Elizabeth Thomas v St John of God Health Care Inc

[2015] FWC 3371

[2015] FWC 3371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Thomas
v
St John of God Health Care Inc
(U2015/1230)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 MAY 2015

Application for relief from unfair dismissal.

[1] Ms Elizabeth Thomas alleged that the termination of her employment by St John of God Health Care Inc (the Hospital) on 28 November 2014 was unfair.

[2] Ms Thomas’s unfair dismissal application lodged on 18 March 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work 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. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Thomas was given formal notice on 7 November 2014 that her employment would be terminated due to redundancy on 28 November 2014. Ms Thomas entered into negotiations with the Hospital about the redundancy. During this time she received legal advice.

[6] Ms Thomas said that she did not lodge her application within 21 days because she suffered depression and distress after a difficult year related to her employment and her health. Ms Thomas provided a statement from a Clinical Psychologist, dated 1 April 2015, which advised that Ms Thomas had consulted her since 20 January 2015 and advised that Ms Thomas’s condition would cause her to take longer than normal to complete the necessary administrative procedures and application.

[7] Further, Ms Thomas gave evidence that she had some urgent family matters to attend to in late 2014. Also, her dismissal meant that she could not move into her new apartment which she was required to put on the market. She needed then to find new accommodation. In addition, Ms Thomas said that she needed to focus on putting in job applications as well as applications for research grants which took a significant amount of her time.

[8] The Hospital disputed whether there was evidence to support Ms Thomas’s reliance on her health to explain her delay. There was no evidence, it said, of any health issues in the time between 28 November 2014 and 20 January 2015. It submitted that her ongoing health issues had not prevented her from successfully maintaining employment.

[9] The Hospital submitted that it could not be established, on the evidence given by Ms Thomas, that attending to her family issues prevented her from making her application. It submitted that the evidence of Ms Thomas’s capacity to look for other work, make grant applications and assist in negotiations associated with the family farm were evidence that Ms Thomas was capable of making her unfair dismissal application.

[10] Ms Thomas should have lodged her application by 19 December 2014. I accept that Ms Thomas has an explanation for why it took her more than 21 days to lodge her application. However, she has not explained why it took her another 89 days to lodge her application. I accept that she needed to find another job, but that is not an unusual situation facing employees who have been dismissed. Ms Thomas is a highly educated individual. The task of completing an unfair dismissal application is not complex. Ms Thomas was aware before her dismissal that she could pursue unfair dismissal remedies. She has not provided a reasonable explanation for the whole of the delay in lodging her application. This weighs against extending time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[11] Ms Thomas was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[12] Ms Thomas says she disputed the dismissal before it took effect. Mr Jones gave evidence that she questioned the timing of the decision to make her position redundant as she considered that there was more work to be completed on the project. This weighs in favour of extending time.

(d) prejudice to the employer (including prejudice caused by the delay);

[13] There was no evidence of any prejudice to the Hospital if time were extended. This weighs in favour of extending time.

(e) the merits of the application;

[14] The Hospital submitted that Ms Thomas’s position was made redundant. It was submitted that there was consultation and there were no positions to which Ms Thomas could reasonably have been redeployed.

[15] Ms Thomas submitted that she was terminated because she complained about her supervisor. She claimed that there was still work to be done on the project and in any event, her employment was not tied to a particular project and she could have been redeployed.

[16] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[17] No submissions were made on this criterion and I consider it to be neutral.

Conclusion

[18] I do not consider that there are exceptional circumstances. I do not consider that the merits of the case are such as to outweigh the lack of a satisfactory explanation for the whole of the delay. Ms Thomas’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Ms E Thomas on her own behalf.

Ms C Francis for the Respondent.

Hearing details:

2015.

Melbourne and Perth (video hearing) and via telephone:

15 May.

 1   [2011] FWAFB 975.

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