Vivian Triplett v Redwood Corporation Pty Ltd T/A Rose Gardens Beachside Holiday Park

[2021] FWC 5998

[2021] FWC 5998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vivian Triplett
v
Redwood Corporation Pty Ltd T/A Rose Gardens Beachside Holiday Park
(U2021/7622)

DEPUTY PRESIDENT BEAUMONT PERTH, 29 SEPTEMBER 2021

Application for an unfair dismissal remedy – dismissed.

1 Introduction

[1] Ms Triplett (the Applicant) applied for an unfair dismissal remedy, having resigned from Redwood Corporation Pty Ltd T/A Rose Gardens Beachside Holiday Park (the Respondent) on 15 May 2021, and having ended her employment on 4 August 2021. Ms Triplett’s application was made on 27 August 2021. It was therefore filed outside of the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the basis that the application was filed outside the 21-day statutory period and in addition contended that the Applicant was not dismissed, and that she earned an amount higher than the high-income threshold. This decision deals only with the unfair dismissal application having been made out of time.

[2] The Applicant concedes that her application was filed after the statutory deadline. However, she attributes the delay in filing her application on mental health issues following her dismissal. Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters will not be dealt with for the purpose of this decision.

[3] For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) 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. 1

[4] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted. In the introductory remarks to the hearing, both parties were informed of s 394(3) and the factors that the Commission would take into account.

2 Background

[5] By way of context, prior to the conclusion of her employment with the Respondent, the Applicant held the position of General Manager for Operations across eight caravan parks. 2 The Applicant was responsible for recruitment, training, procurement of supplies, responding to customer and staff complaints, in addition to media reviews.3 Other duties included, but were not limited to, relief office support, after hours cover, and liaison with tourism groups, shires and other businesses.4

[6] The Applicant had worked for the Respondent since the first quarter of 2015. However, she said that due to various things in her workplace, including not being able to take leave to recharge, she felt she had no other option but to resign. 5

[7] According to the Applicant her requests for annual leave were continually declined. 6 The Applicant spoke of having made requests to take annual leave on at least three occasions and the response received was, ‘[I]t’s not a good time’.7

[8] The Applicant gave detail about a circumstance where another senior manager had wanted to take leave and that the Chief Executive Officer had explained to all in the meeting that the Applicant’s leave was a priority. However, it was the Applicant’s account that the leave for that senior manager was approved notwithstanding that the Applicant’s leave request was not. 8 The Applicant noted that she had not asked for specific dates off and was prepared to keep her company phone on and monitor calls.9

[9] The Applicant explained that in the lead up to her resignation, she had several telephone conversations with the Chief Executive Officer of the Respondent, in which she cried. 10 The Applicant detailed not being able to talk about her situation with the Respondent without bursting into tears.11 The Applicant described that the pressures of not being able to take time off were causing her physical and mental health to be affected and she was not sleeping or eating properly.12

[10] The Applicant described having experienced a couple of episodes where she had pains in her chest, and on discovering that she had nothing physically wrong with her, she felt she had no option but to resign. 13

[11] Mr D’Souza, the Group Manager of the Respondent’s Accounts, Financial Reporting and Insurance, said that he monitored all staff entitlements, days off, and leave of various types, checking to ensure compliance with government regulations. 14

[12] Mr D’Souza noted that having reviewed the Applicant’s employment file there were no leave requests that had not been approved by Ms Chacko, the Chief Executive Officer. However, whilst giving evidence Mr D’Souza said that in respect of general managers or more senior staff, particularly himself, it would be usual to have a verbal discussion with the Chief Executive Officer about taking leave first, and when the leave had been verbally agreed, then a leave form would be submitted.

[13] Mr D’Souza said that after 9 August 2021, the Applicant messaged him multiple times on WhatsApp to check whether her reimbursement claims were finalised. 15 As there were issues with the Applicant’s transport fuel claim, Mr D’Souza said an email was written querying a few claims amounting to $325.71.16 Mr D’Souza said that a balance of $1,445.21 was reimbursed to the Applicant on 25 August 2021, after there had been continuous pressure from the Applicant to the Respondent’s Head Office threatening Fair Work action.17

[14] It was Mr D’Souza’s account that on 25 August 2021, when he was processing the Applicant’s final pay out, the Applicant called him regarding the reimbursement invoices and during the conversation, the Applicant said that ‘Jacob and Sally Chacko have no idea how vengeful she can be and that she had “evidence” she threatened she was going to take to Fair Work’. 18 Mr D’Souza continued that when he proactively reassured the Applicant that her final pay was being processed and that the tax withheld was significant, the Applicant mentioned that she would have Fair Work ‘run their eyes over it’.19 Mr D’Souza explained that after the Applicant’s outburst threatening Fair Work, he mentioned to the Respondent he was upset, and that following that report he said received an apology from the Applicant via WhatsApp on 26 August 2021.20

[15] Tendered into evidence was the following text message exchange between Mr D’Souza and the Applicant over the period of 24 August to 26 August 2021:

Tue, 24 Aug

Hi Paul. Can you please advise if my expenses have been processed?

Thank you. Viv

Hi Viv. Not yet. You may want to follow up directly with Sally as it is out of my hands

I have sent Sally a reminder

Thank you. I’ll send her an email and then I’ll call Fairwork. Cheers

Thu, 26 Aug

Hi Paul, please accept my sincere apologies if I upset you on the phone yesterday… that was never my intention. 21

[16] The evidence of Mr D’Souza was unchallenged with respect to his account concerning the Applicant’s claims for reimbursements, references to Fair Work and the text message exchange between 24 August to 26 August 2021.

[17] The Applicant noted that she still struggles with everyday tasks and on vacating the accommodation provided by the Respondent, she sourced assistance from her daughter and son-in-law.

[18] Included in the Applicant’s evidence was a document titled ‘Selective History Report for: Triplett, Mrs Viviane Printed: 10/09.221 11:29:42AM’ (the SHR). The SHR appeared to detail notations of visits with a Dr Mohammed Ullah ‘at MID’. The dates of the notations extended to 6 April 2021, 20 July 2020, 25 June 2020 and 24 June 2020. 22

3 Extension of time

[19] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 23 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. 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.

[20] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account the factors that have been detailed at paragraph [4] of this decision. Each of these factors are considered below.

3.1 Reason for the delay

[21] The Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. 24 The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all of the circumstances must be considered.25

[22] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application. 26 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.27

[23] At the time of her dismissal, the Applicant appears to contend that she was so incapacitated with mental health issues that she was unable to make her unfair dismissal application in time. In cross examination the Applicant was questioned on the reason for the delay and the Applicant referred to the first paragraph of her witness statement which stated:

I have not been able to function properly for some time now and had I been “thinking” I would have realized the impact not having time off was having on myself and maybe taken the time to see if there were any other options available to me, in order to get the time I need to recharge. 28

[24] While sympathetic to the Applicant’s mental health issues there are some observations to be made.

[25] First, the evidence referred to by the Applicant does not explain the reason for the delay, or part thereof, but instead details the impact that not having taken leave had upon her.

[26] Second, while the Applicant’s daughter spoke at hearing of her mother being incapacitated and having to assist her in the first six days after 4 August 2021 to move out of the accommodation provided by the Respondent, 29 there was no contemporaneous medical certificate for the whole period of the delay, part of the period of delay, or for the period from 4 August 2021 until 25 August 2021.

[27] Third, the SHR referred to events that were not in the period from 4 August 2021 to 25 August 2021, or for that matter 27 August 2021, and the author of the document was not called to given evidence. The Respondent submitted that little to no weight could be attributed to the SHR, and I agree with such proposition on the basis that the document lacked relevance and the authenticity of the document was unable to be verified.

[28] Fourth, the Applicant was not so incapacitated by a mental health issue or exhaustion that such illness precluded her from seeking reimbursement for expenses or claims. In this respect I note the text message exchange between the Applicant and Mr D’Souza between 24 August to 26 August 2021.

[29] There is extensive guidance available on the Commission’s website concerning the lodgement of an unfair dismissal application; including lodgement over the phone. In her text message to Mr D’Souza the Applicant demonstrated that she was familiar with ‘Fairwork’. The materials on the Commission website are developed with the view that those accessing the forms and guides may be self-represented applicants.

[30] An argument that the Applicant was operating under a misapprehension regarding the requirement to make the application within a certain period is also insufficient in and of itself to constitute an ‘exceptional circumstance’ within the meaning of the Act. 30

[31] On the material before me, I am unable to conclude that the Applicant was incapable of filing an unfair dismissal application during the statutory period and the period of the delay. Perhaps more importantly, there was no medical evidence, general or otherwise, as to why the Applicant was so incapacitated that she could not file an application in the days preceding and post the statutory time limit up until the time her application was made.

[32] I have considered the delay as the period beyond the 21-day period, and while the application was made only two days late, I am satisfied that the Applicant presented an unacceptable explanation. This weighs against a finding that there are exceptional circumstances.

3.2 Whether the person first became aware of the dismissal after it had taken effect

[33] I am of the view that the Applicant became aware that her employment ended as of 4 August 2021, given, she communicated the same to the Respondent. I consider this to be a neutral consideration.

3.3 Action taken by the person to dispute the dismissal

[34] The Applicant did not give any evidence regarding having disputed her dismissal. Instead there is evidence that the Applicant asked Mr D’Souza about the payment of reimbursements. Mr D’Souza spoke of the Applicant referring to having ‘Fair Work ‘run their eyes over it’ and stating that she had evidence to take to Fair Work. The account of Mr D’Souza was unchallenged, and on an objective level, the Applicant’s statements appear related to her claims for reimbursement and final pay. From all of the circumstances, I am satisfied that this lack of action to dispute her dismissal weighs against the grant of an extension.

3.4 Prejudice to the employer

[35] While the Respondent has submitted that it has already employed someone to replace the Applicant, and the application is causing the Respondent’s officers and other staff members distress and anxiety, I do not consider that the Respondent has suffered prejudice from the late application and therefore the factor of ‘prejudice’ is a neutral consideration in all of the circumstances.

3.5 Merits of the application

[36] In Kornicki v Telstra-Network Technology Group, 31 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 32

[37] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. 33 The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.

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

[38] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, 34 where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 35

[39] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed by both, and as such, consider it a neutral consideration.

4 Conclusion

[40] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all of the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time.

[41] The Applicant has not provided an acceptable reason for the delay or part thereof. Having regard to the reason for the delay, in culmination with the other factors one considers under s 394(3), which are predominately neutral (with the exception of one which weighs against granting an extension of time), I consider that it is not fair and equitable to grant the extension.

[42] It follows that the Applicant’s application for an unfair dismissal remedy is dismissed. An Order 36 will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms. Vivian Triplett, the Applicant;
Mr. Jacob Chacko, for the Respondent;

Hearing details:

Perth (telephone);
September 28;
2021.

Printed by authority of the Commonwealth Government Printer

<PR734348>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Form F2 Unfair Dismissal Application.

 3   Witness Statement of Vivian Triplett (Triplett Statement) [5].

 4 Triplett Statement [5].

 5   Form F2 Unfair Dismissal Application.

 6 Triplett Statement [9].

 7   Ibid.

 8 Triplett Statement [10].

 9   Ibid.

 10 Triplett Statement [6].

 11 Triplett Statement [3].

 12 Triplett Statement [11].

 13 Triplett Statement [12].

 14   Witness Statement of Paul D’Souza (D’Souza Statement).

 15   D’Souza Statement.

 16   Ibid.

 17   Ibid.

 18   Ibid.

 19   Ibid.

 20   Ibid.

 21   Respondent’s Bundle of Documents Whatsapp Message.

 22   Applicant’s Bundle of Documents SHR.

 23   Nulty v Blue Star Group Pty Ltd [2011] 203 IR 1 (‘Nulty’).

 24   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 [39].

 25   Ibid.

 26   Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 [40].

 27   Mr KeMitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

 28 Triplett Statement [1].

 29   Witness Statement of Natasha Bradford [10] – [12].

 30   Nulty [14].

 31   Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

 32   Ibid.

 33   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 34   [2015] FWC 8885.

 35 Ibid [29].

 36   PR734404.