Anne Mitchell v Shellharbour Private Hospital Pty Ltd [2019] FWC 1457

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Anne Mitchell v Shellharbour Private Hospital Pty Ltd (U2018/10570) COMMISSIONER CAMBRIDGE SYDNEY, 12 MARCH 2019 Unfair dismissal - jurisdictional objection - application made out of time - exceptional circumstances not established - extension of time refused. [1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Anne Mitchell (the applicant) and the respondent employer is Shellharbour Private Hospital Pty Ltd (the employer). [2] The application was lodged with the Fair Work Commission (the Commission) at Sydney on 12 October 2018. The application indicated that the date that the applicant’s dismissal took effect was 9 August 2018. Consequently, the application was made some 43 days after the 21 day time limit prescribed by subsection 394 (2) of the Act. However, the application also stated that the date that the applicant was notified of dismissal was 12 October 2018. [3] On 31 October 2018, the employer filed a response to the application (Form F3) which identified two jurisdictional objections to the application. Firstly, as the date that the applicant’s dismissal took effect was 9 August 2018, the employer raised objection on the basis that the application, made on 12 October 2018, was made beyond the time limit prescribed by subsection 394 (2) of the Act (the out of time objection). Secondly, the employer objected to the application on the basis that the applicant had not been dismissed. At the time of filing the Form F3 the employer asserted that; “As the application is gravely out of time, the respondent does not agree to participate in the conciliation listed for Thursday, 8 November 2018 and seeks that directions be issued to determine the jurisdictional objection/s.” [4] The conciliation that had been listed for 8 November 2018 was cancelled. On 2 November 2018, Dean DP sent a letter to the applicant which, in summary, required that the applicant provide documentary material upon which exceptional circumstances could be established in order to permit the matter to proceed over the out of time objection raised by the employer. [2019] FWC 1457 DECISION -- 1 of 13 -- [2019] FWC 1457 2 [5] On 9 November 2018, lawyers acting on behalf of the applicant provided the Commission with a Statutory Declaration of the applicant dated 9 November 2018, as material upon which it relied in opposition to the out of time objection. On 22 November 2018, the contested out of time objection to the application was allocated to the Commission as currently constituted for determination. [6] On 6 December 2018, the Commission convened a telephone Pre-Hearing Conference during which permission was granted under s. 596 of the Act for either of the Parties to be represented by lawyers or paid agents. Further, the Commission issued Directions for the filing and service of submissions and evidentiary material in support of the respective positions regarding the out of time objection. [7] In due course the Parties filed their respective documentary materials and each indicated that they were content for the out of time objection to be determined upon the documentary material which had been filed and without any requirement for a Hearing. Relevant Factual Background [8] The applicant had worked for the employer for about two years and seven months. The applicant is a Registered Nurse (RN) and she was employed in a position described as CSSD/CNS Supervisor, (CSSD is the acronym for Central Sterile Supply Department). The applicant was engaged at a private hospital operated by the employer and located in the New South Wales Illawarra regional city of Shellharbour. The applicant reported to the Director of Nursing (DON) at the Shellharbour Private Hospital (the hospital). [9] On Thursday, 9 August 2018, the applicant raised concerns with her immediate superior, the Perioperative Services Manager, Mr Browne, about what she believed to be substandard infection control practices that she had observed and which in this instance involved trays of coffee cups being taken into an Operating Theatre. The applicant was dissatisfied with Mr Browne’s response to her concerns regarding substandard infection control practices and she told him that she was giving two weeks’ notice. [10] Later that morning, 9 August, the applicant reiterated and confirmed her resignation from employment during a meeting that involved the hospital’s CEO and DON, Mr Cadwallender. There was some dispute about precisely what was said during this meeting. However, there was no dispute that during the meeting Mr Cadwallender told the applicant that she would not be required to work the two weeks’ notice that she had provided, and that she should leave the hospital straightaway as she would receive payment in lieu of the two weeks’ notice. The applicant subsequently collected all her personal belongings, handed in her hospital identification/security card, and left the hospital premises at approximately 10:30 am. [11] Later that day, 9 August, the applicant reconsidered her resignation from employment and she sought to withdraw her resignation. At about 3:20 pm the applicant telephoned the employer’s head office and explained her circumstances at which time she was advised, inter alia, that her resignation needed to be put in writing, and that she should make contact with Mr Cadwallender and advise him that she wished to withdraw her resignation. [12] On the following day, Friday, 10 August 2018, the applicant was preparing an email to send to Mr Cadwallender to request to meet with him to discuss the withdrawal of her -- 2 of 13 -- [2019] FWC 1457 3 resignation when she received a telephone call from Mr Cadwallender. Although Mr Cadwallender was calling about an incidental matter involving reimbursement to the applicant in respect of receipts she had provided to the employer, during this conversation the applicant advised that she wished to withdraw her resignation. Further, the applicant told Mr Cadwallender that she would not be providing her resignation in writing. Mr Cadwallender rejected this proposition, and he told the applicant that her verbal resignation had been accepted yesterday, in the presence of a witness (Mr Browne). Mr Cadwallender told the applicant that there was no requirement for her resignation to be provided in writing, and that the applicant was no longer an employee. The applicant told Mr Cadwallender that she was not happy with this decision and she would be taking the matter further. [13] After the telephone conversation with Mr Cadwallender, the applicant again telephoned the employer’s head office and she explained that in the absence of a written resignation Mr Cadwallender had confirmed her termination of employment on the basis of the verbal resignation that she had provided the previous day. The person that the applicant was speaking with at the employer’s head office advised the applicant to escalate the matter and suggested that she contact the employer’s Deputy Chief Operating Officer, Ms Gallagher. [14] On the afternoon of 10 August 2018, the applicant had a telephone conversation with Ms Gallagher. During this conversation the applicant explained the concerns that she had about substandard infection control practices which had acted as the catalyst for her verbal resignation that she had provided to Mr Cadwallender the previous day. The applicant explained to Ms Gallagher that she had sought to withdraw her resignation and that this had not been accepted by Mr Cadwallender. Further, during this telephone conversation of approximately 29 minutes duration, the applicant provided considerable detail to Ms Gallagher about various concerns that she had about substandard infection control practices at the hospital. The telephone conversation concluded on the basis that Ms Gallagher requested that the applicant put all of her concerns in writing and email them to her. [15] One week later, on Friday, 17 August 2018, the applicant sent Ms Gallagher a seven page letter which, in summary, requested that her situation be reviewed. This communication set out the circumstances that gave rise to the applicant’s verbal resignation on 9 August 2018. Further, the applicant included an account of the subsequent events whereby she sought to withdraw the verbal resignation, and she confirmed that she had not provided any written resignation. In addition, the applicant’s letter of 17 August 2018, included a detailed account of the various concerns that she had about practices that she believed represented substandard infection control procedures. [16] On the following Wednesday, 22 August 2018, the applicant had not received any response from Ms Gallagher when she received a pay slip which included an amount of over $12,000. The applicant contacted the employer’s payroll office to inquire about the payment of this significant amount, and she was told that this was her termination pay-out that had been processed at the direction of Mr Cadwallender. There was some contest as to the detail of the conversation between the applicant and the payroll administrator, Ms Superina, on 22 August. However, it was clear that the issue of the verbal resignation of the applicant having been accepted by Mr Cadwallender was not a matter that Ms Superina could in any way control or influence. [17] On Thursday 30 August, Monday 3 September, and Friday 7 September 2018, the applicant made unsuccessful attempts to speak with Ms Gallagher in respect to the review that -- 3 of 13 -- [2019] FWC 1457 4 she had sought in her letter of 17 August 2018. On Sunday, 9 September 2018, the applicant sent an email to Mr Cadwallender which provided her banking details for reimbursement of items for which she had provided receipts on 9 August 2018. On Monday, 10 September 2018, Mr Cadwallender responded to the applicant, and he advised that reimbursement of the amounts claimed in the receipts would be paid to the applicant on Friday, 14 September 2018. [18] On Tuesday, 11 September 2018, the applicant made a further telephone call to the employer’s head office and left a message requesting that Ms Gallagher contact her. Later that day, 11 September, the applicant made a telephone inquiry with the Fair Work Ombudsman whereupon she explained her circumstances and it was at this time that the applicant said that she first became aware of the 21 day time limitation for the making of an unfair dismissal claim. [19] On Wednesday, 12 September 2018, the applicant telephoned Law Access NSW and she inquired about the provision of legal assistance. On Friday, 14 September 2018, the applicant received a telephone call from Law Access NSW, and she explained the circumstances surrounding her termination of employment. During this telephone conversation the applicant was advised to contact a local lawyer. [20] On 14 September 2018, the applicant made an appointment for 18 September with lawyers who have subsequently acted on her behalf. On 18 September 2018, lawyers acting on behalf of the applicant sent a letter to Ms Gallagher which, inter alia, indicated the prospect that the applicant may make a claim for unfair dismissal recognising that any such claim would be outside the 21 day limit for lodgement of an application with the Commission. This communication sought clarification of the status of the applicant’s employment as a matter of some urgency. [21] Ms Gallagher responded to this letter on 18 September 2018, indicating that she would provide a response following discussion with the employer’s legal counsel. On the following day, 19 September 2018, Ms Gallagher advised lawyers acting for the applicant that following consultation with legal counsel a response would be forthcoming in the coming week. [22] On Wednesday, 26 September 2018, lawyers acting on behalf of the applicant sent a further communication to Ms Gallagher requesting an update in relation to the applicant’s employment circumstances. On Tuesday, 9 October 2018, lawyers acting on behalf of the applicant sent a further email communication to Ms Gallagher requesting that an urgent response be provided by no later than the following day 10 October 2018. In the absence of any response to this communication, on 12 October 2018, lawyers acting on behalf of the applicant filed the application for relief from unfair dismissal remedy. The Employer's Case in Support of the Jurisdictional Objection [23] The submissions made on behalf of the employer commenced by stating that there was no dispute that the application was made beyond the 21 day time limitation established by subsection 394 (2) of the Act. Consequently, the employer submitted that the Commission must be satisfied that exceptional circumstances existed, taking into account the factors set out in subsection 394 (3) of the Act, so as to enable an extension of time to be granted. [24] In support of the proposition that exceptional circumstances did not exist, the employer relied upon evidence provided by the five witness statements that it had filed. -- 4 of 13 -- [2019] FWC 1457 5 Further, the employer submitted that the onus for establishing exceptional circumstances rested with the applicant. The submissions made by the employer were constructed with reference to the various factors contained in subsection 394 (3) of the Act. [25] The employer rejected the reason for the delay as was advanced by the applicant. The employer submitted that the applicant asserted that she did not make the application within time because she held a genuine belief that her dispute in relation to the termination of her employment was being reconsidered by the employer. The employer rejected this proposition, and it asserted that any mistaken belief held by the applicant about the possibility of a favourable review of the applicant’s employment circumstances did not provide an adequate excuse for delay with any lodgement of an application. [26] The employer further submitted that if the applicant had any genuinely held but mistaken belief that her resignation was being reconsidered by the employer, that belief could not have been genuinely held after firstly, receipt of her termination payment entitlements on 22 August 2018, and/or secondly, after the provision of legal advice obtained on 17 September 2018. Consequently, it was submitted that after either 22 August or 17 September 2018, the applicant could not have held any genuine belief that her resignation was being reconsidered, and therefore the reason for the delay after those dates should not be accepted. [27] The employer submitted that the applicant had not been misled by the employer to believe that her dismissal was “stayed” pending an investigation into the various concerns that she had put to Ms Gallagher in writing on 17 August 2018. The employer submitted that the representations made by Ms Gallagher focused on the investigation of clinical concerns and not any review of the applicant’s resignation. Further, the employer submitted that any mistaken belief that the employer was involved in some investigation or review of the applicant’s resignation could not have been reasonably sustained after the applicant had received her termination pay entitlements on 22 August 2018. [28] The submissions made on behalf of the employer also rejected that there was any valid reason for delay in the period after the applicant had obtained legal advice on 17 September 2018. In this regard the employer submitted that the application had not been filed until approximately one month after the applicant first obtained legal advice. Consequently, according to the submissions made by the employer, it was incumbent upon the applicant to make an application after being provided with legal advice, and she had waited for an unreasonable further period of time before filing the application. [29] The employer further submitted that there was no evidence to support any suggestion that the applicant was incapable or otherwise unable to file an application within the legislative timeframe. The employer submitted that the applicant was simply unencumbered from taking steps to dispute her employment at all material times between 9 August 2018 and 12 October 2018. [30] The employer submitted that the applicant was fully aware and cognisant that her employment had ceased on 9 August 2018. The employer noted that the applicant had on no less than three earlier occasions, indicated that she wished to resign from her employment but had not previously confirmed that expressed desire. However, the circumstances on 9 August 2018, involved the clear and unambiguous acceptance by the employer of the resignation that the applicant had given. Further, confirmation of the cessation of the employment effective 9 August 2018, was provided to the applicant during her telephone call with Mr Cadwallender -- 5 of 13 -- [2019] FWC 1457 6 on 10 August 2018. Additionally, according to the submissions made by the employer, there was clear evidence that the applicant was aware of the termination of employment by her conduct involving the removal from the hospital of all her personal belongings, and the return of her hospital security pass. [31] The employer acknowledged that the applicant had taken steps to endeavour to retract her resignation and that she had in this regard taken steps which could be considered to represent disputing her dismissal. However, according to the submissions made by the employer, the steps taken by the applicant to dispute the termination of her employment did not operate in favour of granting an extension of time. In particular, the employer noted that the applicant’s concerns as articulated on 10 and 17 August 2018, involved most significantly, clinical concerns rather than a review of the applicant’s resignation. [32] The submissions made by the employer asserted that it would be prejudiced if the matter was to proceed following the delay. The employer said that it was unable to access telephone records and other detailed aspects of potential evidence because of the delay. The employer asserted that matters of a contested nature could not be vigorously tested because the application had not been made within the legislative timeframe. [33] The employer further submitted that the application was without merit. The employer submitted that the applicant was not dismissed from her employment and she had undertaken a series of considered steps in confirmation of her resignation. The employer submitted that these steps needed to be considered in light of the applicant’s previous conduct involving her earlier communication of resignation on prior occasions. The employer submitted that the words and actions of the applicant represented a clear and unambiguous resignation from her employment, and it could not be said that her resignation was provided “in the heat of the moment.” [34] In summary, the submissions made by the employer asserted that having regard to the factors contained in subsection 394 (3) of the Act, the Commission should not be satisfied that there were exceptional circumstances that would warrant an extension of time to bring the application. The employer submitted that the Commission should not grant the extension of time, and that the jurisdictional objection of the employer should be upheld. The employer submitted that the application should be dismissed accordingly. The Applicant’s Case in Opposition to the Jurisdictional Objection [35] The submissions made on behalf of the applicant asserted that the application was made in exceptional circumstances for the purposes of subsection 394 (3) of the Act. The submissions made by the applicant referred to the various matters that the Commission was required to take into account when establishing the existence of exceptional circumstances. The submissions made by the applicant relied upon evidence contained in two Statutory Declarations that the applicant had made on 9 November 2018, and 10 January 2019 respectively. [36] The submissions made on behalf of the applicant asserted that the applicant held a genuine belief that her dispute in relation to her purported resignation from employment was being reconsidered internally by the employer. Further, it was contended that the applicant genuinely believed that she would be able to return to work once this internal process had run its course. The applicant submitted that the evidence that was provided regarding the various -- 6 of 13 -- [2019] FWC 1457 7 conversations that the applicant had with representatives of the employer, particularly including Ms Gallagher, provided clear basis for the action that she had taken in relation to her complaint and which had been escalated in a manner as she had been advised. It was submitted that the applicant was left with the irresistible impression that the matter of her termination of employment was being reviewed by the employer. [37] The applicant submitted that it was notable that she had been advised by the respondent’s payroll office not to spend the termination pay-out that she had received because she may need to pay it back pending the resolution or review of her matter. It was submitted that this evidence was consistent with the applicant’s genuine understanding that the employer was conducting a review which had the potential to lead to her return to employment. [38] The submissions made by the applicant also criticised the absence of responses from Ms Gallagher in respect to the inquiries made by the lawyers acting for the applicant seeking to clarify the employment status of the applicant. The applicant submitted that the response provided by Ms Gallagher whereby she indicated that she would provide a response when she had liaised with legal counsel, induced the applicant into further delaying the making of her application for unfair dismissal. In this regard, the applicant asserted that the employer and its parent company, had been deliberately non-responsive to the applicant and to communications made by lawyers acting on her behalf seeking clarification of the status of her employment. It was submitted that the employer could have provided a succinct response clarifying the employment status of the applicant and it did not at any stage provide a termination letter formalising the dismissal of the applicant in circumstances where the applicant articulated her desire to withdraw her resignation. [39] The submissions made on behalf of the applicant also stated that the length of the extension of time sought was not a relevant factor for the purposes of determining exceptional circumstances except to the extent that it may cause prejudice to any respondent. It was submitted that the applicant, having realised that she was already out of time, and believing an internal review process was ongoing, was justified in not submitting an application until a determination had been made in relation to her employment status. The applicant submitted that the circumstances were exceptional due to the nature of the dismissal, and the subsequent actions of the employer and its parent company. [40] The applicant further submitted that as her resignation was not genuine and given in the heat of the moment, she was not made aware of her dismissal. The applicant acknowledged that she became aware of a memorandum that had been circulated to the employer’s staff to the effect that the applicant was no longer employed at the hospital. However, according to the submissions made behalf of the applicant, this was not a direct communication from the employer to the applicant confirming her termination of employment. The applicant made submissions in reply which inter alia, stressed that she had not received any correspondence that clarified the status of her employment until after she had filed her application for unfair dismissal remedy. [41] The applicant also made submissions which recounted the various documented actions that she had taken to dispute her dismissal. The applicant submitted that it was clear that she was contesting the decision made by Mr Cadwallender to accept and act upon her verbal resignation of 9 August 2018. -- 7 of 13 -- [2019] FWC 1457 8 [42] The applicant rejected that the employer would experience any prejudice as a result of any delay and submitted that this was a neutral factor. [43] The applicant asserted that she had a strong case for establishing that she had been unfairly dismissed. The applicant asserted that her resignation was one given in the heat of the moment, and in circumstances of high emotional and psychological stress. The applicant submitted that her unfair dismissal claim was not without merit. [44] In summary, the applicant submitted that the circumstances in this instance were out of the ordinary course, unusual, special or uncommon. Further, the applicant contended that the circumstances were not regularly, routinely or normally encountered. The applicant submitted that the assessment of whether exceptional circumstances existed required a consideration of all of the circumstances, and not one factor need be found to be exceptional in order to enliven the discretion to extend time. In this case, having regard to all of the circumstances, the applicant submitted that exceptional circumstances existed, and the application for an extension of time for the lodgement of the claim for unfair dismissal should be granted. Consideration [45] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) of the Act allows for an extension of the 21 day time period if exceptional circumstances are established. [46] In this case, the application was filed on 12 October 2018, which was some 64 days after the day on which the alleged dismissal took effect. Therefore the application was not made within the 21 day time period established by subsection 394 (2) (a) of the Act. The application was made 43 days after the expiry of the 21 day time limit. [47] Subsection 394 (3) of the Act provides the Commission with a discretion to extend the time limit of 21 days as fixed by subsection 394 (2) (a). Subsection 394 (3) is in the following terms: “(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: (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.” -- 8 of 13 -- [2019] FWC 1457 9 [48] As can be seen from subsection 394 (3), the Commission must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which the Commission is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a statutorily prescribed time limit. [49] Importantly, the onus rests with an applicant to convince the Commission to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394 (3) of the Act, it seems to me that the particular length of any delay should logically be connected to the onus on any applicant seeking the exercise of the discretion to extend time. It would be logical for the length of any delay to amplify the onus on an applicant in broadly exponential terms, such that the longer the delay is, the greater the difficulty is in establishing proper basis for the exercise of the discretion. [50] Further, the length of the delay might properly be considered having regard for the length of the time limit that the statute prescribes. For instance, a delay of 21 days in circumstances where the time limit was two years must be assessed differently to a delay of 21 days where the time limit was 21 days. Consequently, I believe that the length of the delay should represent a contextual factor taken into consideration when exercising the discretion to extend the time period prescribed by subsection 394 (2) (a) of the Act. [51] In this case the delay was 43 days relevant to the 21 day time limit. Consequently, the period of the delay was a little over twice the length of the statutorily prescribed time limit. Subsection 394 (3) (a) - The Reason for the Delay [52] In this instance the reason for the delay involved what the applicant asserted was her genuine belief that the termination of her employment was being reconsidered by the employer. The prospect for such reconsideration arose in circumstances where the applicant had provided a verbal resignation, then, at the direction of the employer, removed herself and her possessions from the workplace, and surrendered her work security pass. Shortly after the verbal resignation had been given and implemented by the applicant in accordance with the direction of the employer, she sought to withdraw it. The withdrawal of her verbal resignation was unequivocally rejected by the CEO and DON of the hospital Mr Cadwallender, the person to whom she reported, and to whom she had provided the verbal resignation. [53] The applicant undertook a series of steps in the pursuit of her contest against what would have been alleged to have been her dismissal from employment that occurred when Mr Cadwallender rejected her request to withdraw her verbal resignation. These steps essentially involved the applicant escalating the circumstances surrounding the termination of her employment to senior management levels in the expectation that the decision of Mr Cadwallender to refuse the withdrawal of her verbal resignation would be overruled. It should be noted that the termination of employment provisions of the applicant’s employment contract authorised the employer to waive any requirement for written notice of resignation. Further, the applicant agitated her complaint regarding the termination of employment in conjunction with a detailed account of various matters which she believed to represent substandard infection control practices at the hospital. -- 9 of 13 -- [2019] FWC 1457 10 [54] The prospect that the employer may have been reconsidering what in this case could be regarded as a decision to dismiss, would represent, at least in the short term, an understandable and justifiable reason to delay the making of an unfair dismissal claim. However, on any reasonable and practicable contemplation, there would be a point in time at which any potentially deleterious impacts of the making of an unfair dismissal claim upon the outcome of any anticipated reconsideration by the employer would need to be balanced against the implications of failing to make an unfair dismissal claim in a timely manner. [55] It would be logical and reasonable for any employee who was seriously and diligently agitating complaint about the termination of their employment to access the wealth of information that is publicly available regarding the simplified process for making an unfair dismissal claim. An investigation of this nature would reveal the 21 day time limit for the making of an unfair dismissal claim. Consequently, a person who was acting with a level of due diligence in the genuine, serious pursuit of a contest regarding the termination of their employment, would have to carefully assess any ongoing basis for the delay in making an unfair dismissal claim. The 21 day time limit for the making of an unfair dismissal claim would present as a critical point in time for any such assessment. [56] In this case, it was understandable and reasonable that the applicant would initially delay making an unfair dismissal claim while Ms Gallagher was apparently considering the contents of the letter that the applicant had provided to her on 17 August 2018. However, particularly after the applicant had been provided with her termination pay-out on 22 August, in the absence of any clarification of the anticipated reconsideration by Ms Gallagher, there was no sound, acceptable reason for not making an unfair dismissal claim on or before 30 August 2018, being 21 days after the date that the employer accepted the verbal resignation of the applicant. [57] Consequently, on any reasoned and objective contemplation, the reason for delay in making the application, namely that the applicant believed that the employer was reconsidering her termination of the employment, could not be sustained as sound, acceptable reason for delay after 30 August when the continuation of the delay was properly evaluated against the implications of not making an unfair dismissal claim within 21 days. In simple terms, it is difficult to contemplate exactly what harm would be caused to the anticipated reconsideration of the matter if an application for unfair dismissal remedy was made on or around 30 August 2018. Alternatively, the potential implications for not making the claim within 21 days would, or should, have been obvious to any person that was taking reasonable, diligent steps in the pursuit of complaint against the termination of their employment. [58] There was further delay after the applicant had obtained legal advice in relation to the termination of her employment. Although, justifiable criticism can be made of the employer’s failure to properly provide documentary clarification of the status of the applicant’s employment, the absence of such clarification should have operated to initiate the making of the unfair dismissal claim without any further delay. Once again, any simple cost benefit analysis of the circumstances should have established that the consequences of further delay vastly outweighed the potential for some disturbance to the employer’s apparent reconsideration of the applicant’s termination of employment. [59] Consequently, when the reason for the delay is carefully and objectively considered, it does not provide a sound and acceptable reason having regard for what might be anticipated as the logical evaluation of the circumstances as would be expected of a person who was -- 10 of 13 -- [2019] FWC 1457 11 seriously and diligently taking all reasonable steps in the pursuit of a contest against the termination of their employment. Subsection 394 (3) (b) - Whether the Person First Became Aware of the Dismissal After it had Taken Effect [60] The applicant first became aware of what could be contemplated to be her dismissal on Friday, 10 August 2018 when Mr Cadwallender unequivocally rejected her request for the withdrawal of her verbal resignation provided on the previous day. Consequently, this factor does not provide any assistance to the applicant. Subsection 394 (3) (c) - Any Action Taken by the Person to Dispute the Dismissal [61] The applicant did take action to dispute what could be contemplated to be her dismissal. The employer can be justifiably criticised for not providing written confirmation of the rejection of the applicant’s request to withdraw her verbal resignation Therefore, I consider that this factor does provide some assistance to the applicant. However, this factor has to be balanced against the various other factors under consideration. Subsection 394 (3) (d) - Prejudice to the Employer (Including Prejudice Caused by the Delay) [62] The employer submitted that it would suffer some prejudice in the event that the out of time application was permitted to proceed to a Hearing. However, there was a paucity of evidence as to the details of any such prejudice. Consequently, I have considered this factor to have a neutral impact. Subsection 394 (3) (e) - The Merits of the Application [63] This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if the extension of time was granted. The Parties made contrasting submissions in this regard. [64] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly there was no evidence provided which established that the unfair dismissal claim was entirely without some potential for success, or that it contained some vital flaw which would render it open to the prospects of summary disposal. [65] Further, there appeared to be some level of unnecessary haste, and obstinacy adopted by Mr Cadwallender when he firstly accepted the verbal resignation of the applicant and required her to leave the hospital premises, and secondly, when he refused to contemplate the applicant’s request for withdrawal of her verbal resignation. In addition, the absence of any documentation confirming the employer’s refusal of the applicant’s request for the withdrawal of her verbal resignation introduced potential to establish an element of unfairness. [66] On any objective and balanced assessment, the unfair dismissal claim presents as an arguable case. Consequently, the logical consideration of this factor would provide support for the granting of an extension of time. -- 11 of 13 -- [2019] FWC 1457 12 Subsection 394 (3) (f) - Fairness as Between the Person and Other Persons in a Similar Position [67] In the absence of any evidence about the treatment of other employees of the employer I have decided to treat this factor as being neutral. Exceptional Circumstances [68] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case of Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery 1. The consideration therein establishes a caution against adopting an overly stringent interpretation of what constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary. [69] Further assistance in providing an understanding of exceptional circumstances in the context of a legislative time limit can be obtained from the Full Bench Decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 2 and the following paragraph from that Decision is particularly helpful: “[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.” Conclusion [70] In this instance the exercise of the discretion to extend time has been required in respect to a delay of 43 days. In this context, the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been given careful consideration. [71] The reason for the delay involved a belief that the employer was reconsidering the circumstances surrounding the termination of the applicant’s employment, and that such reconsideration might involve the applicant returning to employment. Upon careful consideration, this reason for delay could not represent a sound and acceptable reason after the period of the 21 day time limit had elapsed. At this time, the anticipated reconsideration by the employer could not represent an acceptable reason for delay. Had the applicant adopted -- 12 of 13 -- [2019] FWC 1457 13 a reasonable approach that evaluated the alternative implications that she should have been aware of if she was earnestly and diligently contesting the termination of her employment, she should have made her unfair dismissal claim within time. [72] The other factors under consideration which either assisted the applicant's claim for the Commission to exercise the discretion to extend time, or which were of neutral impact, or which operated against an extension of time, have all been carefully evaluated and balanced so as to provide for a comprehensive conclusion to be drawn having regard for all of the relevant issues. [73] On balance, and having particular regard for the reason for the delay, I have determined that exceptional circumstances have not been established in this instance. Statutory time limits such as that contained in subsection 394 (2) (a) of the Act are fixed for good and cogent reason, and in the circumstances presented in this case it would not be appropriate, just, or proper for the Commission to exercise the discretion to extend time. [74] An Order [PR705568] dismissing the matter on the basis that the application has been made beyond the time prescribed by subsection 394 (2) (a) of the Act will be issued in conjunction with this Decision. COMMISSIONER Final written submissions: Employer: 21 December 2018. Applicant: 10 January 2019. Printed by authority of the Commonwealth Government Printer <PR705565> 1 Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394 2 Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975. -- 13 of 13 --