoria Billaney v Orchid Furniture Pty Ltd
[2024] FWC 1436
•31 MAY 2024
| [2024] FWC 1436 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Victoria Billaney
v
Orchid Furniture Pty Ltd
(U2024/3156)
| COMMISSIONER ALLISON | MELBOURNE, 31 MAY 2024 |
Application for an unfair dismissal remedy - extension of time – whether exceptional circumstances exist – medical incapacity
What this decision is about
This decision relates to an application by Victoria Billaney (Billaney or the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Ms Billaney alleges that she was unfairly dismissed from her employment with Orchid Furniture Pty Ltd (the Respondent) on 14 June 2023. Ms Billaney’s employment ended following Ms Billaney tendering her resignation. Ms Billaney contends she was forced to resign and therefore her termination was a dismissal. Ms Billaney’s application for an unfair dismissal remedy was not made until 19 March 2024.
An application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect.”[1] If an application is not made in this time frame, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,[2] and the Commission chooses to exercise its discretion under s.394(3) of the Act to extend the period for the application.
This decision considers whether exceptional circumstances exist that warrant the Commission exercising its discretion under s.394(3) to extend the period for the application.
Ms Billaney is clearly an intelligent and articulate woman and I acknowledge that the last 12 months have been very difficult for her, where she has had to struggle with two significant work-related injuries. However, the test for exceptional circumstances establishes a “high hurdle”[3] and ultimately, for the reasons set out below, I have found that there are not exceptional circumstances that would justify an extension to the application period in this matter.
Background to Extension of Time Application
Much of the background leading up to Ms Billaney’s termination of employment is contested between the parties and would require substantial evidence to be led by both parties were the matter to proceed to a jurisdictional and merits hearing. For the purposes of providing background and context to this decision, I have included a summary of key alleged incidents leading to the termination (noting that many of these incidents are in dispute), the timeline leading to the filing of Ms Billaney’s application and Ms Billaney’s evidence around reasons for delay.
Ms Billaney commenced employment with the Respondent initially as a casual employee on 10 October 2022. She was converted to permanent employment in January 2023.
During her employment with the Respondent Ms Billaney alleges that she was subjected to “bullying and sexual harassment from various colleagues on a regular basis.”[4] In particular she alleges there were three major incidents that were ignored or not handled properly by management. These three incidents are briefly summarised below:
On 2 February 2023, Ms Billaney alleges she overheard two work colleagues laughing at her and judging her. When they saw her, they said words to the effect of “Oh she’s here now, we better stop.” Ms Billaney reported this incident to a direct report but there was no follow up with her.
On 29 May 2023, Ms Billaney alleges she was operating a machine and encountered an error. Another employee came over and said words to the effect of “What have you done this time?” This employee then pushed Ms Billaney out of the way and took the mouse out of her hand and attempted to address the error himself. Ms Billaney reported this incident to her supervisor, Mr Michael Ralph (Ralph). The other employee later apologised to Ms Billaney, but Ms Billaney states that the employee told her he was asked to apologise and the apology was not genuine.
On 7 June 2023, a verbal altercation occurred between Ms Billaney and another employee who was an apprentice acting in the dispatch manager role. Ms Billaney conceded she was friends with this employee outside of work, and the initial altercation was not “professional”. However, the employee continued to stare at Ms Billaney, telling her repeatedly that she was doing the wrong thing.
Ms Billaney also alleges that during her time working with the Respondent she was subject to “daily harassing comments.” This included other employees making comments about her physical appearance, make-up and hair, and some particularly troubling allegations around comments at a staff Christmas lunch in 2022. Ms Billaney did not raise any of these comments with the Respondent prior to termination.
Following the incident on 7 June 2023, Ms Billaney tendered her resignation to Mr Ralph via text message. The text message states as follows:[5]
“Please take this as my offical (sic) resignation from Orchid Furniture I appreciate the opportunity to work with the company but due to the amount of bullying and disrespect I have received from many of my colleagues in the short amount of time that I have being (sic) with the company I no longer believe that Orchid is a safe, healthy or viable company for me to work for any longer.
I am happy to serve out my notice period as per my contract...”
Pursuant to the 1-week notice requirement under Ms Billaney’s contract of employment, her last day of work would have been 14 June 2023.[6] However, Ms Billaney contends that she understood from discussions with the Respondent that the termination date had not yet been set.
The Respondent alleges that Ms Billaney’s text was the first time it had heard of any complaint about bullying and harassment from her. The Respondent contends that after receiving Ms Billaney’s text message, they investigated the 7 June matter. However, the other employee involved had a very different account of events.
On 8 June 2023, Ms Billaney suffered a workplace injury involving “a corneal burn and mildly injected conjunctiva”[7] to the left eye from a chemical cleaner.
On 9 June 2023, Ms Billaney met with Mr Ralph at the worksite where her workplace injury was discussed. The bullying complaint and resignation were also discussed at this meeting, but the parties are in dispute to what extent this was discussed.
On 14 June 2023, Ms Billaney alleges that she was “stunned” to find out it was her last day at work. Ms Billaney contends she believed there would be further discussions regarding if, and when, she would resign. A meeting was held between Ms Billaney and Mr Travis McCartney, factory manager. The Respondent submits this meeting was to present Ms Billaney with the outcomes of their preliminary investigation into her complaint and to see if she really wanted to resign. The Respondent alleges the discussion broke down and Ms Billaney confirmed her resignation. Ms Billaney presented evidence regarding her view of that meeting as follows:
“Surprisingly, on the morning of the 14th, Travis approached me and requested a meeting. During this meeting, he inquired if I intended to withdraw my resignation. In response, I asked if the ongoing issues of bullying and harassment that I had reported had been resolved. To my disappointment, Travis stated that there was nothing to be resolved. Consequently, I informed him that my decision remained unchanged as I needed to prioritize my health.”
The parties agree that Ms Billaney’s employment terminated on 14 June 2023. Ms Billaney argues she was forced to resign. The Respondent argues Ms Billaney voluntarily resigned, and no dismissal occurred.
Following her termination, Ms Billaney made two Workcover claims in relation to her eye injury and a mental health injury arising from her employment. On 12 July 2023, Ms Billaney acquired legal assistance for her Workcover claims. Both claims were ultimately accepted by Workcover.[8]
Ms Billaney provided medical evidence in the form of certificates of capacity (COCs).[9] From 18 July 2023 to 2 February 2024 Ms Billaney’s COCs confirm that she had no capacity to work as a result of her mental injury. From 6 February 2024 onwards Ms Billaney’s COCs record that Ms Billaney has capacity for suitable employment.
Ms Billaney gave evidence that from February 2024 she supported her partner who also had a work-related injury with the Respondent. Ms Billaney assisted her partner in navigating the Workcover system and supported him physically.
Ms Billaney lodged an unfair dismissal remedy application on 19 March 2024.
Extension of time
It is uncontested that Ms Billaney’s employment was terminated on 14 June 2023. For Ms Billaney’s unfair dismissal application to have been made within the appropriate time (ie. 21 days after the dismissal took effect), it needed to have been made by midnight on 5 July 2023. Ms Billaney’s application is accordingly 258 days late.
For the Applicant’s unfair dismissal application to now proceed, it is necessary for her
to obtain an extension of time in which to make the application. Section 394(3) of the Act
provides that the Commission may allow a further period for the application to be made if it is
satisfied that there are exceptional circumstances, taking into account the following:
(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.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[10]
The meaning of the term ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said 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.[11] It is accepted 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.[12]
As noted above, the test for exceptional circumstances establishes a “high hurdle.”[13]
I will now consider each of the matters under s.394(3).
394(3)(a) 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 July 2023. The delay period is the period commencing immediately after that time until 19 March 2024 (the date the application was lodged), although circumstances arising prior to that delay may be relevant to the reason for the delay.[14]
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.[15]
Ms Billaney provided a number of reasons why her application was late.
Physical and Mental Injury
The primary reason Ms Billaney provided for delay was that she had sustained mental and physical injuries from her time with the Respondent. She contends that “due to these injuries, [she] was unable to file any Fair Work applications, as they required [her] to place Workcover claims instead and was not mental (sic) stable to deal with these.”[16]
Ms Billaney provided uncontested evidence that her eye injury on 8 June 2023 has left her with “permanent dry eye.” One of Ms Billaney’s COCs, dated 18 July 2023, confirms that because of her eye injury (in conjunction with her mental injury referred to in the next paragraph), Ms Billaney had no capacity for employment between 18 July 2023 to 8 August 2023.
Ms Billaney provided further evidence that she was suffering from a mental injury involving “severe anxiety, stress and major depression”[17] sustained while working for the Respondent. Ms Billaney’s COCs show that as a result of her mental injury she did not have capacity to work from 18 July 2023 to 2 February 2024.
From 6 February 2024, Ms Billaney’s COCs record that Ms Billaney had a capacity for suitable employment.[18] Ms Billaney submits that this change did “not indicate any improvement in [her] mental health or a change in [her] ability to perform daily tasks more effectively.”[19] She claims that as part of her recovery process, it was necessary for her to be exposed to triggers including re-entering the workforce. Ms Billaney was invited to provide further medical evidence relating to this period but declined to.
Carers Duties towards Partner and Financial Stress
Ms Billaney further submitted that from February 2024 onwards, the delay in filing an application was in part because she was supporting her partner who also had work-related injuries from working at the Respondent. Ms Billaney provided witness evidence that her support included “assisting with his recovery and navigating through challenging Workcover cases.”[20] Ms Billaney also submitted that the circumstances had added “financial strains” to her and her partner’s situation.[21]
Did not know she had a right to lodge an unfair dismissal application
Ms Billaney provided witness evidence that she did not consider making an unfair dismissal claim until 2024 because she was unaware that she was able to make a claim. She only became aware of the fact she was entitled to apply for unfair dismissal remedy in her circumstances a few days before the application was made.
Consideration – Reason for Delay
I have determined that, on the evidence before me, it is more likely than not that the primary reason for the delay was that Ms Billaney was not aware of her entitlement to file an unfair dismissal application prior to a few days before the application being made. I have come to this conclusion having regard to the following matters.
Ms Billaney presents as an intelligent and articulate woman, who, despite being physically and mentally injured at work, was able to pursue and lodge two Workcover claims herself, initially without any assistance from her employer. She then engaged lawyers from 12 July 2023 regarding her Workcover claims, including accepting advice letters from her lawyers and working with her lawyers to provide evidence for her Workcover claim. In addition, during the delay period Ms Billaney supported her partner in navigating the Workcover system.
Ms Billaney has provided evidence that when she became aware of her ability to make an unfair dismissal claim, she did so within a few days. I am of the view that the above evidence establishes, on the balance of probabilities, if Ms Billaney had been aware of her entitlement to file an unfair dismissal application earlier, she would have done so.
While it is understandable that Ms Billaney may not have understood that she had an entitlement to make an unfair dismissal claim, particularly given that Ms Billaney purportedly resigned, ignorance of the unfair dismissal jurisdiction and the statutory time limit is not considered an exceptional circumstance.[22]
I also accept that Ms Billaney’s mental injuries may have accounted for some of the delay. I find that if Ms Billaney had not been suffering from a significant mental injury, she may have turned her mind sooner to pursuing an unfair dismissal. I have considerable sympathy for Ms Billaney in this regard and understand that her mental injuries have had a significant impact on her life and impeded her ability to work for a considerable time.
However, ultimately, I am not satisfied that Ms Billaney’s mental injury reasonably explains all of the delay. I note the following three points.
Firstly, Ms Billaney did not produce any medical evidence as to why she was unable to file an application for unfair dismissal remedy between the date of termination and 18 July 2023, and more particularly from 5 July to 18 July 2023. By 5 July 2023, Ms Billaney had proven herself capable of lodging two Workcover claims on her own and her first claim had been approved on 28 June 2023. Ms Billaney submits that her injuries “required [her] to place Workcover claims instead” (emphasis added) of filing an unfair dismissal remedy claim. However, there was no evidence before me to support a finding that Ms Billany could not have also filed an unfair dismissal claim. I find it more likely that had Ms Billaney known she could file both, she would have done so.
Secondly, Ms Billaney had legal assistance from 12 July 2023. Even if I accepted that Ms Billaney was medically incapable of filing an unfair dismissal application on her own during the period she had no capacity to work, it would have been open to her to seek assistance from her lawyers in relation to pursuing a remedy for unfair dismissal.
Thirdly, from 6 February 2024, Ms Billaney’s COCs record a capacity to work. Ms Billaney has submitted that the changes to her capacity to work do not indicate any improvement in her mental health, but rather reflect her healthcare team’s desire to expose Ms Billaney to triggers. Ms Billaney was invited to provide medical evidence to this effect but declined. I further note that Ms Billaney performed other tasks like supporting her partner to navigate the Workcover system from February 2024.
Previous Commission cases have highlighted that it will be difficult for an employee to establish that they were prevented from lodging an application due to a medical condition in the absence of clear medical evidence showing incapacity.[23] Clear medical evidence will be particularly important when the employee demonstrates capacity to act by performing other tasks.[24] In this matter I am not satisfied that Ms Billaney’s medical injury explains why she could not file an unfair dismissal application when she had a capacity to work, and was assisting her partner in relation to Workcover.
I also note Ms Billaney’s submission to the effect that she was facing considerable stress and hardship dealing with her own Workcover claims, supporting her partner, and dealing with financial stress. While again, I have considerable sympathy for Ms Billaney’s position, stress and hardship will not in and of themselves, weigh in favour of a finding of exceptional circumstances unless there is evidence that establishes such hardship either prevented or seriously impeded the Applicant from lodging an unfair dismissal application.[25]
In my view, the reasons for the delay, do not, in themselves, establish exceptional circumstances. I will now turn to consider the other factors under s.394(3), before weighing up all factors to assess if overall, there are exceptional circumstances.
394(3)(b) Whether the person first became aware of the dismissal after it had taken effect
It was uncontested that Ms Billaney became aware of the dismissal on the date that it took effect – 14 June 2023. I am satisfied that she had the full benefit of the 21 days to file her application. Accordingly, this matter is neutral in considering whether there were exceptional circumstances.
394(3)(c) Any Action taken by the person to dispute the dismissal
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[26]
Ms Billaney’s employment ended on 14 June 2023 following the Respondent’s acceptance of her resignation. Ms Billaney argues that her resignation was in effect forced by the Respondent’s failure to address complaints of bullying and harassment. The Respondent disputes this.
On 15 June 2023, Ms Billaney sent an email to Mr Peter Vanderzaag, Owner and Operating Manager of 3 Fold Resources Group, being the parent company of the Respondent. In the email Ms Billaney states the “discrimination and bullying”, including the three incidents referred to at paragraph [7] above “forced [her] to put in [her] formal resignation as [she] felt like there was no other options.”[27] Her letter further indicates that if the Respondent can put in place management processes to address bullying, Ms Billaney would “love to be able to discuss a possible return…”[28]
Mr Vanderzaag responded to this letter on 16 June 2023. Ms Billaney read this letter out at the hearing. In this letter Mr Vanderzaag stated:
“…I investigated your letter of complaint with intensity and urgency. I have interviewed our supervisory and management staff and read through all their recorded notes on incidents brought to their attention. I am satisfied they have followed the company’s policies and dealt with these matters in an appropriate manner. Your letter of resignation has been accepted...”
Ms Billaney gave evidence that there were other times after her termination where she raised with the Respondent that it had mishandled her bullying and harassment complaints. However, Ms Billaney conceded that there were no other times that she had taken action to dispute the dismissal.
I find that Ms Billaney did take some action to dispute the “dismissal,” by writing a letter to Mr Vanderzaag. However, after this date, and up until the filing of the unfair dismissal application some nine months later Ms Billaney took no further action to dispute the “dismissal.” Given this, on balance, I believe this factor is neutral in considering if there are exceptional circumstances.
394(3)(d) Prejudice to the Employer
The Respondent submitted that the delay to the application would cause it to suffer prejudice if the application was to proceed. The Respondent argued that the significant period of time that had passed would impact on the ability of witnesses to recollect matters, stating that “10 months is a long time to recall specific details.”[29]
The Respondent also contended that staff changes since Ms Billaney’s termination would make witness evidence challenging. In particular, the Respondent led evidence that since Ms Billaney’s termination six staff who worked with Ms Billaney either directly or indirectly had been made redundant and therefore may not readily be available to provide witness evidence if required. Ms Billaney confirmed that one of the employees who had been made redundant was the alleged instigator of the second alleged bullying incident and someone about whom she had made a bullying and harassment complaint.
In GHD Pty Ltd v Black[30], it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice. In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[31]
I am satisfied that the significant delay would prejudice the employer in this matter because key witnesses may not be available due to staff changes, and because the significant amount of time may have impacted on witnesses’ recollection of matters. I therefore find this factor weighs against a finding that exceptional circumstances exist.
394(3)(e) The merits of the application
The parties competing contentions in relation to Ms Billaney’s unfair dismissal case have been summarised above under “Background to the Extension of Time.” In particular I note that the parties are in dispute regarding a number of key matters, including but not limited to:
Whether Ms Billaney voluntarily resigned or was forced to resign;
Whether Ms Billaney experienced bullying and harassment while working for the Respondent;
Whether the Respondent acted appropriately in response to the three incidents raised by Ms Billaney;
Whether the Respondent took appropriate steps to address any reasonable complaint of bullying and harassment.
It is evident to me that both the initial jurisdictional matter concerning whether a dismissal occurred and the merits of the application turn on contested points of fact. Evidence in respect of these contested points would need to be heard and weighed in a hearing 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 an extension of time hearing.[32]
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the jurisdictional matter or 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. Noting this, Ms Billaney has made some troubling allegations, particularly around comments made to her by male colleagues regarding her appearance. While I stress that these allegations were not tested at the Extension of Time hearing (and Ms Billaney concedes they were not raised with the Respondent’s management), nevertheless such allegations should be of concern to an employer and it would be wise for the Respondent to take proactive steps to ensure this behaviour is not occurring at their worksite.
394(3)(f) Fairness as between the person 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 reasons for the delay, being:
i.firstly and primarily, because Ms Billaney did not know she had an entitlement to lodge an unfair dismissal; and
ii.secondly, in part, because she had a mental injury which may explain part but not all of the delay.
b.The Applicant being aware of the dismissal at the time that it took effect making this a neutral consideration;
c.That while the Applicant took some action to dispute her dismissal by writing to Mr Vanderzaag, she then took no action to dispute her dismissal for many months prior to making the application, making this a neutral consideration;
d.Prejudice to the employer, being that relevant staff have left the business and that the significant delay will impact on the recollection of relevant witnesses - making this a factor weighing against a finding of exceptional circumstances;
e.The merits of the application being unable to be determined ahead of a hearing of the evidence making this a neutral consideration; and
f.No issue of fairness arising as between the Applicant and other persons in a similar position making this a neutral consideration.
For reasons given above, I have found that the reasons given for delay do not establish exceptional circumstances on their own, and prejudice to the employer weighs against a finding of exceptional circumstances. I have found all other factors are neutral considerations. The test for exceptional circumstances is a high bar and when I consider all the factors under s.394(3), individually, in combination or as a whole, I am not satisfied that exceptional circumstances exist.
5. Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Ms Billaney’s application for an unfair dismissal remedy is therefore dismissed.
COMMISSIONER
Appearances:
V Billaney, Applicant
R Smith for the Respondent
Hearing details:
2024
10 May
Melbourne
[1] Fair Work Act 2009 (Cth) s 394(2) (‘the Act’).
[2] With reference to matters set out in s.394(3) of the Act
[3] Bilkis v Commonwealth of Australia, represented by Services Australia[2020] FWCFB 4859, [6].
[4] Exhibit A1, Digital Hearing Book 10 May 2024 (DHB) 21.
[5] Exhibit A5, DHB 78.
[6] Exhibit R2, cl 13, DHB 143.
[7] Exhibit A3, DHB 69.
[8] Exhibit A8, DHB 24 – 25.
[9] Exhibit A6, DHB 80 - 110.
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[11] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, 5 [13].
[12] Ibid, 5 [13]; Stogiannidis [38].
[13] Bilkis v Commonwealth of Australia, represented by Services Australia[2020] FWCFB 4859, [6].
[14] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[16] Exhibit A1, DHB 21.
[17] Exhibit A6, DHB 80 – 110.
[18] Exhibit A6, DHB 104 – 110.
[19] Exhibit A4, DHB 111.
[20] Ibid.
[21] Ibid.
[22] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[23] See for example Underwood v Terra Firma Pty Ltd [2015] FWCFB 3435, [16].
[24] For example Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.
[25] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[26] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[27] Exhibit A9.
[28] Ibid.
[29] Exhibit R1, question 1(g), DHB 115.
[30] GHD Pty Ltd v Black [2023] FWCFB 38.
[31] Ibid, [51]
[32] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]
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