Aniek Aardoom v Kevesther Pty Ltd [2023] FWC 1496

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Aniek Aardoom v Kevesther Pty Ltd (U2023/2522) COMMISSIONER DURHAM BRISBANE, 21 JUNE 2023 Application for an unfair dismissal remedy – whether to extend time – application dismissed. [1] On 26 March 2023, Ms Aniek Aardoom (the Applicant) made an application to the Commission for an unfair dismissal remedy. She contends that she was dismissed by Kevesther Pty Ltd (the Respondent) on 3 March 2023. [2] Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to section 394(3). As the Applicant lodged her application on 26 March 2023, and the date of the dismissal was 3 March 2023, she was two (2) days out of time. [3] In order for the application to proceed, Ms Aardoom requires the Commission to grant a further period of time within which to bring her application. [4] The question of whether to grant additional time was dealt with at a Determinative Conference on 12 June 2023. Both the Applicant and the Respondent gave oral evidence and sought that the material they had already filed be received into evidence. [5] The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission). [6] The Applicant called one additional witness, Ms Sandra Lee. [7] All the material relied upon by both the Applicant and the Respondent has been taken into consideration. Extension of Time [2023] FWC 1496 DECISION -- 1 of 6 -- [2023] FWC 1496 2 [8] Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.1 [9] In deciding whether I am satisfied that there are exceptional circumstances, I must consider: • the reason for the delay; • whether the person first became aware of the dismissal after it had taken effect; • any action taken by the person to dispute the dismissal; • prejudice to the employer (including prejudice caused by the delay); • the merits of the application; and • fairness as between the person and other persons in a similar position. Relevant Factors Reason for the Delay [10] The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an “acceptable” or “reasonable explanation” of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.2 [11] Ms Aardoom maintains the reason for the delay in lodging her application was her relocation to Mackay for approximately three (3) weeks and continuing mental health concerns. Her outline of argument provided the following by way of explanation: “Upon my termination of employment, my already unstable mental health deteriorated which was sustained through my employment at Kevesther. I was in conversation with my mother on numerous occasions daily, and with her concern for my mental state she encouraged me and then demanded that I come home to Mackay from Brisbane for support. I was in Mackay for the duration of around 3 weeks before returning to Brisbane. During this time, I had no mental capacity to be dealing with anything let alone the emotional stress my employment and the termination had put me through. I did not seek medical intervention when I was in Mackay as I did not have access to my psychologist or was able to attend my practitioner’s appointment in this time. I continued my medication and was unaware of the time that had passed for the due date of the submission. Once returning to Brisbane I continued to see my psychologist.” [12] In support of her argument, Ms Aardoom provided the following medical information: • a script for medication dated 10 May 2022 • a mental health plan dated 29 November 2021 -- 2 of 6 -- [2023] FWC 1496 3 • a mental health referral letter dated 29 November 2021 • a worker’s capacity certificate dated 15 December 2022 [13] Whilst these documents clearly indicate a long-standing medical issue, they do not specifically relate to the period of time in question (the time between the dismissal and that deadline for lodgement) and as such, they simply confirm that Ms Aardoom had a pre-existing medical condition that was being managed with Medication. [14] Similarly, the chemist receipt provided confirm that Ms Aardoom had been prescribed this medication in May 2022, however, when asked about the effects of the medication on her at the time of the dismissal, there were some inconsistencies in the evidence. [15] In response to a direct question from the Respondent, Ms Aardoom stated that the dosage of the prescribed drug Duloxetine had been increased from 30mg to 60mg during this period. When asked if this change in dosage was made by her doctor, Ms Aardoom was unclear, however the Respondent pointed out that the script, which was dated May 2022, was for the higher dose of 60mg. This would tend to suggest that Ms Aardoom’s medication was not increased during this time and in fact, remained stable. This would therefore suggest that any impact of the medication on her capacity would have been limited and as such, I do not accept that Ms Aardoom's medication would have hindered her capacity to lodge her application, or rendered her unaware of the passage of time. [16] Ms Aardoom confirms that she did not seek any medical intervention while she was in Mackay. Her reasoning for this was that she did not have access to her psychologist. One might however argue that if during this time Ms Aardoom’s condition had deteriorated to the point of incapacitation, this may have warranted her seeking medical attention. [17] The Respondent also noted that Ms Aardoom travelled to Bali in February 2023 for a holiday, and was seen to have been active on social media. Neither of these points were contested by the Applicant. Whilst it is acknowledged that the trip was taken before the formal dismissal, it was taken during the period of time that Ms Aardoom had said she was incapacitated for work and claiming Worker’s Compensation. The Respondent also pointed out that no leave had been sought or approved for this purpose. [18] The evidence suggest that Ms Aardoom clearly had the capacity to engage in the various processes relating to the preparation, lodgement and consideration of her Worker’s Compensation claim, and to organise, plan and take an overseas holiday. These facts do seem at odds with her inability to respond to the formal correspondence from the Respondent regarding her employment, including the investigation into payroll information and the “Show Cause” as to why she should not be terminated. [19] Whilst I acknowledge these events occurred before the dismissal, they occurred whilst Ms Aardoom was taking the same medication as she was taking at the time of the dismissal. They also show a pattern of behaviour that goes to the assessment of the credibility of her evidence relating to her incapacity. -- 3 of 6 -- [2023] FWC 1496 4 [20] Whilst I am of no doubt that Ms Aardoom has been receiving medical attention for a mental health condition for some time, and that this may have rendered her incapable of attending work for a period of time, Ms Aardoom has not provided any evidence, medical or otherwise to demonstrate any change in her condition that would have incapacitated her to the extent that she was rendered incapable of making an application within the prescribed time period. [21] I consider that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case. Whether the person first became aware of the dismissal after it had taken effect [22] The Respondent submits that on 13 January 2023, Ms Aardoom was issued with a Show Cause Notice letter regarding the Applicant submitting incorrect timesheets for 7 and 8 December 2022. The notice clearly indicated that the Applicant’s termination was a possible outcome. The Applicant was afforded ten (10) business days to provide a response to the letter or to convene a meeting in person or via Zoom. The Respondent maintains that Ms Aardoom did not participate in the “Show Cause” process and as such, she was summarily dismissed on 3 March 2023. [23] Ms Aardoom has not provided any evidence to suggest she was unaware that she had been terminated on 3 March 2023. In fact, in Ms Aardoom’s outline of argument, she states: “My employer had intent to terminate my employment for the duration of the work cover investigation, so I do not think that there has caused any disadvantage or unfairness as my employer wanted to terminate my position.” [24] This statement suggest that Ms Aardoom was aware that the likely outcome of the investigation and “Show Cause” would be her termination. It must then also be true that by choosing not to engage with this process, Ms Aardoom accepted that her termination was likely to occur any time from 13 January 2023 onwards. As such, the consideration in section 394(3)(b) weighs against an extension of time in this case. Action to Dispute the Dismissal [25] As provided above, Ms Aardoom was made aware of the potential dismissal and did not take any action to dispute the dismissal, neither before or after the Applicant was dismissed. These facts weigh against an extension of time being granted. Prejudice to the Employer [26] There is no evidence of any prejudice to the Respondent. I have treated this matter as a neutral consideration. Merits of the Application -- 4 of 6 -- [2023] FWC 1496 5 [27] The Respondent contends that the dismissal was not unfair as the Applicant had abandoned her employment on 8 December 2022. [28] To that end, the Respondent has raised the following additional jurisdictional objections: • That there was no dismissal as the Applicant had abandoned her employment. • That the Applicant was dismissed pursuant to the Small Business Fair Dismissal Code. [29] The additional jurisdictional objections above would be key issues in this case. I note the merits of the application would depend on factual findings made at the final hearing, however based on the information before me, I consider the Ms Aardoom will face significant challenges establishing that she had not abandoned her employment. [30] With respect to the application of the Small Business Fair Dismissal Code, whilst this matter was not expressly considering during the Determinative Conference, the Respondent did provide extensive written submissions detailing their jurisdictional objections, including their contention that the dismissal was consistent with the Small Business Fair Dismissal Code. Again, on the basis of the information before me at this time, it would appear that Ms Aardoom will face significant challenges if she wishes to pursue an alternative argument. I consider the merits to be a neutral consideration. Fairness as between the person and other persons in similar position [31] This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case. Conclusion [32] In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case. [33] As there are no exceptional circumstances, no additional time can be allowed for Ms Aardoom to make her application. This means that Ms Aardoom is not entitled to apply for an unfair dismissal remedy. [34] The application is dismissed. An order to that effect will be issued separately. -- 5 of 6 -- [2023] FWC 1496 6 COMMISSIONER Appearances: A. Aardoom for herself S. Wright for the Respondent J. Jones for the Respondent Hearing details: 2023 Brisbane 12 June Printed by authority of the Commonwealth Government Printer <PR763481> 1 Nulty v Blue Star Group (2011) 203 IR 1 at [13]. 2 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. -- 6 of 6 --