Donna Holian v DPG Services Pty Ltd T/A Opal Aged Care

[2016] FWC 2561

[2016] FWC 2561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donna Holian
v
DPG Services Pty Ltd T/A Opal Aged Care
(U2016/5318)

COMMISSIONER BISSETT MELBOURNE, 26 APRIL 2016

Application for relief from unfair dismissal - application for an Extension of Time - application granted.

[1] Ms Donna Holian has made an application to the Fair Work Commission (the Commission) seeking relief from unfair dismissal. Ms Holian was employed by DPG Services Pty Ltd T/A Opal Aged Care (Opal). Ms Holian was employed by Opal in an on-going role on a part time basis.

[2] In 2015 Ms Holian was on maternity leave. In late 2015 she requested, and was granted, an extension of her maternity leave.

[3] On 1 November 2015 Opal took over the running of the establishment Ms Holian worked at.

[4] On 14 January 2016 Opal sent a letter to Ms Holian at an address in the suburb of Success in Perth which said that it had expected her to return to work from maternity leave prior to Christmas, that she had been expected at training that week but had failed to attend and that she had not been contactable. The letter asked that she advise Ms Rebecca Pope, HR Advisor, of her intentions by close of business in Friday 22 January 2016 and that if she did not contact Opal it would have to conclude that she had abandoned her employment.

[5] For reasons that will become obvious Ms Holian did not receive this letter. Ms Holian contacted Opal by email on 10 February 2016 and on 17 February 2016 spoke to Ms Pope who advised her that she no longer had a position at Opal.

[6] Ms Holian says she was dismissed from her employment with effect from
22 January 2016 although she was not aware of the dismissal until 17 February 2016. She made her application for unfair dismissal on 14 March 2016. Ms Holian made her application for unfair dismissal outside the 21 day statutory time limit provided for in the Fair Work Act 2009 (the Act). She seeks an extension of time within which to make her application.

Legislation

[7] Section 394 of the Act sets out the requirements for making an application for unfair dismissal.

[8] Section 394(2) requires that an application be made to the Commission within 21 days after the dismissal took effect.

[9] Section 394(3) gives the Commission discretion to extend the time available to make an application. It states:

(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] In order to determine if she should grant the application to extend time it is necessary to consider each of the criteria in section 394(3).

Consideration

[11] Ms Holian was due to attend a mandatory manual handling course on 12 January 2016 prior to returning to work from maternity leave which she expected to occur shortly thereafter.

[12] On 11 January 2016 Ms Holian received news that her brother in Ireland had been killed in an accident. On 12 January 2016 she flew to Ireland with her partner and children to attend her brother’s funeral. On 25 January 2016 she returned to Australia, still struggling to cope with her brother’s death.

[13] On 3 February 2016 Ms Holian and her children were involved in a car accident in which she was injured resulting in neck and back pain. Her medical notes indicate that on 19 February 2016 she was still suffering after effects of the accident including anxiety. She says, in addition, that her children also needed additional care after the accident as they were not coping well.

[14] On 10 February 2016 Ms Holian spoke to and emailed Ms Janice Bodman of Opal and advised her of her brother’s death and of the car accident indicating that she was not able to return to work at that time but hoped to in the near future. Ms Holian says that Ms Bodman told her she no longer worked in HR so Ms Holian asked her to send the message on to the appropriate person.

[15] Ms Holian says she followed up the email on with a phone call to Ms Pope on
17 February 2016. She says that Ms Pope advised her that her contract had been terminated.

[16] On Friday 19 February 2016 Ms Pope sent an email to Ms Holian inviting her to a meeting the following Monday at 8.30am. Ms Holian says she had to cancel that meeting as the time was not suitable. Through an assistant/friend (Ms Jo Ashley) Ms Holian requested some alternative dates to meet. Ms Pope responded and asked Ms Holian to contact her when she had recovered from her injuries and was fit for work.

[17] A meeting was eventually scheduled for 10 March 2016 but ultimately held the day after. Ms Holian was accompanied to the meeting by Ms Ashley. In that meeting Ms Holian says that she was advised that a casual position was available for her if she wanted it but that her on-going position had been filled by other staff.

[18] Ms Ashley requested a copy of the letter of 14 January 2016 sent to Ms Holian which Ms Holian says she had never received.

[19] Following the meeting Ms Holian says she visited the Commission where she was given an unfair dismissal form. She spent the following couple of days (the weekend) gathering information for the application and on Monday 14 March 2016 made her application.

[20] Opal says that it was not aware at the time it occurred that Ms Holian’s brother had died. Ms Pope was advised on 12 January 2016 that Ms Holian had not attended the manual handling course. She attempted to telephone Ms Holian, noted that the ring tone indicated the phone was overseas and left a voice message for Ms Holian to contact her.

[21] She says that the first contact she had with Ms Holian was on 17 February 2016. She says she told Ms Holian she would be happy to discuss a reinstatement and to contact her when she was fit to return to work.

[22] Ms Pope says that at the meeting of 11 March 2016 she offered Ms Holian reinstatement to the casual pool and to permanent shifts when they became available. She explained to Ms Holian that a position could not held open indefinitely and that there was an obligation on her to keep her employer informed of any absences.

[23] Ms Pope says that the letter on 14 January 2016 was sent by accident to the incorrect address for Ms Holian.

[24] Records from Ms Holian’s file indicated that she was granted an extension of her maternity leave until 30 November 2015. Ms Holian says that she was aware she could not return to work until after she had completed the manual handling course.

[25] Ms Holian says that prior to her return to work from maternity leave she was told she would not be able to return to her permanent part-time shifts as no shifts were available. She says she was told that she could return on a casual basis working Saturday and/or Sunday. Ms Holian says that this was not her preference.

[26] On 5 January 2016 Ms Holian sent an email to Ms Bodman at Opal to in which she said that Melanie had advised her she would be ‘better going casual’ as she was only able to do a Saturday night or Sunday day shift and Ms Bodman clarified her availability and arranged her attendance at the manual handing course on 12 January 2016.

Reason for the delay

[27] Ms Holian says she was late in making her application because she was not aware her employment had been terminated until 17 February 2016 and that she was still suffering from the effects of the death of her brother and the car accident involving her children. Further, she says she understood that she was going to meet with Ms Pope to discuss reinstatement which she understood to mean to her permanent role.

[28] She says that as soon as it was clear that her employment had been terminated she contacted the Commission, got the forms, gathered the necessary documentation together and lodged her application.

[29] Opal says that it tried to contact Ms Holian following her non-attendance on
12 January 2016, left a message for her but she never called back. Further, it says that she was verbally notified of her termination on 17 February 2016 but it was still 21 days before she made her application and it was still three days after the meeting with Ms Pope on 11 March 2016 before she made her application.

[30] It says that the offer of employment made to Ms Holian on 11 March 2016 was in line with the email Ms Holian sent to Opal on 5 January 2016 in which she indicated she could only work a weekend shift.

When the person first became aware of the dismissal

[31] Ms Holian did not become aware that her employment was terminated until
17 February 2016.

[32] Opal agrees that it sent the letter advising that she may be taken to have abandoned her employment to the incorrect address.

Action taken to dispute the dismissal

[33] Ms Holian was in contact with Opal with respect to her circumstances from
10 February 2016 when she spoke to and emailed Ms Bodman.

Prejudice to the employer

[34] Opal claims some prejudice by the delay in relation to Ms Holian’s visa status and because it has filled the shift Ms Holian previously worked.

Merits of the application

[35] Ms Holian says that the dismissal was unfair as no empathy or understanding was extended to her in a difficult situation. Further, she says that no meeting was held with her to discuss her situation.

[36] Opal says that dismissal was not unfair as Ms Holian was due back to work from her maternity leave in December 2016 and that she had requested to return to a casual weekend shift. A letter was sent to her on 14 January 2016 and she was telephoned with no response. She was offered a casual position one day a week in February and again in March 2016 but refused the offer.

Fairness

[37] No submissions were made on this.

Conclusion

[38] An extension of time can only be considered by the Commission if exceptional circumstances exist taking into account those matters in s.394(3) of the Act.

[39] The meaning of exceptional circumstances was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench found:

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…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.

[40] The circumstances in this case are clearly unusual and not regularly encountered.

[41] Ms Holian was due to return to work from her maternity leave in late 2015. There was an exchange between Ms Holian and Opal which appears to indicate an acceptance by Ms Holian of a return to work on a casual weekend shift when, at the time she commenced her maternity leave, Ms Holian was an on-going employee. I note however that Ms Holian appears to have understood this was the only basis on which she could return to work. For reasons that are not clear, Ms Holian did not return to work in December 2015. Had she done so the events of January 2016 may not have ended as they did.

[42] Ms Holian had to urgently travel to Ireland following the death of her brother. This travel meant she did not attend the manual lifting training course. This non-attendance resulted in a letter to her advising of possible abandonment being sent, but to the wrong address. The letter was sent to an address she had not lived at for three years even though Opal did have her correct address on file. On her return to Australia Ms Holian was then involved in a car accident in which involved her young children and in which she received injuries to her neck and back.

[43] Whilst it is not clear why she did not do so earlier, Ms Holian finally contacted her employer on 10 February 2016. The person she did contact (Ms Bodman) no longer worked in HR and it is not clear that Ms Holian’s request that her correspondence be forwarded to Ms Pope was complied with.

[44] Eventually, when Ms Pope and Ms Holian met, Ms Pope offered Ms Holian the hours (a casual shift) that she understood had been Ms Holian’s preferred option for a return to work following her maternity leave, but at this stage Ms Holian wanted reinstatement to on-going employment. Ms Holian understood that reinstatement was to be discussed at this meeting but it appears that each party had a different view as to what this meant.

[45] In reaching my decision I have considered the submissions of Opal as to prejudice. I am satisfied that the matters associated with Ms Holian’s visa have been resolved but, in any event, such status is not prejudicial to the grant of the extension of time although may be relevant should the unfair dismissal be resolved in Ms Holian’s favour and remedy come into question. That Opal may have filled Ms Holian’s previous position does not create any prejudice.

[46] Each of the events involving Ms Holian described above is, of itself unusual. Taken together with a claim for unfair dismissal that is not devoid of merit they create exceptional circumstances such that I am satisfied that an extension of time should be granted to Ms Holian within which to make her application for an extension of time and her application for unfair dismissal.

[47] I therefore grant an extension of time within which Ms Holian may make an application for unfair dismissal until 14 March 2016. An Order to this effect will be issued.

[48] The application will now be subject to further programming.

COMMISSIONER

Appearances:

J Ashley for the applicant

S Cayzar of the respondent

Hearing details:

2016.

Melbourne:
20 April

 1 (2011) 203 IR 1.

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