DECISION

Fair Work Act 2009
s.365—General protections

Marija Hussey
v
Springmount Services Pty Ltd T/A Springmount Services
(C2018/5958)

Application to deal with contraventions involving dismissal – extension of time.

[1] Ms Marija Hussey (the Applicant) filed an application under s.365 of the Fair Work Act 2009 (the Act) on 24 October 2018, alleging that her employment had been terminated by Springmount Services Pty Ltd T/A Springmount Services (the Respondent) in contravention of the general protections provisions in the Act.

[2] The Respondent raised an objection to the application on the basis that it was filed outside the 21 day statutory timeframe specified in s.366(1) of the Act.

[3] Ms Hussey’s application was lodged 9 days outside the 21 day statutory timeframe.

[4] This decision deals with whether there are exceptional circumstances that warrant the Fair Work Commission (Commission) granting Ms Hussey an extension of time to make an application for dismissal relief under s.365 of the Act.

[5] The Respondent did not consent to participate in a conciliation conference prior to the determination of whether the Applicant should be granted a further period in which to make her application.

[6] The Respondent sought permission to be represented. Submissions were received from both parties in respect of the question on legal representation and taking into account the matters required under s.596 of the Act, I exercised my discretion to grant permission to the Respondent to be represented in this matter. 1

[7] The matter was listed for an Objections Hearing by telephone before me on 8 March 2019. The Applicant indicated that she intended to call her treating General Practitioner (GP) and Psychologist as witnesses in the proceeding.

[8] On 21 February 2019 the Applicant wrote to my Chambers to advise that her GP was unavailable to attend a hearing on 8 March 2019. Further, she advised that both her GP and Psychologist would not appear without adequate financial compensation, and the Applicant could not meet this cost herself.

[9] The hearing date on 8 March 2019 was vacated following the advice from the Applicant as to her witnesses’ availability and information was sought from all parties as to their availability for alternative hearing dates.

[10] On 5 March 2019 the Applicant made two applications under s.590(2)(a) of the Act for Orders requiring a person to attend before the Commission. The applications were made for the Applicant’s GP, Dr Peter Vanrietvelde, and Psychologist, Mrs Rosemarie Deutschmann (treating practitioners). The corresponding Orders were made on 25 March 2019 and the matter was relisted for Hearing on 14 May 2019.

[11] The treating practitioners made written requests for the Orders to be set aside on the basis that they were “unable to participate without appropriate remuneration”. Directions were issued inviting the treating practitioners to make submissions on their request for the Orders to be set aside, and the Applicant to file any submissions in reply as to why she requires the attendance of her treating practitioners at the Hearing.

[12] The Applicant made submissions in line with the Directions but no further material was received from the treating practitioners. A Decision 2 was made on the papers to dismiss the applications to set aside each Order, on the basis that pursuant to s.590, it was appropriate for the Commission to inform itself of matters relevant to Ms Hussey’s initial application, which included her treating practitioners being available to give evidence and be cross-examined at the Hearing.

[13] Due to witness availability, the Hearing proceeded across two days, commencing on 14 May 2019, with evidence given by Mrs Deutschmann, and concluding on 29 May 2019 with Dr Vanrietvelde’s evidence.

[14] Mr Craig Pollard of CTMA Workplace Consulting appeared for the Respondent at the Hearing and Ms Hussey appeared on her own behalf. Both parties were provided with a copy of the transcript of proceedings and invited to make final written submissions. Both did so.

Legislation

[15] Section 366 requires that an application under s. 365 be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2):

“366 Time for application

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[16] The discretion to allow an extension of time is based on the Commission being satisfied that there are exceptional circumstances, taking into account the matters set out in s.366(2). In Nulty v Blue Star Group Pty Ltd  3 a Full Bench of the Commission noted that the expression “exceptional circumstances” has its ordinary meaning, and requires consideration of all the circumstances, going on to say:

“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”. 4 

Background

[17] The Applicant commenced working for the Respondent in the position of Cleaner on 27 April 2018.

[18] The Applicant submitted that she developed several concerns about her work environment during her employment, which she initially raised with her Supervisor, Mr Peter Gnaden, and subsequently with the General Manager, Mr Andrew Walton, on 29 May 2018. The Applicant’s concerns included the health and safety practices of her colleagues (using insufficient personal protective equipment when cleaning public toilets), as well as the treatment she received at work from her Supervisor and colleagues, which she perceived to be inappropriate, intimidating and threatening at times.

[19] The Respondent commenced an internal investigation after the Applicant raised her concerns with Mr Walton on 29 May 2018, and advised her not to attend her usual duties during this time. The Applicant participated in an interview with Mr Walton and the Respondent’s OHS Representative Mr Brett Weaver on 1 June 2018 as part of the investigation.

[20] On 5 June 2018, while the Applicant was still away from work, she was hospitalised with E. coli sepsis and admitted to the Intensive Care Unit at the Cairns Hospital. She was discharged on 13 June 2018.

[21] The Applicant did not return to work. She provided medical certificates to the Respondent related to her hospital admission, and from then on, from her GP, Dr Vanrietvelde.

Termination

[22] The Applicant received a termination of employment letter from the Respondent attached to an email on 24 September 2018, which stated that her employment will be terminated effective from “insert date”. 5

[23] In the Respondent’s Form F8A – Response to general protections application, it stated that the termination date is “23rd of September 2017”, and in the Separation Certificate it completed for the Applicant it notes the date that employment ceased as Sunday, 23 September 2018.

[24] It is a settled principle in this jurisdiction that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 6 It is not in dispute that the Applicant received and read the email and attached termination of employment letter on 24 September 2018 and so, the termination is considered effective from this date.

[25] The termination letter advised the Applicant:

“as you have been absent for an extended period of time, and because we have no clear date that you expect to return to work, we are no longer able to hold you (sic) position open”.

[26] To comply with the statutory timeframe to submit a general protections application under s.366(1)(a) of the Act, the Applicant must have filed her application by 15 October 2018. The Applicant filed her application nine days later, on 24 October 2018.

The Applicant’s evidence and submissions

[27] The Applicant submitted that fear of reprisal from her former colleagues and/or superiors, as well as the severe anxiety and symptoms that she was suffering, prevented her from lodging her application within the statutory time limit.

[28] She submitted that the “emotional turmoil” she experienced during her employment and leading up to the termination of her employment meant that she “struggled to firmly act and find the bravery and resolve to submit an application to the Fair Work Commission in a timely manner.” 7

[29] Ms Hussey’s Psychologist, Mrs Deutschmann, gave evidence that the Applicant attended regular consultations with her from July 2018 through to December 2018. A letter from Mrs Deutschmann refers to the Applicant having suffered from “severe anxiety/panic disorder as a consequence of workplace related traumata’s.” Mrs Deutschmann gave evidence at the Hearing that she saw it necessary to see Ms Hussey on a weekly basis during this time, rather than her usual fortnightly schedule, because of Ms Hussey’s condition. 8

Respondent’s evidence and submissions

[30] The Respondent submitted that Ms Hussey’s circumstances and reasons for delay do not establish exceptional circumstances in the context of s.366(2) of the Act and as defined in Nulty v Blue Star Group Pty Ltd. 9

[31] The Respondent submitted that while the Applicant submitted she was suffering from a medical condition leading up to the termination of her employment and during the 21 day statutory time limit for lodging an application, the evidence given by Dr Vanrietvelde and Mrs Deutschmann at the Hearing did not indicate that the Applicant was so incapacitated that she could not lodge a claim. The Respondent referred to evidence given by Mrs Deutschmann at the Hearing that there was no noticeable difference in the Applicant’s condition during the period from the dismissal to the date the application was filed. 10

[32] The Respondent further submitted that the Applicant was capable of carrying out other activities during the 21 day time limit, including seeking legal advice, and therefore there is no reason that she should not have been able to lodge an application in this timeframe.

CONSIDERATION

Reasons for delay in making the application

[33] The reasons for delay must relate to the delay in lodging the application. The Applicant carries the onus of satisfying the Commission of exceptional circumstances explaining the delay.

[34] The Applicant primarily submitted that fear of reprisal from her former colleagues and/or superiors prevented her from lodging her application within the statutory time limit.

[35] The Applicant further submitted that her medical state was such that she was prevented from lodging her application within the statutory time limit. The Applicant’s Psychologist, Mrs Deutschmann, presented evidence that the Applicant was experiencing severe anxiety at the time immediately following her dismissal. The Applicant submitted that the severity of the anxiety caused her to experience regular panic attacks, resulting in her inability to submit her application on time.

[36] However, the Applicant does admit she was “so up and down and also it was like a, you know, it was like I wasn't myself, but it wasn't something that was every second of every moment. In regards to this situation, this matter, yes, it was - this was difficult for me.” 11 (Emphasis added)

[37] Ms Hussey was regularly attending appointments with her Psychologist, Mrs Deutschmann, from July 2018 up until at least December 2018.

[38] As to the period 24 September (the agreed date of dismissal) through to the date of lodgement, 22 October, under cross examination Mrs Deutschmann states in response to a question from Mr Pollard about whether the Applicant had suffered a severe decline in her condition:

“I would not say to be a decline but it stayed at the level of anxiety and panic attack” 12

and

“It would be a difficult and anxiety full state all the time, but did not get dramatically worse”. 13

[39] As to the particular effect of lodging the claim, Mrs Deutschmann stated in cross examination:

“During that period from 23 September, through to 22 October, do you recall any significant changes in Ms Hussey’s condition ---Look, I can only say that what we discussed during those sessions, as soon as it came to this related thing, it was always very stressful for her to speak about”. 14

[40] It is the Applicant’s case that she avoided filing in time because it would increase her stress and anxiety, and that it was debilitating when she had to think about this matter. 15

[41] The Applicant’s GP, Dr Vanrietvelde, clarified when the Applicant suffered anxiety:

“many patients who suffer anxiety and panic disorder will avoid circumstances that trigger their symptoms, which is very understandable.  It's reasonable to extrapolate that this would also have caused you to avoid submitting this paperwork in the timeframe that you were required to do at the time”. 16

[42] The Respondent submitted that the Applicant was not so incapacitated as is claimed, during the period between her dismissal and her having lodged the claim with the Commission. The Respondent made reference to the fact that the Applicant’s treating psychologist confirmed that there was no noticeable difference in her condition during this period.

[43] The Respondent further disputes that Ms Hussey’s condition was such as to prevent her from lodging a claim within the statutory timeframe, which it asserted on the basis that Ms Hussey was able to lodge a police report against the Respondent within two weeks of the dismissal.

[44] In my view the Applicant’s reasons for delay, being that her medical state prevented her from lodging her application, are not straightforward. The Applicant, on her own evidence, says that while she was stressed and anxious, this was not all the time: it was only when she thought about lodging this complaint.

[45] In my view, the evidence of the treating practitioners largely supports the Applicant’s case. Mrs Deutschmann, a psychologist who worked extensively with the Applicant before and after lodgement of the complaint, under cross examination said as soon as it came to the matter of her former employment being discussed, it was very stressful for the Applicant to speak about. 17

[46] Dr Vanrietvelde described the Applicant as someone who “avoided the triggers that caused the stress”.

[47] Both of these practitioners, whose evidence I accept, describe that it is not that the Applicant was stressed and anxious which explains her delay – but that the stress and anxiety was elevated when the Applicant thought about lodging this matter. Mrs Deutschmann described the elevated state as follows: “often sometimes the situation brought you back to your anxieties”. 18

[48] The fact that other tasks were undertaken, such as getting legal advice, is not inconsistent with the Applicant’s evidence. That is, while she was “up and down”, her elevated anxiety was not constant. Indeed, the Applicant did have other employment during this time. These factors emphasise the Applicant’s case, concerning her avoidant behaviour. It was the lodging of this complaint that triggered her stress and which lead to an avoidant reaction. In my view, this explains the delay.

[49] The Applicant’s reasons for delay in making the application favour the granting of the extension.

Action taken by the person to dispute the dismissal

[50] Ms Hussey filed her application with the Commission on 24 October 2018. It is noted that leading up to the termination of her employment, she was not on notice that the Respondent was considering terminating her employment, nor was she given an opportunity to respond to such.

[51] Following her dismissal Ms Hussey made no direct attempt to dispute her dismissal with the Respondent, however in preparation for lodging her application with the Commission, she did engage with various legal services, as well as engaging with a union representative and lodging a police report with the Queensland Police Service.

[52] I find that the Applicant took active steps to challenge her dismissal by seeking legal advice, lodging a police report, and engaging with her union.

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

[53] The Applicant submits that the Respondent does not stand to suffer any prejudice arising from the delay in the Applicant’s lodging of her application.

[54] The Respondent has made no submissions in relation to any prejudice they may or may not be subjected to; including as a result of the delay.

[55] I find that there is no prejudice to the Employer if time is extended.

The merits of the application

[56] In Kornicki v Telstra-Network Technology Group, 19 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:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit”. 20 

[57] The Respondent submits that the Applicant’s application has no reasonable prospect of success and as such her application lacks merit. This is asserted on the basis that the Applicant was not dismissed for exercising any workplace right or entitlement, rather she was dismissed because the Applicant had been absent from work for over three months, with no indication or evidence tendered that she would be fit to return to work. The Respondent asserts that the Applicant’s role needed performing and that they were no longer able to hold her position open.

[58] The Respondent further submits that the substance of the application refers to conduct that does not fall within the scope of s.365 of the Act. The alleged conduct relates to workplace bullying and threats from employees, with the Applicant at no stage through the proceedings making any reference to her dismissal being resultant on the exercise of a workplace right or entitlement as would be required pursuant to s.365 of the Act.

[59] The Respondent submits that, in accordance with s.361 of the Act, the onus of proof for matters dealt with under s.365 is reversed, which in this case required the Respondent to substantiate that certain actions were not taken for the reasons pleaded by the Applicant. In this matter the Applicant has not presented any pleadings. The Respondent asserts that this attests to the lack of merits within the application.

[60] The Applicant has not clearly articulated how her claim comes within the general protections provisions, however, in circumstances where she had made complaints about her work environment and behaviour of her colleagues before her hospitalisation, which preceded her eventual termination, and where her employment was terminated on medical grounds without, it seems, proper review or consultation with the Applicant about her capacity and ongoing ability to fulfil the inherent requirements of her role, it is a claim that could be articulated in that framework.

[61] For the sake of clarity, it is noted that the Applicant makes serious allegations about the Respondent. I am not persuaded on the basis of these serious allegations that there is merit in the substantive application. However, that is not the test. It is only necessary for the Applicant to establish that the substantive application was not without merit.

[62] Therefore, on the basis of the analysis above and the test in Kornicki, I conclude that the substantive case is not without merit.

[63] This conclusion tends towards granting the extension.

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

[64] No evidence was submitted regarding other persons in a similar position to the Applicant that would assist either party.

Exceptional Circumstances?

[65] In considering whether there are exceptional circumstances, the phrase must have its ordinary meaning; that is, it must be out of the ordinary course, or unusual or special or uncommon but not unique, unprecedented, or very rare.

[66] Ms Hussey claims she was subject to workplace bullying and intimidation and was dismissed following an extended leave of absence due to serious illness.

[67] The Applicant was dismissed on 24 September and her application was lodged on 22 October, nine days beyond the statutory timeframe.

[68] The evidence is this matter establishes exceptional circumstances, which are that the Applicant suffered an ongoing mental incapacity that was exacerbated whenever she thought about her employment with the Respondent. Her treating practitioners consider her reaction severe. This severe reaction can properly be described as “out of the ordinary course”. It is a notorious fact that any employee on termination suffers stress and anxiety. However, on the basis of the evidence of Mrs Deutschmann and Dr Vanrietvelde, they describe that a patient who required twice the usual visits to the psychologist, and Dr Vanrietvelde described the applicant’s reaction to the matter as a “severe reaction”. Together their evidence is consistent: this patient chose to manage her severe stress and anxiety by avoiding the very thing that (in the Applicant’s mind) caused it. It my view that this reaction is well beyond the usual level. That is, there are exceptional circumstances. On this basis, I have decided to exercise my discretion to allow until the date of the application as a further period of the application by Ms Hussey.

[69] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Hussey v Springmount Services Pty Ltd T/A Springmount Services [2019] FWC 1127.

 2   Hussey v Springmount Services Pty Ltd T/A Springmount Services [2019] FWC 2661.

 3   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

 4   Ibid at at [13].

 5   Termination of Employment letter dated 24 September 2018.

 6   Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 7   Applicant’s Reply Submissions filed 31 January 2019.

 8   PN50.

 9   [2011] FWAFB 975.

 10   PN48 and 50.

 11   PN111.

 12   PN46.

 13   PN48.

 14   PN45.

 15   PN137.

 16   PN185.

 17   PN45.

 18   PN37.

 19   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 20   Ibid.