Andre Nel v Western Health

[2016] FWC 3666

[2016] FWC 3666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Andre Nel
v
Western Health
(C2016/508)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 JUNE 2016

Application to deal with contraventions involving dismissal.

[1] Dr Andre Nel alleged that his employment was terminated because he made complaints or inquiries about his employment. Western Health denied the allegations. Dr Nel filed his general protection application on 7 March 2016.

[2] Given his dismissal took effect on 15 January 2016 his general protections application lodged on 7 March 2016 was not made within 21 days of the date of the dismissal.

[3] At the hearing, I granted permission for the parties to be legally represented. I accepted their submission that it would enable the matter to be dealt with more efficiently given the complexity of the matter.

[4] At the hearing, Dr Nel applied to amend his application and this was not opposed by Western Health so the amendment was accepted.

[5] The parties had filed agreed facts in this matter.

[6] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[7] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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.” [Endnotes not reproduced]

(a) the reason for the delay;

[8] Dr Nel submitted that his application was lodged out of time because he received incorrect or incomplete legal advice.

[9] Prior to his dismissal, Dr Nel had met with Mr Rob Perry of Perry Maddocks Trollope Lawyers in relation to events at work. He provided Mr Perry with a copy of a letter sent from him to the Executive Director People and Culture and Communications and a letter sent by him to the Chief Executive Office. He provided a copy of the CEO’s response and his medical certificate. 2

[10] Dr Nel met with Mr Perry and Mr Perry provided Dr Nel with legal advice 3 about his options including lodging a bullying complaint with the Commission. Dr Nel subsequently sent Mr Perry a copy of his contract of employment.4

[11] After Dr Nel was given notice of his dismissal, he telephoned Mr Perry on 8 January 2016, who advised him that the remedy for termination of employment was unfair dismissal or breach of contract. As his contract provided for four months’ notice, he was told his legal options were limited to the notice provisions. Dr Nel told Mr Perry he wanted to move on and did not want to pursue the bullying claim. 5

[12] Dr Nel said, in his telephone conference with Mr Perry, he made specific reference to his allegation that the CEO had made reference to the letters referred to in paragraph [9] in the termination meeting. 6 He said Mr Perry told him that the CEO was entitled to dismiss him with four months’ notice and there was nothing he could do about it.7

[13] Dr Nel searched the Fair Work Commission website on the next weekend and looked at the page that commenced “have you been dismissed?” He saw the two headings; one which referred to unfair dismissal and the other which referred to general protections. He did not know what the general protections were and did not understand it was a type of claim he could make. 8 He did not click on the link to find out what these provisions covered.

[14] He completed the quiz to determine if he was eligible to make an unfair dismissal claim and discovered he was above the pay cap as he did not understand that he was covered by an EBA. He noted that there was a 21 day time limit to make an unfair dismissal application. 9

[15] On 12 January 2016, he advised the Medical Indemnity Protection Society which funded his legal advice that the matter was settled. 10

[16] On or about 29 January 2016, he was advised by a colleague to contact Maurice Blackburn Lawyers and he spoke to a paralegal at that firm. He was advised he could make an appointment to see a lawyer. He was also told that there was a 21 day time limit to make an application to the Commission. He was told he could contact the Law Institute, JobWatch or the Commission. 11

[17] He did not act on this advice because he did not think it appropriate to change lawyers and he would need to pay for legal advice if he did. He also wanted to check with Mr Perry to see if there were other avenues he could explore. Further, he was not sure if Maurice Blackburn was a good fit for him given he was a high income individual. 12

[18] On 29 January 2016, Dr Nel spoke to Mr Perry and suggested that there might be other avenues he could explore. He specifically said “is there no avenue through Fair Work. 13 Mr Perry told him there was not because he was over the cap. He was told he could not apply to Fair Work. Mr Perry told him it was the contract that he needed to look at.14 Dr Nel told Mr Perry about the 21 day time limit and that it was up next week. Mr Perry again told him that he was over the cap and there was nothing he could do.15 Dr Nel did ask Mr Perry about general protections because he did not know what it was.

[19] Mr Perry asked him to send him his termination letter and he would get back to him. 16

[20] On 9 February 2016, Dr Nel followed up his inquiry with Mr Perry. In that email he noted that Mr Perry was “going to advise on options”. 17

[21] On 10 February 2016, Mr Perry advised that he would respond shortly and on 17 February 2016 Dr Nel again sought a response from Mr Perry.

[22] On 12 February 2016, Dr Nel contacted the Fair Work Ombudsman who told him to contact the Commission but he did not do so. 18

[23] On 17 February 2016, Dr Nel sent Mr Perry an extract of the Public Administration Act and pointed out where he thought the CEO had breached the Act. He asked for Mr Perry’s views. 19

[24] Dr Nel spoke to Mr Perry on 19 February 2016 who told him he was not going to get more than four months as this was the term of the contract.

[25] Dr Nel did not accept this advice and contacted another lawyer on 22 February 2016 and, because he could not act for Dr Nel, he contacted Maurice Blackburn on 23 February 2016 and met with them on 3 March 2016. Dr Nel engaged them on 4 March 2016 and instructed them to make the application which was done on 7 March 2016.

[26] Dr Nel submitted that this was a case of representative error. It was submitted that Mr Perry’s advice to him was wrong or incomplete. It was submitted that he was entitled to rely on the professional advice provided to him by his lawyers. It was submitted that Dr Nel was blameless.

[27] Western Health submitted that in this case while there may have been a representative error Dr Nel was not blameless. It submitted that Dr Nel is a highly qualified professional and he was not wholly or reasonably reliant on the advice given. It submitted that on his own evidence Dr Nel did not rely upon the advice. Within the 21 day time period he checked the information on the Commission’s website but did not review the information provided on general protections. He then spoke to another law firm, again within the 21 days, and did not take their advice. He was clearly on notice that there was a 21 day time limit to take any action with the Commission. Western Health submitted that Dr Nel did not take all reasonable steps to investigate his rights.

[28] It submitted that it was Dr Nel’s failure to check his options on the Commission website that contributed to his failure to lodge his application in time. Further it submitted he contributed to the delay by not contacting the Commission. He further contributed to the delay by failing to get a second opinion because in part he would have to pay for that advice.

[29] Dr Nel submitted that he was misled by his legal advisor and he was blameless.

[30] I accept that the fundamental reason for the delay in lodging the general protections application was because Dr Nel’s lawyer did not alert him to the existence of a general protections claim. I accept that Dr Nel was entitled to expect that his legal representative would consider all remedies under the Act. Dr Nel did not sit on his hands in relation to this matter but sought further advice from his lawyer after he had been told there might be other avenues of redress. Unfortunately his lawyer did not advise him that he could make a general protections application.

[31] While I accept the submission that Dr Nel did not do all he could have done to investigate his rights, he did check with his lawyer when advised that there may be other remedies. Again he was unequivocally told there was not. This advice was not correct.

[32] Dr Nel last contact with Mr Perry was on 19 February 2016 and he gave evidence that he was dissatisfied with his advice.

[33] Dr Nel did not contact a lawyer until 22 February 2016 and had a consultation with Maurice Blackburn on 3 March 2016. Given he was aware of the 21 day time limit for making any application to the Commission he did not have the luxury of waiting over a week to obtain advice. Further he waited another day before instructing them to lodge his application and then it was not lodged until 7 March 2016. He did not provide any explanation as to why he took this time to obtain new advice and to lodge his application.

[34] While I accept that Dr Nel had a reasonable explanation for some of the delay I do not accept that he had a reasonable explanation for the whole of the delay.

[35] This weighs against a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[36] Dr Nel was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[37] Dr Nel took a number of steps to investigate his options. He did not dispute the dismissal with his employer who was unaware of the claim until Dr Nel lodged his application. Some of the steps relied upon by Dr Nel related to his claim that he had been bullied prior to his dismissal. I accept that Dr Nel did not sit on his hands in relation to the dismissal and this weighs in favour of a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[38] There was no evidence or submission that there was any prejudice to Western Health. It submitted that a lack of prejudice alone does not provide a sufficient basis to grant an extension of time and I agree. However a lack of prejudice to the employer weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[39] In the matter of Kornicki v Telstra-Network Technology Group 20 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 21

[40] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 22 

[41] Dr Nel gave evidence that he sent two letters of complaint to his employer. While Western Health made submissions in relation to the reasons for the dismissal, no evidence was called by Western Health from the decision maker about the reasons for the dismissal.

[42] On the evidence before me I am satisfied that Dr Nel has an arguable case and this weighs in favour of a finding of exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[43] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 23 considered this criterion and said “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”24

[44] Western Health submitted that there were many instances where employees have attributed the delay to representative error and have not been granted an extension of time. It submitted that it would be unfair to grant Dr Nel an extension of time when others had been denied an extension in similar circumstances.

[45] Dr Nel submitted that there were no similar matters currently before the Commission. Dr Nel submitted that each case involving representative error was determined on its own facts, and in each case relied upon by Western Health, the applicant had contributed to the delay.

[46] I accept the submission of Dr Nel in relation to this criterion and consider it to be a neutral consideration.

Conclusion

[47] I am not satisfied that there are exceptional circumstances. Dr Nel has not provided a reasonable explanation for the whole of the delay. While a number of criteria support a finding of exceptional circumstances, I am not satisfied that they outweigh the lack of reasonable explanation for the whole of the delay.

[48] Dr Nel’s application for an extension of time is therefore dismissed and accordingly his general protection application is also dismissed.

DEPUTY PRESIDENT

Appearances:

J. Kirkwood for the Applicant.

J. Firkin for the Respondent.

Hearing details:

2016.

Melbourne, by telephone.

31 May.

 1   [2011] FWAFB 975.

 2 Agreed facts at [3].

 3 Agreed facts at [4].

 4   Ibid.

 5 Ibid at [7].

 6   Exhibit A1 at [56] and [67].

 7 Ibid at [68].

 8 Ibid at [70].

 9 Ibid at [71].

 10 Ibid at [73].

 11 Ibid at [78].

 12   Ibid.

 13   Ibid at [80]-[81].

 14   Ibid at [82]-[83].

 15 Ibid at [84].

 16 Agreed facts [9].

 17 Ibid at [10].

 18 Exhibit A1 at [100].

 19 Ibid at [104].

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

 21   Ibid.

 22   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 23   [2015] FWC 8885.

 24 Ibid at [29].

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