David v Future Medical Imaging Group Pty Ltd

[2016] FWC 2510

[2016] FWC 2510

DECISION

Fair Work Act 2009
s.365—General protections
Christina David
v
Future Medical Imaging Group Pty Ltd
(C2015/7216)
DEPUTY PRESIDENT KOVACIC	CANBERRA, 20 APRIL 2016

Application to deal with contraventions involving dismissal - extension of time - no

exceptional circumstances warranting allowing a further period for the making of an

application - application dismissed.

[1]        Miss Christina David (the Applicant) made an application which was received by the

Fair Work Commission (the Commission) on 5 November 2015 under s.365 of the Fair Work

Act 2009 (the Act) alleging that she had been dismissed by Future Medical Imaging Group

Pty Ltd (FMIG – the Respondent) on 14 October 2015 in contravention of the general

protections provisions in the Act.

[2]        As the application was received one day outside the 21 day statutory timeframe

specified in s.366(1)(a) of the Act, the Commission issued Directions on 18 November 2015

requiring the parties to file an outline of submissions and any evidentiary material they

intended to rely on regarding the extension of time issue. Revised Directions were issued on

23 November 2015.

[3]        Miss David’s application had been listed for a telephone hearing on 24 December

2015. However that hearing date was vacated on 21 December 2015 following confirmation

from the parties that they willing to have the Commission determine the extension of time

issue on the papers.

[4]        For the reasons set out below I have concluded that I am not satisfied that there were

exceptional circumstances warranting the granting of a further period for the making of an

application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5]        Miss David commenced employment with FMIG on 27 April 2015 and was dismissed

on 14 October 2015.

[6]        As noted above, Miss David’s general protections application was received by the

Commission on 5 November 2015, one day outside the 21-day statutory timeframe for

lodgement specified in s.366(1)(a) of the Act. In her application, Miss David contended that
[2016] FWC 2510

she was dismissed in contravention of ss.340 and 344 of the Act which respectively deal with

protection concerning the exercise or non-exercise of a workplace right and undue pressure or

influence.

The Relevant Legislation

[7]        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.”

Whether to allow a further period for the application to be made

[8]        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

[9]        In her application Miss David cited as reasons for the delay “Public holiday

[Melbourne Cup] and access to help via Job Watch and Broadmeadows Legal service for

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help. However is being express posted” , also adding “However due to public holiday may

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not have come through on time.”

[10]      In her written submissions, Miss David contended that following her dismissal she

was unable to get an appointment with a legal adviser until 22 October 2015 when she saw

the Broadmeadows Community Legal Service. Miss David, who suffers from anxiety and

depression among other things, further submitted that she spent the remainder of the period

seeking medical assistance to “help myself from sinking into a state that would take me a long

time to get out of”. Miss David also submitted that she mistakenly spent time trying to have a

copy of her application and associated documents certified and that despite several attempts

the police were only able to do so on 3 November 2015 after which she immediately posted

her application by Express Post.

[2016] FWC 2510

[11]      FMIG highlighted that Miss David’s application was certified at the Fawkner Police

Station on 4 November 2015 and that as this was after the Melbourne Cup holiday that public

holiday could not be relied upon as a reason for the delay. FMIG further submitted that

Miss David obtained legal advice within the 21 day timeframe and would have known that

when she posted her application on 4 November 2015 by Express Post that it would be

received late. In summary, FMIG submitted that Miss David had not provided an exceptional

or even valid reason for the delay.

[12]      An examination of Miss David’s application confirms that it was certified by Senior

Constable S. Smith of the Fawkner Police Station on 4 November 2015 which contradicts

Miss David’s submissions in that regard. While I note Miss David’s submissions regarding

her medical condition, she provided no material to substantiate those submissions. In the

absence of such material, little weight can be attached to this aspect of her submissions. As to

Miss David’s reference in her application to the Melbourne Cup public holiday as one of the

reasons for the delay, in circumstances where she Express Posted her application after that

public holiday there does not appear to be any compelling grounds for relying on the public

holiday as a reason for the delay. Beyond this, I note that there was no material before the

Commission indicating that Miss David contacted the Commission other than immediately

after her dismissal.

[13]      The above analysis does not point to the existence of exceptional circumstances.

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

[14]      Miss David did not directly address this factor in her submissions.

[15]      FMIG, without being specific, submitted that Miss David had taken some steps to

dispute her dismissal.

[16]      In the absence of any detail regarding the steps taken by Miss David to dispute her

dismissal, I consider this factor to be a neutral consideration.

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

[17]      Again, Miss David did not directly address this factor in her submissions.

[18]      FMIG submitted that it would be prejudiced by having to defend a claim that it would

not otherwise have to address, adding that at the very least this factor should be considered a

neutral consideration.

[19]      While I note FMIG’s submission, it goes more to the issue of inconvenience as

opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) The merits of the application

[20]      Miss David states in her application that she was dismissed after having been accused

of:

 having a personal vendetta against one of the radiologists at FMIG who was also a

Director of FMIG;

[2016] FWC 2510

 having been overheard offering a free mammogram service to customers; and

 making sexual innuendos towards patients.

[21]      In her written submissions Miss David contended that she did not believe that she had

done anything that warranted immediate dismissal and that her case had merit.

[22]      FMIG submitted that Miss David’s application was misconceived and did not assert or

disclose any action by it which could be considered a breach of the general protections

provisions of the Act. FMIG further submitted that Miss David’s application had no

reasonable prospects of success.

[23]      The material provided by Miss David in both her application and written submissions

does not provide any detail regarding the alleged contravention of the general provisions of

the Act. For instance, Miss David made no mention in either her application or submissions of

the workplace right she exercised and which she contended led to her dismissal. In the

absence of any such material, the merits of Miss David’s application appear weak. This

weighs against the existence of exceptional circumstances.

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

[24]      Miss David did not address this factor in her submissions.

[25]      FMIG submitted that should the Commission grant an extension of time in this case it

would not be fair to either it or those in a similar position to Miss David and whose

applications had been dismissed due to lack of exceptional circumstances.

[26]      While I note FMIG’s submission, in the absence of a more compelling argument, I

consider this factor to be a neutral consideration.

Conclusion

[27]      The question of exceptional circumstances was dealt with by a Full Bench of the then

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Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group	(Nulty) in the
following way:

“[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
[2016] FWC 2510

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.”

[28]      The above analysis does not see any factors pointing to the existence of exceptional

circumstances. Against that background, and both having considered all of the factors set out

in s.366(2) and drawing on Nulty, 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).

[29]      Accordingly, Miss David’s application will be dismissed. An order to that effect will

be issued with this decision.

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<Price code C, PR579281>

1

Form F8 – General Protections Application Involving Dismissal at Item 1.4

2

Ibid

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(2011) 203 IR 1