Beatrice Collins v Southern Health

[2014] FWC 2338

[2014] FWC 2338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Beatrice Collins
v
Southern Health
(U2014/4963)

COMMISSIONER RYAN MELBOURNE, 8 APRIL 2014

Application for relief from unfair dismissal - extension of time.

[1] An application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) was filed by the Applicant on 24 February 2014 in relation to her dismissal by the Respondent on 14 June 2013.

[2] Section 394(2)(a) of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. In the present matter the application was made some 8 months after the dismissal took effect.

[3] The Applicant has sought that the Commission exercise its discretion under s.394(2)(b) and 394(3) of the Act to grant an extension of time to the Applicant so as to allow the Applicant to file her application on 24 February 2014.

[4] Each of the Applicant and the Respondent filed written submissions in relation to the extension of time application in accordance with Directions issued by the Commission. Each of the Applicant and the Respondent have consented to having the Commission determine the application for an extension of time on the basis of the material filed and without the need for a hearing.

Background

[5] The Applicant commenced employment with the Respondent in June 1999 and was dismissed on 2 May 2013.

[6] On 8 January 2012 the Applicant suffered a diarrhoeal illness for which she attended Casey Hospital in Berwick for treatment. On 14 January 2012 when the Applicant attended for work at Monash Medical Centre she collapsed at work and had partial paralysis. Whilst treating doctors presumed that the Applicant had a stroke, three days later on 17 June 2012 the Applicant was diagnosed with Guillian-Barre syndrome and was given appropriate treatment. However by the time correct treatment had commenced the Applicant was fully paralysed. Guillian-Barre syndrome is a relatively rare disorder affecting the peripheral nervous system but it is the most common cause of acute non-trauma related paralysis. This disorder is usually triggered by an infection and in the case of the Applicant the infection would most likely have been a diarrhoeal infection.

[7] The Applicant was an inpatient at Monash Medical Centre from 14 January to 30 January 2012 and then she was transferred to Casey Hospital where she spent 6 months in rehabilitation to deal with her recovery from the paralysis. In August 2012 the Applicant was discharged from Casey Hospital and went to her sister’s house for rehabilitation at home.

[8] The reason for the Applicant being discharged into her sisters care are twofold; firstly the Applicant was discharged in a wheelchair and with a walking aid to continue with personal help and rehabilitation, secondly, whilst the Applicant had been in hospital for 6 months she had been unable to continue payments on her house and car and these had been sold off. During the period the Applicant was in hospital she had used all her sick leave and annual leave and long service leave to maintain a level of income. As from 6 August 2012 the Applicant was on unpaid sick leave from her employment with the Respondent.

[9] The Applicant had made a claim for workers’ compensation and in late July 2012 had engaged Ryan Carlisle Thomas to represent her on a ‘no win no fee’ basis in relation to her workers’ compensation claim. The Applicant ultimately failed in her workers’ compensation claim.

[10] It appears that whilst the Applicant was in hospital she also developed Graves Disease and suffered depression. Graves Disease is an autoimmune disease linked to hyperthyroidism. Emotional stress has been posited as one of the possible triggers for Graves Disease. The Applicant was placed on medication to deal with both the Graves Disease and the depression. At some later stage the Applicant also suffered from Shingles.

[11] Sometime between August 2012 and October 2012 the Applicant’s family decided to send her to Canada for a holiday with family living there.

[12] In October 2012 the Applicant informed her manager at Monash Medical Centre that the Applicant would be going to Canada for 5 months to spend time with her family. On 23 October 2012 the Respondent wrote to the Applicant expressing surprise at the Applicant’s intention to go overseas for five months and required the Applicant to provide medical evidence to substantiate the absence from work for that 5 month period. The Respondent advised the Applicant that “upon your return from overseas in April 2013, Southern Health will contact you to discuss your future employment related to your ability/intention to return to work at this time.”

[13] The Applicant attended a meeting with the Respondent on 12 April 2013 “to discuss the Applicant’s long term absence from the workplace due to illness and to discuss your ability to fulfil the inherent requirements of (her) role as an Associate Nurse Unit Manager”. The Applicant was given until 10 May 2013 to provide a written response to the issues raised in the discussion on 12 April 2013. The Applicant responded on 9 May 2013.

[14] By letter dated 13 May 2013 the Respondent advised the Applicant that it had considered her response and further advised the Applicant that “Monash Health had made a decision to terminate your contract of employment on the basis that you are unable to complete the inherent requirements of your contract of employment in an ongoing capacity.” The Respondent also advised the Applicant that the termination of the contract of employment would be effective on 14 June 2013.

The Applicant’s Case

[15] The Applicant in her Form F2, Unfair Dismissal Application explained the reason for the delay in filing her Unfair Dismissal Application as follows:

“I was mentally and physically unfit was going thru severe depression and was advised by my psychologist to call and plea my case to the Ombudsman Fair Work Australia on 10/2/2014.

I had to sell my house, car and furniture living in a friends house and is on Centrelink payment of $515/ fortnight This 360 turn in my life was very traumatising hence had no more mental or physical energy to dispute the process or outcome of my dismissal.”

[16] In her written submissions to the Commission in support of her application for an extension of time the Applicant contended as follows:

“The reason for me not contacting Fair work Australia earlier was due the fact that I was ill, depressed and in a wheelchair when Southern Health sent me their first letter, dated Oct. 23, 2012, Ref: Long Term absence from 44 South, Clayton, which is duly attached. I also send all these letters to my lawyer for his advice, but he said that it is not work claim related and therefore could not help. I knocked every door for help and advice. It was only when I seen the Psychologist, she said I had severe depression caused by the traumatic events and advised to see a Physiatrist. She also advised me to contact Fair Work Australia and my local MP. I felt that this is my last strand of hope for any kind of justice for the un-sympathetic approach of treatment and termination of a staff that worked for 13 years.”

And

“My only hope is that Fair Work Australia reads my story with patience and understanding of the pain and suffering I have gone through these last couple of years, fighting to get my life back together. I pray the court renders me the justice and compensation I rightly deserve. These two years I have felt like a bug being trampled my giants.”

[17] After receiving the letter of termination the Applicant describes her position as follows:

“On May 13, 2013, I received a termination of employment letter from Lynne Bickerstaff, Director of Nursing, Monash Medical Center, Clayton effective June 14, 2013.

I was devastated, suicidal, living out of a suitcase with my sister. My family organized for me to go overseas on the advice of the psychologist councilor who used to visit me at home. This was to get me away from the present trauma and situation. Hence I was sent to Canada, but in July 2013, unfortunately had a heart attack and had to return to Australia in Sept. 2013. For the last six months I have been living with friends, getting medical treatment for my heart condition, Graves disease, psychologist, neurologist, and podiatrist. My only income was from Centerlink. My friends and family helped with accommodation and transportation.”

[18] In her original application the Applicant submitted a medical report written by her treating psychologist on 10 February 2014. The report is both illuminating and relevant to the application for an extension of time. The report in its entirety is as follows:

“Thank you kindly for referring this delightful lady who presented anxious and distressed about her physical illnesses and the problems she has encountered in getting her entitlements after 13 years of working as a NUM at Monash Medical Centre. In her story, it appears quite straight forward that she was looking after a Guillian Barre syndrome patient at the time that she herself contracted the disease. Instead of receiving Workcover entitlements, she ended up using all her sick leave and holiday time to try to support herself whilst she couldn't attend work. Eventually, she had tosell her home as she could not afford to make the mortgage repayments. Work never compensated her and in the end dismissed her without any of her entitlements. She now leaves off a suitcase, staying at friend's places and feeling very much worthless and disrespected. It is not surprising that after these events she went onto develop Graves disease, which as you know, can be activated through severe stress. Ms Collins has been very unfortunate in her quest to getting justice and all this has only added to her mental anguish. She informs me that she was originally prescribed Setraline by a psychiatrist when she first contracted her illness, but she discontinued taking the medication once she felt better. It is my recommendation that she recommences a new trial of Setraline. She ought to take this medication in addition to the sedatives she takesat night to sleep. Once Ms Collins is more settled, she ought to seek a psychiatrist who can manage her medications, which I suspect she will be on for the rest of her life. Ms Collins will also benefit from psychotherapy aimed at assisting her to be more assertive. Relaxation ought to form part of her psychotherapeutic program.”

The Respondent’s Case

[19] The Respondent contended as follows:

“The Respondent submits that the Applicant's illness, while serious, did not render her incapable of making enquiries or filing an unfair dismissal application. None of the medical evidence relied on by the Applicant suggests her illness prevented her from bringing a claim. Indeed, much of the written medical evidence pre-dates her dismissal. The medical evidence following her dismissal does not state or support the assertions that her medical condition prevented her lodging an unfair dismissal claim. The medical reports are of a generic nature that do not address facts or opinions pertinent to the Applicant's delay. This leaves the Applicant's material as not supporting her submissions. In addition, it appears the Applicant was capable of engaging solicitors following her dismissal, as demonstrated by the letter dated 22 October 2013 from Dr Robert Hjorth to Ryan Carlisle Thomas lawyers attached to the Applicant's unfair dismissal application.

Moreover, she was apparently capable of attending medical consultations in that period. The medical evidence cannot explain any of the delay, much less the entire delay. Nor does the reference to inability to obtain legal advice which seems to relate to pre dismissal events and is at odds with the Applicant obtaining legal advice in connection with her injury. Inability to obtain supporting legal advice or legal advice (or its terms) suitable to the Applicant cannot be an adequate reason for the delay or an exceptional circumstance.

In the recent case of Karim Ahmed v RACV Pty Ltd T/A RACV [2013] FWC 8309 (Karim), the Commission dealt with a general protections claim that was filed approximately 7 months late in comparable circumstances. The Commission rejected the extension of time application...

As in Karim¸ the Respondent submits the Applicant has not established she was incapable of making the application on time and has therefore failed to provide a satisfactory reason for the substantial delay in this case.

...

In Ms Helen Wemyss v Mission Australia Employment Services [2010] FWA 1798, Commissioner Cambridge made the following comments about the length of the delay in an extension of time application:

‘[16]… the onus rests with the applicant to convince FWA to exercise the discretion to extend time. Although the length of the delay is not specifically mentioned as a factor in subsection 394(3) of the Act, it seems to me that the length of the delay might logically amplify the onus on an applicant seeking the exercise of the discretion to extend time. In my view the length of any delay might operate to amplify the onus on the applicant in exponential terms, such that the longer the delay is the greater the difficulty is in establishing proper basis for the exercise of discretion.’

In the context of a 21 day statutory time limit, 7 months is a significant delay that places a substantial burden on the Applicant to provide a proper basis for the exercise of the discretion. For the reasons outlined above, the Respondent submits that the Applicant has failed to do so and that the application for an extension should be dismissed.”

Consideration

[20] The relevant provision of the Act is s.394(3) which is as follows:

“(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.”

[21] In Cheyne Leanne Nulty v Blue Star Group Pty Ltd, the Full Bench said:

“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.” 1

[22] In the present matter the Respondent contends that because the Applicant is 7 months out of time that this “is a significant delay that places a substantial burden on the Applicant to provide a proper basis for the exercise of the discretion.” The Respondent relies on the decision of Cambridge C in Wemyss v Mission Australia Employment Services where the Commissioner said:

“In my view the length of any delay might operate to amplify the onus on the applicant in exponential terms, such that the longer the delay is the greater the difficulty is in establishing proper basis for the exercise of discretion.” 2

[23] I don’t accept that there can be an exponential increase in the onus borne by an applicant for an extension of time merely because of the greater the length of time between the 21st day after the dismissal and the date of the application for an unfair dismissal remedy. The only burden placed on the Applicant in this matter (and placed on the applicant in any application for an extension of time) is to satisfy the Commission that there are ‘exceptional circumstances” having regard to all of the circumstances of the case (including the matters listed in 394(3)).

[24] The logic of Wemyss v Mission Australia Employment Services would be that an application for an unfair dismissal remedy made one day outside the time limit would have a low level of burden attached to it but an application made 25 years out of time would have (using an exponential increase) an impossibly high burden. However decisions of this Commission and the Courts clearly show that this is not the case.

[25] In Ozsoy v Monstamac Industries P/L, a Full Bench refused permission to appeal against a decision of DP Gostenick where the Deputy President had refused to grant a extension of time of only one day. In his decision DP Gostenick said:

“[21]The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional. The absence of an acceptable explanation for the delay weighs against the Applicant in this case.

...

[29]The statutory time limitation applicable to the exercise of a person’s right to make an unfair dismissal remedy application that is in place, is an expression of Parliament’s intention that rights must be exercised promptly within a particular time so as to bring about certainty. Time limitations seek to balance one person’s right to bring an action, against another person’s right to know with certainty that questions about actions that they have taken will be agitated within a particular period, otherwise that right is lost.

[30]Applications seeking relief from unfair dismissal must be made within 21 days after the dismissal takes effect. Only in exceptional circumstances should the Commission consider allowing a further period. Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances. Weighing all of the matters set out in s 394(3), there is nothing in the evidence before me to establish that there are exceptional circumstances warranting consideration of the exercise of my discretion to allow a further period within which the Applicant may lodge an unfair dismissal remedy application.” 3

[26] By way of contrast is the decision of the High Court in Yates v The Queen 4 where the Court was considering an application that was made 25 years out of time!

[27] In Yates v R the applicant had in March 1987 been sentenced to 7 years gaol for aggravated sexual assault and at the same time the trial judge made an order pursuant to s.662 of the Criminal Code (WA) directing the indefinite detention of the applicant at the Governor’s pleasure. It was clear to the High Court that the original order made by the trial judge should never have been made as it didn’t meet the tests for the making of such an order. The applicant was an intellectually disabled man and it was only in 2011 that Legal Aid WA became aware of the circumstances of the applicant and commenced to assist him. The result of the order for indefinite detention made by the trial judge was that the applicant had been held in gaol for 20 years after he had served his sentence.

[28] In Yates v R Gageler J at para 42 said:

“The discretion to grant special leave to appeal, which ‘cannot be reduced to a formula’, ‘must always make allowance for the exceptional case of manifest injustice’. This is such a case. Unless special leave to appeal from the judgment of the Court of Criminal Appeal of the Supreme Court of Western Australia is granted 25 years out of time, the applicant will remain in indefinite detention by reason of a court order that should never have been made.”

In the same matter French CJ, Hayne, Crennan and Bell JJ said:

“The applicant has now served six years more than the maximum sentence that a court could have imposed for the offence of aggravated sexual assault. The s 662 order should not have been made. Notwithstanding the great delay in bringing the application, the interests of the administration of justice require that special leave to appeal be granted. The appeal must be allowed. In the result, the order made under s 662 will be set aside and the applicant will be released from custody without parole supervision.

The applicant has served the sentences for the serious offences of which he was convicted in 1987. The respondent's submission that to release him almost 20 years after completing those sentences would produce an anomalous result cannot be countenanced.”

[29] In Ozsoy an application one day out of time failed whereas in Yates an application 25 years out of time succeeded.

[30] In the context of applications for an extension of time in matters such as an unfair dismissal application the Courts have noted that an extension of time may be granted even where there is no adequate explanation for the delay. In Haining v Deputy President Drake & Ors Moore J said:

“Circumstances can arise where no explanation or no adequate explanation is given for the delay in instituting proceedings but it is nonetheless in the interests of justice to extend time.” 5

[31] In the same matter Wilcox and Marshall JJ said:

“If a case seems highly meritorious, that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.”

[32] In the present matter I have real sympathy for the plight of the Applicant and as much as the circumstances of the Applicant are deserving of sympathy that is not the test under the Act for a grant of an extension of time.

[33] I note that part of the plea from the Applicant is a prayer that “the court renders me the justice and compensation I rightly deserve.”

[34] The first observation I make in relation to this plea from the Applicant is that the Commission cannot be used to undo the outcome of the Applicant’s failed attempt to get workers compensation for her illnesses. To the extent that compensation can be granted in a case of unfair dismissal it is limited to instances where the dismissal is unfair and then further limited by the requirements of s.392 of the Act.

[35] The second observation I make is that the Applicant’s plea for justice has been qualified by the expectation that the “justice” to be given is the “justice” determined by the Applicant to be her entitlement. The reality is that the Commission dispenses justice in accordance with the requirements of the Act and not merely in accordance with the subjective view of a particular party to a proceeding.

[36] In the present matter I accept that immediately after being advised in May 2013 of her pending dismissal in June 2013 that the Applicant’s mental health would have impacted on her ability to make an unfair dismissal application in time. However I note that the Applicant does not provide an adequate explanation as to why she did not make an application for an unfair dismissal remedy between September 2013 and February 2014.

[37] In the present matter I note that the reason for the dismissal of the Applicant from her employment with the Respondent relates solely to her incapacity to perform the role for which she had been employed. Whilst the Commission has to consider the merits of the unfair dismissal application as part of considering whether or not to grant an extension of time, the Commission does not embark on a full hearing of the merits of the Applicant’s case. On the basis of the material provided by the Applicant it does not appear to me that the Applicant has a highly meritorious unfair dismissal case.

[38] I note that the Respondent asserts that it will be prejudiced by a grant of an extension of time. The prejudice was identified as follows:

“It is submitted that there is significant prejudice to the Respondent given the very long period since the employment relationship ended. It is likely that witness recollection of events will have been reduced given the passage of time.”

[39] I don’t accept that the Respondent would suffer any “significant prejudice” because of an assertion “that witness recollection of events will have been reduced given the passage of time”.

[40] In this matter the central issue on a merits hearing would be whether the Applicant had the capacity to perform the role for which she was employed. This is very different from matters where the central issue is about the conduct of employees in the workplace where there are disputed facts with different witnesses presenting different versions of the same event.

[41] I have considered all of the circumstances of this matter and I conclude that there are no exceptional circumstances which would warrant me granting an extension of time of more than 7 months to the Applicant. Accordingly the application in this matter is dismissed as it was not made within the time required by the Act.

COMMISSIONER

 1   [2011] FWAFB 975 at pn [13], (Lawler VP, Sams DP, Williams C).

 2   [2010] FWA 1798.

 3   [2014] FWFCB 2149.

 4   Yates v The Queen [2013] HCA 8.

 5   Haining v Deputy President Drake & Ors,[1998] FCA 1168.

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