Carol Hucker v International Health and Medical Services Pty Ltd

[2015] FWC 7771

[2015] FWC 7771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Carol Hucker
v
International Health and Medical Services Pty Ltd
(C2015/5836)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 12 NOVEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 25 August 2015 Ms Carol Hucker (the Applicant) lodged a general protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by International Health and Medical Services Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 23 June 2013. She was employed as a counsellor, placed by the Respondent within immigration detention centres in accordance with contractual arrangements that the Respondent has with the Australian Government to provide health and welfare services in immigration detention facilities.

Alleged Contravention

[3] The Applicant alleges that she advised the Respondent on 1 August 2014 that she would not be able to take up her scheduled “rotation” because of necessary cancer treatment. The Respondent treated this as a resignation. She was offered a position in Darwin which she could not take up. No further offers were made. A breach of s.351, because of a temporary absence due to illness, is alleged.

Respondent’s Submissions

[4] The Respondent says that the Applicant was required to complete the assignment by 12 September 2015 but she advised them that she could not do so. It was clear to the Applicant, at least since December 2014, that there would be no negotiated settlement.

Relevant Legislation

[5] 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.”

Approach of the Commission

[6] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[7] On 14 September 2015 the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 2 November 2015.

[8] The Applicant was represented by Mr B. Dunlevy, solicitor, who was granted permission to appear pursuant to s.596. The Respondent was represented by Mr R. Venning, its Human Resources Director.

Matters to be taken into account pursuant to s.366(2)

[9] 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.

(a) The reason for the delay

[10] The Applicant says that she believed she would be able to return to work once her cancer treatment was finished. A position in Darwin was withdrawn and it was clear that no other positions would be available. She engaged solicitors in March 2015 and correspondence took place. There is no reason why the application could not have been lodged then. The last communication from the Respondent appears to have been on 13 April 2015 but the application was not lodged until over four months later.

[11] There is nothing in the reasons for delay given by the Applicant which establishes exceptional circumstances.

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

[12] The Applicant’s lawyers had been seeking to negotiate with the Respondent but the slowness in doing so does not support a finding that there are exceptional circumstances.

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

[13] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

(d) The merits of the application

[14] It may be that there are some issues that can be argued as to the interpretation and enforceability of the Applicant’s contract of employment with the Respondent. However, the possible basis of a general protections claim is less clear. The evidence filed seems to support a conclusion that the Applicant was not provided with additional work but the link to her medical condition would need to be established.

[15] In any event, the merits of the application do not outweigh the lengthy and unexplained delay in filing the claim such as would give weight to the existence of exceptional circumstances.

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

[16] This factor was not addressed and has not been taken into account.

Conclusion and Order

[17] 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.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Ms Carol Hucker under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

B. Dunlevy solicitor for the Applicant.

R. Venning for the Respondent.

Hearing details:

2015

Telephone Hearing:

November 2.

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