Ben Buksh v Ramsay Health Care T/A Peninsula Private Hospital

[2018] FWC 4097

[2018] FWC 4097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ben Buksh
v
Ramsay Health Care T/A Peninsula Private Hospital
(U2018/3939)

COMMISSIONER BISSETT MELBOURNE, 27 JULY 2018

Application for an unfair dismissal remedy – extension of time – application granted.

[1] Mr Ben Buksh was employed as a Registered Nurse by Ramsay Health Care T/A Peninsula Private Hospital (Respondent). He resigned from his employment on 8 March 2018 but says he was forced to do so such that it should be considered a dismissal. On 13 April 2018 Mr Buksh made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Section 394 of the FW Act requires that an application for unfair dismissal be made within 21 days of the date of dismissal. Mr Buksh made his application 36 days after the date of dismissal. It was therefore made 15 days outside the statutory time period. Mr Buksh requires that the Fair Work Commission (Commission) grant an extension of time within which to make his application.

[3] Section 394 of the FW Act states:

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…

(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.

[4] The meaning of ‘exceptional circumstances’ in s.366(2) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd 1(Nulty)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.

14 Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance…

[5] In determining if exceptional circumstances exist, the Commission is required to consider each of the matters specified in s.394(3) of the FW Act. No one single factor is determinative. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) 2 the Full Bench of the Commission said:

38 As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[6] The Full Bench said of the reason for the delay:

41 The “reason for the delay” is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances. 3

[7] I shall therefore consider each of the matters specified in s.394(3) of the FW Act.

Section 394(3)(a) - reason for the delay

[8] Mr Buksh agreed that he was aware of the 21 day time limit for making an unfair dismissal application to the Commission.

[9] He said that following his resignation he needed to seek medical attention and obtain legal advice as to his options and he needed time to prepare himself for making the application. He said he was suffering from distress and could not bring himself to physically complete the application form.

[10] Mr Buksh said that he attempted to complete an unfair dismissal application online but had technical difficulties. He said that the online lodgement system would not accept payment but he did receive a reference number which showed up on his computer screen. He said that this occurred at around the 21 day mark.

[11] Following the unsuccessful attempt to lodge his application form online Mr Buksh said he contacted the Commission who suggested he email the form or alternatively post a hard copy to the Commission. Mr Buksh agreed that he did neither of these things. He said he could not print out the application form as he had no access to a printer and that he could not email the application because he needed to scan some material and/or he thought it was too much material for an email. Mr Buksh agreed that it was his decision not to attempt to email his application to the Commission.

[12] Mr Buksh said it took him another week or so to lodge his application after his first attempt as he was having conflicting thoughts about whether to make the application. Further, he said that he had hoped to resolve the dispute he had with the Respondent through direct discussions.

[13] Mr Buksh filed a report from his psychologist who had been treating him since February 2018, although had treated him briefly in 2016 and continues to treat him. The psychologist therefore has had contact with Mr Buksh both before and after his resignation from employment with the Respondent. The psychologist’s report indicates that Mr Buksh was suffering from a specified illness which commenced prior to his resignation and worsened dramatically due to his current dispute with the Respondent. The psychologist said that his current condition affected his ability to make right decisions, his concentration and memory.

[14] Mr Buksh said that his acute depression and anxiety meant he needed several weeks after his dismissal before he was able to make the application.

[15] Mr Buksh also said that, ultimately, his application was late because of his fractured mental state which was caused by workplace bullying.

[16] The Respondent said that Mr Buksh had provided no understandable reason for his delay in making his application.

394(3)(b) - when the person first became aware of the dismissal

[17] Mr Buksh resigned from the Respondent on 8 March 2018. This is the effective date of dismissal if there was, in fact, one.

394(3)(c) - any action taken to dispute the dismissal

[18] Mr Buksh sought meetings with the Respondent in an effort to resolve the dispute between them. He said however that he did this after he had made his application for unfair dismissal.

[19] The Respondent said that Mr Buksh did not seek any meetings or discussions between 8 March 2018 when he resigned and 7 May 2018, well after he made his application to the Commission.

394(3)(d) - prejudice to the employer

[20] The Respondent does not claim any prejudice to it.

394(3)(e) - merits of the application

[21] Mr Buksh said that he was forced to resign. He said that on 2 March 2018 the Respondent contacted him in relation to a complaint it had received of his conduct from a colleague. That complaint apparently related to a letter he had written to the colleague. He was requested to attend a meeting with the relevant managers from the Respondent. The date of the meeting was rescheduled to 8 March 2018 to ensure Mr Buksh could have a representative from the Australian Nursing and Midwifery Federation (ANMF) with him at the meeting.

[22] Mr Buksh said that he was not given enough time to prepare for the meeting.

[23] Mr Buksh said that, because of the evidence presented to it, the Respondent took a biased judgement to cease his employment immediately. He said he and his union representative sought to put additional information before the Respondent but the Respondent did not want to investigate the matter further. He also said he was fearful of presenting further information as it would involve other staff members.

[24] Mr Buksh said he was unable to participate in the meeting effectively as he was “crying and physically shaking.”

[25] Mr Buksh said he was not afforded procedural fairness and the meeting was not carried out in accordance with Ramsay Health care policies.

[26] The Respondent said that Mr Buksh was afforded procedural fairness, that both he and his representative were given an opportunity to speak at the meeting and that he chose to resign.

Further submissions

[27] Following the hearing of his application for an extension of time Mr Buksh provided to the Commission (as sought) the lodgement reference number he says he received from the Commission when he first attempted to make his application but when he says the system would not accept payment.

[28] I sought advice from the Commission registry staff who advised my chambers that:

● Mr Buksh attempted to lodge an application using the Online Lodgment Service (OLS) on 3 April 2018 which led to the creation of an online reference code 45602.

● That lodgment was not finalised.

● The lodgment made immediately prior to Mr Buksh’s attempt had a payment which led to a successful lodgment.

● The lodgment made immediately after Mr Buksh’s attempt had a fee waiver application attached and led to a successful lodgment.

● There were no payment issues identified by SecurePay on 3 April 2018.

● There were no systems issues with the OLS on 3 April 2018.

[29] The registry staff further advised my chambers that if payment is not successful the applicant will not receive a receipt number on the “Application Submitted” page for the payment and the application will not be submitted to the Commission’s file management system. The applicant will also not receive an automatic email with the F2 attached.

[30] The registry staff advised that there is a “Make Payment” button in the payment screen in the OLS which, once clicked, will send credit card details to SecurePay to approve or decline the payment. In SecurePay the search results showed no approved or declined payments for Mr Buksh’s attempted lodgement. This could mean either:

● Mr Buksh did not click the “Make Payment” button in the OLS payment screen; or

● He abandoned the application at some point in the application process.

[31] On receipt of this advice I forwarded it to the parties to seek any further submissions they might wish to make on the issues of Mr Buksh’s claim that the Commission’s online system rejected his payment.

[32] Mr Buksh replied on 12 July 2018 and submitted that:

•  he had made an attempt to lodge his application on 29 March 2018 within 21 days of the date of his resignation;

•  he attempted to lodge his application a number of times and did not intentionally abandon his application;

•  he attempted to submit his application for “approximately 13 days”; and

•  at the time [of attempting to lodge his application] he was attempting to contact the Respondent for discussions to have a previous investigation re-opened and to be reinstated.

[33] The Respondent said the information received by the Commission indicated that Mr Buksh first made an attempt to submit his application on 3 April 2018 which was, in any event, outside the 21 day timeframe required by the FW Act. The Respondent otherwise repeated and relied on submissions already made.

[34] In reply Mr Buksh sought to traverse matters on which I had not sought further submission. The submissions sought related only to the advice received by my chambers from the registry staff. To the extent Mr Buksh’s submissions go beyond what was sought, I have not had regard to them. In any event I would observe that they appear to go to the merits of his case, which I have dealt with above.

Consideration

[35] Mr Buksh’s unfair dismissal application was filed 15 days outside the 21 day timeframe.

[36] I do not accept that Mr Buksh completed an application online but that payment was rejected by the Commission’s online system on 29 March 2018. There is nothing in the information provided by Mr Buksh beyond assertion or by the Commission’s registry staff that would indicate Mr Buksh commenced or attempted to make an application on this day. The information strongly indicates he commenced an application on 3 April 2018. There is nothing to indicate any system failures that would have stopped him completing this application. I am more inclined to the view and despite his statements to the contrary that during making his online application on 3 April 2018, Mr Buksh had conflicting thoughts and did not proceed to complete the application.

[37] Had Mr Buksh competed his application and paid the filing fee on 3 April 2018 (when all of the information suggests he commenced the application process), his application would have been filed 5 days outside the required timeframe and would still have been out of time requiring a consideration of an extension of time.

[38] I do not accept the further submissions filed by Mr Buksh in response to the request from my chambers. Those submissions do not accord with the submissions he made at the hearing for an extension of time and appear no more than an attempt to cover gaps in the evidence he gave at the hearing. Further, whilst there is evidence that he commenced an application process on 3 April 2018 there is no evidence of any attempt by him to actually lodge or file an application with the Commission on any day other than 13 April 2018.

[39] Further, Mr Buksh said in evidence that he did abandon the application process because he was distressed and could not complete it. He also said that he contacted the Commission when his attempt to file the application through the OLS was unsuccessful and the Commission staff advised him to email his application or post it to the Commission but he decided to do neither. If this is true it supports a conclusion that he did not commence the process before 3 April 2018 at the earliest. These factors do not support the granting of an extension of time.

[40] Given the period over which Mr Buksh’s psychologist has been treating him, the views of his psychologist (not disputed by the Respondent) set out above give weight to Mr Buksh’s request for an extension of time.

[41] There are periods during which Mr Buksh has made no attempt to make his unfair dismissal application to the Commission. This is particularly so for the 10 day period between when he says he had difficulties completing the online process to when he did eventually file his application. During this period of time Mr Buksh rang the Commission who he said gave him advice on alternative means by which he could file his application. Mr Buksh chose not to act on this advice.

[42] Whilst Mr Buksh appears to have taken limited action to ensure his application was made in a timely manner it seems to me that this is in part explained by his illness as reported by his treating psychologist and this does add weight to granting his application for an extension of time.

[43] I am satisfied that there is no prejudice to the Respondent if an extension of time is granted. This therefore does not detract from granting the extension of time.

[44] Mr Buksh did not take any other action to dispute what he claims is his dismissal prior to making an application to the Commission. He did not seek to meet with the Respondent until after he had made his application for relief from unfair dismissal. I do not, in the circumstances, consider that this detracts from his application for an extension of time.

[45] The matters leading up to Mr Buksh’s resignation are multi-layered and involve personal relationships in the workplace and the breakdown of these relationships. Given the complexity involved in the issues, it is not possible for me to reach any conclusion as to the merits of his claim. I have therefore not given this matter any weight in reaching my conclusion.

[46] Neither party made submissions as to fairness and I have not given this any weight in reaching my conclusion.

Conclusion

[47] I am satisfied that exceptional circumstances exist in this case. Mr Buksh has been ill and under the treatment of a psychologist both before and after his resignation. It appears that Mr Buksh was being treated in relation to issues associated with the reason the Respondent sought to meet with him on 8 March 2018. This does provide some explanation as to the delay in Mr Buksh making his application. The circumstances of Mr Buksh’s illness are that it preceded and is intertwined with the reason for his departure from the Respondent. This gives it some significance in my consideration. In this case, this is a substantial matter in finding that exceptional circumstances exist. No other criterion individually or taken together weigh against such a finding. The circumstances of Mr Buksh at the time of his dismissal are unusual and not normally encountered. Mr Buksh’s illness and distress are not as a result of his dismissal but existed before and after his dismissal and, perhaps, contributed to his dismissal. They also contributed to the delay in making his application.

[48] Given my consideration of all of the matters I am satisfied that exceptional circumstances exist such that an extension of time should be granted to Mr Buksh within which to make his application. An order 4 to this effect will be issued in conjunction with this decision.

[49] The application will now be referred for further programming.

COMMISSIONER

Appearances:

B. Buksh on his own behalf.

H. Lesirge for Ramsay Health Care T/A Peninsula Private Hospital.

Hearing details:

2018.

Melbourne:

June 29.

Final written submissions:

Applicant: 12 and 25 July 2018.

Respondent: 20 July 2018.

Printed by authority of the Commonwealth Government Printer

<PR608901>

 1 (2011) 203 IR 1.

 2 (2018) 273 IR 156.

 3   Ibid; Evans v Bartlam [1937] AC 473; Kostokanellis v Allen [1974] VR 596; Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] 2 VR 505; Dix v Gims Compensation Tribunal [1993] 1 VR 297 at 301-302 per Brooking J (with whom Fullager and Tadgell JJ agreed); Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union[2015] 247 IR 5 at [58]-[59].

 4   PR609419.