Arjava Stephenson v Bass Coast Regional Health

[2014] FWC 4416

[2014] FWC 4416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Arjava Stephenson
v
Bass Coast Regional Health
(C2014/4469)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 3 JULY 2014

Application to deal with contraventions involving dismissal - extension of time.

[1] Ms Arjava Stephenson (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 15 May 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that her dismissal on 28 February 2014 was in contravention of the general protections provisions of the Act. On 30 May 2014, Bass Coast Regional Health (BCRH - the Respondent), in responding to the application, objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.366(1) of the Act. The Commission convened a hearing on 20 June 2014 to deal with the Respondent’s objection.

[2] At the hearing, Ms Stephenson was self-represented, while Mr Richard West appeared with permission for BCRH.

[3] For the reasons set out below I have found that there are not exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application cannot proceed and is therefore dismissed

Background

[4] Ms Stephenson commenced employment with BCRH on 21 August 2007. Ms Stephenson has been on sick leave since 25 February 2013 as a result of a number of health issues. She did not return to work prior to her dismissal.

[5] In late January 2013 Ms Stephenson lodged two grievances with BCRH. Both of those grievances were investigated by BCRH with the outcome of the investigation being that BCRH was unable to substantiate the allegations made by Ms Stephenson. BCRH formally advised Ms Stephenson of this outcome on 6 May 2013.

[6] On 11 June 2013 BCRH wrote to Ms Stephenson requesting that she obtain a medical report from her treating practitioner setting out his or her view on a number of questions. In very general terms the questions posed by BCRH went to the nature of Ms Stephenson’s incapacity, when she may be able to return to work and whether any restrictions would be advisable as part of a return to work. Ms Stephenson responded on 24 June 2013. Her response did not provide the requested medical report, with Ms Stephenson stating that her doctor had already provided three reports (one in the context of her workers’ compensation claim, another for Accident Compensation Conciliation Service proceedings stemming from her unsuccessful workers’ compensation claim and the third in the context of her income protection insurance claim) and “was not happy to provide another one.”

[7] In subsequent developments, BCRH again wrote to Ms Stephenson on 16 January 2014 asking that she provide the previously requested medical report by 31 January 2014. In that letter, BCRH indicated that it would meet the cost of the visit and associated costs incurred by Ms Stephenson in obtaining the requested medical report. Ms Stephenson subsequently responded to BCRH setting out her current circumstances and mentioning a possible return to work date provided by her doctor (1 May 2014). However, her response did not provide the requested medical report. Her response concluded with the following request “Whatever decision you reach regarding my employment at BCRH, please be kind enough to inform me immediately by post.”

[8] BCRH subsequently wrote to Ms Stephenson on 28 February 2014 terminating her employment effective from that date. The termination letter stated that:

“As Bass Coast Regional Health is unable to continue to maintain your unfilled position within a small Department for such an extended period of time, I must advise that your services are terminated with effect from today.” 1

[9] The termination letter also noted that no medical report had been provided as requested.

The Applicant’s outline of events

[10] Both in her application and at the hearing on 20 June 2014, Ms Stephenson set out the series of events which precluded her from lodging her application within the statutory 21 day timeframe.

[11] To summarise, in early March 2014 Ms Stephenson was in the process of moving house. She collected her mail, including the termination letter, from the Post Office in early March - her application states she collected her mail on 4 March 2014 while at the hearing she indicated that this occurred on 7 March 2014 (the difference in dates is not material because, as outlined below, BCRH conceded that Ms Stephenson received the termination letter on 7 March 2014). Ms Stephenson admits that she did not open the correspondence from BCRH until mid-late March, stating in her application that as she was exhausted from her move she did not open the letter and that it got put in a bag for the move. While in the process of setting up her new home, she fractured her toe (around 14 March 2014) and subsequently lacerated her hand (6 April 2014).

[12] Having opened the termination letter in mid-late March 2014, Ms Stephenson indicated that as she did not have internet access at her new home she had to use the local library to undertake research related to her application. Access to computers at the library is limited with Ms Stephenson unable to gain access to a computer at the library until 3 April 2014 when she visited the Commission’s website and identified several forms which might be relevant to her situation. However, Ms Stephenson indicated that she was not sure which of those forms applied to her circumstances. Ms Stephenson subsequently contacted the Commission by telephone on 10 April 2014 to clarify which was the appropriate form and to ask that it be posted to her. She received the relevant form by post on 15 April 2014 at which time she realised that she would need to research the Act to complete her application. As noted above, Ms Stephenson’s application was received by the Commission on 15 May 2014.

[13] In her application, Ms Stephenson states, among other things, that she was not aware of the 21 day timeframe.

[14] Ms Stephenson submitted that, when viewed together, these various events and factors constituted exceptional circumstances warranting the Commission extending the 21 day timeframe for the making of her application.

The Respondent’s outline of events

[15] The Respondent submitted that the reasons given by Ms Stephenson for the late lodgement of her application were inadequate.

[16] In its submissions, BCRH relied upon a number of authorities to support its view that in circumstances where a termination is effected by letter, the dismissal takes effect from the date the letter is received, not the day that the letter is opened by the recipient. One of those authorities was the decision by Commissioner Whelan in Norman v Transport Accident Commission 2 (Norman).

[17] Against that background, BCRH conceded that the effective date of Ms Stephenson’s termination was the day she collected the termination letter from the Post Office, in this case 7 March 2014 and not 28 February as stated in the termination letter. This meant that the 21 day period for Ms Stephenson to lodge her general protections application ended on 28 March 2014.

The Relevant Legislation

[18] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

Whether to allow a further period for the application to be made

[19] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately. However, before doing so I need to determine the effective date of Ms Stephenson’s dismissal.

[20] As previously noted BCRH relied upon several authorities, including Norman, to support its contention that, in circumstances where a dismissal is effected by letter, the dismissal takes effect from the date the letter is received, not the day that the letter is opened by the recipient. Applying that approach, BCRH conceded that the effective date of dismissal in this case was 7 March 2014.

[21] The following is an extract from Norman.

“[32] In Commonwealth of Australia (Australian Taxation Office) v Wilson another Full Bench elaborated upon this as follows:

Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee.

[33] I am not satisfied that the qualification suggested by the Full Bench in the extract above applies in the circumstances of this case. I find that the termination took effect when Mr Norman opened the employer’s letter of 17 December 2009 on his return to Australia on 10 January 2010.” [Underlining added, citations not included]

[22] The reference to opening the letter in the above extract relates to the particular circumstances existing in Norman, where the applicant was overseas at the time the termination letter was sent. While the termination letter was collected by the applicant’s mother in late 2009, she did not open the letter. The letter was only opened when the applicant returned to Australia on 10 January 2010. Hence Commissioner Whelan determined that this was the date when the applicant’s termination took effect. This approach is consistent with the Full Bench decision cited in the above extract from Norman.

[23] Having regard to the decision in Norman, I find that the effective date of Ms Stephenson’s termination was 7 March 2014. Accordingly, the 21 day timeframe for lodging her application ended on 28 March 2014. Ms Stephenson’s application was received by the Commission on 15 May 2014; 48 days after the 21 day period for the making of an application had ended.

(a) The reason for the delay

[24] As outlined above, Ms Stephenson pointed to her personal circumstances as constituting exceptional circumstances warranting the Commission allowing a further period for the making of an application. In her application Ms Stephenson also indicated that she was unaware to the timeframe for the making of an application.

[25] On the other hand, BCRH considered these reasons inadequate justification for allowing a further period.

[26] I will deal first with Ms Stephenson’s point about not being aware of the timeframe for the making of an application. As stated by Commissioner Roe in Rose v BMD Constructions Pty Ltd (Rose) 3 when considering an application for an extension of time within which to file an application for an unfair dismissal remedy:

“Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.”

[27] By way of background, the grounds on which an extension of time for an unfair dismissal application can be made under the Act are set out in s.394 and are in similar, though not identical, terms to those set out in s.366. Further, the reference to the 14 day time limit in the above citation reflects the statutory timeframe for the making of unfair dismissal applications then applying. Since the decision in Rose, the Act has been amended to increase this period to 21 days. At the same time, the timeframe for making general protections claims relating to termination was amended to align the statutory time frames for the making of application under s.365 and s.394 of the Act at 21 days.

[28] In short, Ms Stephenson’s ignorance of the timeframe would not of itself constitute exceptional circumstances warranting the Commission granting a further period for the making of her application.

[29] I turn now to consider the other circumstances relied upon by Ms Stephenson. To assist in considering those circumstances, I have developed the following chronology of key dates/events based on Ms Stephenson’s application and submissions.

• 7 March 2014 - termination letter received, i.e. effective date of dismissal.



• mid-late March - Ms Stephenson opens the termination letter.



• around 14 March 2014 - Ms Stephenson fractures her toe.



• 3 April 2014 - Ms Stephenson visited her local library and used the internet to visit the Commission’s website - found Form F2, F8 and F9 and was not sure which form she should use.



• 6 April 2014 - Ms Stephenson lacerates her hand.



• 10 April 2014 - Ms Stephenson sends email to BCRH regarding her dismissal. On the same day she contacts the Commission to discuss her situation. That discussion concludes with Ms Stephenson requesting that Form F8 be sent to her.



• 15 April 2014 - Ms Stephenson receives Form F8 in mail.



• 15 May 2014 - Ms Stephenson’s general protections application is received by the Commission.

[30] What is apparent from the above chronology is that Ms Stephenson did not open the termination letter for at least one and up to three weeks after she received the letter. Her moving house and the injury she sustained to her toe, which occurred around 14 March, did not prevent Ms Stephenson from opening the letter when she received it on 7 March 2014 or in the ensuing days.

[31] Even after opening the letter, it appears that Ms Stephenson took no further steps regarding her dismissal until 3 April 2014 when she visited the Commission’s website.

[32] In her application Ms Stephenson states that she did try to dispute her termination by telephoning BCRH’s Injury and Prevention Officer, Ms Munro, sometime in late March 2013 to discuss her dismissal. However, at the hearing, Ms Stephenson was unable to recall the precise nature of the conversation she had with Ms Munro. Further, BCRH referred to an email dated 13 March 2014 from Ms Munro to Ms Stephenson which suggests that Ms Stephenson’s phone call was to discuss BCRH’s letter of 16 January 2014 and Ms Stephenson’s subsequent response. At the hearing, Ms Stephenson did not dispute this. Given Ms Stephenson’s submission that she did not open the termination letter until mid-late March, it is unlikely that she would have discussed her termination with Ms Munro around 13 March 2014 as it is unlikely that she would have opened the termination letter by that date. Based on the material before me, I am unable to come to a conclusion as to whether or not Ms Stephenson disputed her dismissal prior to her email to BCRH on 10 April 2014 (that email is discussed further below).

[33] The reason I raise this telephone contact with BCRH is because it indicates that Ms Stephenson’s circumstances did not preclude her from making telephone contact with other persons/parties such as the Commission in March 2014 to discuss issues such as her dismissal. Beyond this, it is not suggested that Ms Stephenson made any direct contact with the Commission until 10 April 2014; 34 days after her dismissal took effect.

[34] The above analysis supports a finding that the reasons for the delay do not involve exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[35] In her application Ms Stephenson states that she did try to dispute her termination by telephoning Ms Munro sometime in late March 2013 to discuss her dismissal. However, for the reasons outlined at paragraph 32 above, I am unable to conclude whether or not Ms Stephenson did discuss her dismissal in that conversation. Even if she did, a related question is whether or not such a discussion constitutes action to dispute her dismissal. Again, based on the material before me, I cannot reach a conclusion on that related question.

[36] It is not disputed, however, that on 10 April 2014 Ms Stephenson sent an email to Mr Lowe, BCRH’s Director of Corporate Services, in which she disputes her dismissal. As noted above, 10 April 2014 is 34 days after Ms Stephenson’s dismissal took effect.

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

[37] No views were expressed on this point, though BCHR did submit that the absence of prejudice does not of itself justify the Commission allowing a further period for the making of an application.

(e) The merits of the application

[38] In her application Ms Stephenson cites several ways in which her dismissal was in breach of the general protections provisions of the Act, including that:

(i) BCRH had discriminated against her because she had a major ongoing illness which it did not want to deal with;

(ii) her dismissal was intended to prevent her from exercising her workplace right to lodge another grievance with BCRH;

(iii) the dismissal was a response to her intention to continue to pursue her workers’ compensation claim in court; and

(iv) BCRH had tried to coerce her into resigning by sending her a resignation form with the termination letter.

[39] I make the following observations in respect of each of those points. With regard to point:

(i) BCRH’s letters of 11 June 2013 and 16 January 2014 requesting a medical certificate suggest a desire to have some clarity as to the possible timing and basis of any return to work by Ms Stephenson, which is contrary to the interpretation placed on the letters by Ms Stephenson;

(ii) it is unclear how BCRH would have been aware of Ms Stephenson’s intention to lodge another grievance given that she had been absent from the workplace for around 12 months;

(iii) Ms Stephenson’s dismissal does not preclude her from continuing to pursue her workers’ compensation claim through the appropriate channels; and

(iv) while it is not clear as to why the document headed “Payroll Department - Notice of Resignation” was forwarded to Ms Stephenson, it is noteworthy that the termination letter makes no mention of the document and does not invite or require Ms Stephenson to either complete and/or return the document to BCRH.

[40] This analysis suggests that the merits of Ms Stephenson’s application are not compelling.

[41] Finally, I would note that Ms Stephenson was invited at the hearing to address this criterion. While Ms Stephenson did not take up that opportunity at the hearing she did subsequently provide some written material on this aspect. However, I have not taken that material into account in coming to my decision as to do so would be unfair to BCRH.

(f) Fairness as between the person and other persons in a like position

[42] No views were expressed on this point.

Conclusion

[43] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365. While I have considerable sympathy for Ms Stephenson’s personal circumstances, the reason for her application being lodged out of time stems primarily from the fact that she did not open the termination letter until mid-late March and then failed to do anything about it until early April which was after the 21 day timeframe had already passed.

[44]  Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be separately issued.

DEPUTY PRESIDENT

Appearances:

A. Stephenson on her own behalf.

R. West for the Respondent.

Hearing details:

2014.

Melbourne:

June 20.

 1   Form F8 - General protections application at Attachment 2

 2   [2010] FWA 3549

 3   [2011] FWA 673 at paragraph [11]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR552686>