Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

EBS Business Solutions T/A A2K Technologies Pty Ltd

Application for an unfair dismissal remedy - extension of time - medical condition - error in calculation - legally capable applicant - no exceptional circumstances - application dismissed

[1] On 21 November 2020 Jasinta Kim (Ms Kim or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by EBS Business Solutions Pty Ltd trading as A2K Technologies[1] (A2K Technologies, the Respondent or the Employer).

[2] Ms Kim worked for A2K Technologies from July 2018[2] until 26 October 2020 as a sales representative. Her employment was terminated on 26 October 2020 for alleged underperformance.

[3] Ms Kim's application was filed outside the statutory 21 day time limit. It is five days out of time. She seeks an extension of time.

[4] The Commission issued directions on 24 November 2020.

[5] On 30 November 2020 the Respondent lodged a formal response.

[6] Ms Kim filed materials on 7 December 2020.

[7] I heard the matter by phone on 16 December 2020. Both parties were self-represented.

[8] I heard evidence from both Ms Kim and Mr Paul Laycock, the Chief Executive Officer of A2K Technologies. The facts are largely not in dispute.

[9] A2K Technologies is a software technology services business operating nationally from Queensland. It sells technology to software designers. Ms Kim was employed as an inside sales representative.

[10] Following a performance review, at lunchtime on Monday 26 October 2020 Ms Kim was advised in a face-to-face meeting by an Internal Sales Manager (Mr Miceli) and a Human Resources Manager (Ms Eacott) that her employment was terminated for underperformance (with payment of two weeks in lieu of notice).

[11] Ms Kim was given an opportunity to say farewell to work colleagues and left the workplace in an orderly fashion.

[12] Ms Kim was aware that her performance was under review but did not expect to be dismissed on 26 October 2020.

[13] On the evening of 26 October 2020 Ms Kim felt stress and anxiety and experienced a panic attack which she considered to be a flare up of a pre-existing condition (chronic affective disorder) for which Ms Kim had been taking medication.

[14] Ms Kim consulted her general practitioner and treating doctor (Dr James Webster) the next day (27 October), following the panic attack. Dr Webster prescribed a new medication (an anti-depressant) which Ms Kim had not previously been prescribed. Ms Kim took an initial low dosage of the new medication, as prescribed.

[15] Ms Kim next saw Dr Webster about four or five days later (around 2 November) when the dosage of the new medication was increased from the initial low dose.

[16] Ms Kim was finding it difficult to concentrate, focus, follow tasks or read and write in this period. These symptoms remained until the calming effect of the new medication took effect, which Ms Kim believes was not for a number of weeks after first taking it.

[17] Ms Kim felt herself "getting better"[3] at the two week mark after her dismissal but did not feel fully "better" until three or four weeks after dismissal.

[18] In the four week period following her dismissal Ms Kim remained largely at home and undertook indoor and outdoor exercise.

[19] Ms Kim took time to process her thoughts about her dismissal during this period. Once Ms Kim started to feel better two weeks after her dismissal, she started processing her thoughts. At the time she filed her application she was thinking clearly.

[20] Ms Kim formed a sense of grievance with her dismissal a day or two after being dismissed, but due to her anxiety did not act on this belief at that time.

[21] Ms Kim completed a law degree in 2020 and by virtue of that qualification knew at the time of dismissal that she would have rights to litigate an unfair dismissal.

[22] Ms Kim started researching her dismissal rights including on the Fair Work Commission web site from around the two week mark after her dismissal when her health was starting to improve. Ms Kim discovered there was a 21 day time limit for making an unfair dismissal claim but thought it was working days, not calendar days.

[23] In the week prior to lodging her claim, Ms Kim realised that she was starting to run out of time to make a claim. Thinking that she had 21 working days (not calendar days) she still felt she had time to make a claim.

[24] One or two days before Ms Kim submitted her application she sought legal advice on her dismissal by making an on-line inquiry of a legal advisory service and received a return call from a solicitor. The solicitor told Ms Kim that the 21 day rule was calendar days not working days, that she was already out of time and would need to make an application for an extension of time.

[25] On the next or following day (21 November) Ms Kim filed her application on-line in her own hand, including seeking an extension of time.

[26] Once directions were issued by the Commission (24 November) Ms Kim thought it appropriate to obtain a letter of support for her extension of time application from Dr Webster.

[27] By letter of 30 November 2020 the following was provided by Dr Webster:[4]

The patient states that their illness commenced on the 26 /10 /2020

In my opinion the history as stated is consistent with the above and would have meant that she was unable to submit an unfair dismissal claim by the due date

I, certify that the information on which this certificate has been issued is true and correct.

[28] Dr Webster did not give evidence in these proceedings.

[29] Ms Kim says that an extension of time should be granted for three reasons:

• she was medically unwell after her dismissal and not fit enough to make an application until the application was made;

• she incorrectly believed that the 21 day period was based on working days, not calendar days; and

• there is no prejudice to the Employer should an extension be granted.

[30] A2K Technologies submit that there are no exceptional circumstances justifying an extension of time. Whilst willing to accept whatever decision the Commission makes, it contends:

• the Employer made it clear to Ms Kim at the time of dismissal that her employment had ceased, and the reason. It left no confusion in Ms Kim's mind;

• Ms Kim's medical condition did not preclude her from forming a view soon after her dismissal that she had a sense of grievance. She was feeling better some two weeks prior to filing her application;

• the Employer provides assistance to employees if they need it before and after termination;

• Ms Kim filed late because she made an error in calculation; and

• having undertaken law studies, Ms Kim ought not have been confused about working days and calendar days in calculating the 21 day time frame.

[31] Section 394(3) of the FW Act provides:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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

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

[32] Ms Kim's application can only proceed if she can establish that "exceptional circumstances" exist within the meaning of section 394(3).

[33] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[5]

[34] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[6] A decision whether to extend time under section 394(3) involves the exercise of a discretion.[7]

[35] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

"[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."[8]

[36] These principles in Nulty have been cited with approval by subsequent full benches of the Commission.

[37] I now consider each of the factors set out in section 394(3).

[38] The reason for the delay in lodging an application is a factor that must be considered. The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[9]

[39] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[10]

[40] The period of the delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[11]

[41] The 21 day statutory period after Ms Kim's alleged dismissal expired on 16 November 2020. Having filed her application on 21 November 2020, it is five (5) days out of time.

[42] There are two reasons advanced:

• a medical condition that did not fully settle for three to four weeks after dismissal; and

• an error made by Ms Kim in calculating the 21 day period by reference to working days, not calendar days.

[43] The first reason (medical condition) provides a reasonable explanation for the application not being filed in at least the first two week period after dismissal.

[44] The letter of support from Dr Webster is relevant and I take it fully into account. In particular, Dr Webster expresses the opinion that "the history as stated would have meant that Ms Kim was unable to submit an unfair dismissal claim by the due date". Dr Webster was not called to give evidence on this opinion. Had he done so some greater clarity may have been provided on what "stated history" he references, what level of cognitive ability he considered was needed to make an unfair dismissal application and what day was the "due date" referred to in his opinion. Nonetheless, the opinion in the letter of support is indicative of a genuine medical condition which acted as an impairment and to that extent it is consistent with the evidence of Ms Kim.

[45] The letter of support must however be considered in the context of Ms Kim's other evidence that after two weeks she was starting to feel better and able to progressively resume normal activities after the earlier panic attack and adjustment to the new anti-depressant. She felt she was getting better after day fourteen, she was researching her unfair dismissal rights via the fair work web sites at least after day fourteen, and at least by the start of the delay period she had calculated her 21 days period to file a claim (incorrectly as it appears), and (during the delay period) lodged an on line inquiry with a legal service and then spoke to a solicitor.

[46] Given this, in the five day delay period (which fell within the three to four week mark after dismissal) Ms Kim was functioning cognitively and generally able to research, seek out advice and ascertain her rights.

[47] However, whilst considerably recovered, the lingering effect of her medical condition in the delay period, as noted by her treating doctor, weighs somewhat in favour of an extension of time.

[48] The second reason advanced (calculation error) is less convincing. Whilst it was an error in understanding the meaning of "day" for the purpose of the statutory time limit, Ms Kim was not a person uneducated in these matters. Having completed a law degree, her evidence was that she made an assumption, which turned out to be incorrect, and corrected only by a solicitor she spoke to once the 21 day period had elapsed. The evidence is not sufficient to find that the error was made on account of the latent effects of the improving medical condition, though that possibility cannot be discounted. The evidence establishes that it was an incorrect assumption made by Ms Kim, which the solicitor she ultimately spoke to, corrected.

[49] The clear inference from the evidence, which I draw, is that it was the awareness of the error in her calculation, and not recovery from anxiety in the delay period that triggered the filing of the application when it was finally made. Ms Kim had delayed filing over the previous five days not because she was unable to determine her rights but because she didn't believe she was out of time. In that context, she thought she still had time to consult a solicitor. This provides an explanation for the delay, but not a particularly convincing one.

[50] Overall, the reasons for delay weigh somewhat, but only somewhat, in favour of an extension of time.

Awareness of the dismissal taking effect (section 394(3)(b))

[51] Ms Kim was aware of the dismissal on 26 October 2020, and did not thereafter attend for work.

[52] She was neither confused about the date of dismissal nor the reason for dismissal.

[53] Moreover, it was only a few days after dismissal (and notwithstanding the panic attack and anti-depressant medication) that Ms Kim privately harboured a sense of grievance about the dismissal, thinking it was unfair for (allegedly) not having been given appropriate or sufficient warnings.

[54] In these circumstances, this factor does not weigh in favour of an extension of time.

Action taken to dispute dismissal (section 394(3)(c))

[55] Ms Kim took no action to dispute the dismissal in advance of filing the application, other than conducting her own research and (in the delay period) seeking advice from a solicitor. She was however medically unwell in the immediate period following her dismissal.

[56] This is a neutral factor.

[57] The Employer would incur limited prejudice should an extension be granted. A claim would have to be responded to, involving time and cost.

[58] The Employer rightly acknowledged that these considerations should not be given disproportionate status. The nature of the prejudice in this matter is not unique in any particular respect.

[59] However, the absence of prejudice would not itself be a reason to grant an extension.[12]

[60] This is a neutral consideration.

[61] The merits of the application are likely to concern the nature of the alleged underperformance and the existence or adequacy of warnings and procedural fairness.

[62] None of these issues have yet been tested.

[63] In these circumstances, the merits of the application is a neutral consideration.

Fairness between persons in similar position (section 394(f))

[64] This factor does not arise in this matter.

[65] The explanation for the delay weighs somewhat in favour of an extension of time particularly Ms Kim's post-dismissal medical condition (stress and anxiety and its treatment). However the weight to be afforded to that factor is lessened by my finding that it was knowledge of the error in her calculation of the days she had left to file, and not recovery of her health during the delay period, that triggered filing of the application when it was finally filed.

[66] The length of the delay is not long but, in the context of a 21 day statutory time frame a delay of five days is material.

[67] Considering all relevant matters in section 394(3), the issue is whether Ms Kim has satisfied the "high hurdle' of establishing exceptional circumstances.

[68] I am not, on balance, satisfied that the circumstances are exceptional. It is not unusual that a dismissed employee suffers stress or anxiety following dismissal.[13]

[69] The delay period was largely a product of Ms Kim miscalculating the end date of the 21 day period. It is well established that an error in calculation is not an exceptional circumstance warranting, in its own right, an extension of time.[14] This is especially so where Ms Kim had just completed a law degree and knew how to navigate and research legal issues.

[70] Considered overall, there was a genuine medical condition which adversely impacted Ms Kim's ability to file proceedings in the immediate aftermath of her dismissal but no exceptional circumstances for the delay as a whole.

[71] That being so, it is not permissible to extend the time for lodgement. As the time for lodgement has not been extended, Ms Kim's application is out of time and must be dismissed.

[72] An order[15] to that effect is issued in conjunction with the publication of this decision.

P. Laycock, for EBS Business Solutions T/A A2K Technologies

[1] Ms Kim's application names an ABN for A2K Technologies Pty Ltd. At the hearing, the Employer advised that Ms Kim's employer was EBS Business Solutions Pty Ltd, an entity with a different ABN to the company identified by Ms Kim

[2] Ms Kim's employment in the period from July 2018 to October 2019 was with Redstack Pty Ltd, which was acquired by A2K Technologies from that date

[5] Smith v Canning Division of General Practice [2009] AIRC 959

[6] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[7] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

[8] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251 at [5]

[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288, at [35]-[45]

[10] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288

[11] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

[13] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [15]

[14] Shaw (Ibid) at [13]; see also Walker v Ventia Services Pty Ltd [2020] FWC 3542 and Ryan v Finney Pty Limited T/A Cutprice Car Rentals [2020] FWC 1273

[15] PR725997

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