Emily Campagnolo v Western Health
[2023] FWC 3048
•22 NOVEMBER 2023
| [2023] FWC 3048 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Emily Campagnolo
v
Western Health
(U2023/10144)
| COMMISSIONER PERICA | MELBOURNE, 22 NOVEMBER 2023 |
Application for an unfair dismissal remedy
Emily Campagnolo (Applicant) made an application under s 394 of the Fair Work Act 2009 for a remedy, alleging she had been unfairly dismissed from her employment as a Registered Nurse with Western Health (Respondent).
Procedural history
The application may have been made out of time. To deal with this threshold issue, I made directions on 30 October 2023 and listed the matter for an in-person determinative conference at 10:00AM on Wednesday 22 November 2023.
By paragraph [8] of the directions, the Respondent was required to file and serve their submissions and witness statements on or before 5:00PM on 20 November 2023. Having received no documents, my Chambers sent an e-mail reminding the Respondent of those directions.
The Respondent replied on the morning of 21 November 2023, indicating it had failed to meet the deadline because of staffing issues in the human resources function. It requested an extension of time to file their material until 24 November 2023. That application was refused.
On the afternoon of 21 November 2023, the Respondent filed its F3 Employer Response form and copies of e-mails it had sent to the Applicant leading up to her termination on 25 September 2023.
At 9:15AM on the morning of the determinative conference, the Applicant sent an e-mail to my Chambers stating that she had tested positive for COVID. She advised: “I am happy for the hearing to proceed without me as I have submitted all documents and evidence supporting my extension of time.”
Shortly afterwards, my Chambers spoke to the Applicant by telephone and noted it was possible for her to appear remotely. She stated she would be available from 11:00AM. The proceeding was adjourned until 11:00AM to facilitate her remote attendance.
The Applicant did not appear on the Microsoft Teams meeting at 11:00AM. My Chambers attempted to contact her twice with no response.
At 11:15AM, I decided to proceed to hear the matter in the absence of the Applicant. The Respondent was represented in-person by Ms. Yvette Roberts, Ms. Jenny Egan and Ms. Abigail Watson.
When must an application for an order granting a remedy be made?
Section 394(2) provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
A Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1] It is not contested the dismissal took effect on 25 September 2023. It follows the final day of the 21-day period was 16 September 2023 and ended at midnight on that day.
According to Commission records the application was filed at 5:41AM on the morning of 17 September 2023. The application was 5 hours and 41 minutes late. As it was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Under section 394(3), the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 16 September. The delay is the period commencing immediately after that time until 5:41AM on 17 September. Circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Applicant’s submissions on the reasons.
In the Applicant’s “Brief Outline of Submissions”, she gave submissions which included the following reasons for the late filing:
“I miscounted the days. I have been under immense pressure, and significant mental health deterioration with numerous court proceedings in the process, and a inpatient psychiatric admission all within the 21 day time frame.
I delayed the application initially, Western health made a notification to AHPRA, …, I sought multiple different legal opinions. All of which suggested there were lose ends and the final decision from AHPRA could go either way effecting the desired result. I decided to wait for that decision and the decision was made which indicated no further action to be made and reasoning behind the decision was well documented…
From early 2023 I was subject to domestic violence. In July 2023 post incarceration of the respondent[6] my mental health declined from the trauma experienced, …
On 01/10/2023 I was hospitalised at Royal Melbourne Hospital as an inpatient in the John Cade psychiatric unit for suicidal ideation and acute distress…
I have multiple ongoing legal proceedings in process. One in particular is in regard to an Intervention order that was put on by Victoria Police in regard to concerns for my safety.
… I have since been evicted from my apartment for unpaid rent arrears, and during the 21-day strict application period I was frantically looking for accommodation which was very difficult with no financial stability and no government assistance at that time.”
Respondent’s submissions on the reasons
In the absence of the Applicant, I put each of these reasons to the Respondent and asked for their submissions. The Respondent opposes the application for an extension of time and gave the oral argument that the delay was not exceptional due to the Applicant’s history of missing deadlines as outlined in the F3 Employer Response form.
Consideration
The test in Nulty v Blue Star Group PtyLtd[7](Nulty) held that exceptional circumstances is to be given its ordinary meaning and requires consideration of all the circumstances: “to be exceptional, circumstances need not be unique, or unprecedented, or very rare”.
The error in the counting of the twenty-one days and the decision to “initially delay” the application to allow time for the decision of AHPRA cannot be considered as out of the ordinary course or unusual. They therefore cannot be regarded as “exceptional circumstances”.
The reasons that are clearly exceptional and cannot be regarded as in the ordinary or usual course are:
· The domestic violence the Applicant suffered and the psychological effect it had on her because of the “trauma [she] experienced”. As the Applicant was absent from the hearing, I was unable to ask whether she continued to suffer the psychological effects during the period after the dismissal. It is evident that it continued after the incarceration of the alleged perpetrator in “July 2023”;
· The Applicant’s hospitalisation in a psychiatric unit during the 21 days after her dismissal for “suicidal ideation and acute distress”;
· The “multiplicity of legal proceedings” she faced which included a proceeding related to an intervention order against the alleged perpetrator; and
· The eviction of the Applicant from her residence during the 21 days after her dismissal.
It is arguable that any one of these reasons would have satisfied the threshold of exceptional circumstances. In combination they clearly fall within the meaning of the adjective “exceptional”. These circumstances cannot be regarded as routine or normally encountered.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I therefore find, the Applicant was notified of the dismissal on the same day it took effect. She therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
By reason of her absence, I could not ask the Applicant whether she took any action to dispute the dismissal. I rely on the oral submissions of the Respondent who stated the Applicant took no such action. I therefore find the Applicant did not take any action to dispute her dismissal prior to making the application on 17 October 2023.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties on the merits of the application are set out in the filed materials. The Respondent, in its oral submissions, supplemented the lucid outline of the merits of its case in its Form F3.
It is evident the merits of the application turn on contested points of fact. Evidence would be required to be adduced on these matters and weighed in a hearing of the merits if an extension of time were granted.
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s 366(2)(d)”.[8] The same reasoning applies to s 394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought any relevant matter to my attention concerning this consideration. I am unaware of any relevant matter. I therefore find there is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 394(3)(f).
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I find the Applicant’s 5 hour and 41-minute delay in filing her application was due to:
· The ongoing psychological effects of trauma she had experienced through domestic violence;
· The hospitalisation of the Applicant following the dismissal due to “suicidal ideation and acute distress”;
· The “multiplicity of proceedings” she faced after her dismissal which included an intervention order against the alleged perpetrator; and
· the eviction from her residence during the post dismissal period.
These reasons are clearly “exceptional circumstances” under s 394(3)(a), particularly where the application was less than six hours late.
The only factor against a finding of "exceptional circumstances” is that the Applicant took no action to dispute the dismissal under s 394(3)(c). All other factors in s 394(3) are neutral to a finding of “exceptional circumstances”.
I am therefore satisfied, after a consideration of all the factors in s 394(3), there are exceptional circumstances and I allow the Applicant a further period of time to make her application extending to the date the application was filed on 17 October 2023.
COMMISSIONER
Appearances:
Ms. Yvette Roberts, for the Respondent
Hearing details:
22 November 2023
Melbourne and Microsoft Teams
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] I take this to mean the alleged perpetrator.
[7] [7][2011] FWAFB 975
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
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