Celia Cavar v South Eastern Sydney Illawarra Area Health T/A Prince of Wales Hospital (Now known as South Eastern Sydney Local Network)
[2011] FWA 993
•16 FEBRUARY 2011
[2011] FWA 993 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Celia Cavar
v
South Eastern Sydney Illawarra Area Health T/A Prince of Wales Hospital (Now known as South Eastern Sydney Local Network)
(C2010/5988)
COMMISSIONER MCKENNA | SYDNEY, 16 FEBRUARY 2011 |
Extension of time
[1] Celia Cavar (“the applicant”) has made an application pursuant to s.365 of the Fair Work Act 2009 (“the Act”) to deal with contraventions involving dismissal. In its Form F8A (Employer’s Response to Application for FWA to Deal with General Protections Dispute), the respondent, which was named by the applicant as South Eastern Sydney Illawarra Area Health trading as Prince of Wales Hospital (but which was identified in the Form F8A as the now re-named South Eastern Sydney Local Health Network), raised two principal responses opposing the application. The first objection went to jurisdiction, given the legal status of the respondent as part of the NSW Health Service; the second objection went to the lateness of the application.
[2] As to the second objection, cl.1.3 of the employer’s response read as follows:
“Timeframe - Further, Section 366 of the Fair Work Act 2009 states that ‘An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).’
Ms Cavar has noted in her application that she was a casual employee engaged by various Nursing Agencies to undertake shifts at the former SESIAHS [South Eastern Sydney Illawarra Area Health Service]. The Nursing Agency did not allocate her shifts at any of the former SESIAH locations after 13 November 2008.
Ms Cavar did not file her application with FWA until 21 December 2010 which is well beyond the 60 day timeframe (approximately 2 years) set out in the Fair Work Act 2009. Further, Ms Cavar has not provided sufficient reason to explain the delay in filing her application with FWA after such as significant period outside the specified time limit.”
[3] Section 366 of the Act deals with the time for making applications brought under s.365 in the following terms:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA 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.”
[4] While the applicant was uncertain about the date of her last rostered shift at the Prince of Wales Hospital, she did not dispute the respondent’s contention as to the date of the last shift being in 2008. The applicant considered, nonetheless, that the effective date of dismissal for the purposes of this application was no earlier than that on a certificate of service issued by Health Support Services - NSW Health, namely, 11 August 2010. That certificate, in turn, records the dates of service as being from 13 May 2005 to 4 April 2010.
[5] Ms K Leevers, the respondent’s Acting Manger - Workforce Relations, was uncertain as to why a certificate of service had been issued to the applicant, given it appears the applicant was engaged as an agency casual during the time she worked at the Prince of Wales Hospital, but submitted the respondent’s administrative “data cleansing” systems typically automatically generate such paperwork when one of its own directly-employed casuals has not been rostered for extended periods. It was also unclear why the certificate of service referred to service extending to 4 April 2010, given the last rostered shift was otherwise recorded as being in 2008.
[6] Irrespective of whether the effective date of termination of employment at the Prince of Wales Hospital was considered to be 11 August 2010 (the date the certificate of service was generated), 4 April 2010 (as recorded in the certificate of service) or 13 November 2008 (a date which, I note, pre-dates the enactment of the Act) the application was filed out of time.
[7] As to the statutory considerations in relation to whether there are exceptional circumstances to allow further time concerning the filing of the application, the applicant submitted she regarded the date of termination as being 11 August 2010, which was when the certificate was generated or the later date on which she received the certificate. As to this, the applicant submitted she did not receive the certificate until after her return from overseas travel on 29 September 2010. In this respect, the applicant adduced evidence of airline tickets to establish she had been overseas from 16 August 2010 to 29 September 2010 in connection with family circumstances, being circumstances which I have considered but do not detail in this decision. The applicant further submitted that as a result of a range of personal difficulties, such as those associated with matters including, but not limited to, subsequent stress, physical illness and eye problems after her return to Australia, she had not then been in a position to file this application until 21 December 2010.
[8] I have considered the reasons provided by the applicant in the context of decisions such as Cheval Properties Pty Ltd t/as Penrith Hotel/Motel v Smithers[2010] FWAFB 7251, albeit that particular decision concerned a late application brought under another section of the Act. I have further considered the fact the applicant commenced proceedings before Fair Work Australia under s.365 and s.372 of the Act naming other respondents in the time between her return from overseas and the filing of this application on 21 December 2010 - being discrete applications which have been the subject of other proceedings before me 1. The fact the applicant filed other applications before Fair Work Australia during the period in question following her return from overseas tends to militate against acceptance of the submissions concerning the matters relied on by the applicant concerning the lateness of this particular application as they concern the period to 21 December 2010.
[9] The applicant has taken action to dispute the alleged dismissal by the respondent by filing this application but not, it seems, otherwise in the period since the last rostered shift in 2008. As to prejudice to the employer (including prejudice caused by the delay), Ms Leevers noted that approximately two years elapsed between the applicant’s last roster at the Prince of Wales Hospital and the filing of this application, giving rise to what I accept would be prejudice in terms of information-gathering concerning the matters alleged by the applicant. There was nothing by way of evidence or submissions before Fair Work Australia as to fairness as between the applicant and other persons in a like position. As to other statutory criteria, I do not consider the substantive merits of the application as to alleged contraventions involving the respondent to be strong (putting aside issues as to specific jurisdictional impediments to the applicant’s application). All things considered, I have not been satisfied as to exceptional circumstances concerning the lateness of this application - even accepting, but without so deciding, that the applicant’s submissions should be accepted as to the effective date of the alleged dismissal being 11 August 2010. I therefore decline to allow any further period. In the circumstances, it is unnecessary to canvass in this decision other matters of a jurisdictional nature concerning the application, including those raised by the respondent in its employer’s response.
[10] An order dismissing the application has been issued in conjunction with the publication of this decision. The proceedings are concluded.
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