FWA 6857
Fair Work Act 2009
Target Australia Pty Ltd
BRISBANE, 22 OCTOBER 2010
Application for unfair dismissal remedy - extension of time and jurisdictional issue (resignation).
 This decision concerns an application lodged by Ms Nohra on 3 June 2010 for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged unfair termination of her employment by Target Australia Pty Ltd (Target or the Company).
 Ms Nohra states that the termination of her employment took effect on 30 April 2010. Accordingly, her application was filed some 20 days outside the 14 day time limit prescribed by the Act and therefore requires me to consider whether to grant Ms Nohra an extension of time for filing. However, a letter to Ms Nohra from Mr M Green of Target dated 4 May 2010 gives the date of effect for Target’s acceptance of Ms Nohra’s resignation as 3 May 2010. That letter was apparently sent by registered mail and therefore could not have been received by Ms Nohra earlier than 5 May 2010. It is my view that it is more appropriate to accept 5 May 2010 as the date when the employment relationship ended. Accordingly, I determine that Ms Nohra’s application for relief was filed some 15 days late. It was agreed during the hearing that the difference between Ms Nohra and Target as to the exact date of the ending of the employment relationship was not a significant factor for my consideration. 1
 There is also a jurisdictional issue whereby Target claims that Ms Nohra resigned from her job and therefore there was no termination of employment at the initiative of the respondent. Ms Nohra claims that she was constructively dismissed. The jurisdictional issue was raised by Target in its Employer’s Response to Application for Unfair Dismissal Remedy (Form F3). During the hearing Mr Seck submitted that the jurisdictional point was not being taken “...at the moment but certainly there will be a jurisdictional point down the track as to whether or not there's a dismissal at the initiative of the employer. For current purposes, it’s just simply relevant to the tribunal taking into account the merits of the claim.” 2 In my view, it is necessary to determine the jurisdictional point before any possible weight can be given to it in any consideration by me of the extension of time application.
 Directions were issued on 15 July 2010 for the filing of submissions, written statements and any supporting documents. The submission process concluded on or about 6 August 2010. The application for an extension of time and the jurisdictional issue were heard by me in Sydney on 13 August 2010. Ms Nohra was represented by Mr D Currie of counsel and Target by Mr M Seck of counsel. Both representatives appeared by permission.
 Subsections 394(2) and (3) of the Act provide:
“(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
 Ms Nohra was first employed by Target on or about 30 April 1985. She joined Target when she was about 15 years old and her employment lasted for 25 years, until 5 May 2010. The manner of the ending of the employment relationship is in dispute. Ms Nohra contends that her resignation letter stated that it was not to be effective until 3 December 2010. Ms Nohra, according to her letter to Target of 30 April 2010, intended to take the period between 3 May 2010 and 3 December 2010 in the form of a combination of rostered days off, carer’s leave, recreation leave and long service leave. Ms Nohra further claims that the letter of resignation was submitted in circumstances that amount to a constructive termination of employment.
 Target maintains that it was entitled to accept Ms Nohra’s letter of resignation with effect from 3 May 2010 and fulfil its obligations by the payment of 4 weeks’ salary in lieu of notice. Target further claims that ending the employment relationship before the date desired by Ms Nohra does not constitute termination of employment at the initiative of the Company.
 In the particular circumstances of the case before me, I will not take the usual path of determining the extension of time issue first. If there was no termination of employment at the initiative of the employer, then the question of granting an extension of time would be moot. Accordingly, I intend to consider the resignation issue first.
Resignation versus termination
 It is not in dispute that Ms Nohra tendered a letter of resignation dated 30 April 2010. It is instructive to quote that letter in full:
“To Jennifer Roach,
It is with great regret that I feel and have to resign from my position as a Store Mgr; due to some obvious facts.
One being the business not taking into serious consideration the travel time of (1 hrs + 55 mins) to & from Rockdale target store, which I personally find unreasonable, where there are stores that can be easily accessible; per our discussion on the 20/4/10. To loose (3 hrs & 50 min) a day in travel time a day & that if all transfers go well with public transport.
I have also had a personal blow where my mother in-law has in the last two weeks has suffered a STROKE after a routine operation and with much thought I feel the need to care for her whilst she tries to recover in my home, So could you please accept my resignation in the format attached as I need to access help from the health Services & do not wish to be penalised by exceeding the thresholds for the financial year.
Could you please assist by processing my leave as follow:
Thanking you for a wonderful 24 YRS My only regret is the last 10 months with Michael Green. (DIST MGR 16) and his mgnt style, it has a lot to be desired and really needs to be addressed, as eventually it will be a risk to the business & allow it to be open to litigation.
 Ms Nohra had been through a protracted process with Target concerning the Company’s wish to transfer her from the Bankstown store to the Rockdale store. That proposed transfer was canvassed at length during proceedings but, in my view, there is no need to do so in this decision. In brief, Ms Nohra’s letter of resignation shows on its face that she did not intend the employment relationship to end almost immediately but rather, for it to end prospectively on 3 December 2010. Target’s action in purporting to accept the resignation but making it immediate was indisputably a termination at the initiative of the employer. Ms Nohra’s resignation letter was highly conditional and may, or may not, have constituted a constructive dismissal. That issue does not matter at this time as Target intervened to actively terminate the employment relationship immediately. Even if Ms Nohra was voluntarily standing on a metaphorical high ledge announcing that she would jump from employment in about seven months’ time, it was Target that then pushed her.
 I therefore find that the termination of Ms Nohra’s employment occurred at the initiative of Target and therefore the Tribunal has jurisdiction to entertain her application for relief subject to the granting of an extension of time for the lodging of her application.
 I now turn to the extension of time application.
 Ms Nohra gave sworn evidence and submitted a witness statement. 3 It was the applicant’s witness statement that she accessed the Fair Work Australia (FWA) website “to review the law on unfair dismissal” on 4 May 2010. Her witness statement went on to relevantly say:
“I read about unfair dismissal, general protections and unlawful dismissal. I did not believe that my circumstances fell into these categories. I believed that I should take action as a constructive dismissal case.
I saw there were time limits for unfair dismissal, however not for constructive dismissal. I did not think the FWA website had a limit for constructive dismissal
I then went on to Wikipedia and looked up a constructive dismissal. It showed this as being a separate thing to unfair dismissal and unlawful dismissal.
I believed that there was no time limit for a constructive dismissal case.
I did not contact a law firm as I believed that I had been constructively dismissed and I did not need to take urgent action. In the circumstances, I was frantic and incredibly distressed about the failing health of my mother in law. I felt obliged to attend to her as she was in increasing amounts of pain and suffering. Her condition was very serious and there was no-one else to care for her.
At the same time my own health was suffering. I felt I had just lost my job after 25 years and I was not sleeping. I was feeling very anxious and unable to think clearly. I had many important things on my mind. I had not ever been in such a stressful and distressing situation before in my life and I was not coping.
I believed I could take my constructive dismissal claim after my mother in law had at least stabilised based on the information I had read. If I had known I had to lodge within 14 days I would have done so.
At this time my mother in laws condition was becoming worse and worse. She was in serious and increasing pain and I was very worried and stressed. Eventually I took her back to the hospital they realised that they had left part of the stint inside her following the surgery.
They then needed to perform a further surgery to remove the stint that was accidentally left inside of her. This surgery took place on 27 April 2010. I was at the hospital by her bedside during the period in hospital and I was very concerned about what the complication might have been and the consequences of it.
As soon as my mother in law returned from the hospital and it was determined it was a splint accidentally left inside her and that the removal of that splint would cause her intense pain and discomfort to subside. I felt very relieved.
I took my mother in law home on 28 April 2010. That same day I saw my solicitor Ms Jessica Lawrence. This was my first interaction with Lawpartners.”
 In cross-examination, Ms Nohra said that she was aware from the FWA website that an unfair dismissal application must be lodged within 14 days but maintained that she thought the time limit did not apply to constructive dismissal. 4 She sought further information from Wikipedia.5 She went on to say Wikipedia appeared to indicate that she had a 3 month period in which to lodge a claim.6 She also found her current solicitors through an internet search.7
 Ms Nohra agreed that she spoke to her current solicitors before the termination of employment. 8 She was advised of time limits relating to applications under the Act but did not pursue the matter further due to the illness of her mother-in-law.9 She subsequently accessed Wikipedia and it was the information she gained there which guided her further thinking because her main concern was her mother-in-law’s health and her family obligations.10 She did not know whether Wikipedia was a reliable source of information or not.11
 Mr Green gave sworn evidence and submitted a witness statement. 12 Mr Green’s witness statement is not directly relevant to the extension of time issue except as to the merit of the substantive application. To that extent, I have paid regard to his witness statement and to his oral evidence, including cross-examination.
 Both sides filed written outlines of submissions 13. Mr Currie also handed up a chronology, which was not marked.
 Ms Nohra, via Mr Currie, submitted that there are exceptional circumstances for the delay in lodging her application. The submissions relevantly say concerning the reason for the delay:
“(1) (i) The Applicant was on carer’s leave to care for her mother in law who had undergone serious surgery in the week prior to termination;
(ii) The Applicant had primary caring responsibilities for her mother in law immediately before resignation and for a period thereafter as her mother in law had been seriously ill for this period;
(iii) The Applicant researched legal options however believed that the process for applying for ‘constructive dismissal’ differed from ‘unfair dismissal’;
(iv) The Applicant could not see any limitation period for a ‘constructive dismissal claim’.
(2) There is no prejudice caused to the employer by the delay;
(3) The strong merits of the application
(i) The Applicant commenced employment with the Respondent on or about 30 April 1985
(ii) The Applicant was a model employee and received favourable feedback in her role as Store Manager
(iii) The Applicant was directed to relocate to a store in Rockdale and expressed concerns on a number of occasions that her travel time would increase significantly and that the direction was particularly unreasonable given her family circumstances and that she did not hold a drivers licence
(iv) The tribunal should consider:
(i) the Applicant’s length of service
(ii) the Applicant’s strong employment record
(iii) The applicant’s attempts to co-operate and put forward alternative relocation options in view of her personal circumstances including her family responsibilities.”
 It is further submitted that Ms Nohra “became unwell as a result of stress from ongoing pressure to relocate to the Rockdale store.”
 Target, via Mr Seck, submitted that there are no exceptional circumstances for the delay in the lodging of Ms Nohra’s application. The submissions relevantly say concerning the reason for the delay:
Explanation of the delay
 The reasons given by Ms Nohra for the delay are set out earlier in this decision in some detail. In summary, her reasons are that she was on carer’s leave looking after her serious ill mother-in-law in the week prior to the termination of employment. Further, she was confused in her research of legal options available to her between the concepts of ‘constructive dismissal’ and ‘unfair dismissal’. This led her to believe that there was not a limitation period for the filing of a constructive dismissal claim.
When the Applicant first became aware of the dismissal
 On balance, I am satisfied that Ms Nohra first became fully aware of the circumstances of the ending of the employment relationship on or about 5 May 2010. This factor, in itself, is not determinative in my decision making.
Action taken by the Applicant to dispute the dismissal
 Ms Nohra did not appear to have taken any action directly with Target. She did take prompt action to research her legal options, chaotic as such action appears to have been. The nature of the ending of the employment relationship in which Ms Nohra sought to resign but at a far future date and Target’s subsequent action in ending the employment relationship immediately created a set of circumstances where this factor does not become central to my consideration.
Prejudice to the Respondent
 Target is a large business enterprise and it is, in my view, unlikely to suffer any significant prejudice if Ms Nohra’s application proceeds. However, the absence of prejudice to Target is not a factor which of itself militates in favour of the granting of an extension of time. However, having heard extensive evidence and submissions on that point, I believe that it would be difficult for Ms Nohra to successfully maintain that Target engaged in a pattern of conduct which was aimed at the ending of the employment relationship when it required Ms Nohra to move from the Bankstown Store to the Rockdale Store. In more usual circumstances, such a view would normally lead me to view an extension of time as undesirable. However, Ms Nohra’s situation is far from usual.
Merits of the application
 I make no formal determination as to whether Ms Nohra’s letter of resignation was in effect a constructive dismissal. However, Ms Nohra had been an employee of Target for her entire working life and deserved more consideration. Her letter sets out the unfortunate consequences that would flow from her receiving a large payout during the financial year ending 30 June 2010. Target ignored that and terminated the employment relationship. More disturbingly, by terminating Ms Nohrea’s employment earlier than she intended, the Company was saved a considerable sum because it was not obliged to pay out carer’s leave as a lump sum. These factors militate strongly in favour of Ms Nohra.
Fairness between the Applicant and other persons in a similar position
 In the case before me, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.
 Section 394 of the Act requires me when considering whether to grant an extension of time to be “satisfied that there are exceptional circumstances ...”
 The concept of ‘exceptional circumstances’ was considered by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd 14. In that decision, his Honour considered the ordinary English meaning of the word ‘exceptional’15. In so doing, he referred to the decision of Commissioner Whelan in Parker v Department of Human Services16 where the Commissioner said:
“Branson J in a decision of the Full Court of the Federal Court 17 described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision also noted that the expression had been considered by the courts on numerous occasions:
Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward)  1 QB 198 at 208 as follows:
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. 18”
 Overall, I am satisfied that Ms Nohra’s evidence was broadly truthful. In particular, her evidence concerning her role in the care of her mother-in-law and her rather tortuous research procedure ‘rang true’ to me. Her evidence concerning her interaction with legal representatives was less impressive. Her evidence as to her psychological state impressed me as being both truthful and credible.
 Ms Nohra is a 40 year old woman who spent 25 years working for Target and I can readily believe that the manner of the ending of her employment relationship after such a length of service would cause her a level of psychological distress which would only be compounded by her carer responsibilities.
 This case is unusual in that my decision is significantly based on the evidence of the Applicant concerning her mental state at the relevant times. In Butler v Etheridge Shire Council 19, his Honour Senior Deputy Richards said: “... the Applicant’s explanation for his late application appears, in essence, to be that he was ignorant of the requirements of the Act and pursued legal advice too late in the day. This is not always an explanation that is without substance. An employee may be in some manner incapacitated, face structural barriers of some order or type, or else be so overwhelmingly functionally disempowered by their circumstance such that it would be unreasonable to not accept as satisfactory an explanation so grounded for a delay in lodgement.”20
 In the case before me, the delay in filing is not a long one. I accept that the psychological and practical pressures on Ms Nohra provide a satisfactory explanation for the delay in filing her substantive application for relief. Therefore, in the particular circumstances of this application and for the reasons set out above and applying the tests set out in subsection 394(3) of the Act, I am positively convinced and find that I should exercise my discretion and extend time for the lodgement of Ms Nohra’s application for relief until the actual date it was lodged.
 As this application has already been the subject of conciliation, I will now refer the matter for arbitration. The parties are free to seek further conciliation if they wish.
D Currie of Counsel for Isabel Nohra.
M Seck of Counsel for Target Australia Pty Ltd.
1 Transcript PN101 and following.
2 Transcript PN99.
3 Exhibit Nohra 1.
4 Transcript PN239, PN 240 and following.
5 Transcript PN261.
6 Transcript PN330.
7 Transcript PN345.
8 Transcript PN477.
9 Transcript PN487.
10 Transcript PN512 to PN517.
11 Transcript PN521.
12 Exhibit Target 4.
13 Exhibits Nohra 3 and Target 5.
14  FWA 1394.
15 Ibid, at paragraph 28.
16  FWA 1638.
17 Hewlett Packard Aust Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256.
18 Maan v Minister for Immigration and Citizenship (2009) FACFC 180.
19 PR977276, 7 June 2007.
20 Ibid at para 15.
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