//
[2020] FWC 3006
General information, not legal advice.
Fair Work Commission
2020-06-11
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
The Trustee for The Salvation Army (Victoria) Property Trust T/A Employment Plus
Application for an unfair dismissal remedy - application made outside of 21-day time limit - no exceptional circumstances present - jurisdictional objection upheld - unfair dismissal application dismissed.
[1] On 18 March 2020, Ms Deborah Smith made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by The Trustee for The Salvation Army (Victoria) Property Trust T/A Employment Plus (Employment Plus) and the dismissal was harsh, unjust or unreasonable.
[2] Ms Smith commenced employment at Employment Plus on 28 February 2018. It is agreed between the parties that Ms Smith was notified of her dismissal on 21 February 2020 and that it took effect on that date.
[3] In its Form F3 - Employer Response to Unfair Dismissal Application, Employment Plus raised a jurisdictional objection in relation to Ms Smith's application. It stated that the application was not filed until 18 March 2020, and therefore it had been filed five days outside the 21-day time limit.
[4] On 30 April 2020, correspondence from Vice President Catanzariti's chambers was sent to Ms Smith outlining that the application was lodged five days outside the 21-day time limit within the Act, and she would be required to seek an extension of time for her application to proceed. Ms Smith was informed that the Commission may extend the time period for lodging an unfair dismissal application only if the Commission is satisfied that there were exceptional circumstances for not lodging the application in time. Ms Smith was invited to address the relevant criteria.
[5] Ms Smith provided the following information for consideration:
(a) She has been under severe emotional distress, and attending upon her GP regularly since the dismissal;
(b) Whilst employed Ms Smith would regularly have medical treatment for illnesses and injuries, approximately 2-4 treatments per week;
(c) Whilst unemployed she was struggling to make ends meet;
(d) Ms Smith was an employee with no known history of performance counselling, yet the Salvation Army, of all organisations believed a "lying scheming co-worker" over her, and each time she now picked up the phone she broke down in tears;
(e) Simple tasks are now beyond her control;
(f) She considers that her ill health and her WorkCover claim assisted in the decision to dismiss her;
(g) Being dismissed for serious misconduct has rendered her near-useless and unable to cope;
(h) Being dismissed has rocked her to her core and essence of her soul; and
(i) She has booked into a psychologist for several sessions to deal with coping strategies.
[6] Ms Smith provided the following timeline for consideration:
"21 Feb 2020 Outcome meeting. Regional Manager presented me with a termination letter. I was advised I would receive a formal termination letter by express post on Monday 24th Feb. detailing the reasons for my termination.
26 Feb 2020 I emailed HR to advise that I had not received my official termination letter. She advised that it was posted, but was returned due to an incorrect address and was immediately re-posted.
27 Feb 2020 I contacted HR again and they advised that the Regional Manager would email me with the tracking number of the envelope. I did not receive this email.
27 Feb 2020 I visited my GP to discuss my emotional distress caused by the events surrounding my termination.
28 Feb 2020 Salvation Army Payroll emailed me the separation documentation including my termination payment calculation.
05 Mar 2020 I had an appointment with my Chronic Pain Specialist to address the physical and mental barriers caused by the events associated with my termination. He referred me to psychological counselling to address some of these issues.
07 Mar 2020 I received the termination letter which was dated 24 Feb. 2020 advising that I had been terminated for misconduct.
18 Mar 2020 I lodged Form F2 - Unfair Dismissal Application with the Fair Work Commission"
[7] Ms Smith submitted the exceptional circumstances relating to her case justifying the granting of an extension of time include:
5 days only is sought which would not in any way prejudice the employer's case;
The employer was negligent in that the issue of formal written correspondence explaining the reasons for the dismissal was lost, misplaced and not forthcoming within a reasonable time frame after the dismissal introducing a delay to the proceedings;
The employer's actions prior to and following the dismissal led to significant emotional distress on the part of the employee. In this circumstance medical intervention and psychological support was required and proactively sought by the applicant during the intervening period.
The lodging of an unfair dismissal claim is not an insignificant matter requiring clarity of thought and purpose by an applicant. The passing of time, medical intervention and psychological support provided to the applicant post the termination enabled her to gather her thoughts and make an informed decision based on the evidence alone.
[8] A letter dated 7 May 2020 from Ms Michelle Kearnes, Clinical Psychologist was admitted into evidence. It reads:
"I have consulted with Ms Deborah Smith in March 2020 to date. At initial consultation, Ms Smith described psychological symptoms consistent with a diagnosis of Posttraumatic Stress Disorder related to a traumatic event at work in July 2019. It appeared that as a result of Ms Smith's loyalty and commitment to her employer and work, she continued to work following this traumatic event. Unfortunately, as a result she experienced increased somatic symptoms due to her psychological distress. This precipitated multiple GP and specialists visits, in addition to a visit to a pain management clinic.
Ms Smith reported that in February 2020, she was unexpectedly terminated from her employment with Salvation Army Employment Plus with no perceived natural justice. This aggravated her existing trauma symptoms and overwhelmed her coping resources. Given this, Ms Smith was unable to consistently and competently process distressing information, make clear and informed decisions, and complete an application to have this decision from her employer reviewed by Fair Work until beyond the three-week time frame. It is important to note that three weeks is not a significant period of time for an individual to obtain the cognitive, emotional, psychological and behavioural capacity to engage in a process that is an actual trigger to their existing psychological symptoms.
[9] The matter was allocated to me for hearing to determine whether a further period should be allowed for the application to be made, having regard to the considerations in s.394(3) of the Act. Directions were issued to both parties to file material and submissions relevant to the jurisdictional objection. Section 394(3) was appended to the Directions.
[10] The matter was listed for hearing before me on 9 June 2020 by telephone. Ms Smith appeared on her own behalf and gave evidence. Ms Smith was hospitalised at the time and in receipt of pain medication for the injuries she obtained during her employment. She was supported by her father, Mr Martin Quinlan. Ms Smith provided an email that confirmed that her hospital specialists were comfortable with her participation in the telephone hearing. Several times during the hearing I inquired if Ms Smith was capable of continuing, and on each occasion she assured me that she was. I offered a ten-minute adjournment at one point during the hearing, however Ms Smith stated that she did not require an adjournment.
[11] Employment Plus was represented by Mr Daniel Kensey, Workplace Relations Manager. Ms Vanessa Drake, HR Business Partner was a witness and gave evidence.
[12] Section 385 of the Act defines the meaning of "unfair dismissal" and states as follows:
A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388."
[13] Section 394 of the Act provides the criteria required to obtain an unfair dismissal remedy:
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
(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:
(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."
[14] In addition to Ms Smith's material above, Ms Smith provided the following detail of her appointments during February and March 2020:
"21 Feb 2020 Meeting convened by HR to discuss the outcome of their investigation into the complaint lodged against me. This was attended by Vanessa Drake the HR manager by phone, Marc Kilner the regional manager, my partner Dave Teer and myself. The meeting was brief, and my persistent request for fair and balanced justice and any evidence fell upon deaf ears, they had already made their decision prior to me attending what was to be my last day at work, at which the regional manager handed me a pre-signed termination notice. The HR manager advised that I would receive a formal termination letter by express post on Monday 24th Feb. detailing the reasons for my termination.
27 Feb 2020 I contacted HR by phone and spoke to Vanessa Drake. The purpose of this telephone meeting was to advise them that I still had not received my official termination letter despite having received an email reply on 26th Feb. stating that it had been posted, but it was returned due to an incorrect address and was immediately re-posted. Vanessa further advised me that the Regional Manager would email me with the tracking number of the envelope. I did not receive this email. I finally received the termination letter on 7th Mar. advising that I had been terminated for misconduct. The letter was dated 24 Feb. 2020.
27 Feb 2020 I visited my GP, [name] at [location] to discuss my emotional breakdown caused by the events surrounding my termination.
02 Mar 2020 I attended [medical practice] approved by Work Cover Qld. as a part of my rehabilitation for assistance with relief of Chronic Pain.
02 Mar 2020 I visited my physiotherapist [name] at [location] as approved by WorkCover QLD.
05 Mar 2020 I attended an appointment with my Chronic Pain Specialist [name] of [medical practice] to address the physical and mental barriers caused by the events associated with my termination. At this consultation he advised me to make an appointment with my psychologist to address some of these issues which I subsequently did. The first available appointment, which I attended, was on 24th Mar.
09 Mar 2020 I attended [medical practice] approved by Work Cover Qld. as a part of my rehabilitation for assistance with relief of Chronic Pain.
09 Mar 2020 I visited my physiotherapist [name] at [location] as approved by WorkCover QLD.
11 Mar 2020 I had a phone appointment with [name] my case manager from WorkCover QLD in relation to my claim. This claim deals with my back injury including jarring to my spine and psychological stress. At this meeting I provided my WorkCover QLD Medical Certificate which I obtained from my GP and a medical management plan was agreed upon that covered my ongoing treatment. I advised that the next appointment with my Psychologist was booked for 24th March.
16 Mar 2020 I visited my physiotherapist [name] at [location] as approved by WorkCover QLD."
[15] Employment Plus filed material relevant to the jurisdictional objection. Ms Drake's evidence reveals that Ms Smith was terminated in a meeting held on 20 February 2020 in the presence of her support person, Mr David Teer. She informed Ms Smith that a termination letter would be sent to her, and a termination checklist was completed.
[16] The Form F3 - Employer Response to Unfair Dismissal Application cited the following as reasons for the dismissal:
3. Ms Smith refers to staff as "Fu _ ken Muppets" and "Fu _ ken Idiots"
4. Ms Smith discussed topic by you can be of a sexual nature or personal, not appropriate in a workplace.
5. Ms Smith disclosed confidential information about performance managing one of her direct reports to her co-worker.
6. Ms Smith directed one of her direct reports to monitor a co-worker (the employee in question was the subject of performance management outlined in point 5).
7. Ms Smith directed another employee to relocate a co-workers desks to a position where she could be watched. (The employee in question was the subject of performance management outlined in point 5).
The employee in question, who raised the complaint and was subjected to the conduct has been away from the office taking personal leave sighting severe psychological impact of which includes suicidal tendencies."
[17] Employment Plus referred to an email sent by Ms Smith to Ms Drake on 26 February 2020 as evidence of her ability to communicate and properly function following her dismissal. The email is as follows:
Can you please advise where my separation letter is? Also, when will separation payments be finalised? And i also sent Marc a reimbursement for the blue card that still needs to refunded to me as well.
I was advised by you that I would receive my letter Monday. At close of business Wednesday this debacle is still not finalised and I have not been updated on the progress.
[18] Ms Drake responded the next day advising that the letter had been sent to an incorrect address. Ms Smith responded on 27 February 2020 inquiring if Employment Plus had her correct address.
[19] Employment Plus made the submissions below.
[20] Employment Plus submitted that it is neither "out of the ordinary course, unusual, special, or uncommon" for an employee to suffer emotional distress and a reduction in cognitive capacity following the termination of their employment; rather "it is common for employees to suffer shock and trauma as a result of dismissal from employment".[1]
[21] It was submitted that Ms Smith's evidence is that she was suffering from post-traumatic stress disorder related to a traumatic event at work in July 2019, and she was able to access treatments whilst continuing with her work. It was submitted that she had been capable of performing her role despite her health conditions but was apparently incapable of filing an application due to her mental health.
[22] To the extent that Ms Smith did suffer from emotional distress and lack of capacity, Employment Plus submitted that it was not significant enough to prevent her from filing even a rudimentary F2 application with the Commission within the statutory timeframe, such as the one she did subsequently file. It was submitted that Ms Smith demonstrated emotional and cognitive capacity in the 21-day post-dismissal time period to:
(a) Realise that she hadn't been reimbursed by Employment Plus for her bluecard during the course of her employment;
(b) Send a lucid, courteous email to Marc Kilner (who was present at the termination meeting) on 24 February to request reimbursement, attach the relevant receipt, and request that the reimbursement be added to her separation payments;
(c) Monitor her postal mail for the termination letter, and realise that it has not been received;
(d) Monitor her bank account to determine that she has not received her separation payments;
(e) Send a lucid, professional email to Vanessa Drake (the other person who was present at the termination meeting) where she recalls that she was advised by Vanessa that she would receive the termination letter by Monday and that she still has not received it, asserts her right to it, and asks when she will receive her termination payment;
(f) Realise that as at 26 Feb she has still not received the bluecard reimbursement requested by her to Marc Kilner on 24 February, and to then request the same of Vanessa Drake;
(g) Email Vanessa Drake on 27 February to confirm her comprehension of Vanessa's email, and double-check that Vanessa and Marc now have the correct postal address;
(h) Phone one of the employer representatives who dismissed her (Vanessa Drake) on 27 February and explain to her that, in spite of Vanessa's assurances in her email of 26 February that the termination letter had been re-posted after a previous incorrect postal address had been used, she still had not received it;
(i) "discuss (her) emotional breakdown caused by the events surrounding (her) termination" with her GP on 27 February;
(j) "address the physical and mental barriers caused by the events associated with (her) termination" with her chronic pain specialist on 5 March;
(k) maintain her workers compensation rehabilitation process by visiting her acupuncturist on 2 and 9 March;
(l) maintain her workers compensation rehabilitation process by visiting her physiotherapist on 2 and 9 March; and
(m) maintain her workers compensation rehabilitation process by having a phone appointment with her WorkCover Case Manager on 11 March, where she provides a new WorkCover medical certificate, "agrees upon" a "medical management plan" for her ongoing treatment, and advises her case manager that her next appointment with her psychologist is 24 March."
[23] Employment Plus submitted that Ms Smith was quite capable of acting in her own capacity and could engage in formal dealings relating to her dismissal, even from as early as the first business day after her dismissal. It was submitted that this was evidence that Ms Smith had the cognitive and emotional capacity to complete an application to the Commission.
Whether the person first became aware of the dismissal after it had taken effect
[24] Employment Plus submitted that Ms Smith knew of her dismissal on 21 February 2020, and immediately returned property of the employer in her possession. It was submitted that the delay in receiving the termination letter until 7 March 2020 did not prevent Ms Smith from filing a rudimentary F2 application based on information communicated to her verbally.
Action taken by the person to dispute the dismissal
[25] Employment Plus submitted that it is not aware of any action taken by Ms Smith to dispute her dismissal.
[26] Employment Plus stated that it did not press that the granting of a further period for the application to be made would result in prejudice.
[27] It was submitted that Employment Plus does not accept that Ms Smith has a "highly meritorious case", however it nevertheless accepts that there are disputed facts and so does not press this ground.
Fairness as between the person and other persons in a like position.
[28] This ground was not pressed by Employment Plus.
[29] Employment Plus contended that the facts in this application are almost identical to those in a decision of Commissioner Platt,[2] recently decided, in which case the applicant was not granted an extension of time. In that case, the applicant:
(a) filed the application five days late;
(b) had pre-existing mental health issues;
(c) provided a letter from his GP as well as his clinical psychologist;
(d) alleged that "Following my dismissal I have been working through my anxiety with my Psychologist but wasn't in a stable place where I could make an application in time"; and
(e) was able to undertake other activities that suggest that he could function at a level where "he should have been capable of filing his application within the statutory timeframe".
[30] In reply, Ms Smith submitted that a delay of five days is very different to five weeks or five months. She considers that she has provided a detailed witness statement detailing the events preventing her from bringing an application within time, including her lack of capacity during much of the period.
[31] Ms Smith confirmed that in addition to attending medical appointments in the relevant period, she was able to go to the supermarket to purchase groceries, drive her car, assist her children with their school work, and engage with her family and others in the course of daily activities. She submitted that the contentions of Employment Plus would result in her having to have lost capacity, or behaving in an incoherent, unpredictable, erratic or discourteous manner, rendering her incapable of completing a "rudimentary F2 application".
[32] She submitted that referring to the F2 application as "rudimentary" is disrespectful to herself and to the Commission, as she considers it to be far from rudimentary. She described it as a document that underpins a complex and rigorous process that leads to an applicant being subjected to further emotional stress and anxiety. Ms Smith stated the completion of the form needs to be undertaken in a considered manner, exercising clarity of thought and judgment. She considers that to be different to preparing a shopping list or sending a simple email.
[33] Ms Smith described her injuries as a result of being assaulted at work in 2019 whilst trying to protect a client and staff from a violent intruder, whilst performing first-aid on an epileptic job seeker on the bathroom floor. These events significantly exacerbated an existing back injury. Ms Smith contended that while she continued to work throughout 2019 while suffering from these injuries, she did so out of respect and compassion for the staff she managed and the clients she served. Ms Smith referred to numerous instances where her excellent performance had been celebrated during 2019.
[34] Ms Smith contended that when she was then confronted with false and malicious allegations of misconduct without notice of any prior indiscretions, counselling, written or verbal warnings, and after being dismissed she was left "reeling" on the back of her pre-existing medical issues.
[35] Ms Smith stated that she was upset by her reliance on a chaplain of The Salvation Army whom she had known for 12 months prior to the dismissal. She requested help from him, and he turned her away. She found his prejudice to be deeply disturbing and inconsistent with the commitments he made to the organisation. Leading up to the dismissal she stated that she felt alone and vulnerable with no support other than her family, friends and trained physicians.
Whether the person first became aware of the dismissal after it had taken effect
[36] Ms Smith confirmed that she knew that she had been dismissed on 21 February 2020. Her concern is that she was informed at the meeting that she would receive formal notice of the termination by registered mail, detailing the reasons for the termination. The letter was received late and does not make any reference to either the allegations made against her or provide an explanation of the reasons for her termination. She considered that she was not in a clear state of mind to make a decision as to whether to proceed with the unfair dismissal application.
Action taken by the person to dispute the dismissal
[37] Ms Smith stated that on the day of the dismissal she informed those present at the meeting that she did not accept the reasons given for the dismissal and the processes followed to arrive at the decision. She considered that she had been denied natural justice.
[38] Ms Sherryl Quinlan, Ms Smith's mother provided a statutory declaration in these proceedings, admitted into evidence. Ms Quinlan detailed that on 21 February 2020, Ms Smith rang her, and she was terribly distressed. She could not understand what she was saying but understood that she had been dismissed.
[39] Ms Quinlan contacted The Salvation Army and asked to speak with a senior HR manager who had been involved in Ms Smith's dismissal. Later that day Ms Quinlan's call was returned, and the female identified herself as the person who attended Ms Smith's dismissal. While Ms Quinlan did not include this in her statutory declaration, I take this to have been Ms Drake.
[40] After some discussion, Ms Quinlan stated that Ms Smith had been unfairly dismissed and once Ms Smith was able to gather her thoughts and process what had happened, she would be taking the matter further. The HR person stated, "This is her choice."
[41] Ms Smith noted that Employment Plus had not pressed this issue.
[42] Ms Smith submitted that because she was dismissed for serious misconduct, there was a requirement to demonstrate, on the balance of probabilities that she had engaged in such conduct. Ms Smith contended that following the dismissal, her "1-up manager" provided "off the record" comments to her and Mr Teer that she had been "set up" and the termination was:
- A crock of shit;
- This is all bullshit really;
- We know what she (other staff member) is like; and
- [this is] not at all what I had expected or wanted.
[43] Further, Ms Smith contended that this manager informed her that the dismissal was really because Employment Plus wanted to get rid of her due to her on-going medical issues.
Fairness as between the person and other persons in a like position.
[44] Ms Smith sought to differentiate her case from that of the decision referred to above at [29]. She considers the suggestion that the facts in that case are almost identical to hers as false, and the submissions superficial as it does not take into account preceding events, Ms Smith's role and responsibilities, circumstances that led to her dismissal, the actions of the employer, and the relative merits of her application.
[45] Ms Smith considered that whilst her circumstances are not unique or rare, when considered in light of the combination of factors involved fall "out of the ordinary". She considers that they are not routine or normally encountered when judged against others in a like circumstances and should be considered "exceptional".
[46] Ms Smith and Ms Drake gave evidence during the hearing. Ms Smith was unable to say on which date she accessed the Commission web page and downloaded the application form. She was not sure if was done within the 21-day time limit and she "came back to it", or whether she went to the web page for the first time on 18 March 2020. At around this time during the hearing I offered an adjournment, in case Ms Smith was unable to, as a result of her hospitalisation and medication provide coherent evidence. Ms Smith assured me that she had capacity to give evidence, but regrettably, could not remember the first time she downloaded the form.
[47] She stated that on some days she could not form a sentence, causing concern to her family.
[48] I noted that on the application form, Ms Smith had stated:
"I may be starting PT work next week on Wed thurs and Fri, so would only be available on Mon & Tues"
[49] In answering questions from me, Ms Smith stated that she had not applied for any work following the dismissal, and it had been a former manager/friend in another role who had contacted her and inquired whether she would be interested in performing retail work. This former manager/friend contacted Ms Smith several times. Ms Smith performs work for her and is comfortable with the modifications around her medical condition. She described the work as basic retail work.
[50] Ms Smith stated that there had been 31 allegations made against her and it appeared to her, although it was not clear, that she was dismissed for six issues.
[51] I noted that Ms Smith had stated in her evidence that she was capable, during the relevant period in which she could have brought her claim to shop, drive, assist her children with schoolwork, attend medical appointments and interact with her family. When asked how she attended each of the medical appointments, she stated that a family member drove her, or she walked a very short distance to appointments.
[52] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[3] where the Full Bench said:
"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:
"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.'
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:
'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:
'We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."
[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."
[53] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[4] a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers[5] stood for a decision rule that, absent a credible explanation for the entirety of the delay, there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:[6]
"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional." (original emphasis)
[54] The reason for delay asserted by Ms Smith is primarily that she was suffering from severe emotional stress, was rocked by the dismissal, unable to make the application, and the employer's delay in providing to her the termination letter caused some of the delay.
[55] I accept that Ms Smith has been severely impacted by the dismissal, and it appears to have exacerbated her pre-existing medical conditions. Without any clarity from Ms Smith as to when she first went to the Commission page and downloaded the application form, it defaults to her having done so on 18 March 2020.
[56] In this time she:
- (a) Physically attended seven medical appointments;
(b) Discussed her ongoing workers compensation plan with WorkCover and agreed upon a medical treatment plan;
(c) Emailed her former workplace on two occasions;
(d) Shopped;
(g) Engaged with her family members; and
(h) Had several telephone calls with a former manager/friend and tentatively accepted employment to commence the following week.
[57] Whilst I am certainly sympathetic to Ms Smith's medical condition, and the ongoing treatment she is receiving for her chronic pain, I do not accept that it was beyond her capacity to have made the application within the 21-day time limit. Ms Smith attended to many activities during this time, demonstrating physical and cognitive capability. I accept that attending to some of these activities was done with the support of her family.
[58] Ms Smith was supported at this time at least by her mother, a schoolteacher, and a domestic partner. Ms Smith's father has assisted her in proceedings recently, however it is not known if he was able to assist Ms Smith in the 21 days following her dismissal. Ms Smith was not isolated during the relevant period of time, and it was available to her to request assistance from those in her family to bring the application.
[59] Regrettably, because of the lack of evidence as to when Ms Smith first downloaded the application form, with the default position being that she did so on 18 March 2020, Ms Smith has demonstrated that she has been capable of many activities, but completing a relatively simple form was not one of them.
[60] I accept the submissions of Employment Plus that completion of the application form is not incredibly taxing. I accept that to an applicant it might be stressful, but it is done by approximately 15,000 people annually, the vast majority of those applications within the statutory time limit. I anticipate that it would typically take an applicant not more than one hour, and certainly less for many people to complete an application form. Ms Smith did not provide detailed, supplementary material; nor was she required to.
[61] Having regard to the evidence before me and authorities cited above, noting particularly a decision of Deputy President Sams in Micallef v Garfield Child Care Pty Ltd,[7] I am not satisfied that Ms Smith's evidence as to her fragile mental condition, and the employer's delay in providing to her the termination letter provide a satisfactory explanation for the delay in the lodgement of the application.
[62] The Commission has held on numerous occasions that individuals, if suffering from depression and anxiety, are not sufficient reasons to justify a delay in lodging an application under s.394. I note in particular the decisions in Custo v Norstar Recycling Pty Ltd,[8] Muir McMeeken v Action Industrial Catering Pty Ltd[9] and Rose v BMD Constructions Pty Ltd.[10] As such I am not satisfied that Ms Smith's medical condition itself qualifies as an 'exceptional circumstance' warranting an extension of time, particularly taking into account all of the activities she was able to actively engage in during the relevant period of time.
[63] Relevant to the delay in providing to Ms Smith the termination letter, and it being scant of the actual findings of the investigation, it was received by Ms Smith on 7 March 2020, and she was still unable to bring her application within time by 13 March 2020.
[64] I am not satisfied that, taken together, Ms Smith's reasons for the late lodgement of her application amount to exceptional circumstances sufficient to credibly explain the delay in this instance. Whilst I accept that Ms Smith's condition and circumstances may have meant she had reduced capacity to lodge an application during the 21 day time period, and these reasons continued right up until lodgement, I am not satisfied that this amounts to 'exceptional circumstances' when the considerations of s.394(3) of the Act are taken into account.
[65] Taking into account of all of the circumstances resulting in the delay in lodging the application, I have determined that the multiple reasons provided for the delay do not amount to exceptional circumstances sufficient to credibly explain the delay in this instance. The reasons for the delay weigh against the exercise of the discretion to grant an extension of time.
Section 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[66] This criterion is not a matter in dispute. Ms Smith stated that on receipt of the termination letter on 7 March 2020 she was not in a clear state of mind to know whether to make the application or not.
[67] I find this a neutral consideration.
Section 394(3)(c)- Any action taken by the person to dispute the dismissal
[68] Any action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[11]
[69] I accept that Ms Smith informed those at the termination meeting that she did not agree with the decision to terminate her employment. She did not directly inform her employer that she would be disputing the dismissal, however I accept that her mother did so later in the day on her behalf.
[70] Ms Smith was unable to say when she first went to the Commission website and downloaded the forms.
[71] I consider that Ms Smith's actions in stating at the meeting that she disagreed with the decision is a factor weighing in favour of the discretion to grant an extension of time.
Section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[72] The delay of five days will not cause any prejudice to the employer. I consider that this is a neutral factor when considering whether to exercise the discretion to grant an extension.
Section 394(3)(e) - The merits of the application
[73] In the matter of Kornicki v Telstra-Network Technology Group[12] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:[13]
"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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."
[74] On the information presently before the Commission, there are factual disputes between the parties, especially regarding the show cause process.
[75] I am not satisfied that the application is without merit so that this factor weighs against the grant of a further period. Neither am I satisfied that there is such apparent merit that it weighs in favour of an extension. I consider merit to be a neutral factor in this case.
Section 394(3)(f) - Fairness as between the person and other person in a similar position
[76] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd:[14]
"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."
[77] Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time.[15] Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.
[78] I am not satisfied that the issue of fairness as between Ms Smith and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.
[79] I have been referred by Employment Plus to an analogous case in Marcus Palmer v The Salvation Army [2020] FWC 834. I have taken it into consideration, however, note that the Commissioner determined that all criteria, except the reason for the delay were all neutral considerations. I have found, in the matter before me, that the consideration in s.394(3)(c) is a factor weighing in favour of the discretion to grant an extension of time.
[80] Having taken into account each of the factors referred to in s 394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting consideration of whether I should exercise my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by Ms Smith. Although I have sympathy for the range of matters Ms Smith had to deal with in the period after her dismissal on 21 February 2020, the circumstances were not, in my evaluative assessment, out of the ordinary course, unusual, special, or uncommon.
[81] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive application for an unfair dismissal remedy is dismissed.
[82]
[1] Rose v BMD Constructions Pty Ltd [2011] FWA 673
[2] Marcus Palmer v The Salvation Army [2020] FWC 834
[6] [2018] FWCFB 901 at [38].
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[12] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[15] See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O'Connor T/A Hair Republic [2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.
Printed by authority of the Commonwealth Government Printer
Ms Deborah Smith
The Trustee for The Salvation Army
(1989) 167 CLR 372
(2004) 223 CLR 513
(2010) 197 IR 403
(1995) 67 IR 298