Christine Rezk v Southern Cross Care (WA) Inc
[2019] FWC 1029
•25 FEBRUARY 2019
| [2019] FWC 1029 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Christine Rezk
v
Southern Cross Care (WA) Inc.
(C2018/7457)
DEPUTY PRESIDENT DEAN | SYDNEY, 25 FEBRUARY 2019 |
Application to deal with contraventions involving dismissal.
[1] On 28 December 2018, Ms Christine Rezk made an application under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving her dismissal by Southern Cross Care (WA) Inc. (SCC).
[2] Ms Rezk was employed by SCC from 11 May 2018 until she was terminated on 30 October 2018. Ms Rezk’s general protections application was made some 38 days outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted.
[3] The matter was heard by telephone on 21 February 2019.
Consideration
[4] The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.1
[5] Section 366(2) of the Act provides:
366 Time for application
(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.
[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd2 where the Full Bench said:
“[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] The onus of establishing exceptional circumstances lies with Ms Rezk.
[8] I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
[9] The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.3
[10] Ms Rezk says that her sister has been suffering from a life threatening illness and the principal reason for the delay in filing her application was due to her sister’s condition. Ms Rezk submits that the delay was caused by:
• her travelling between Kalgoorlie (where she resides) and Perth (where her sister is hospitalised); and
• the ‘testing’ required by her and her family.
[11] The ‘testing’ referred to the giving of blood samples for the purpose of finding a compatible donor for her sister for a potential stem cell or bone marrow transplant. To support this contention, Ms Rezk provided two letters from South Metropolitan Health Service, dated 2 October 2018 and 20 November 2018, which indicate that Ms Rezk was asked to give blood samples at a local PathWest Collection Centre.
[12] Ms Rezk submitted that another factor causing the delay was due to her fear of the impact the application may have on her uncle, who is also employed by SCC in the same facility. Ms Rezk was concerned that her uncle may be dismissed if she made a claim against SCC.
[13] In response, SCC argued that the two tests that Ms Rezk was requested to undertake were to provide blood samples at a PathWest clinic and did not require her to cease work or be hospitalised, and she would not have suffered from any ill effects that might have prohibited her from lodging the application within the required timeframe.
[14] SCC further submitted that Ms Rezk had ample time prior to travelling between Kalgoorlie and Perth and outside hospital visits during which she could have filed her application electronically within time.
[15] As to the reason advanced by Ms Rezk relating to her uncle’s employment, SCC submitted that the possibility of a potential termination of another employee, who is not under any performance management, is not a valid reason for the delay in filing her general protections application.
[16] On the evidence before me, and while I am sympathetic to Ms Rezk’s circumstances with respect to her sister’s illness, I am not satisfied that Ms Rezk has provided satisfactory explanation for her failure to file her application within the statutory time period.
[17] This weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[18] There is no evidence that Ms Rezk took steps to contest her dismissal until the filing of this application. During the hearing, she confirmed that the only action she took was to make this application.
[19] I find this weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[20] I do not accept that SCC would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
[21] For the purpose of determining whether to grant an extension of time for Ms Rezk to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’4
[22] Ms Rezk states in her application that she was dismissed after she raised concerns of being bullied at the workplace.
[23] SCC denies the allegations and submits that Ms Rezk’s employment was terminated during a probation period due to performance issue.
[24] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[25] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm5 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’6
[26] Neither party made submissions on this criteria and I therefore find this to be a neutral consideration.
Conclusion
[27] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Ms Rezk are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
[28] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
C Rezk, on her own behalf.
J Hill for Southern Cross Care (WA) Inc.
Hearing details:
2019.
Sydney:
February 21.
Printed by authority of the Commonwealth Government Printer
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1 [2016] FWCFB 6963.
2 [2011] FWAFB 975.
3 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
4 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
5 [2015] FWC 8885.
6 Ibid at [29].
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