Angela Clement v Grange Aged Care T/A the Grange Albury

[2015] FWC 315

[2015] FWC 315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angela Clement
v
Grange Aged Care T/A The Grange Albury
(U2014/12942)

COMMISSIONER LEE MELBOURNE, 19 JANUARY 2015

Application for relief from unfair dismissal - extension of time - representative error - time extended.

[1] This is an application for unfair dismissal remedy made under s.394 of the Fair Work Act2009 (the Act).

[2] The matter was listed for extension of time conference hearing on 22 December 2014. The matter was heard by video link between the Fair Work Commission in Melbourne and the Wodonga Magistrates Court. At the conclusion of the proceedings I issued an ex tempore decision. This is an edited version of that decision.

[3] This an application for an unfair dismissal remedy lodged by Ms Angela Clement (the Applicant) pursuant to section 394 of the Act. The application has been made against Grange Aged Care trading as The Grange Albury (the Respondent). The date that the application was lodged is 30 September 2014. It was listed hearing and ultimately determination on the extension of time issue, a jurisdictional issue.

The evidence

[4] The evidence in this matter goes to all of the matters that I’m required to have consideration to in deciding whether or not to grant an extension of time. I shall start with the evidence of the Applicant. The circumstances of what occurred in this case, start with the Applicant and her evidence is that on 8 September 2014 she attended work at the Respondent’s workplace and that her supervisor Mr Bares (the proprietor of the Respondent), informed her on that day that she was being dismissed for gross misconduct. Accusations were made by Mr Bares of the Applicant destroying company documents and making a complaint about the facility to the Aged Care Accreditation Agency. The Applicant asserts that she denied those allegations when they were made by Mr Bares.

[5] Now, importantly, in terms of this application, the evidence of the Applicant is that what happened after that was that she contacted the Australian Nursing and Midwifery Federation (the ANMF), on 8 September 2014, in the morning. So on the same day that she was dismissed the Applicant asserts that she explained what had happened to her to the ANMF and she was advised that that matter would be referred to the organiser, Ms Kairns. Ms Kairns, indeed, must have been referred the matter because she then called the Applicant later that same morning and the Applicant asserts that she then told Ms Kairns what had happened, and advised Ms Kairns that she thought that she had been dismissed unfairly.

[6] The organiser, Ms Kairns, asked for a written account by email as to what had occurred. The Applicant then did as she was asked and she did send a written summary of the circumstances surrounding her termination to Ms Kairnes– and that was put into evidence. Importantly, at paragraph 12 of her witness statement, the Applicant asserts that it was her understanding that Ms Kairns would refer her for legal advice and the she would be contacted by solicitors and that the solicitors would lodge an unfair dismissal application on her behalf.

[7] Also, importantly, the Applicant gave evidence that she didn’t hear any further about her unfair dismissal matter to that point but that she followed up by contacting Ms Kairns, by phone, about three times during the period 9 September to 29 September 2014. I note the evidence of Ms Kairns corroborates that evidence of the Applicant. Ms Kairns also attests that she was contacted a number of times during that period 9 September to 29 September 2014 by the Applicant. Finally, the Applicant’s evidence is that she believes that she did everything she could to lodge her application on time and that any delay in filing the application was caused by the ANMF not lodging the application as per her instructions.

[8] The evidence of Ms Kairns, is very important in this matter, as the organiser who instigated or sought to instigate with the Victorian Branch of the ANMF that action to be taken to have an application made to the Commission. Ms Kairns is the unions Victorian Branch Country Industrial Organiser based in Wangaratta and her evidence is relevantly that on 8 September 2014 around 10.20am in the morning the ANMF contacted her, told her that someone had rung the information line, gave her the name of that person, and stated that the person had been dismissed. A copy of the email from the info line was forwarded to Ms Kairns and that email was also put into evidence.

[9] The evidence from Ms Kairns is that she then called and spoke to the Applicant (and it would appear that that all occurred on that day) and that she instructed (consistent with the evidence of the Applicant), the Applicant to send her an email outlining the circumstances around the events of the dismissal. As I’ve already disclosed, in terms of the evidence of the Applicant, she did that. On the part of Ms Kairns, on 9 September she provided evidence that she completed the relevant legal referral paperwork and sent that referral to Ms Kelly Whitefield, together with the Applicant’s account of what happened to her – and that email from Ms Kairns to Ms Whitefield was put into evidence. The email is as follows;

“From: Allison Kairns
Sent: Tuesday, 9 September 2014 1:09PM
To: Kelly Whitefield
Subject: FW: Sent from CM2320nf MFP WANGARATTA

Attachments: scan.pdf

Hi Kelly, attached is a legal referral for Angela Clement who was dismissed yesterday. Allison.”

[10] At this point it seems that the error has occurred because no action was taken on that matter – and it’s clear, on the evidence, perhaps why that occurred. But no action happened after that time with the application until around 29 and 30 September 2014 when, ultimately, the application was lodged. The organiser, Ms Kairns, also sent an email to Mr Barry Maginis and senior industrial officer Mr Leigh Hubbard. Mr Hubbard gave evidence before me on 22 December 2014. The email was put into evidence and that email is as follows:

“From: Alison Kairns

Sent: Tuesday 9 September 2014 1:11PM

To: Barry Megennis
CC: Leigh Hubbard
Subject: FW: Sent from CM2320nf MFP WANGARATTA
Attachments: scan.pdf

Hi Baz,
Attached is a legal referral I have done for the DON at the Grange Wodonga. She was dismissed yesterday. I don’t believe that you need to do anything with it, but thought you should know how toxic the workplace is at present for when you talk to them about the EBA.
Cheers,
AK”

[11] So no request was made of Mr Hubbard or Mr Maginis to do anything but they were copied in to the email. So it appears that the action that was required from the organiser was sought of Ms Whitefield. Now, again, Ms Kairns states that between 9 September and 29 September that the Applicant, persistently followed up with her about the referral and when she would be contacted by the solicitors and does not recall exactly when she spoke to the Applicant during the time but that she advised the Applicant that she had made the referral and believed she would be contacted by the solicitors shortly.

[12] Now, on 25 September 2014, Ms Kairns emailed a Ms Henry following up whether or not the legal referral had been sent through to Ryan Carlise Thomas and that she did that because Ms Henry was filling in for Ms Whitefield at the time. Ms Henry replied that a legal referral had not yet been sent. Ms Kairns asserted that she assumed that there would be a response now that she had followed up on it, and that Ms Henry would indeed act on it. Again however, that did not occur.

[13] On 29 September the Applicant had a further query about some unpaid entitlements which gave rise to Ms Kairns having her mind exercised about the Applicant’s plight yet again and then so, based on that, she emailed Ms Whitefield again on 30 September, who of course had returned from leave at this point, asking for the referral to be actioned and for the issue of annual leave to be included in the referral and it was only at that point, on the evidence of Ms Kairns, that Ms Whitefield called her and informed her than in fact the referral had not been sent to Ryan Carlisle Thomas and that she would process it immediately - and, indeed, the application was made on 30 September, that same day.

[14] Now, since all roads lead to Ms Whitefield her evidence in this matter is also important. She supplied a statutory declaration in this matter, that she’s employed with the ANMF and she’s the personal assistant to the Assistant Secretary, currently Pip Carew, and the Senior Industrial Officer, currently Leigh Hubbard, and as part of her duties she receives and brings legal referrals to the attention of full-time elected officials who sign and authorise the referrals. Now, the most pertinent part of her evidence is that on 9 September Ms Kairns sent an email attaching a referral for legal advice to Ms Whitefield. Ms Whitfield asserts that this was not the usual process for making legal referrals.

[15] She states that, importantly, that she doesn’t recall seeing or reading that email at the time until she looked for it on 30 September and doesn’t know why she didn’t see or read it; that she was away from annual leave from 18 September to 26 September and came back to work on Monday 29 September. Ms Whitfield states that on 30 September she received a further email following up on the legal referral. She then looked back through her emails and found that original email, which is in evidence, from 9 September and that that email had not been acted upon and, consistent with the evidence of Ms Kairns, she rang Ms Kairns on that day, on 30 September; and told her that the referral had not been processed. Ms Whitfield asserts that she then brought the referral to the attention of Ms Carew, it was signed and from there it’s quite clear that the application was then filed on that day.

[16] The evidence of Ms Henry, Industrial Professional Team Secretary for the ANMF was that she fills in two to three times a year for Ms Whitefield in the role of personal assistant to the assistant secretary, Pip Carew, and senior industrial officer, Leigh Hubbard, when Ms Whitefield is on leave. The evidence of Ms Henry was that on 25 September when she was filling in for Ms Whitefield, she received an email from Ms Kairns asking if the legal referral for the Applicant has been sent through to Ryan Carlisle Thomas.

[17] Relevantly, Ms Henry asserts that the email that came through on 25 September 2014 did not say that the referral was the original sent to Ms Whitefield on 9 September and that if Ms Kairns had have mentioned that in her email, Ms Henry would have been aware of the urgency of the matter and would have searched for the referral.

[18] Essentially, Ms Henry’s evidence is that she was unaware that there was any delay in the processing of the legal referral and that she checked a spreadsheet of legal referrals to Ryan Carlisle Thomas and, having not found the Applicant’s matter on that spreadsheet, a spreadsheet she believed to be accurate, Ms Henry assumed that Ms Kairns had not yet completed the required referral and essentially took no other action on it.

[19] I now move to the evidence of Mr Gilbert. Mr Gilbert is the Assistant Secretary of the ANMF Victorian Branch who is directly or indirectly responsible for legal referrals, processes and communications with Ryan Carlisle Thomas.

[20] His evidence talks about different forms for different types of legal referrals and some changes that had taken place in the processes. In his statement he refers to apparent difficulties that that has created and that the change in terms of the way unfair dismissal processes were dealt with within the branch was poorly communicated by the branch. He further states that the change is now firmly understood and that there is an electronic tracking system that is going to be implemented. Importantly, the evidence of Mr Gilbert is that:

“In this case [the Applicant] and ANMF organiser understandably thought RCT had the referral and RCT were unaware of the matter, having received no referral. Regrettably, an administrative error occurred and in hindsight improved process are required to avoid a repeat.”

[21] Mr Hubbard gave evidence before me. Mr Hubbard is the senior industrial officer with the ANMF Victorian Branch. As a senior industrial officer he is directly or indirectly responsible for legal referrals, processes and communications with Ryan Carlise Thomas Lawyers.

[22] His evidence was that on 9 September he was copied into an email, to which I’ve already referred, from Ms Kairns to Mr Barry Maginis about the Applicant, and that Ms Kairns attached a copy of the legal referral to the email.

[23] Mr Hubbard gave evidence that when saw that email, he expected that the team secretary would print the referral and give the hardcopy to Ms Whitefield as per the normal process. His evidence was that in this case this did not happen. He gave further evidence-in-chief that what has occurred in this matter was an unusual circumstance in that, in his view, as a matter of process the application should have gone to Ms Henry but that that didn’t occur which seems to be at the bottom of Mr Hubbard’s view about why the error occurred.

The Law to be Applied

[24] Now, the law to be applied in these matters is clear. Section 394 of the Act sets out that:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[25] In determining this matter, the Commission is required to take into account the factors listed in section 394(3)(a) to (f) of the Act. Ms Leikina for the Applicant drew my attention to the correct interpretation as to what is meant by “exceptional circumstances” and it is best set out in the decision of Nulty v Blue Star Group Pty Ltd 1. The Full Bench of the Fair Work Commission which, dealt with a different provision of the Act, (section 366 subsection (2)) - the criteria in that section is identical and what was found in terms of applying the concept of exceptional circumstances is relevant in this case – and I quote as follows:

“[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.” 2

[26] It is also important to consider authority on the approach to dealing with representative error as a reason for delay – and the leading case on that is Clark v Ringwood Private Hospital 3 . This case, in turn, has been cited in Davidson v The Aboriginal and Islander Child Care Agency4 and further cited in McConnell v A & PM Fornataro trading as Tony’s Plumbing Service5. Relevantly, what Clark v Ringwood Private Hospital6 indicates is that it makes clear that a late lodgement of an application due to a representative error may be grounds for an extension of time. It makes the point that there’s a distinction between a delay caused by the representative where the employee is blameless and when the employee has in fact contributed to the delay.

[27] The actions of the employee are the central consideration in deciding whether or not the explanation of representative error is acceptable. And in that context if an application is delayed because the employee has left the matter in the hands of the representative and has simply not followed up their claim then an application might be refused. However where an employee has given clear instructions to lodge an application and a representative has failed to do so then an extension may be granted. Of course representative error is one of only a number of factors and all the factors have to be considered under 394(3)(a) to (f) not simply that of representative error before a discretion is exercised to grant the extension.

Consideration

s.394(a) - the reason for the delay, (b) whether the person first became aware of the dismissal after it had taken effect

[28] Now, the consideration of this matter is as follows. The Applicant was dismissed on 8 September 2014. The Applicant’s unfair dismissal was filed with the Commission on 30 September 2014. The application is therefore one day outside of the 21 day timeframe as provided in section 394 of the Act. It is clear on the evidence that has been led that the late lodgement of the application was caused by representative error of the ANMF. As I’ve already alluded to, late lodgement of an application due to representative error can constitute grounds for an extension of time.

[29] The Applicant, clearly, from her evidence, relied upon the ANMF to lodge the application or arrange for it to be lodged by solicitors. And in light of the above the actions of the Applicant did not contribute to the delay because it’s clear on the evidence that the Applicant was in contact with the ANMF seeking assistance on the very day that she was dismissed and was advised that she will be referred to Ryan Carlisle Thomas for legal advice and assistance with lodging an unfair dismissal application.

[30] Importantly in this matter, the uncontested evidence from the Applicant, corroborated by Ms Kairns, is that the Applicant followed up with Ms Kairns a number of times by phone inquiring as to the progress of her matter between 9 September 2014 and 29 September 2014. This is not a case where the Applicant simply left the matter in the hands of her representative and took no further action. It is clear on the evidence that the ANMF failed to act promptly on the Applicant’s request for assistance and for the lodgement of her unfair dismissal application and it was that failure, and I’m satisfied it was that failure alone that resulted in the application being filed one day out of time. In other words, it’s clear to me on the evidence that the employee was blameless in the late lodgement of this matter and, accordingly, I’m satisfied that there is an acceptable reason given for the delay.

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

[31] It was clear on the evidence that the Applicant disputed the dismissal on the very day that she was dismissed. She contacted the ANMF a number of other times seeking to follow up with her request that the matter be dealt with by way of unfair dismissal remedy. It is clear that action was taken by the Applicant to dispute the dismissal – vigorous action taken quickly. Which also weighs in favour, along with the reason for the delay, to a determination that the extension should be granted.

(d) prejudice to the employer (including prejudice casued by the delay)

[32] In terms of prejudice to the employer, it’s generally held that any prejudice caused due to a short delay would be minimal. It is well held that, in any case, the onus is on the respondent to make out that there is a prejudice caused by the delay. And we have no submissions from the Respondent today. The Respondent failed to attend the hearing – and I’ll say more about that in the conclusion. I’m not satisfied that there is any prejudice to the employer that weighs in favour of refusing the extension.

(e) the merits of the application

[33] The representative of the Applicant claimed that there is a meritorious claim of unfair dismissal and a strong case, particularly where she was summarily dismissed. For the purposes of this consideration it is sufficient that I note that the allegations of serious misconduct made by Mr Bears were that the Applicant was involved in destroying company documents and that she had made a complaint about the facilities to the Aged Care Accreditation Agency. Relevantly, the Applicant denies each of these allegations.

[34] In those circumstances the Commission will be required to determine for itself whether or not serious misconduct occurred. Evidence would need to be led. Depending on the outcome of that evidence the case may or may not be a strong case. It is clear from Kyvelos v Champion Socks Pty Limited 7, a Full Bench decision of the Australian Industrial Relations Commission, that in considering the merits of the application the Commission can’t make any findings on contested matters without hearing evidence and evidence on merits is rarely called in an extension of time hearing and it is not appropriate to do so.

[35] It is really a matter of deciding whether or not the employee has a sufficient case. As a result the Commission is not, in these proceedings, to embark on a detailed consideration of the substantive case. But it follows, based on the material before me, that given the contested facts, the Applicant would have a sufficient case that there may well be an outcome in her favour in a section 394 application but that is not the matter that I need to determine here. Certainly, there’s nothing arising from consideration of merits that would weigh against an extension of time. I consider this a neutral matter in terms of my consideration in this.

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

[36] Nothing is put by the Applicant on that particular point. I don’t think anything particular arises from that.

Conclusion

[37] Having regard to all of the criteria to which I am to have regard I think it is clear that there are no factors weighing towards not granting the further period of time that is sought. I’m satisfied, in particular that the reason for the delay was entirely representative error, as I’ve already outlined. And, accordingly, I’m satisfied that there are exceptional circumstances that has satisfied me that a further period for the application should be made, as sought by the applicant, after considering all of the criteria in 394 subsection (3)(a) to (f). An order 8 has been issued to this effect.

[38] The matter will now proceed to be dealt with in accordance of the usual processes of the Fair Work Commission and, presumably, will be referred for conciliation at first instance and then for further programming if necessary.

[39] I just note, in conclusion, that this matter was determined in the absence of the Respondent. I note, as I did at the outset of the proceedings today, that the Respondent has been advised that this hearing was to take place. Directions were issued in this matter for the filing of materials. Materials were filed by the Applicant. The Respondent failed to comply with the directions; did not file any materials and did not indicate to my chambers that they did not intend to file any materials.

[40] There has been a number of follow-ups from my chambers to the Respondent asking if they intended to comply with the directions and further, more recently, asking if they wished to cross-examine witnesses in this matter today. There has been no response to any of that contact from my chambers to the Respondent. Just immediately prior to today’s hearing, they have been contacted by my associate and we’ve been unable to make contact with the Respondent at all. In those circumstances I have proceeded to deal with the matter today, make a determination and the matter will be referred on for further programming, as I’ve already outlined.

COMMISSIONER

Appearances:

M Leikina of Ryan Carlisle Thomas for the Applicant

Hearing details:

2014

Melbourne and Wodonga Magistrates Court (video hearing):

December 22

 1   [2011] FWAFB 975

 2   Nulty v Blue Star Group, [2011] FWCFB 975, [13]

 3 (1997) 74 IR 413

 4 (1998) 105 IR 1

 5 (2011) 202 IR 59

 6 (1997) 74 IR 413

 7   Print T2421, Guidice, President, Acton SDP, Gay C, Melbourne 10 November 2000

 8   PR559517

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