Celia Cavar v Macquarie Fields Community Care Incorporated (Mfcci) T/A mcommunity care

[2011] FWA 1173

[2011] FWA 1173

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Celia Cavar
v
Macquarie Fields Community Care Incorporated (MFCCI) T/A mcommunity care
(C2010/5592)

COMMISSIONER MCKENNA SYDNEY, 3 MARCH 2011

Extension of time

[1] Celia Cavar (“the applicant”) has filed an application pursuant to s.365 of the Fair Work Act 2009 (“the Act”) to deal with alleged contraventions involving dismissal by Macquarie Fields Community Care Incorporated (MFCCI) trading as mcommunity care (“the respondent”).

[2] The applicant began working for the respondent on 27 May 2010 as a casual employee undertaking assistant nursing duties. The applicant considered that during the period of approximately a fortnight of work with the respondent she was subjected to treatment in the nature of discrimination and victimisation. The details as to alleged contraventions were not well-particularised in the initiating process and the matters advanced by the applicant during subsequent proceedings have been discursive, and have expanded. The applicant seemed, however, principally to consider that unlawful discrimination, coupled with an overlay of additional issues relating to a subsequent workers’ compensation claim, led to contraventions involving dismissal through a failure to re-engage her as a casual employee around the time she sought a return to work following a medical clearance in November 2010.

[3] It is common ground the last shift the applicant worked for the respondent was on 15 June 2010. The applicant was not then given any further shifts by the respondent.

[4] For her part, the applicant said that despite contacting the respondent or expecting contact from one of its managers about the provision of further shifts in June 2010 she did not receive any further casual engagements and nor did she receive any return telephone calls.

[5] For its part, the respondent submitted there were, compendiously described, performance-related issues about the applicant; and a consideration of those matters led the respondent to the decision to remove the applicant from its casual roster and not to offer any further work, with the dismissal being both effected and conveyed to the applicant on 18 June 2010.

[6] On 23 June 2010, the applicant subsequently filed a stress-related workers’ compensation claim. The claim was accepted by the insurer, Allianz, with a date of injury retrospective to 10 June 2010. Consistently with Allianz’s acceptance of the workers’ compensation claim, the applicant began to receive periodic workers’ compensation payments.

[7] On 9 November 2010, Allianz wrote to the applicant about the finalisation of her workers’ compensation payments commenting, in part, on her “favourable return to health and a successful return to work”. It seems a return-to-work plan may earlier have been developed for the applicant, but that was unclear. Despite the observation in the letter from Allianz that its file review indicated there had been a successful return to work with the respondent, it is common ground the applicant did not work for the respondent at any time after 15 June 2010.

[8] On a number of occasions in November 2010, the applicant communicated with the respondent about workers’ compensation payments; she also sought a prompt return to work, having submitted to the respondent a medical certificate as to fitness for a return to pre-injury duties.

[9] The applicant was not returned to the respondent’s casual roster and, on 19 November 2010, she filed this application nominating a date of dismissal of 12 November 2010. If the dismissal took effect on 18 June 2010, the application is out-of-time. If 12 November 2010 is accepted as the date the dismissal took effect, the application has been made within the standard time-frame stipulated in s.366(1)(a) of the Act.

[10] Proceedings to consider the timeliness of the application were listed for 22 February 2011. Due a genuine misapprehension by the respondent’s solicitor about the purpose of the directions earlier given and the nature of the proceedings listed on 22 February 2011, the respondent did not come prepared for a hearing. The respondent’s solicitor nonetheless put forward those matters which, it was submitted, could be advanced on the respondent’s behalf with witness evidence. I do not consider it is necessary for such evidence to be adduced, given that the relevant issue seems to me to be amenable to determination based on those matters which are common ground, or which are not disputed.

Submissions

[11] The applicant primarily contended the application was made within time, as she considered the date of dismissal was in November 2010 when the respondent did not effect a return to work. The applicant seeks the issuing of a certificate pursuant to s.369 of the Act as she wishes now to pursue matters before the Federal Court, given the conference conducted under s.368 of the Act did not resolve the dispute.

[12] In the alternative, as best as I can distil what I understand to be the matters relied on by the applicant, the applicant also contended:

• she has not actually been dismissed and presently remains technically employed by the respondent, with the result that the application is not out-of-time; and/or



• if there was a purported dismissal in June 2010, the dismissal was ineffective as she was not given written advice about the dismissal (it is common ground the applicant was not given written advice); and/or



• if there was a purported dismissal in June 2010, the dismissal was ineffective as she was not orally informed she had been dismissed (this is disputed, with the respondent contending such advice was provided); and/or



• if there was a dismissal in June 2010, she did not know she had been dismissed.

[13] Further, and again in the alternative, the applicant contended that the dismissal was not effected in either June 2010 or November 2010, but instead occurred around 27 January 2011 - a date coinciding with the finalisation of statutory workers’ compensation payments. The applicant has further foreshadowed that even if this application were dismissed on the basis it is out-of-time, nothing turns on that because she will then file another application specifying a January 2011 date as the date the dismissal took effect.

[14] The respondent contended the applicant has been dismissed and that such dismissal was effected in June 2010, with the result that the application was filed out-of-time. Given the conference in which it had participated did not resolve the dispute, the respondent now presses for the dismissal of the application on the basis there are no exceptional circumstances grounding an extension of time.

Consideration

[15] Section 366 of the Act provides that an application under s.365 must be made within 60 days after the dismissal took effect, but a further period may be allowed if Fair Work Australia is satisfied as to the existence of exceptional circumstances. I accept the respondent’s submission that the provisions of s.366 of the Act fall to be considered in relation to this application. As to the date of dismissal, it is common ground or not disputed that:

• in June 2010, the respondent removed the applicant from its casual roster on which she hitherto had been working;



• in June 2010, the respondent, through its staff, failed or refused to reply to the applicant’s telephone communications wherein she was seeking further casual shifts; and



• the respondent did not thereafter offer or provide any further casual shifts to the applicant.

[16] Further, the applicant’s own submissions described her indignation about (and what she considered to be the contemporaneous reasons for):

• the fact she was removed from the casual roster in June 2010; and



• the failure or refusal in June 2010 of a particular manager to contact her and/or to respond to her telephone messages about the provision of further work.

[17] Even if the applicant’s (disputed) contention were accepted that the respondent did not articulate advice about dismissal, a consideration of matters which are common ground allows no conclusion other than that the dismissal took effect in June 2010.

[18] The post-dismissal acceptance of a workers’ compensation claim by Allianz and correspondence from it about returning to work plainly did not operate, and could not have operated, to re-establish an already-terminated employment relationship albeit liability was accepted with an effective date of injury of 10 June 2010; and nor does the acceptance of the workers’ compensation claim on an indeterminate date after 23 June 2010 ground a conclusion there was an on-going employment relationship such that a dismissal occurred when the respondent failed to return the applicant to the casual roster in November 2010. While I think it may be concluded that communications from Allianz engendered in the applicant a belief or expectation about returning to work, it is clear that at least some of Allianz’s record reviews concerning the applicant’s employment status were wrong or, alternatively, based on wrong or incomplete information - given, for example, the observation in its letter dated 9 November 2010 (repeated in a subsequent letter dated 13 January 2011), about the applicant’s successful return to work with the respondent.

[19] As I have noted, the applicant’s primary contention was that the application is not out-of-time and, therefore, she submitted that considerations as to reasons for delay did not relevantly arise. Given I have concluded the application is out-of-time, then, as a corollary, the provisions concerning an extension of time arise do arise for consideration.

[20] I do not accept as a reason for the delay the applicant’s proposition that she did not know she had been dismissed in June 2010 (s.366(2)(a)). It may be accepted the applicant disputed the dismissal by agitating her desire to be provided with further work by attempting, unsuccessfully, to speak to a manager in June 2010 about the provision of further work. The applicant does not seem to have taken any other relevant action since June 2010 to dispute the dismissal apart from then filing this application in November 2010 (s.366(2)(b)), although, as a separate and jurisdictionally-discrete matter, she made a workers’ compensation claim. The prejudice to the respondent, including prejudice caused by the delay, was not well-developed (s.366(2)(c)). There was nothing of relevance as to fairness as between the applicant and other persons in a like position (s.366(2)(e)).

[21] Even if I am wrong in my conclusion that the applicant was aware the dismissal had been effected in June 2010 (for an applicant’s lack of knowledge that a dismissal had taken effect would weigh strongly in establishing exceptional circumstances), the merits of this application, based on my assessment of what has been advanced in the papers and proceedings thus far, do not appear substantial (s.366(2)(d)); and merits constitute one of the cumulative considerations in the discretionary assessment of whether to extend time. I note, only in passing, that this application is one of five filed by the applicant in comparatively recent times naming unrelated respondents - variously containing broadly similar, but not identical, allegations about egregious conduct involving, but not being limited to, discrimination, victimisation, criminality and so forth.

[22] All things considered, I have not relevantly been satisfied as to the existence of exceptional circumstances warranting an extension of time. An order dismissing the application has been issued in conjunction with the publication of this decision.

COMMISSIONER

Appearances:

Ms C Cavar in person

Ms H Winklemann, solicitor, for the respondent

Hearing details:

Sydney

2011

February 22

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