Fair Work Act 2009

s.394 - Unfair dismissal

[1] This matter concerns an application made by Lin Yu Duo alleging unfair dismissal against her former Employer, Woolworths Ltd (Woolworths). Ms Lin's application was received in the Fair Work Commission on Friday, 16 June 2017, the document itself being dated 15 June 2017. Ms Lin's application discloses that the date upon which her dismissal took effect was 14 December 2016.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is outside of the time limits allowed.

[3] As a result, the matter proceeded to a hearing by me to determine the matter of whether an extension of time should be granted to Ms Lin for the making of her application.

[4] In this decision, I determine the actual date of termination and have considered whether an extension of time should be granted to Ms Lin. For the reasons set out below, I am satisfied there are exceptional circumstances for a further period to be allowed for the making of her application.

[5] In considering an application for an extension of time for the making of an unfair dismissal application, the Act requires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[1] A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.[2]

[6] The Respondent, Woolworths, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted. Woolworths also argues that Ms Lin has not been dismissed, having resigned on 14 December 2016.

[7] While Ms Lin's application to the Commission refers to the date of her termination of employment taking effect from Wednesday, 14 December 2016, material provided by the Respondent to the Commission is evidence that her last day of employment was Tuesday, 13 December 2016 which is the date I accept as Ms Lin's final day of employment.

[8] With Ms Lin's termination of employment having taken effect on Tuesday 13 December 2016, Ms Lin's application for unfair dismissal should have been made to the Commission by no later than Tuesday 3 January 2017. For the reason that the application was lodged on Friday, 16 June 2017, Ms Lin's application is therefore 164 days out of time.

[9] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Ms Lin, the Applicant and the submissions made on behalf of the Respondent. In the hearing I conducted for this matter, Mr Lin appeared on her own behalf, assisted by her father, Mr Lin Wei Yue. Woolworths was represented by Ms Kirsty Bowell, its Employee Relations Case Specialist.

[10] The background to this matter includes that Ms Lin was originally employed by Woolworths at its Prahran supermarket on 8 May 2014. Her employment was in the supermarket delicatessen. According to her submissions to the Commission she originally worked between 25 and 30 hours per week and sometimes more; however, her employment at the Prahran store came under some pressure when a new delicatessen manager started in about October 2015. There was a difficult interaction between Ms Lin and the manager concerned which appears to have led to a bullying complaint being made, at the very least, from Ms Lin towards the manager concerned.

[11] Part of Ms Lin's bullying complaint appears to be linked to an apparent reduction in Ms Lin's working hours in or around December 2015, with Ms Lin apparently having her hours reduced to 10 hours per week. While the precise dates and interactions are not before the Commission, it is noted Ms Lin's submissions refer to "having only 10 hours left working" as a result of the December 2015 interaction, and the Employer Response Form refers to Ms Lin being on a 10 hours a week permanent part-time employment arrangement.

[12] The submissions made by Ms Lin to the Commission include that on or about 30 December 2015 there was such a negative interaction between Ms Lin and potentially the person whom she blames for the alleged workplace bullying that the store management or others called the police who detained Ms Lin and took her from the store.

[13] Ms Lin records significant mental illness on her part during 2016 and into 2017, with Ms Lin blaming her employment for her illness. Her written submissions to the Commission record matters which may well be consistent with a mental illness on her part including potentially unreasonable or irrational behaviour to others; obsessive behaviour; sleepless nights; and mood disorders. The same material provided to the Commission puts forward that in April 2016 Woolworths appointed a psychiatrist to consider and advise on Ms Lin's state. The same submissions referred to Ms Lin having been transferred in the course of 2016 firstly to the St Kilda store and then the Glenhuntly store.

[14] In October 2016 a further negative interaction occurred between Ms Lin and another employee and the product of that circumstance appears to have been a decision by Woolworths to suspend Ms Lin from employment. Ms Lin submissions are ambiguous as to whether this interaction occurred at either the Glenhuntly or the St Kilda stores; in the absence of more precise information it appears more likely that it took place at the Glenhuntly store. In any event her statement refers to the police having been called in relation to the matter after which Ms Lin was taken to the Caulfield police station, where a psychiatrist saw her, after which she was permitted to return home. Ms Lin then made representations to the St Kilda Store Manager about her condition and, it appears, seeking to return to work.

[15] After these representations there was a discussion of some kind between Ms Lin and Woolworths about the future of her employment. The background to the commencement of these discussions is not clear to the Commission; however the consistency of evidence is that there was a discussion between Ms Lin, a representative from her union, the SDA, and representatives of Woolworths about her future. Some insight to that discussion is given by a "Release Agreement" which came from the meeting which was tendered in evidence by Woolworths. The Release Agreement provides the background that on 7 October 2016 Woolworths suspended Ms Lin from duties while it conducted an investigation into allegations of breaches of its Code of Conduct and Appropriate Workplace Behaviour Policy The same document advises that Ms Lin was provided with an opportunity to respond to the allegations.

[16] Ms Lin says to the Commission that in the course of the meeting on 14 December 2016 she was "coerced" into accepting that she should resign from her employment with Woolworths. Questioning of Ms Lin elicited the response that what she meant by the reference to coercion was that she had been given a choice in the meeting; that she should resign or she would be dismissed.

[17] Woolworths' submissions to the Commission include that Ms Lin freely resigned her employment with effect from 13 December 2016 and that the Commission would be incapable of finding that Ms Lin had been "dismissed" within the meaning of s.386 of the Act.

[18] It is to be noted that there is insufficient evidence before the Commission about the conduct of the meeting to draw any firm conclusions about what was put to Ms Lin and indeed it is also the case that such is not the purpose of the hearing of this stage of Ms Lin's matter, which is merely to consider whether or not an extension of time should be granted to her for the making of her unfair dismissal application.

[19] On the other hand it is to be noted that the content of the Release Agreement implies there has in fact been a termination at the initiative of the employer. Part of the "Background" to the agreement is the following;

"B On 7 October 2016, the Company suspended the Employee from duties whilst it conducted an investigation into allegations of breaches to the Woolworths Limited Code of Conduct and Appropriate Workplace Behaviour Policy (Investigation).

C The Employee was provided with the opportunity to respond to the allegations, as set out to her in a letter dated 7 October 2016 and during a face-to-face meeting on 19 October 2016. The Employee was further provided with the opportunity to provide evidence to support her position in writing.

D Following the Investigation, the Company terminated the Employment and the Employee's final day of employment was 13 December 2016. (Termination Date)."[3]

[20] The evidence allows the finding that Ms Lin as well as Woolworths entered into the Release Agreement. The consideration which is referred to within the Release Agreement was apparently paid to Ms Lin; and she signed a letter of resignation expressing the view that she was thankful to Woolworths for having had the opportunity to work for the Company for more than two years but that "for various reasons, I feel that I am no longer comfortable in the work environment and I won't be suitable for this job".

[21] Following the end of her employment, by all accounts Ms Lin's mental health deteriorated further. On 18 April 2017 she was admitted as an in-patient at the Alfred Hospital psychiatric service. That admission appears to have continued for just over a week and she was discharged on 28 April 2017.

[22] Ms Lin's evidence is that at some stage during her admission at the Alfred Hospital she became aware that she could make an unfair dismissal application to the Fair Work Commission and that she had 21 days to do so.

[23] Her evidence also includes that she made an anti-bullying application to the Commission on 27 October 2016 in relation to her employment at Woolworths. It is a matter of record that Ms Lin's anti-bullying application was dismissed by Commissioner Lee on 2 June 2017 on the basis that she was no longer employed and that as result there was no reasonable prospect of success for her application.[4] A subsequent application to appeal that decision by Ms Lin was dismissed by the Full Bench on 28 July 2017.[5]

[24] In connection with this application, Ms Lin says about the anti-bullying application that she was generally under the impression that having made the anti-bullying application, it would deal with her ongoing grievance against Woolworths, which by December 2016 had become her belief that she was forced into resigning from employment.

[25] Ms Lin's application form was received by the Commission on Friday, 16 June 2017.

[26] For the purposes of s.396 of the Act, Ms Lin is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to her circumstances, and no question of her dismissal being a genuine redundancy arises.

[27] Relevant to the Commission's consideration of this question are the provisions in s.394(3) of the Act;

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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."

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[28] A decision to allow a further period for making an application requires the Commission to be satisfied that there are "exceptional circumstances", taking into account the five nominated criteria. The Full Bench has held the following in relation to "exceptional circumstances";

"[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".[6]

[29] In considering whether an extension of time should be granted to Ms Lin, I am required to consider all of the criteria in s.394(3), which I now do.

[30] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[7] An applicant needs to provide a credible reason for the whole of the period that the application was delayed.[8] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.[9]

[31] Consideration of this criterion requires examination of whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application. The longer the delay in making an unfair dismissal application the more difficult it will generally be to get over the high hurdle of exceptional circumstances.[11]

[32] The "delay" to be considered in this case is the period it took after the prescribed period for Ms Lin to lodge her application. In all, that period was a total of 164 days. I find that Ms Lin's explanation about the delay to be three things in combination: - her mental illness; her lack of knowledge about her rights to challenge what she perceived to be a dismissal; and her misapprehension that the making of an anti-bullying application to the Fair Work Commission may have provided a remedy after she left Woolworths.

[33] The evidence before the Commission about Ms Lin's mental illness includes not only what she has to say about the deterioration in her mental health prior to the end of her employment but also what occurred after she left Woolworths. That evidence includes having been removed from Woolworths premises by the police on what appears to be two occasions; her referral by Woolworths for a psychiatrist for assessment; and finally her admission to the Alfred Hospital in April 2017. Ms Lin provided several submissions endeavouring to draw the genesis of her mental illness back towards her employment; however there is insufficient evidence before the Commission on that matter, and in any event such a finding is not necessary for this decision.

[34] The evidence before the Commission about Ms Lin's mental illness is that it was without doubt of a significant and debilitating nature. Ms Lin's evidence and submissions combine to show that the mental illness she suffered was significantly beyond the norm. This was not the sort of mental illness often referred to by applicants in these matters, usually characterised by references to depression or anxiety. Instead this was undoubtedly a significant illness which ultimately required her admission to a psychiatric hospital. Nonetheless Ms Lin's evidence in respect of her illness is somewhat generalised and she does not especially distinguish between the extent of the debilitation that may have been present immediately after losing employment; that which carried into 2017; and how that compares then with her state of health after she left the Alfred Hospital in April 2017.

[35] Ms Lin puts forward in respect of her leaving Woolworths' employment that she was advised not only by the Woolworths managers present in the December 2016 meeting but also by her union that a resignation may be in her interests and that ultimately she relied upon the advice she was given. It did not occur to her because of what she had been advised that she should question what had taken place until a later time. It was only when she was hospitalised during April 2017 that a person mentioned to her that she may be able to make an application for unfair dismissal remedy. It was also during the period of hospitalisation that Ms Lin learned there might be a 21 day time limit for the making of unfair dismissal applications. I accept that Ms Lin was generally unaware of her rights to challenge her loss of employment.

[36] Ms Lin puts forward that she was under a misapprehension that her anti-bullying application to the Commission, originally made in October 2016, may somehow be able to deal with her later complaint about losing her job at Woolworths. Within the context of the overall evidence given by Ms Lin I accept what she has to say in relation to this misapprehension. I accept that her understanding of her rights under the Act, extending to her knowledge of the anti-bullying provisions, is somewhat limited and is potentially made more limited by her relatively basic English language skills as well as those of her father's.

[37] It should also be noted, and potentially adverse to her claim that an extension of time should be granted, that it also seems to be the case that by no later than the date of publication of Commissioner Lee's reasons for decision in respect of the jurisdictional question about the continuation of Ms Lin's anti-bullying application for the reason that she was no longer an employee of Woolworths, that she became aware that a live action before the Commission challenging the termination of Ms Lin's employment may have been the basis for the continuation of the anti-bullying application.[12] If there were fewer factors combining to favour an extension of time, this knowledge would likely weigh decisively against the Applicant.

[38] In relation to these three potential explanations for the making of a late application, in my view none would be sufficient on their own to rise to the level of being exceptional circumstances for the granting of an extension of time for the making of an unfair dismissal application.

[39] While the Commission is sympathetic to people with mental illness, on its own mental illness would be unlikely to be a sufficient reason to grant an extension of time, and especially one for such a long period as Ms Lin's. This would be especially so where there was no evidence that a period of hospitalisation covered the whole of the delay, or where the evidence about the debilitation of the illness, other than in the period of hospitalisation, was as generalised as that put forward by Ms Lin.

[40] In relation to the lack of knowledge about her capacity to make an unfair dismissal application, the fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance.[13]

[41] Similarly misapprehension about the potential range of results from a particular form of application to the Fair Work Commission would, on its own, be insufficient for the Commission to grant an extension of time.

[42] However, in combination the presence of these three factors leads me to form the view that Ms Lin has put forward an acceptable reason for the delay in making her application. In combination the matters are unusual and significant and cogently explain why the application was made as late as in Ms Lin's case. The factors combined, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[43] Accordingly, this criterion resolves in Ms Lin's favour in my consideration of whether an extension of time for filing should be granted.

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

[44] On the basis of the evidence before me, I am satisfied that Mr Lin first became aware of her termination of employment on 14 December 2016 and that it took effect on 13 December 2016. This is therefore not a circumstance where the Applicant only became aware of her termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[45] 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.[14]

[46] Having left Woolworths employment in December Ms Lin put some effort at least into her anti-bullying application. There was a mention/directions hearing before Commissioner Lee on 1 February 2017 and then a hearing in relation to the jurisdictional aspects of the matter on 29 May 2017 after which a decision was issued by Commissioner Lee dismissing the matter for reasons which included that there was not at that time another proceeding on foot elsewhere in the Commission challenging Ms Linden's termination of employment.

[47] Overall however, I consider that this should be a neutral factor in my consideration with the actions taken by Ms Lin after she left Woolworths to neither favour her or Woolworths.

4. Prejudice to the employer (including prejudice caused by the delay)

[48] The delay in the filing of the application is 164 day. The Respondent does not claim that the delay in lodging the application causes it prejudice, other than the additional time and expense objecting to the extension of time.

[49] While there has been prejudice and disruption to the Employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former Employer. However, the Commission's consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.[15]

[50] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former Employer if an extension of time is to be granted.

[51] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[52] In relation to the Commission's consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In Kyvelos v Champion Socks Pty Limited, which was decided under earlier legislation, the Full Bench articulated why such position is adopted;

"[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit."[16]

[53] Instead of a detailed consideration of the merits of a matter, the Commission's consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[17]

[54] Woolworths contests whether or not there has been a dismissal and they point strongly to the Release Agreement as being evidence of the fact that the Applicant resigned and that therefore it would be unlikely that a Commission could find that Ms Lin had been dismissed within the meaning of s.386 of the Act. In the event that the oral evidence of either party at a full hearing were not contradictory to the words of the Release Agreement, it would be unlikely that the Commission would find that Ms Lin had not been dismissed. The words of the Release Agreement infer that Ms Lin was given a choice, which is consistent with her evidence to this Commission, to the effect that if she did not resign then she would be dismissed.

[55] On the assumption that the Commission found that there had been a dismissal, the merits of the application to which Ms Lin refers are, in effect, that she was made unwell by Woolworths because of circumstances that occurred in the workplace and subsequently she was coerced into leaving employment against her will and for reasons that were inadequately explained to her. I note that such assertions on the part of an Applicant are very significant ones and that, overall, there is not yet any direct evidence before the Commission that would support such a finding. It is also the case that Ms Lin's employment with Woolworths, at least in 2016, was under significant pressure. While she puts forward that this may have come from workplace bullying by another, Woolworths appear to put forward the reverse; that is, it was her precarious mental state which caused her difficulties in employment. It is not possible for the Commission as presently constituted and indeed nor is it my role, to resolve these differences at this time.

[56] Notwithstanding my concerns as to the overall merits of Ms Lin's application, the assessment by the Commission in this decision of the merits of Ms Lin's application, if in fact there was a dismissal, must be regarded as neutral.

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

[57] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.[18] I consider the question of general fairness as between all applicants would likely lead to a neutral finding. In relation to the question of fairness as between applications arising out of the same employer, there is no other person presently before the Commission dismissed by the same employer for the same underlying issue.[19]

[58] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Lin.

[59] For these reasons, I grant an extension of time pursuant to s.394 of the Fair Work Act 2009 and will issue an order that the time for Ms Lin to file her unfair dismissal application made pursuant to s.394 of the Act be extended until 16 June 2017.

[60] Ms Lin's application will be returned to the general unfair dismissal list for determination on the merits in the usual way.

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

[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [9].

[4] [2017] FWC 2947.

[5] [2017] FWCFB 3879

[6] Nulty v Blue Star Group, [2011] FWAFB 975; 2011, 203 IR 1 [13].

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

[8] Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251; (2010) 197 IR 403, 408‒409.

[9]10 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

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

[12] [2017] FWC 2947, [14] - [16].

[13] Nulty v Blue Star Group, [2011] FWAFB 975; 2011, 203 IR 1 at [14].

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

[15] Cowie v State Electricity Commission of Victoria [1964] VicRp 103; [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

[17] Haining v Deputy President Drake (1998) 87 FCR 248, 250.

[18] Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

[19] Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773 [38].

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