Esther Kellie v Bupa Care Services Pty Limited

[2013] FWC 5296

[2013] FWC 5296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Esther Kellie
v
Bupa Care Services Pty Limited
(U2013/10179)

COMMISSIONER DEEGAN CANBERRA, 1 AUGUST 2013

Application for unfair dismissal remedy - jurisdictional issue - extension of time - no exceptional circumstances - application dismissed.

[1] On 5 June 2013 Ms Esther Kellie (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Bupa Care Services Pty Limited (the employer) was unfair.

[2] In her application (Form F2), the applicant claimed that she had been notified of her dismissal on 14 May 2013 and that her dismissal had taken effect on 10 May 2013.

[3] The legislation relevantly provides:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.

[4] The matter was listed for a jurisdiction hearing to determine whether the application should be accepted pursuant to s.394(2)(b) of the Act.

[5] Prior to the hearing the applicant lodged a statement 1 claiming that her application had been made within the relevant time period. She stated that she had received the termination letter on 14 May 2013, collected the relevant form from the Fair Work Commission (the Commission) on 20 May 2013 and filed the application on 5 June 2013. It was also her evidence that she sought legal advice before lodging the form. She had attended the Legal Aid Office on 3 June but was unable to be seen that day. She stated that she returned to Legal Aid on 4 June and was assisted to complete the Form F2. She lodged the application with the Commission the following day on 5 June.

[6] At the hearing the applicant denied a claim made by the employer that she had been advised of the termination of her employment on Friday 10 May 2013.

[7] It was also the applicant’s evidence that she had been unable to lodge her application before 5 June as:

• She had had to travel to Sydney from 15 to 19 June to attend to important matters;



• She was of the view that she needed legal advice before lodging her application;



• She was a single mother with care of a 6 year old son; and



• Her car had been at the garage for part of that period.

[8] The employer opposed the acceptance of the application out of time. A witness statement 2 was filed by Ms Christine Whipp, the General Manager of the facility where the applicant had been employed. It was Ms Whipp’s evidence that the applicant had been dismissed for serious misconduct following an investigation into allegations. According to Ms Whipp a decision was taken to dismiss the applicant on the afternoon of Friday 10 May 2013 and at 5.54 pm that same day Ms Whipp phoned the applicant on her mobile phone and advised her that her employment was terminated with immediate effect. It was Ms Whipp’s evidence that the applicant had responded ‘Okay’ and ended the phone call. Annexed to Ms Whipp’s statement was a printout of a telephone call record indicating that a 45-second phone call had been made to the applicant’s mobile phone number from Ms Whipp’s telephone number at 5.54 pm on Friday 10 May 2013.

[9] The applicant was adamant that she had not received a phone call from Ms Whipp on 10 May 2013. Ms Whipp was equally adamant that the call had been made and that the applicant had been informed that her employment was terminated with effect from that day. Ms Whipp had evidence that the phone call had been made. Given the applicant’s evidence that she had not received the phone call, I am prepared to accept that it is possible that another person answered her mobile phone and that Ms Whipp mistakenly believed it was the applicant with whom she was conversing. As the conversation lasted only 45 seconds and Ms Whipp’s evidence was that the applicant said only the word ‘Okay’ it is possible that that mistake could have been made.

[10] I will deal with the matter on the basis that the termination took effect on 14 May 2013 the date the applicant received the letter of termination. The application was therefore made one day out of time.

[11] In determining whether I should allow extra time for filing in this matter I have had regard to those matters set out in s.394(3) of the Act. I note that in order to extend time I must be satisfied that there are exceptional circumstances. The meaning of that term was dealt with by a Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 3 as follows:

[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.

[12] The reasons given by the applicant for her failure to file within the prescribed period were, essentially, her responsibilities to care for her son and her decision to seek legal advice before filing. The applicant became aware of the decision to terminate her employment on the day the termination took effect. The filing of the s.394 application constituted the only action taken by the applicant to dispute the dismissal. The employer did not seriously press that it had suffered prejudice as a result of the delay in filing.

[13] I make no finding as to the merits of the application save that I am unable to conclude, on the limited information filed in the matter, that the application is totally without merit.

[14] I do not find that the circumstances of this case raise any consideration in respect of s.394(3)(f).

[15] I am unable to conclude that there are exceptional circumstances that would permit me to allow further time for filing in this matter. Many persons affected by termination of employment have family and caring responsibilities. Similarly, it is a common occurrence that legal advice is not obtainable at short notice. On her own evidence, the applicant had access to information and was in possession of the appropriate form by 20 May 2013. She nevertheless failed to lodge the application until after the time allowed under the Act had expired. There is nothing exceptional about the reasons given for that failure.

[16] I refuse to allow further time for the application to be made. The application is dismissed.

COMMISSIONER

Appearances:

Ms E. Kellie, the applicant.

Mr C. Cook, for the respondent.

Hearing details:

2013.

Canberra:

August 1.

 1   Exhibit K1.

 2   Exhibit B1.

 3   [2011] FWAFB 975.

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