Alison Vicki Young v Ochre Health Pty Ltd T/A Ochre Health
[2021] FWC 6022
•30 SEPTEMBER 2021
| [2021] FWC 6022 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alison Vicki Young
v
Ochre Health Pty Ltd T/A Ochre Health
(U2021/7381)
COMMISSIONER YILMAZ | MELBOURNE, 30 SEPTEMBER 2021 |
Application for an unfair dismissal remedy – whether the time limit commences from the date of the written notice of dismissal despite a dismissal in person - whether the Commission’s OLS caused the lateness - application lodged out of time – application dismissed.
Introduction and background
[1] This decision concerns a jurisdictional objection raised by Oche Health Pty Ltd T/A Ochre Health (Ochre Health) to an application by Mrs Alison Vicki Young for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).
[2] Mrs Young was employed by Ochre Health on 4 February 2019 as a full-time practice manager until her dismissal on 28 July 2021. She claims that her dismissal was unfair.
[3] Ochre Health raises the jurisdictional objection that the application is lodged more than 21 days after the dismissal took effect.
[4] The application was filed on 19 August 2021, one day late.
[5] Both parties were granted leave to be legally represented.
The Applicant’s submissions
[6] Mrs Young was dismissed in person on 28 July 2021 and a letter of termination dated 29 July 2021 confirmed the verbal dismissal and the payment of four weeks in lieu of notice was sent to her by email. Mrs Young submits and provides evidence that her letter of termination was received by email on 2 August 2021.1
[7] Mrs Young contends that the dismissal was filed on time because the letter of termination is dated 29 July 2021 and pursuant to s.117 of the Act, the time limit applied from that date. She further submits that she filed the application on 19 July 2021 which was the 21st day and therefore the application is on time. Mrs Young relies on Mohammed Ayub v NSW Trains,2 and argues that the 21 days did not start until the written notice is received.3
[8] It is further submitted that should the matter be found out of time, that the reason for the delay is due to an error of the Commission’s online lodgement service.
The Respondent’s submissions
[9] Ochre Health submit that Mrs Young was dismissed due to her conduct and behaviour after counselling and warnings. It submits that the dismissal on 28 July 2021 was clear and unambiguous and she understood that it would be her last day of employment.4
[10] Further, on conclusion of the meeting, Ochre Health provided Mrs Young the option of how to inform the practice of her departure and she chose to personally inform the practice staff and doctors of her dismissal prior to leaving the premises on her last day.5
[11] It submits that the 21-day time limit is from the day of the dismissal being 28 July 2021 and the 21st day since dismissal was 18 August 2021 and therefore the application is one day late. It further contends that Mrs Young and her representative have provided no exceptional circumstances to justify an extension of time.
Consideration
[12] On 23 September 2021, I convened a hearing to determine whether to allow an extension of time for the lodgement of the application for unfair dismissal.
[13] Section 394(2) of the Act provides 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 under s.394(3).
[14] However, s.394(3) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a) The reason for the delay; and
(b) Whether the first person became aware of the dismissal after it had taken effect; and
(c) Steps taken to dispute the termination; and
(d) Prejudice to the employer; and
(e) Merits of the application; and
(f) Fairness between the person and other persons in a similar position
[15] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 6 (Nulty) where it was held that:
“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 regular occurrence, even though it can be a on 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.”7
[16] The first issue to be considered is the date of termination. It is not contested that Mrs Young was verbally dismissed on 28 July 2021. However, Mrs Young contends that the time limit for the 21 days commenced after receiving the written notice of dismissal. She submits that the letter of dismissal was dated 29 July 2021, but also submits that she did not receive the letter until 2 August 2021.8 Despite receiving the letter by email on 2 August 2021, Mrs Young submits the time limit commenced from 29 July 2021 as the written notice consistent with the terms of s.117 of the Act means that the 21-day time limit commenced from the date of the letter of termination of employment. Mrs Young contends that the application is not out of time.
[17] In Mohammed Ayub v NSW Trains (Ayub),9 the Full Bench considered Mr Ayub’s date of dismissal to ascertain whether the unfair dismissal application was made within the statutory time frame. The date of dismissal was contested in that case, and the Full Bench found that Mr Ayub’s dismissal took effect from the date he received the written notice of the dismissal after a review of his employer’s decision to terminate his employment. One point of contention was that Mr Ayub was informed of the date of his termination should he not seek a review of the decision, and if he sought a review the date of termination will be the date of the review decision should the review find in favour of a dismissal. It is important to highlight that the Full Bench cites earlier authorities and principles in relation to the question when a dismissal takes effect. While Mrs Young relies on this authority to suggest that her dismissal did not take effect until the date of the letter of termination, this matter can be distinguished from Mr Ayub’s matter. Nevertheless, the decision provides relevant authority for this matter.
[18] Firstly, part 3-2 deals with unfair dismissal, it sets out when a person is protected, the elements of an unfair dismissal, the remedies and procedural aspects of applications. The Commission can only be satisfied if a person is unfairly dismissed, if the person has been dismissed.10 The definition of “dismissed” is found at s.386(a) of the Act, i.e. “the person’s employment with his or her employer has been terminated on the employer’s initiative”. While exceptions apply to s.386(a) of the Act, those exceptions are not relevant to this matter. The definition refers to the termination of the employment relationship. Section 386(a) is relevant for the purposes of an application under s.394 of the Act, which provides for the time limitation of applications.
[19] The Full Bench in Ayub considered the common law and various authorities relating to when the conduct of the employer gives effect to a termination of the contract of employment and the date of “dismissal” for the purposes of the unfair dismissal provisions. Relevantly in Ayub, the Full Bench states that to affect a termination of the employment contract, subject to the terms of a contract, one must communicate the termination by plain and unambiguous words or conduct,11 it must specify a time, or the time must be ascertainable12 and the termination cannot be from a date prior to the date it is communicated to the employee.13 Having considered the evidence and authorities, the Full Bench found that Mr Ayub’s contract of employment and employment relationship was not terminated until he received the letter of termination.
[20] Ayub is contrasted with Mrs Young’s dismissal. Communication with Mr Ayub was in writing and the Full Bench carefully considered each piece of correspondence in terms of the principles. However, in Mrs Young’s case the dismissal was expressed verbally in a face-to-face meeting in plain and unambiguous terms, her employer’s conduct and her own confirmed an understanding that she was dismissed because she elected to inform the practice staff and doctors herself of her termination of employment on what was clearly her last day of employment. On 28 July 2021, Mrs Young was dismissed with the same day being her last day of employment and she was not dismissed summarily but with notice to be paid in lieu. The events of 28 July 2021 are not contested. The letter dated the following day confirmed her dismissal, summarised the discussion, confirmed that her entitlements and notice to be paid in lieu was to be paid at a particular time, and the communication cannot be construed as applying a retrospective date of termination of employment.
[21] It is not in contention that Mrs Young was dismissed on her employer’s initiative as provided by s.386 of the Act, however, Mrs Young contends that a dismissal must be in writing pursuant to s.117 of the Act, and therefore her date of dismissal is from the date of the written letter confirming her dismissal.
[22] Section 117 of the Act is in part 2-2, the National Employment Standards (NES) which concerns the requirements for the period of notice of termination or payment in lieu when an employer terminates the employment of an employee. Section 117 does not make reference to the unfair dismissal provisions in part 3-2 and importantly, does not relate to the definition of dismissal. Relevantly, s.117 of the Act provides:
Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901provide how a notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee's last known address; or
(c) sending it by pre-paid post to the employee's last known address.
Amount of notice or payment in lieu of notice
(2) The employer must not terminate the employee's employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or
(b) the employer has paid to the employee (or to another person on the employee's behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee's behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
…………….
[23] The NES are minimum employment standards and contain obligations of compliance for employers. Attached to those obligations are penalties for breaches of the NES. The question of whether s.117 relates to the unfair dismissal provisions was considered by a Full Bench in Metropolitan Fire and Emergency Services Board v Garth Duggan,14 and the Bench considered the unfair dismissal provisions that concern the termination of the employment relationship and that a dismissal may not necessarily terminate the contract of employment. It further considered the authorities which confirm that even where a statute prohibits an act (for instance the termination of employment with notice) does not mean a dismissal cannot be done. The undisputed evidence is that Mrs Young was dismissed on 28 July 2021 and the notice of the payment in lieu as contained in the correspondence dated 29 July is not the act of the dismissal for the purposes of part 3-2 of the Act. Therefore, I am satisfied that Mrs Young’s application is late by one day.
[24] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.394(3).
The reason for the delay
[25] Mrs Young submits that should I find that the dismissal is out of time, then she submits that her representative attempted to lodge the application on 18 August 2021 but was unsuccessful due to technical problems with the Commission’s website. She submits that this technical problem was outside her control.15
[26] Mrs Young’s representative made three attempts to lodge, which failed, and it is submitted that the Commission’s system that produced an error message “run time error” was a technical problem with the website.16 Tendered in evidence was an email dated 19 August to the Hobart Registry advising that Clark & Gee received a “run time error” message upon trying to pay for the unfair dismissal application three times on 18 August 2021. This same email seeks to confirm that the application filed was valid given the 21-day limit “starts from the day following dismissal”.17 The email is unclear regarding which application is referred to - the online attempt on 18 August or the emailed version on 19 August.
[27] An assessment of the Commission’s online lodgement service (OLS) shows three attempts to lodge, and on each occasion, it was unsuccessful at the payment stage, thereby returning an error message code 01- refer to card issuer.
[28] Mrs Young also submits that Oche Health did not respond rejecting its offer to resolve the dispute until 19 August 2021.18
[29] Ochre Health submit that there is no valid explanation why Mrs Young did not follow up with her representative to ensure the application was lodged on time. It further submits that where the respondent was inefficient, it does not constitute exceptional circumstances.
[30] Mrs Young submits that she sent to her solicitors her letter of termination on 3 August 2021; she also states that a letter of offer to settle the grievance concerning her dismissal was sent by her solicitors to Oche Health on 10 August 2021. Mrs Young states that on 18 August 2021 she was informed by her solicitor that Oche Health had not responded to the offer, thereby she instructed to file an unfair dismissal application.19 Mrs Young makes no submissions as why she did not follow up to ensure the application was filed within the required 21 days.
[31] The witness statement of Mr Gregson also states that Mrs Young sent an email to Clarke & Gee on 28 July 2021 on being informed verbally that she was dismissed. There is no explanation for why the application was not prepared for filing until 18 August 2021, and no explanation for the error card message.
[32] Mrs Young’s representative did not argue representative error, but rather that the Commission’s OLS produced a fault three times and thereby preventing the filing of the application on 18 August 2021. The Commission identified that the OLS had no technical faults on the day that the three attempts failed. Successful unfair dismissal applications by other applicants were lodged immediately before and after the three failed attempts. The evidence was that the failure to lodge occurred at the payment stage with the credit card and this is consistent with the message from the OLS and Mrs Young’s representative’s email to the Commission on 19 August 2021. The Commission shared its findings regarding its OLS with the parties prior to the hearing.
[33] Notwithstanding the difficulties which may have arisen from the credit card, the Commission provides alternative means for the filing of applications, but none of the options were taken on the 21st day. Instead, Mrs Young’s representative made contact with the Commission the following day when the application was successfully received.
[34] I do not find that Mrs Young’s reasons for the delay are exceptional, out of the ordinary or unusual to satisfy this consideration. Nevertheless, all factors in s.394 must be taken into account in determining whether there are exceptional circumstances.
Whether the person first became aware of the dismissal after it has taken effect
[35] It is not contested that Mrs Young was aware of her dismissal on 28 July 2021. It is submitted by Ochre Health that on her last day that she advised her work colleagues that she was dismissed, and it confirms that Mrs Young did not return to work after 28 July 2021. Mrs Young does not dispute this evidence.
[36] Mrs Young further submits that her representative made contact with Ochre Heath with an offer to settle the disagreement over the dismissal on 10 August 2021.
[37] On the basis of this evidence, I am satisfied that Mrs Young was aware of her dismissal after it came into effect. Despite this awareness, Mrs Young contends that the 21-day time limit applied from the date of the letter which confirmed the dismissal. In my view having this awareness of the dismissal on 28 July 2021, and the three failed attempts to lodge an unfair dismissal on 18 August 2021 suggests there was concern and awareness of the 21-day limit. This consideration therefore does not weigh in Mrs Young’s favour for an extension of time.
Action taken to dispute the dismissal
[38] Ms Young submits that she did challenge her dismissal through her legal representative when he wrote to Ochre Health on 10 August to make an offer to settle the dispute regarding the dismissal. Ochre Health confirms receipt of the offer to settle, and it also submits that it sent to Mrs Young’s legal representative correspondence rejecting the offer but also made a counteroffer which they say that they did not receive a response.20
[39] I accept that there was an attempt to dispute the dismissal and this consideration marginally does weigh in Mrs Young’s favour.
Prejudice to the employer
[40] Mrs Young contends that should her application be one day late, that it does not exert any disadvantage or unfairness on Oche Health. Ochre Health submits that the application does not raise prejudice. However, the lack of prejudice does not weigh in favour of an extension of time, therefore I find this consideration a neutral factor.
Merits of the application
[41] Ochre Health contend that Mrs Young was subject to counselling and warnings relating to her communication with the practice team, incidence of bullying, billing patients without direction from doctors, incidences of poor judgement and failure to meet performance related concerns.
[42] Mrs Young contests the reasons individually and collectively as a valid reason to justify her dismissal. Mrs Young contests the factual circumstances relied on by Ochre Health and submits that she acted with authority, consistent with the usual practices and in relation to the alleged bullying her conduct was misinterpreted.
[43] The parties relied on submissions on the matter of merit and Ochre Health provided correspondence relating to counselling and warnings. Without testing the contested facts, no findings can be made on merit. In an extension of time application, it is not the purpose to admit evidence to test the merit. While the Commission has the discretion to form the view whether the Applicant has a sufficient case, I find I am not in a position to formulate a view regarding whether Mrs Young has a strong case to be heard, at best this consideration is neutral. For this reason, I do not find this consideration to be in her favour.
Fairness as between the person and other persons in a similar position
[44] This consideration relates to fairness between the Applicant and persons in a similar position employed by the employer or affected by the same issue. There is no evidence of persons in a similar position or affected by the same issue, therefore I find this consideration neutral.
Conclusion
[45] I have not found in favour of Mrs Young that her application was lodged within time, rather I have found that the application is out of time by one day. Consequently, Mrs Young submits that should her application be out of time, she seeks that the Commission to use its discretion to grant an extension of time.
[46] An unfair dismissal application must be lodged within 21-days from the date of dismissal. This prescribed time limit should be complied with except where there are exceptional circumstances warranting an extension of time.
[47] I need to be satisfied that there are exceptional circumstances to warrant a further period pursuant to s.394(3). To extend the statutory time frame is a strict test and rests on the circumstances of the case after having considered each of the considerations or any combination of them collectively.
[48] In this matter I find on balance, that the reasons for the delay and the circumstances regarding her awareness of her dismissal are not in Mrs Young’s favour, that prejudice and fairness are neutral considerations, while action to dispute the dismissal is in her favour, Mrs Young did not demonstrate merit to be a strong consideration, at best it is a neutral consideration due to highly contested facts.
[49] Accordingly, the matter will be dismissed.
COMMISSIONER
Appearances:
Mr R. Gregson for the Applicant
Mr J. Webster for the Respondent
Hearing details:
2021
Melbourne (by telephone)
23 September
Printed by authority of the Commonwealth Government Printer
<PR734433>
1 Witness statement of Mrs Alison Young undated and unsigned and attached email from Nicky Pollington dated 2 August 2021.
2 [2016] FWCFB 5500.
3 Applicant’s outline of argument at Q4.
4 Respondent’s outline of argument at Q1a and 1b.
5 Witness statement of Nicky Pollington, Regional Manager Tasmania, undated and unsigned attached to the Respondent’s outline of argument: merits.
6 [2011] FWAFB 975.
7 Ibid at [13].
8 Email of 2 August 2021 from Nicky Pollington with attached letter dated 29 July 2021.
9 Mohammed Ayub v NSW Trains[2016] FWCFB 5500.
10 Section 385 Fair Work Act 2009.
11 Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [17].
12 Ibid at [17] – [18].
13 Ibid at [21], citing Stevanovski v Linfox Transport [2001] AIRC 388, PR903594 (23 April 2001).
14 [2017] FWCFB 4878 at [21] – [25].
15 Applicant’s outline of argument at Q6.
16 Witness statement of Mr Ryan Heath Gregson, solicitor at Clarke & Gee, undated and unsigned.
17 Email of 19 August from Ryan Gregson to [email protected].
18 Applicant’s outline of argument at Q5.
19 Witness statement of Mrs Alison Young undated and unsigned.
20 Respondent’s outline of argument at Q1e.
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