Cindy Purcell v City of Greater Geraldton

[2016] FWC 5658

[2016] FWC 5658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cindy Purcell
v
City of Greater Geraldton
(U2016/7306)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 15 SEPTEMBER 2016

Application for relief from unfair dismissal–extension of time not granted.

[1] Ms Cindy Purcell was employed as a Children Services Support Officer with the City of Greater Geraldton. Ms Purcell was dismissed from her employment by the City of Greater Geraldton on 13 April 2016 as a result of her inability to carry out her duties.

[2] Ms Purcell alleged the termination of her employment by the City of Greater Geraldton was unfair as she had been absent from the workplace due to an injury, and her employer was using her injury to avoid making a redundancy payment.

[3] Ms Purcell’s unfair dismissal application, lodged on 30 May 2016, was not made within 21 days of the date of the dismissal as required by s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

[4] The City of Greater Geraldton filed a response to Ms Purcell’s application on 20 June 2016 objecting to the application on the basis that it was out of time.

[5] Ms Purcell attended a jurisdiction hearing which was conducted by telephone before me on 24 June 2016 and gave oral evidence on her own behalf in addition to her written submission.

[6] Mr Jeffrey Graham, Manager Corporate Service, appeared and gave evidence on behalf of the City of Greater Geraldton.

[7] This decision is about whether the Fair Work Commission (Commission) should allow Ms Purcell a further period for lodgement of her application for an unfair dismissal remedy.

[8] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[9] Section 394(3) of the Act is as follows:

“394 Application for unfair dismissal remedy

…

(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.”

[10] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where 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.” [Endnotes not reproduced]

[11] There was no factual dispute that Ms Purcell had filed her application out of time.

The Evidence

[12] Ms Purcell had an ongoing workers compensation claim which she submits was being arbitrated by Workcover Western Australia. It was Ms Purcell’s evidence that she was being legally represented in her workers compensation matter and this required her time and focus as she had to gather supporting documentation, liaise with her medical providers and lawyers. 2

[13] Ms Purcell also submits she was suffering from pain in her right arm and shoulder and her neck due to an injury she had sustained, and her priority at the time of dismissal was attending medical procedures and dealing with chronic pain and depression.

[14] Ms Purcell’s oral evidence was that having to travel to and from her medical appointments, undergoing medical treatment, dealing with her depression and workers compensation claim contributed to the delay in being able to lodge her application on time.

[15] On 19 April 2016, Ms Purcell underwent a day procedure (right cervical medial branch radiofrequency) from which she says the recovery period was six to eight weeks.

[16] Mr Graham submitted the procedure Ms Purcell underwent was a minimally invasive outpatient procedure that typically takes around 30 minutes and is performed under local anaesthetic. Mr Graham submitted the recovery time for the procedure is around one day and “was not as big a deal as Ms Purcell was making it out to be”.

[17] Ms Purcell submits she reacted badly to the treatment and her recovery time was extensive.

[18] Ms Purcell provided a letter from her treating practitioner as evidence of her incapacity dated 8 June 2016 in which it states the following:

“…I saw her on 22 March 2016, the day after her employment at the City of Greater Geraldton had been terminated. She was in a state of surprise and shock…

Cindy had been really struggling leading up to this with chronic pain from her neck, coping with voice changes caused by damage to her recurrent laryngeal nerve at previous surgery and on this occasion I started her on treatment for a reactive depression. I do not think that she was functioning as well as normal at this stage due to the above reasons.”

[19] Ms Purcell attended medical appointments at the Panaceum Medical Group on 15 March 2016 and again on 5 April 2016. Two certificates of capacity from those appointments were provided by Ms Purcell as evidence. The 5 April 2016 certificate states Ms Purcell was not fit for work from 5 April to 3 May 2016.

[20] Ms Purcell also submits the reason for the delay was that she was unaware of her rights as an employee 3 and was unsure what the most appropriate jurisdiction would be. Ms Purcell submits she originally lodged an application with the Western Australian Industrial Relations Commission (WAIRC).

[21] Ms Purcell’s evidence was her husband submitted the application to the WAIRC for and on her behalf. Ms Purcell also stated her husband had been in and out of contact range during the period from her dismissal until she lodged her unfair dismissal application with the Commission and for this reason, he did not assist her in her application with the Commission.

[22] The application lodged with the WAIRC was a Form 2- Notice of claim of harsh, oppressive or unfair dismissal (Form 2). WAIRC wrote to Ms Purcell on 11 May 2016 confirming her Form 2 had been received via the Registry’s online lodgement system on Friday, 6 May 2016.

[23] The email provided as evidence by Ms Purcell states the following:

“… After our discussion, you informed the Registry that you would like to seek legal advice prior to filing your Form 2 application…….

I confirm that the registry will not take any further action …”

[24] Attached to the email from the WAIRC to Ms Purcell was a list of legal centres that could assist should she wish to seek legal advice. Ms Purcell’s application to the WAIRC was made 23 days after her dismissal took place.

[25] Ms Purcell did not file her unfair dismissal application with the Commission until 30 May 2016, being a further 19 days after her conversation with the WAIRC.

s.394(3)(a) the reason for the delay

[26] Ms Purcell’s application was filed 47 days after the date of her dismissal. Ms Purcell must provide a credible reason for the delay in making the unfair dismissal application. 4

[27] Ms Purcell must provide a credible reason for the whole of the period that the application was delayed. 5 The Commission is required to consider the explanation of the total period of the delay, not only part of it. The delay for the purposes of s.394(3) of the Act, is the delay from the expiry of the 21 day period in s.394(2)(a) after the termination date until lodgement of the application.6

[28] In accordance with the principles summarised in paragraph [27] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 4 to 30 May 2016. 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 whether that reason constitutes exceptional circumstances.

[29] I do not doubt Ms Purcell is unwell for which I have a great deal of empathy however, in considering the evidence before me I am not satisfied that Ms Purcell was so incapacitated that she could not make an online application for unfair dismissal remedy.

[30] Ms Purcell’s evidence was her priority during the period commencing from her dismissal was to deal with her health issues and her workers compensation claim. Although Ms Purcell submits she had limited capacity due to her health issues, it was Ms Purcell’s evidence that she was able to liaise with her lawyers and attend her appointments.

[31] Ms Purcell’s oral evidence during the hearing was that she did not see that making an unfair dismissal application was a priority. Ms Purcell was able to correspond with her lawyers and attend to her Workers Compensation claim, and for this reason I am not satisfied Ms Purcell’s limited capacity due to her illness, prevented her from lodging an application on time with the Commission.

It was Ms Purcell’s evidence that her husband had submitted an application to the WAIRC 23 days after the dismissal took effect. The email correspondence from the WAIRC to Ms Purcell states that it was Ms Purcell that the Registry Services Officer had spoken to by telephone on 11 May 2016 and that during the conversation, procedural advice had been provided. The email notes that it was Ms Purcell who had advised the WAIRC that she would be seeking legal advice before proceeding with her Form 2. It took Ms Purcell another 19 days before she lodged her application with the Commission. I am not satisfied that Ms Purcell has provided adequate reasons for this period of the delay.

[32] I have considered all of the evidence before me, including written submissions, witness statements, the oral submissions and evidence given at the hearing. I am not satisfied Ms Purcell has provided reasons for the whole of the delay or that Ms Purcell’s reasons amount to exceptional circumstances. This weighs against a finding of exceptional circumstances.

s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[33] It is not in contention a registered letter was sent from the City of Greater Geraldton and received by Ms Purcell on 21 March 2016, providing notice that her employment was to be terminated on 13 April 2016. 7

[34] Ms Purcell had the full 21 days from the date of termination to lodge her application. This weighs against a finding that there are exceptional circumstances.

s.394(3)(c) any action taken by the person to dispute the dismissal

[35] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 8

[36] Mr Graham submits at no point during the duration of the notice period provided to Ms Purcell did she contact the City of Greater Geraldton for clarification, advice or to object to the dismissal. 9

[37] On 21 May 2016, some 38 days after her dismissal, Ms Purcell sent an email to the City of Greater Geraldton advising that she would be lodging an application with Fair Work for unfair dismissal in response to the termination of her employment. Ms Purcell took no other action to dispute her dismissal. This weighs against a finding that there are exceptional circumstances.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[38] Prejudice to the employer will go against the granting of an extension of time. There were no submissions made relevant to this criterion. I therefore consider this criterion to be neutral.

s.394(3)(e) the merits of the application

[39] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 10 it said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[40] Ms Purcell’s submission is that she was unfairly dismissed whilst absent from work due to injury and illness for a period of greater than 12 months.

[41] Ms Purcell submits the City of Greater Geraldton had transferred her place of employment and as such the role she filled was no longer available. For this reason she should have been entitled to a redundancy payment or redeployment.

[42] Ms Purcell submits her termination of employment was an attempt by the City of Greater Geraldton to avoid paying her redundancy entitlements.

[43] Mr Graham submits Ms Purcell was dismissed under section 84AB of the Workers Compensation and Injury Management Act 1981 due to not having worked in a full capacity for at least 12 months.

[44] Mr Graham submits Ms Purcell’s role was not deemed to be redundant as the City of Greater Geraldton still operates Bright Stars Family Day Care and at the time of the dismissal the future of the Day Care Centre had not been determined.

[45] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 11 for the purpose of determining whether to grant an extension of time to the applicant to lodge an application.

[46] I have adopted the reasoning outlined above. I am not able to make a final assessment of the merits of the matter and accordingly, I find the criterion to be neutral.

s.394(3)(f) fairness as between the person and other persons in a similar position.

[47] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 12 as follows:

“[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, 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.”

[48] There were no submissions that there is, or has been, any persons in a similar position to Ms Purcell. I find the criterion to be neutral.

Conclusion

[49] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Ms Purcell’s application to be made. Ms Purcell has not provided a reasonable explanation for the whole of the delay. Ms Purcell’s application for an extension of time is refused and her unfair dismissal application is therefore dismissed.

[50] An order 13 dismissing Ms Purcell’s application will accompany this decision.

COMMISSIONER

Appearances:

C Purcell on her own behalf.

J Graham on behalf of the City of Greater Geraldton.

Hearing details:

2016.

Melbourne (by telephone):

June 24.

 1   [2011] FWAFB 975.

 2   Exhibit R2.

 3   Exhibit A1.

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010)197 IR 403 at 408-9.

 6   Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37].

 7   Exhibit R2.

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 9   Exhibit R2.

 10   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 11   Kyvelos v Champion Socks Pty Ltd, Print T2421, [14].

 12   [2015] FWC 8885.

 13   PR 585486.

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