s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Ms Amanda Taylor (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, Livable Limited (Respondent).

• [2] The Applicant seeks an extension of time to lodge her unfair dismissal application in the Fair Work Commission (Commission).

• [3] I conducted a hearing, by telephone, on 23 September 2024 in relation to the Applicant's request for an extension of time.

• [4] The Applicant's resignation from her employment with the Respondent took effect on 28 June 2024. The Applicant lodged her unfair dismissal application in the Commission on 8 August 2024.

• [5] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 19 July 2024. The application was therefore filed 20 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

• [6] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [7] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

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

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

• [10] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [11] 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. 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.[5]

• [12] In her unfair dismissal application, the Applicant gave the following explanation for her application being filed outside the 21 day period provided for in the Act:

"I sincerely apologise for the delay; had I anticipated the extent of mental anguish that Livable would cause me, I would have taken immediate action, including filing an application with Fair Work the very next day. Unfortunately, I was unaware of the necessity to submit my application within a specified timeframe, as I never envisioned finding myself in such a distressing situation. On July 8th, I addressed my grievances in a detailed 3,000-word document, which outlined the severe challenges I faced during my tenure at Livable. This document was received by the CEO and subsequently responded to by the Livable board. I intend to share all relevant documentation, including my resignation letter, which clearly reflects my struggles and the urgent need for support, rather than the feeling of being discarded by the organisation. Regrettably, I feel that the board's response did not adequately address the mental anguish I have been experiencing, which continues to manifest as significant anxiety directly linked to my time at Livable. The impact of my experience has left me in a state of fear and apprehension about seeking new employment opportunities, a feeling that is unprecedented in my career. As this is my first Fair Work claim, I was unfamiliar with the associated timelines and procedures. Had I fully understood the ramifications of my situation sooner, I would have engaged with Fair Work much earlier. Therefore, I kindly request that my late application be considered, as I believe it is crucial for organisations to be held accountable for their treatment of employees. I truly feel damaged by the treatment. Thank you for your understanding."

• [13] The relevant timeline of events may be summarised as follows:

(a) On 18 June 2024, the Applicant tendered her resignation to the Respondent.

(b) On 24 June 2024, the Applicant requested to amend her notice period to end on 28 June 2024 rather than 2 July 2024. The Respondent agreed to this request.

(c) On 27 June 2024, the Respondent met with the Applicant in an exit interview.

(d) The Applicant took personal leave on 28 June 2024.

(e) On 28 June 2024, the Applicant's employment with the Respondent came to an end by way of her resignation.

(f) On 5 July 2024, the Applicant and her partner registered the business name "Full Heart" with ASIC. This step was undertaken so that the Applicant could conduct her own business as a sole trader.

(g) On 8 July 2024, the Applicant provided the Respondent's board with a letter outlining her concerns with an employee of the Respondent, the treatment of employees, and the Respondent's work practices. The Applicant worked on this letter for about five to seven days before sending it to the Respondent's board.

(h) On 25 July 2024, the Respondent replied to the Applicant's letter dated 8 July 2024. The Applicant was dissatisfied with the response.

(i) On about 28 July 2024, the Applicant made a post on Facebook that Full Heart Psychosocial Recovery, her new business, was "now offering psychosocial recovery coaching services..." The Applicant also made two other posts on Facebook in relation to her new business, one before 28 July 2024 and one after that date.

(j) On about 1 August 2024, Coffs Coast Focus published an interview with the Applicant. The interview detailed that the Applicant had "recently embarked on a transformative journey in her career and took a leap of faith, leaving her full time job in community services to be able to offer her own recovery support services" and was "thrilled to announce that I am starting my own business venture". The Applicant participated in an interview with the publisher of Coffs Coast Focus on 19 July 2024. In the week or two leading up to that interview, the Applicant was involved in communications with the editor of Coffs Coast Focus in relation to the questions she would be asked during the interview. In the period between 19 and 23 July 2024, the Applicant provided her comments on about four to five drafts of the article to be published in Coffs Coast Focus.

(k) On 8 August 2024, the Applicant lodged her unfair dismissal application in the Commission.

• [14] The Applicant's treating General Practitioner provided a letter of support dated 12 September 2024 for the Applicant's request for an extension of time. Attached to that letter are consultation notes relating to two occasions on which the Applicant visited her General Practitioner on 8 April 2024 and 9 July 2024 respectively. The General Practitioner's notes from 9 July 2024 relevantly state:

Resigned from job recently due to ongoing stressors and conflict unable to be resolved.

But despite some anxiety about uncertainty, pt feels empowered by own choice and integrity as felt organisation's practices were inconsistent with her morals.

Otherwise is doing well on [medication omitted]..."

• [15] The letter of support provide by the Applicant's General Practitioner provides details of the Applicant's symptoms and medical conditions, together with the impact of them on the Applicant in the period following her resignation. I have taken into account those matters, but do not need to disclose them in this decision which will be published on the Commission's website.

• [16] Taking into account all the circumstances, I do not consider that the matters relied on by the Applicant, considered individually or collectively, provide an acceptable or reasonable explanation for the delay in filing her unfair dismissal application. One of the main reasons why the application was lodged outside the 21 day timeframe is because the Applicant was not aware of the necessity to submit her application within a specified timeframe. An absence of knowledge of the 21 day time limit is not an exceptional circumstance, nor is it an acceptable or reasonable explanation for the delay.[6] Further, I am satisfied that the Applicant's medical conditions and mental health following her resignation on 28 June 2024 did not prevent, or sufficiently incapacitate, her from being able to file an unfair dismissal application within 21 days of 28 June 2024. So much is clear from the fact that the Applicant was able to prepare (and send to the Respondent on 8 July 2024) a "detailed 3,000 word document which outlined the severe challenges [the Applicant] faced during [her] tenure at Livable"[7] and the Applicant was able to participate in an interview for Coffs Coast Focus on 19 July 2024 and communicate with the editor of the publication prior to and after 19 July 2024 in relation to the questions she would be asked at the interview and the content of the article to be published in August 2024. The consultation notes written by the Applicant's General Practitioner on 9 July 2024 (set out in paragraph [14] above) also support my finding in this regard. Further, although the Applicant was not satisfied with the response she received from the Respondent on 25 July 2024, the Applicant did not file her unfair dismissal application in the Commission until 8 August 2024, some 14 days later. No satisfactory explanation was given for this part of the delay.

• [17] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 8 August 2024 weighs against the Applicant's contention that there are exceptional circumstances.

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

• [18] The Applicant was aware of her alleged dismissal on the day it took effect and therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

• [19] The Respondent denies that the Applicant's letter to the board of the Respondent dated 8 July 2024 amounts to action taken to dispute her dismissal. The Respondent contends that nothing in the letter sought to alter the circumstances of the Applicant - she did not seek to be reinstated to her role or to rescind her resignation. The Respondent submits that the Applicant wrote to the Board as a "concerned former employee" and sought "to contribute to the betterment of Livable and ensure that improvements are made to current practices". I do not accept this submission by the Respondent. The Applicant contends that she was forced to resign by reason of conduct, or a course of conduct, on the part of the Respondent. In her letter to the board of the Respondent dated 8 July 2024, the Applicant raised a number of the concerns which led to her resign from her employment with the Respondent. It follows, in my view, that the Applicant took some action to dispute her dismissal in her letter to the board of the Respondent dated 8 July 2024. This provides some weight to the Applicant's argument that there are exceptional circumstances.

• [20] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [21] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed, and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.

• [22] The Applicant contends that she was forced to resign from her employment with the Respondent in light of an environment that left her with no choice but to leave. The Applicant contends that she was subjected to a psychologically unsafe environment. It is also contended by the Applicant that her manager harassed, belittled and publicly humiliated her in front of her colleagues, making it impossible to perform her job effectively. Compounding the Applicant's stress was the pressure to engage in what the Applicant perceived was unethical practices. The Applicant also claims that her workload was overwhelming and she was not given adequate support or resources to do the work expected of her. The Applicant contends that she raised her concerns with the Respondent, and in support of this contention tendered a letter to her manager dated 9 April 2024, a letter which she used when speaking to another manager in April 2024, and text messages with that manager.

• [23] The Respondent contends that the Applicant was not forced to resign by any act of the Respondent or any employee, officer or agent of the Respondent. It is contended by the Respondent that the Applicant voluntarily resigned and she did not bring to the attention of the Respondent any of her concerns prior to tendering her resignation. The Respondent contends that it would have implemented training for employees had it been aware of the issues raised by the Applicant, and the Respondent would have worked with the Applicant without her needing to resign.

• [24] The letters and text messages tendered by the Applicant demonstrate that the Applicant is likely to succeed in establishing that she raised her concerns with the Respondent during her employment. However, there is a real question about whether the Applicant was forced to resign because of conduct, or a course of conduct, engaged in by the Respondent. Absent evidence from relevant witnesses in relation to this issue and the other issues in the case, I do not consider that it is possible at this early stage of the proceedings to come to an informed view of the merits of the Applicant's unfair dismissal application. Having regard to all the circumstances, I consider the merits of the Applicant's unfair dismissal application to be a neutral consideration.

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

• [25] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [26] The Respondent contends that the Applicant, in her emotional state, is in a position that many employees have experienced when seeking to have the Commission extend time for their unfair dismissal application. The Respondent submits that it would be unfair for the Applicant to be permitted to continue her application in circumstances where she has not provided clear evidence of the impact of her medical condition on her capacity to prepare and lodge an unfair dismissal application and others in a similar position to her have had to provide such evidence to obtain an extension of time.

• [27] Each application for an extension of time under s 394 of the Act must be considered on its merits and having regard to the particular facts and circumstances of the case. I have set out above the relevant facts and circumstances relevant to the Applicant's application for an extension of time. In my view, those facts and circumstances are not the same as, or sufficiently similar to, other cases to warrant a finding that it would be unfair for the Applicant to be given an extension of time when other applicants in different circumstances have, or have not, been granted an extension of time. In all the circumstances, I consider this factor to be a neutral consideration.

• [28] Notwithstanding that I have sympathy for the Applicant, taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took some action to dispute her dismissal, the other relevant factors are either neutral or weigh against a finding of exceptional circumstances. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [29] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

Ms N. Tindley, solicitor, appeared for the Respondent.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; Rose v BMD Constructions Pty Ltd [2011] FWA 673

[7] Applicant's unfair dismissal application at [1.4]

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