2025 WAIRC 00101
UNFAIR DISMISSAL APPLICATION
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00101

CORAM
: COMMISSIONER T B WALKINGTON

HEARD
:
TUESDAY, 18 JUNE 2024

DELIVERED : WEDNESDAY, 19 FEBRUARY 2025

FILE NO. : U 68 OF 2023

BETWEEN
:
ERIKA BEATTIE-SONC
Applicant

AND

CITY OF ARMADALE WA
Respondent

CatchWords : Termination of employment - Harsh, oppressive and unfair dismissal - Acceptance of referral out of time - Application referred outside of 28 day time limit - Relevant principles to be applied - Commission satisfied applying principles that discretion should not be exercised - Acceptance of referral out of time not granted - Industrial Relations Act 1979 (WA) s 29(1)(b)(i),(2)&(3)
Legislation : Industrial Relations Act 1979 (WA)
Result : Application not accepted
REPRESENTATION:

APPLICANT : MS ERIKA BEATTIE-SONC
RESPONDENT : MR BRIAN JACKSON (OF COUNSEL)

Case(s) referred to in reasons:
JACKAMARRA V KRAKOUER [1998] HCA 27; (1998) 195 CLR 516
MALIK V PAUL ALBERT, DIRECTOR GENERAL, DEPARTMENT OF EDUCATION [2004] WASCA 51; (2004) 84 WAIG 683
UNDERCLIFFE NURSING HOME V FEDERATED MISCELLANEOUS WORKERS UNION OF AUSTRALIA, HOSPITAL SERVICE AND MISCELLANEOUS WA BRANCH (1985) 65 WAIG 385

Reasons for Decision
1 On 26 September 2023 Ms Beattie-Sonc (applicant) applied for unfair dismissal against City of Armadale (the respondent) seeking orders for financial compensation.
2 The respondent opposes the application and say the applicant resigned from her employment and was not dismissed. Furthermore City of Armadale (the City) says that the application is 220 days out of time and contends that the Commission ought not to accept the application.
3 I must decide whether to exercise my discretion to accept the application out of time.
Background
4 Ms Beattie-Sonc commenced employment with the respondent in November 2021 in the position of Administration Officer, Property Services.
5 On 7 December 2022, the applicant met with the respondent’s People Services Advisor to discuss the applicant’s concerns about her work environment. The applicant says the outcome of the meeting was that the respondent would endeavour to find an alternative administrative role that was acceptable to her.
6 On 8 December 2022, the applicant commenced a period of paid personal leave until 23 December 2022.
7 On 4 January 2023, the applicant emailed a medical certificate to the employer certifying that she was fit to return to full administrative duties and hours from 3 January 2023.
8 On 4 January 2023, the respondent informed the applicant that she was to return to work the following morning on 5 January 2023.
9 On 5 January 2023, the applicant, along with her support person, met with her line manager and the Human Resources Manager, and was advised that:
a. The applicant would have to return to her substantive position as Administration Officer in the Program Delivery Team.
b. The respondent would continue to consider the applicant for alternative roles and contact her should a suitable position become available.
10 On 6 January 2023, the applicant emailed her resignation with two weeks’ notice. The applicant's last date of employment with the respondent was 20 January 2023.
11 On 15 February 2023, the applicant emailed the Chief Executive Officer (CEO) of the respondent, advising of her grievances with three staff members of the respondent. On 17 February 2023 the applicant followed up with a further email requesting the respondent confirm the receipt of the earlier email. A meeting between the applicant and the CEO was arranged for 16 March 2023.
12 The applicant was employed by Main Roads in an administrative role in early March 2023 and says that she resigned from this role after a short period because her health and wellbeing continued to be adversely affected. The applicant was employed in non-administrative roles with two other employers in June and July through to December 2023.
13 The respondent’s CEO met with the applicant on 16 March 2023. The applicant’s evidence is that her focus at the meeting was to ‘negotiate a financial settlement in respect of [staff members of the respondent’s] condescending, harassment [sic] and bullying behaviour’. The respondent submits that at the meeting the applicant did not state that she considered her termination had been unfair. The applicant did not request that she be returned to her former position. The respondent says that the outcome of the meeting was that the applicant was advised that there would not be an offer of financial compensation, however the respondent would try to assist the applicant to obtain alternative employment.
14 The applicant’s evidence contained in her email dated 10 July 2023, is that at the meeting on 16 March 2023, she recalled stating (irrelevant text omitted):
During my conversation, I had advised you both I did not want to work for the CoA [City of Armadale] as I did not want triggers and with regards to the way CoA treated me and that I did not want to bump into those staff members to protect my health and wellbeing as I had been affected from this treatment I received while working for CoA.
Further in the same email the applicant states:
Update as at 10.07.2023: I have not been successful in acquiring a full time administrative job and taken from comments received at interviews, my age appears to be an issue. It was my intention to work at the CoA full time for approximately 2 years and then transition to retirement by working part time for a long term engagement. However, I received the bullying, harassment and condescending behaviour from the CoA in 2022/2023 which had and is still affecting myself in a powerful way on my health and wellbeing. I truly thought that by leaving the CoA that I could leave the treatment I received behind me and move forward in another administrative position, but this has proven otherwise and I'm currently still affected from the treatment I experienced while at the COA.
15 On 11 July 2023 the respondent wrote to the applicant referring to her email of 10 July 2023 stating:
We are sorry to hear that since that meeting you have been unsuccessful in securing a full-time administrative position and you feel that your age is against you in obtaining such a position.
You have indicated that you are seeking financial compensation from the City. However, while sympathetic to your current situation, the city does not consider it is obligated to provide you with compensation.
The City does have current vacancies that you would be welcome to apply for.
16 On 11 July 2023 the applicant responded to the City, stating that its response to her:
… has omitted to state or address the:
Bullying, harassment and condescending behaviour that I experience from the CoA;
My consequence resignation to protect my health and wellbeing;
How the behaviour I experience from the CoA has affected my ability to work in an administration office environment;
I have previously advised the CoA that it would be detrimental to my health and wellbeing to work again at the CoA as I do not want to b amongst those staff members who have been ill treated myself including verbal and written…(text omitted)
And that I am still having psychologist session due to the affects the CoA’s bullying, harassment and condescending behaviour has had on myself.
Please address the above matters of which I have previously provided proof to the City of written documentation, examples, explanatory notes, and occurrences of events.
Pending your response to address these issues and compensation for myself from the City of Armadale.
17 The respondent’s CEO replied to the applicant on 14 July 2023, stating that:
The City does not consider it is obligated to provide you with compensation. The City of Armadale does not accept any liability in relation to the claims outlined in your email.
However, as Mr Sean Shields no longer works for the City, we did want you to be aware of current vacancies within the City that might be of interest to you. If you would like to explore these opportunities further, we recommend reaching out to Laura Swain at lswain@armadale.wa.gov.au. She will be able to provide you with additional details and assist you with any queries you may have.
18 The applicant then replied on 14 July 2023, stating that:
Your comment within this letter that Sean Shields no longer works for the City is irrelevant that you want me to be aware of current vacancies with the CoA, as I also received bullying behaviour and verbal and written untruths from Mr [text omitted].
I have been treated unfavourably by the CoA which has continued to this current day as my scenario has not been addressed by the CEO and Mr John Collier; this and the initial behaviour I received from Mr Sean Shields, Mr Alan Millard (text omitted) it would be detrimental to my health and wellbeing to resume work at the City of Armadale. As advised previously, the following is outlined as to the treatment I received from the CoA.
19 On 25 September 2023 the Applicant filed an unfair dismissal application with the Commission.
Principles
20 Section 29(2) of the Industrial Relations Act (1979) WA (IR Act) provides that there is a limit of 28 days from termination of employment for an employee to apply to the Commission for a remedy of an unfair dismissal. The Commission may accept an unfair dismissal claim after the limit if it would be unfair not to do so as conferred by s 29(3) of the IR Act:
(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.
21 In Malik v Paul Albert, Director General, Department of Education [2004] WASCA 51; (2004) 84 WAIG 683 (Malik), the Western Australian Industrial Appeal Court set out the considerations to be applied in determining whether an extension of time is to be granted. As such the Commission must consider the reasons for the delay, any action taken by the applicant to contest the termination (other than the application under the IR Act), the fairness between allowing the applicant an extension of time and other persons making a similar application within the prescribed time, any prejudice to the respondent and the merits of the application. The Commission considers fairness for both the applicant and the respondent.
Length of Delay
22 With regard to the length of delay the Industrial Appeal Court said in Malik at [74]:
The terms of s 29(3) of the Act make it clear that the decision regarding the extension of time is a discretionary one. Fairness, in this sphere, has a legislative starting point that 28 days is a sufficient period in the public interest for the commencement of such a claim. The longer the delay the more difficult it will be to show unfairness of the dismissal, but even in instances of long delays there may be particular circumstances which reveal that it would be unfair not to accept a late referral.
23 The applicant’s employment with the respondent concluded on 20 January 2023. The application claiming her dismissal was unfair was filed with the Commission on 25 September 2023, eight months or 220 days after the termination. This is a significant period well beyond the prescribed time of 28 days.
24 Applying the principles in Malik, given the significant length of the delay in making her claim, the applicant must establish compelling reasons for the delay.
Reasons for the delay
25 The applicant says that the reasons for delay are due to ongoing medical issues, time taken to seek professional advice, and the time taken for her employer to respond to the grievances she raised.
Medical Issues
26 Ms Beattie-Sonc contends that ongoing medical conditions have affected her ability to fully perform administrative roles or undertake similar research tasks. Ms Beattie-Sonc says that she continues to experience triggers and flashbacks of bullying, harassment, and condescending and dismissive behaviours experienced by her in the workplace.
27 Ms Beattie-Sonc submitted a medical certificate dated 19 February 2024 that stated she continues to experience anxiety and psychological sequelae because of experiences in late 2022.
28 The applicant has not provided any medical evidence concerning her incapacity to make an application to the Commission during the period from her termination of employment and 25 September 2023. The medical certificate dated 19 February 2024 concerns the applicant’s fitness to return to the workplace and the treatment she has received. It does not address the applicant’s capacities regarding the making of an application nor her inability to make an application to the Commission. The applicant’s evidence does not explain the lengthy delay in bringing her application for unfair dismissal to the Commission.
Seeking Professional Advice
29 The applicant says that she sought legal assistance under a ‘no win no fee’ basis from 20 January 2023. The applicant says that despite her communications with several legal practitioners she was not advised by any professional of the unfair dismissal jurisdiction of the Commission until 15 September 2023. The applicant says that once informed of the Commission’s jurisdiction she acted quickly and made her application to the Commission ten days after receiving this advice.
30 The applicant submitted copies of correspondence with various legal firms during January 2023, March 2023, August 2023, and September 2023. The correspondence refers to potential workers compensation because of the effects of bullying and harassment at work. The correspondence does not reference a challenge to the termination of the applicant’s employment. The applicant did not secure legal representation.
31 I am not able to discern from the applicant’s evidence any reason the communications with the various legal firms resulted in a delay in making an application to the Commission for unfair dismissal. The applicant’s communications with various legal practitioners concerns workers compensation for her incapacity to work because of bullying and harassment at the respondent’s workplace.
32 The applicant says she was not aware of the unfair dismissal jurisdiction of the Commission, and no one told her about it until she contacted the Legal Aid Commission in September 2023.
33 The applicant’s lack of knowledge of the Commission’s unfair dismissal jurisdiction is the essential reason for not making an application before 26 September 2023. This means that any medical issues and any alleged time taken for the respondent to respond to grievances would be immaterial unless these occurred after September 2023. These circumstances do not favour a finding that it would be unfair not to accept her application.
Action Taken to Contest the Dismissal
34 In Malik, Heenan J stated at [74]:
Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
35 On 15 February 2023, the applicant emailed the CEO of the City of Armadale and set out her complaint about the conduct of other members of staff and the effect on her health and wellbeing, and says she was forced to resign to protect her health and wellbeing:
Attention: CEO of City of Armadale
Good afternoon
Part 1 of 2 emails:
I am writing to you to advise of my grievance with the City’s staff members being Sean Shields and then followed by Alan Millard and Rebecca Buckley/HR while I was employed at the City of Armadale.
I have experienced condescending, harassment and bullying behaviour and emails from Sean Shields since his employment with the City in August 2022 working for the Program Delivery Team (PDT). I have also witnessed and heard of other staff members being treated badly by Sean Shields. Since Alan Millard’s phone call and email of 3.01.2023 to myself, I have received bullying and discriminative behaviour from Alan Millard and Rebecca Buckley/HR.
This behaviour has affected my health and wellbeing and I have had time off work under Doctor Medical Certification.
I have been stressed emotionally, mentally, and physically which is very draining.
HR have conducted 2 meetings for this matter. The 1st HR Meeting was on 7.12.2022 – the attendees being Glenda Adams/HR, Alan Millard, Kylie Johns/my support person and myself; and the 2nd HR Meeting was on 5.01.2023 – the attendees being Rebecca Buckley/HR covering for Glenda Adams who was on Leave, Alan Millard, and my support person Karen Colli, and myself. It was advised that Kylie Johns was not requested to attend by HR.
After receiving the formal letter/documents from HR on 6.01.2023 after our 2nd HR meeting of 5.01.2023, I had to make a decision to protect my health and wellbeing so I was forced to resign from my job with the City of Armadale and my last day with the City was 20.01.2023. To protect my health and wellbeing, I knew I could not return to my PDT role which I was instructed to do by Alan Millard and Rebecca Buckley/HR and feel this was bullying and discriminative behaviour towards myself; despite the outcome of our 1st HR meeting on 7.12.2022 where I was advised by Glenda Adams/HR that Sean is not going anywhere…..and the PDT environment behaviour is unlikely to change which could cause adverse effects on my health and wellbeing and another position would be sought by HR for myself and with my approval of another position.
I have worked for LG for 18+ years and have never received such behaviour as experienced at the City of Armadale. I have been seeking other LG employment roles since Sean Shields’ behaviour commenced when he was employed with the City from August 2022 but I have been unsuccessful in acquiring another job to date.
From the City of Armadale’s actions towards myself which triggers my stress levels when re-thinking my experiences, and my consequent resignation, I have been placed in an unfavourable financial position.
I hope this email to the CEO of Armadale will be heard. Should this not eventuate, I will consider contacting the LG Minister, John Carrie.
I have attached a Summary List of Scenarios in a separate Part 2 of 2 email, and the below itemised attachments are attached to this Part 1 of 2 email, being 11 x Attachments for your reference.
1. Attachment: Response to continual current and past emails from SS emailed document – with respect to condescending, harassment, and bullying behaviour I received from Sean Shields.
2. Attachment: Summary document hard copy given to attendees at 1st HR Meeting of 7.12.2022.
3. Attachment: Hard copy Doc#1 given to attendees at 1st HR Meeting of 7.12.2022.
4. Attachment: Hard copy Doc#2 given to attendees at 1st HR Meeting of 7.12.2022.
5. Attachment: Hard copy Doc#3 given to attendees at 1st HR Meeting of 7.12.2022.
6. Attachment: Hard copy Doc#4 given to attendees at 1st HR Meeting of 7.12.2022.
7. Attachment: Summary of 1st HR Meeting of 7.12.2022 – my summary, Glenda Adams/HR response, and my response to GA’s email.
8. Attachment: Update for resuming work on 3.01.2023 – AM’s email response 3.01.2023 2:54pm – AM’s email has untruths.
9. Attachment: Meeting to be scheduled – RE: Update for resuming work on 3.01.2023.
10. Attachment: Email 6.01.2023 1:38pm from Rebecca Buckley/HR with formal letter and AM/RB’s amended 2nd HR Meeting of 5.01.2023 Notes. Note: the amended comments of AM/RB state ‘Do not recall’ ‘Do not agree’ to outcomes of the 1st HR Meeting of 7.12.2022 which were acknowledged and agreed by attendees of the 1st HR Meeting of 7.12.2022 as well I had given all meeting attendees at this 1st HR Meeting of 7.12.2022 hard copy documents of work place related matters/behaviour by SS to myself.
11. Attachment: Resignation Erika Beattie-Sonc as from 6.01.2023 – Note: I have not only received condescending, harassing and bullying behaviour from Sean Shields, but since AM’s phone call and email of 3.01.2023 2:54pm, I have been receiving bullying and discriminative behaviour from Alan Millard and Rebecca Buckley which has been based on untruths to which they have refused to provide me with an apology letter.
Thank you for this opportunity to present my case to the CEO of Armadale and I look forward to your response. I will send the Part 2 of 2 email.
Kind regards
Erika Beattie-Sonc
36 On 17 February 2023, the applicant emailed the respondent seeking an acknowledgement receipt to her previous email dated 15 February 2023.
37 On 8 March 2023, the Executive Assistant to the CEO emailed an acknowledgement of receipt of the applicant’s email dated 15 February 2023 and proposed a meeting for the 16 March 2023.
38 In regard to the discussion that took place on 16 March 2023:
a. The City says that Ms Beattie-Sonc indicated that she wished to negotiate a financial settlement, and the CEO said that she could not offer a financial settlement unless Ms Beattie-Sonc could justify such a claim.
b. Ms Beattie-Sonc says that at the end of this meeting she requested financial compensation.
39 On 2 April 2023, the applicant emailed the Minister for Local Government, Mr John Carey, setting out her concerns about the conduct of other staff towards her:
Attention: Minister for Local Government, Hon John Carey BA MLA
Good morning Hon John Carey
Part 1 of 2 emails:
I am writing to you in the hope I may receive your assistance to my grievance with the City of Armadale (CoA) WA where I received bullying, harassment and condescending behaviour while working for the Program Delivery Team which has been under a re-structure for almost a year - initially I worked for Property Services Capital Works when I commenced working with the CoA on 171,12021 (but I have been working in LG for 18+ Years in administration roles); any emails I received from this employee that had issues within the content of bullying, harassment, or condescending behaviour, with my response email were c.c.'d to my boss for his reference, but I did not receive comment or feedback; this behaviour I received left me with no alternative than to resign to protect my health and wellbeing as I was affected with stress, anxiety, breathing and confidence issues. The behaviour I received from CoA affected me emotionally, physically and mentally and I was drained, very tired, and I had lost confidence.
Initially the harassment, bullying and condescending behaviour was from a Team member, since about August 2022 I had also seen other staff members badly treated; I have also received bullying from management.
For your reference, I have attached further supportive documents.
Hon John Carey, thank you for this opportunity to present my case and look forward to your response. I will send the Part 2 of 2 emails.
Kind regards
Erika Beattie-Sonc
40 On 28 April 2023, Ms Beattie-Sonc followed up her previous email:
Good morning Hon John Carey
I am following up on my emails sent to you on 2"' April 2023 as I have had no response nor written acknowledgement.
I phoned your office on 6'' April 2023 to receive acknowledgement of receipt of my emails and I was advised by your assistant, my emails were received.
Please respond via email by close of business Wednesday 3rd May 2023 to avoid Legal Action which may be pursued.
Hon John Carey, I ask that You please respond via email to my emails by close of business Wednesday 3rd May 2023 - should I not receive a response, Legal Action may be pursued.
Kind regards
Erika Beattie-Sonc
41 On 17 May 2023, Ms Beattie-Sonc wrote to the Premier, Hon Mark McGowan MLA.
42 On 30 May 2023, Ms Beattie-Sonc emailed the Premier’s office seeking the assistance of the Premier in securing a response from Hon John Carey MLC.
43 On 3 June 2023 Ms Beattie-Sonc emailed the Premier’s office again as there had been a change in Premier.
44 On 14 June 2023, Ms Beattie-Sonc emailed Hon David Michael MLA in which she congratulated him on his appointment as Minister for Local Government and referred to the email of 2 April 2023 and stated that she had not had a response:
Good afternoon Hon. David Robert Michael MLA BEc, Minister for Local Government,
Congratulations on your new appointment as Minister for Local Government for WA.
Can you please assist me with Bullying and Harassment I received and is unresolved while I was working at the City of Armadale WA. I had emailed Hon. John Carey on 2.04.2023 with emails that relate to this behaviour I received while working at the City of Armadale, however, I received no response to my matter/emails. I consequently referred my matter on to the Premier of WA.
I am seeking compensation for the Bullying and Harassment I received while employed at the City of Armadale.
Pending your response.
Thank you.
Kind regards
Erika Beattie
45 On 3 July 2023 Ms Beattie-Sonc followed up on her email dated 14 June 2023 to the Minister.
46 On 10 July the Minister responded to Ms Beattie-Sonc:
Dear Ms Beattie-Sonc
Thank you for your emails dated 2 April 2023 to the Hon John Carey MLA, the former Minister for Local Government, regarding alleged workplace bullying and harassment experienced while you were employed by the City of Armadale (the City).
Thank you also for your emails dated 14 June 2023 to the Hon David Michael MLA.
the new Minister for Local Government. related to these matters. I am replying to you on behalf of Minister Michael.
I am sorry to read of the distress you have experienced. Bullying and inappropriate behaviour has no place in the workplace.
Under the Local Government Act 1995 (the Act), the Chief Executive Officer (CEO) of a local government is directly responsible for the management and direction of staff.
Under the management of the CEO, local governments typically establish policies and processes to manage and address complaints of alleged bullying or harassment.
While Minister Michael appreciates you raising this matter with him, his legislative Authority, as the Minister for Local Government, does not provide for him to intervene in the operational or administrative decisions or processes of a local government, including matters relating to alleged bullying and harassment in the local government workplace.
I understand that you have previously raised these matters with the City's CEO Ms Joanne Abbiss. As the person directly responsible for the management and oversight of local government employees under the Act, you may wish to continue liaising with her in relation to these matters.
Additionally. if you have not already done so, you may also wish to discuss your concerns with Worksafe, via the Department of Mines. Industry Regulation and Safety (DMIRS). In Western Australia, Worksafe is responsible for administering the Work Health and Safety Act 2020 and is able to provide advice on complaints of alleged bullying and harassment. Worksafe can be contacted by telephone on 1300 307 877 or by email to wccallcentre@dmirs.wa.gov.au.
Further, if you believe that misconduct has been committed by an employee of the City, you may wish to discuss this directly with the Public Sector Commission (PSC), as the government agency responsible for dealing with minor misconduct by public officers, including local government employees.
More information about the PSC and how you can report alleged minor misconduct is available on its website at https://www.wa.gov.au/organisation/public-sector-commission/minor-misconduct-pubic-officers .
47 On 10 July 2023, Ms Beattie-Sonc emailed the City to advise that she had not had any further communication from the City since the meeting in March.
48 On 11 July 2023 the City wrote to Ms Beattie-Sonc:
Dear Erika
GRIEVANCE MEETING HELD ON 16 MARCH 2023
We refer to your email of 10 July 2023 regarding the grievance meeting that you had with me and the City’s Industrial Relations Advisor, John Collier, on 16 March 2023.
We are sorry to hear that since that meeting you have been unsuccessful in securing a full-time administrative position and you feel that your age is against you in obtaining such a position.
You have indicated that you are seeking financial compensation from the City. However, while sympathetic to your current situation, the City does not consider it is obligated to provide you with compensation.
The City does have current vacancies that you would be welcome to apply for.
Should you wish to discuss the vacancies please do not hesitate to email Laura Swain at lswain@armadale.wa.gov.au .
Joanne Abbiss
Chief Executive Officer
49 I find that the applicant did email and/or write to the CEO of the respondent, the Ministers for Local Government, Premier McGowan and Premier Cook. The content of these communications concern claims that she had been bullied and harassed by staff of the respondent during her period of employment. The communications do not refer to her termination of employment being unfair except to state that she believed she was forced to resign for her health.
50 At the meeting with the CEO and in the subsequent correspondence with Ministers, the applicant states that she seeks financial compensation for the bullying and harassment. The applicant does not refer to being unfairly dismissed.
51 The applicant’s email to the CEO on 10 July 2023 references her statement at the March meeting with the CEO that she did not want to return to the respondent’s employment at that time. There is no evidence that the applicant communicated to the respondent that she had changed her mind about resigning and now wished to return.
52 It appears that by July 2023 the applicant concluded that her initial belief, that leaving the respondent’s employment so that she could ‘could leave the treatment I received behind and move forward’, was not possible, because she had not been able to secure alternative employment. The evidence is in her email sent to the respondent on 10 July 2023, where the applicant states for the first time, that it was her intention to work for the respondent for two years in a full-time capacity, and then ‘transition to retirement by working part time for a long-term engagement’. Even so, the applicant does not specifically request that she be returned to her role with the respondent. Rather, the applicant refers to finding herself in an unfavourable position financially.
53 I find that these communications are not actions taken to actively challenge the termination of her employment as a dismissal by the respondent. The communications are in support of her request for financial compensation for the effect on her health and wellbeing because of alleged conduct of former colleagues. This does not favour a finding that the termination of employment was at the respondent’s initiative and that the applicant was seeking to actively challenge that decision.
Prejudice to Respondent
54 The respondent contends that it will suffer significant prejudice if the claim is allowed because:
a. The time that has elapsed since Ms Beattie-Sonc resigned from her employment is more than 14 months at the date of submissions;
b. The City did not contribute to the delay in Ms Beattie-Sonc lodging her claim;
c. Additional time and money spent on responding to the claim, given the period of time that has elapsed;
d. A number of key witnesses are no longer employed by the City and it is likely that the City will need to locate the former employees and summons each of them;
e. Given the length of time since the alleged behaviours occurred, the witnesses will not have a clear recollection of the history of the matter compared with a case that was filed within 28 days;
55 The applicant did not make any submissions concerning the matters raised by the respondent.
56 I agree with the respondent that the lengthy delay in the making of the application results in prejudice to the respondent because key witnesses are no longer employed by the respondent and there will be challenges to locate witnesses and arrange for their attendance. Furthermore, the memories of witnesses will likely be less accurate than those appearing in an application made within the specified time.
Merits of the Case
57 In Malik a further consideration is whether the applicant’s claim is likely to succeed or not. It would not be unfair to refuse to accept an application if the claim of unfair dismissal is not likely to succeed. For the purposes of deciding whether to accept an application outside of the prescribed time the assessment of the merit of the claim need only be ‘fairly rough and ready’: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9] per Brennan CJ & McHugh J).
58 This is an application for unfair dismissal and the question to be answered is whether the employer acted harshly, unfairly or oppressively in dismissing the applicant. The onus is on the applicant to establish that the right of the employer to terminate the employment has been exercised so harshly, oppressively or unfairly as to be an abuse of that right as established in Undercliffe Nursing Home v Federated Miscellaneous Workers Union of Australia, Hospital Service and Miscellaneous WA Branch (1985) 65 WAIG 385).
59 In this matter the respondent contends the applicant resigned and was not dismissed at their initiative and therefore the respondent has not exercised a right to dismiss.
60 The applicant acknowledges she resigned; however, she says she was forced to resign because of the conduct of some employees of the respondent. The applicant faces a significant challenge to establish that she was dismissed at the initiative of the employer.
61 The applicant had raised concerns about her workplace environment and the conduct of some of her colleagues with the respondent. The respondent had engaged the applicant in developing options to address the applicant’s concerns. The applicant had other options than to notify of her resignation.
62 The applicant resigned in writing with two weeks’ notice. During that time, she did not seek to withdraw her resignation.
63 After her resignation took effect, the applicant raised her concerns with the CEO of the respondent by email. The applicant sought a meeting with the CEO one month after she notified of her resignation and two weeks after leaving her employment. At the meeting with the CEO there is no evidence that the applicant sought to withdraw her resignation nor raise issues with the fairness of the termination of employment. The applicant’s evidence is that she was seeking financial compensation because she had been bullied by others in the workplace.
64 My assessment on a rough and ready basis, on the evidence before me, is that the applicant resigned her employment and was not dismissed at the initiative of the employer. The applicant’s unfair dismissal claim is unlikely to succeed.
Fairness Between Applicant and Other Persons in Similar Circumstances
65 The applicant submissions on this factor are that she did not know of the ability to make an application to the Commission before September 2023.
66 The respondent contends that it would be unfair to other persons in similar circumstances and acted promptly to accept this application.
67 The lack of any explanation for the lengthy delay other than a lack of knowledge adds context to the balancing of fairness between the applicant and other persons in similar circumstances. Should the lack of knowledge be the determinative factor in favour of accepting the application, the prescription of a time limit would be rendered meaningless. This favours a finding that it would not be unfair to the applicant to refuse to accept the application.
Conclusion
68 For the reasons set out herein I find that it would not be unfair to the applicant to refuse to accept the application. I will order the application not be accepted.