DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Latisha Herbert
v
Adairs Retail Group Pty Ltd
(U2019/6301)

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – application dismissed.

[1] Ms Herbert applied for an unfair dismissal remedy having resigned from Adairs Retail Group Pty Ltd (Adairs) on 12 May 2019. Adairs objected to the application on the basis that Ms Herbert was not dismissed, and the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the objection that the application was made outside of the 21-day period.

[2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[3] It is not contested that Ms Herbert’s application was made out of time. However, in order for Ms Herbert’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. 1

[4] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.

[5] Ms Herbert gave several reasons why I should find that there were exceptional circumstances. In short, however, I am unpersuaded that the circumstances she referred to are the requisite exceptional circumstances. There is no credible, acceptable or reasonable explanation for the whole of the period of the delay in filing the application. Other factors do not weigh in favour of granting an extension. Further, I do not consider it fair and equitable for an extension to be granted. 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. My reasons follow.

Background

Events leading to Ms Herbert’s resignation

[6] It is uncontested that Ms Herbert’s employment was terminated on 12 May 2019 and therefore, to satisfy the statutory time limit set by s 394(2), the application was required to be made by 2 June 2019. Notwithstanding, the application was made on 7 June 2019, some five days late.

[7] In mid-February 2019, Ms Keenan, Area Manager for the region in which Ms Herbert worked, sent a letter to Ms Herbert highlighting concerns about the performance of the store in which Ms Herbert was the Store Manager. 2

[8] In that same month, Ms Herbert approached Ms Keenan to request a period of annual leave between 2 and 15 May 2019 inclusive. 3 The leave dates fell in the period referred to as the ‘red zone’. The ‘red zone’ is a period that Adairs considers to be its busiest time and therefore employees are precluded from taking annual leave.4 According to Ms Keenan, employees are informed about red zones in their interview with the company and are also informed never to assume that annual leave will be approved.5

[9] With regard to the leave, Ms Herbert informed Ms Keenan that she had already booked her flights and was insistent that she would go. Ms Herbert escalated the leave request to the State Manger, Ms Donald. While the leave was ultimately approved, Ms Donald and Mr Randall, Retail General Manager, conferred with Adairs’ Human Resources Department and a decision was made to issue Ms Herbert with a first and final warning for taking leave in a ‘red zone’.

[10] Meanwhile, Ms Keenan remained concerned about Ms Herbert’s performance and on 29 March 2019, a performance management meeting was held. 6 A follow up performance management meeting was scheduled for 26 April 2019.7

[11] On 9 April 2019, Ms Keenan provided Ms Herbert with a copy of a document referred to as the Coaching Log for the January – March 2019 quarter (the Log). 8 The Log detailed key performance metrics for the store in which Ms Herbert worked and how she was tracking against those measures.

[12] Ms Keenan gave evidence that on 20 April 2019, Ms Herbert telephoned her and informed her she felt overwhelmed by the enormity of her role. 9 Ms Keenan stated that she could hear that Ms Herbert was crying.10

[13] Following the telephone call a discussion was held between Ms Keenan and Ms Herbert whereby Ms Herbert asked if she could step down from the Store Manager role. 11 On or around 22 April 2019, arrangements were made to place Ms Herbert into an Acting Store Manager position in another store under a three-month fixed term contract.12 Ms Keenan gave evidence that the new position would be subject to monthly performance reviews to ensure that Ms Herbert was learning the skills to later promote her back to Store Manager.13

[14] Ms Herbert gave evidence that she started taking a sleeping pill medication on 24 April 2019 (having taken a personal leave day). Ms Herbert’s witness statement outlined the other medication that she was also taking.

[15] When Ms Herbert was provided with the contract for the Acting Store Manager position on 26 April 2019, she declined to sign it based on her concern she would be reviewed monthly. 14 While there were further emails between Ms Herbert and Ms Keenan about the new position, the terms of the new contract, and the performance review meetings, on 28 April 2019, Ms Herbert emailed her resignation to Ms Keenan.

[16] While Ms Keenan served out a notice period she did so whilst on annual leave and took a day off in lieu on 30 April 2019. 15

[17] Ms Herbert departed for New Zealand on the evening of 2 May 2019, returning to Perth late in the evening of 14 May 2019, two days after her employment had ended. 16 Whilst in New Zealand, Ms Herbert said that she did not have the resources available – presumedly to lodge an unfair dismissal application. Ms Herbert detailed the difficulties concerning internet accessibility on the Cook Islands. However, I observe that between 11 May and 14 May 2019, Ms Herbert was in Auckland and one presumes internet accessibility may differ there.17

[18] On arriving ‘back to reality’, in Perth, Ms Herbert stated that she still was not in a good state to be able to comprehend the circumstances. This was because of the loss of her job, the events that had taken place, no family/friends to support her in Australia, and her current mental health issues. 18

[19] Ms Herbert gave a detailed account of her mental health status as it stood on her return to Perth. Her evidence included noting a visit to a medical practitioner on 26 July 2019 to request a medical letter. 19 Ms Herbert’s evidence was that this was the first occasion that she had experienced mental impairment, having had no previous record to show such affliction.20 The medical letter of 26 July 2019 provided details of a mental health diagnosis and the causative agent for such diagnosis – namely ‘workplace bullying for the past 4 to 5 months’.21

Consideration

[20] There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 22

[21] In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) 23 the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.24 Whilst Nulty considered the general protection provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[22] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 25 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 can be considered exceptional.26

[23] In the recent decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 27 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

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. 28

[24] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

Reasons for the delay in filing the application

[25] Consideration turns to whether Ms Herbert has provided a credible reason for the whole of the period that her application was delayed. 29 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.30 It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.31

[26] In Pottenger v Department of Caffiene T/A Two Feet First 32 the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension,33 however, decisions of the Commission have referred to an acceptable,34 or a reasonable explanation.35 It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable, or for that matter, credible explanation.36

[27] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 37 Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree.38

[28] There is no dispute about the date of termination. Ms Herbert’s last day of employment was 12 May 2019. Ms Herbert relies in part on her Cook Island sojourn and resultant lack of internet accessibility and resources on the Island as the reason for the delay; in addition, to her brief break in Auckland. However, Ms Herbert’s travels occurred at a time, where for the most part, she remained an employee of Adairs.

[29] The earliest date on which Ms Herbert could have made her application for an unfair dismissal remedy was on 13 May 2019. Having returned from Auckland on 14 May 2019, I can only but conceive that her holiday travels reduced the time in which she could make the application by 1-2 days. However, this is only the case if it is accepted that Ms Herbert lacked internet accessibility in Auckland on 13 and 14 May 2019, and that the travel on 14 May precluded the filing of the application.

[30] Ms Herbert’s mental health was relied upon as another reason for the delay in making the application. Previous decisions of this Commission, or its predecessors, have traversed an applicant’s incapacity to make an application because of functional disempowerment or mental incapacity.

[31] In the recent decision of Marija Hussey v Springmount Services Pty Ltd T/A Springmount Services (Hussey), 39 a decision that considered an out of time application under s 365, but is relevant when considering the reasons for the delay in this case, the Commissioner concluded that the evidence established exceptional circumstances. Those exceptional circumstances were that the applicant’s ongoing mental incapacity was exacerbated whenever she thought about her employment with the respondent.40 However, in Hussey both treating practitioners, a medical practitioner and psychologist, gave evidence that they considered Ms Hussey’s reaction as severe and ‘out of the ordinary course’.

[32] The evidence before me fell well short of the evidence before the Commissioner in Hussey.

[33] The medical letter of 26 July 2019 certified that Ms Herbert ‘suffered from generalised anxiety disorder and major depressive episode due to workplace bullying for the past 4 to 5 months’. 41 The medical practitioner continued ‘[T]his has caused considerable impact on her mental health.42 She was in distress in the past 4 to 5 months and was not able to comprehend what has happened to her’.43 The medical practitioner confirmed, ‘I have assessed her and started her on treatment. I will review her on regular basis to monitor her progression’.44

[34] I observe the following salient points about the medical letter of 26 July 2019:

a) it is the only evidence, apart from Ms Herbert’s account, that Ms Herbert has provided concerning her medical condition;

b) the medical letter does not traverse whether the medical practitioner treated Ms Herbert before 26 July 2019;

c) there is an assertion that workplace bullying occurred and yet the medical practitioner provides no grounds as to how he or she arrived at the conclusion, or whether he or she was qualified to do so; and

d) the medical letter does not provide contemporaneous medical evidence as to Ms Herbert’s state of mind between 13 May 2019 and 2 June 2019.

[35] The history of Ms Herbert’s incapacitating mental health, such that she had been in distress for the last 4-5 months and that this had rendered her unable to comprehend what had happened to her, appears at odds with her having only taken personal leave on only two occasions between February 2019 and the termination of her employment. This is notwithstanding that the medical letter states that the affliction had been of 4-5 months in duration.

[36] Ms Herbert states that her medical condition took effect most significantly after her first performance improvement plan meeting. While this sets the scene regarding the purported exacerbation of Ms Herbert’s anxiety, it remains the case that there is no contemporaneous evidence to support that which Ms Herbert has said.

[37] Understandably, Ms Herbert gave evidence that the end of her employment with Adairs had affected her mental state. I accept that any employee on the termination of their employment may experience a level of heightened anxiety and upset, particularly, if they perceived that such termination was not something they voluntarily chose. However, Ms Herbert resigned from her position and during the notice period leading up to her end date of employment she went on an overseas trip. Ms Herbert was not so incapacitated that she had to defer an overseas holiday, and when asked if she enjoyed the holiday, replied – yes, it was good to get away from work. Ms Herbert also acknowledged that her health concerns had not precluded her from taking the holiday notwithstanding at this time she knew her last day of employment was 12 May 2019.

[38] Given the date when the medical letter was obtained and in light of its contents, I am unconvinced that Ms Herbert was so overwhelmingly functionally disempowered by her mental health affliction or disorder, that this gave rise for a plausible reason for the delay, or part thereof, in filing her application.

[39] Ms Herbert submitted that she was unaware of the process for lodging an unfair dismissal application. 45 According to Ms Herbert she believed that she needed to substantiate her claim fully and gather all necessary evidence before applying.46 Clearly, Ms Herbert was ignorant that she could complete a Form F2 and submit the same sans all the ‘necessary’ evidence. On its face the Form F2 makes no suggestion that all evidence must be garnered prior to submitting the Form. It adopts a question and answer format that I suggest could be answered by literate individuals. There was no submission that Ms Herbert had literacy issues. Whether it was the case that Ms Herbert had not read the Form F2 during the period of 13 May until 2 June 2019, or that she had misunderstood what was required of her, does not amount to a plausible reason for the delay.

[40] I have concluded that, save for the day when Ms Herbert was in transit between New Zealand and Perth, Australia, no plausible or credible reasons were advanced for the delay. Accordingly, this factor weighs against granting Ms Herbert an extension of time.

Whether Herbert became aware of the dismissal after it took effect

[41] At all material times from the time Ms Herbert tendered her resignation to the end date of her employment, and until the date the unfair dismissal application was made, Ms Herbert knew that she had resigned from her employment. This factor weighs against granting Ms Herbert an extension of time.

Action take to dispute the dismissal

[42] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 47 I have considered all the evidence in this respect, including the emails between Ms Herbert and Ms Keenan on or around 29 April to 30 April 2019, and find that the emails are not suggestive that Ms Herbert took action to dispute her termination of employment. Ms Herbert asserts that her resignation was forced. She submitted that while she referred to the word ‘decided’ in her resignation letter, her decision was in fact made out of panic because Ms Keenan had insisted on a performance management meeting on 29 April 2019. However, the letter of resignation, on its face, does not express such sentiment. Instead it refers to Ms Keenan having carefully considered her new employment contract.

[43] This factor weighs against granting Ms Herbert an extension of time.

Prejudice to the employer

[44] I cannot identify any particular prejudice that Adairs would accrue if an extension of time were to be granted. In its submissions Adairs acknowledged that there was no significant prejudice that it would suffer as a consequence of the extension of time being granted. Consequently, I consider this to be a neutral factor in the present case.

Merits of the application

[45] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[46] In Kornicki v Telstra-Network Technology Group,  48 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench 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. 49

[47] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application. 50

[48] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. Ms Herbert insists that she was forced to resign by the conduct of Adairs. I am unable to assess the merits as there are factual disputes between the parties that are untested.

[49] It follows that I consider this criterion to be neutral.

Fairness between the person and other persons in a similar position

[50] The Deputy President in Morphett v Pearcedale Egg Farm, 51 considered this criterion and said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 52

[51] While Ms Herbert has drawn my attention to various authorities in her submissions, I do not consider that reference has been made to other persons in a position similar to that of Ms Herbert. While Ms Herbert may consider that filing her application five days late is not significant, as detailed in her Form F2, 53 there have been circumstances whereby the Commission has declined to grant an extension notwithstanding the lateness is limited to two or three days late.54

[52] I am satisfied that the issue of fairness as between Ms Herbert and other persons in a similar position is not a relevant consideration in this matter, and is therefore a neutral factor in
determining whether to grant an extension of time.

Conclusion

[53] The criteria in s 394(3) of the Act have been carefully considered. I do not consider, based on the material provided, that there were satisfactory reasons advanced as to why the application was not lodged within the statutory time limit. On balance, I am not satisfied that there are exceptional circumstances warranting an extension of time for Ms Herbert’s application to be made. Ms Herbert’s circumstances were not out of the ordinary course, unusual, special or uncommon and she has not provided a reasonable explanation for the whole of the delay. None of the criteria weigh in favour of a finding of exceptional circumstances, and therefore the totality of the evidence is insufficient to ground such a finding.

[54] Further, where exceptional circumstances are found, consideration turns to whether it is fair and equitable that time should be extended. I have not concluded that it is fair and equitable that an extension should be granted. The application is accordingly dismissed.

DEPUTY PRESIDENT

Appearances:

L Herbert on her own behalf

J O’Brien of Sladen Legal for the Respondent

Hearing details:

2019

Telephone

August 27

Printed by authority of the Commonwealth Government Printer

<PR711698>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Witness Statement of Paula Keenan (Exhibit R2) [19].

 3   Exhibit R2 [24].

 4   Ibid [21].

 5   Ibid.

 6   Ibid [35].

 7   Ibid [37].

 8   Ibid [45].

 9   Ibid [46].

 10   Ibid.

 11   Ibid [49].

 12   Ibid [55].

 13   Ibid.

 14   Ibid [58].

 15   Ibid [66].

 16   Exhibit A1 Flight Itinerary.

 17   Ibid.

 18   Witness Statement Latisha Herbert (Exhibit A1) [1].

 19   Exhibit A1 [2].

 20   Ibid.

 21   Exhibit A1.

 22   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989 [20].

 23   [2011] FWAFB 975.

 24   Ibid [15].

 25   Ibid [13].

 26   Ibid.

 27   [2018] FWCFB 901.

 28   Ibid [38].

 29   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 30   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment [2016] FWC 5041 [10].

 31   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 [29] – [31].

 32   [2018] FWC 3403.

 33   Ibid [31].

 34   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 [9].

 35   Roberts v Greystanes Disability Services; Community Living [2018] FWC [16].

 36   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901.

 37   Ibid [39].

 38   Ibid.

 39   [2019] FWC 5010 [68].

 40   Ibid.

 41   Exhibit A1.

 42   Ibid.

 43   Ibid.

 44   Ibid.

 45   Ibid.

 46   Ibid.

 47   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

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

 49   Ibid.

 50   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899.

 51   [2015] FWC 8885.

 52   Ibid [29].

 53   Exhibit A1 [3].

 54   Miss Sharon McLennan v Northern Territory Stolen Generations Aboriginal Corporation [2012] FWA 3167.