Annette Allan v Ace Audiology & Hearing

[2015] FWC 6650

[2015] FWC 6650

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Annette Allan
v
ACE Audiology & Hearing
(U2015/11240)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Annette Allan alleged that the termination of her employment by ACE Audiology & Hearing Melbourne Pty Ltd on 24 July 2015 was unfair.

[2] Her unfair dismissal application lodged on 21 August 2015 was not made within 21 days of the date of the dismissal.

[3] At the hearing, I granted permission for ACE to be represented by a legal practitioner. ACE submitted that it would be unfair not to allow ACE to be represented because Dr Galt, the sole director of ACE, was unable to represent the company effectively because she was personally involved in the matters in dispute which had had a negative impact on her such that she would find it difficult to cross examine Ms Allan and prosecute the case. Ms Allan did not object to ACE being represented. I accepted ACE’s submissions.

[4] At the conclusion of the hearing I advised the parties that I was not satisfied that there were exceptional circumstances and I dismissed Ms Allan’s application. These are my reasons for that decision.

[5] 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.

[6] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where 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;

[7] Ms Allan gave evidence that prior to her dismissal her mother had become ill and she needed to spend time with her. She said she had been treated for depression since February 2015 and that the events that took place on 20 July 2015 caused her to suffer anxiety. She said she had medical certificates for the next two weeks. She gave evidence that she had lodged an unfair dismissal application against a previous employer and she thought she had five to six weeks to lodge the application. In cross examination, she accepted that there had been no objection to that claim and she must have lodged it within time.

[8] Ms Allan had been injured at work in December 2014 and she required further surgery. That had been recommended on 13 July 2015 and was performed on 27 August 2015. She accepted that her injury was to her left hand and she was right handed.

[9] Ms Allan applied for an Intervention Order against Dr Galt’s husband on 28 July 2015 and attended court and represented herself at a mention on 11 August 2015. She made a worker’s compensation claim on 4 August 2015 and made complaints to Medicare on 7 and 8 August 2015. Ms Allan was required to file her application by 14 August 2015.

[10] Ms Allan signed her unfair dismissal application on 18 August 2015 and apart from saying that she was not keeping track of time, had no explanation for why it was not filed with the Commission until 21 August 2015.

[11] Ms Allan does not have a reasonable explanation for the delay in making her application. While I accept that Ms Allan gave priority to the application for an Intervention Order, that application had been made by 28 July and the mention was on 11 August 2015. She still had another three days to lodge her application and she did not do so. Ms Allan was able to lodge her compensation claim and make complaints about her employer to Medicare. She was not unfamiliar with the unfair dismissal process. Ms Allan could not explain why she thought she had five to six weeks to lodge an unfair dismissal claim. There is no basis on which I could conclude that Ms Allan’s medical condition or her mother’s medical condition prevented her from making her claim. Further, there was no explanation for the additional delay after she completed and signed the application form.

[12] 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;

[13] Ms Allan was aware of the dismissal when it took place. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

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

[14] Ms Allan did not take any steps apart from lodging her unfair dismissal claim to dispute her dismissal. This weighs against a finding that there are exceptional circumstances.

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

[15] There was no evidence of any prejudice to ACE if the application was granted. This weighs in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[16] Ms Allan submits that her dismissal was unfair because she was sick at the time she was directed to attend disciplinary meetings. ACE submits that the dismissal was fair because Ms Allan was directed to attend a disciplinary meeting and she refused. Further it was submitted that Ms Allan was guilty of serious misconduct justifying the termination of her employment.

[17] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[18] No submissions were made on this criterion.

Conclusion

[19] I am not satisfied that there are exceptional circumstances. Ms Allan has not provided a reasonable explanation for the whole of the delay in lodging her application. Only the lack of prejudice to the employer favours a finding of exceptional circumstances and this alone is not a basis for finding that there are exceptional circumstances. Ms Allan’s application for an extension of time is dismissed and her application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms A Allan on her own behalf.

Mr J Fetter of counsel for the Respondent.

Hearing details:

2015.

Melbourne:

September 25.

 1   [2011] FWAFB 975.

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