Exton v Western Health

[2016] FWC 2687

[2016] FWC 2687

DECISION

Fair Work Act 2009
s.365—General protections
Helen Exton
v
Western Health
(C2015/8255)
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 29 APRIL 2016
Application to deal with contraventions involving dismissal.

[1]        On 17 December 2015 Ms Helen Exton (the Applicant) lodged a General Protections

application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The

application alleged that the Applicant had been dismissed by Western Health (the

Respondent).

[2]        The Applicant commenced employment with the Respondent on 12 November 2012.

The Applicant was a care co-ordinator at Western Health in Melbourne. She says that she was

forced to resign on 29 October 2015. The alleged dismissal took effect on that day.

[3]        The application therefore was lodged some 28 days out of time.

Alleged Contravention

[4]        The Applicant submits that she was forced to resign because the bullying that she was

submitted to was not properly dealt with. Breaches of ss.343, 344 and 351, with respect to

mental/physical disability, are alleged.

Respondent’s Submissions

[5]        The Respondent denies these allegations and further denies that there has been a

breach of the General Protections provisions of the Act.

[6]        The Respondent states that the Applicant resigned of her own free will after her

workers compensation claim was denied.

Relevant Legislation

[7]        Section 366 of the Act provides:

366 Time for application

[2016] FWC 2687

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.”

Approach of the Commission

[8]        The considerations relevant to the assessment of whether exceptional circumstances

exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s

Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1;

(Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following

useful summary was provided in Nulty:

“[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.”

[9]        The onus of establishing exceptional circumstances is on the Applicant who needs to

provide a credible reason for the whole of the period that the application was delayed. (See:

Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] 197 IR 403).

[10]      This point was emphasised by the Full Bench in the recent decision of Diotti v

Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 which,

although concerned with the unfair dismissal application, contained the following statement,

which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia

and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 (Shaw

and ANZ), at paragraph [12] the majority decision states:

[2016] FWC 2687

‘[12] This decision makes an important point which we consider deserves re-

emphasising. The delay required to be considered is the period beyond the

prescribed 21 day period for lodging an application. It does not include the

period from the date of the dismissal to the end of the 21 day period. …’

[30]      This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be

considered in order to determine whether there is a reason for the delay beyond

the 21 day period and ultimately whether that reason constitutes exceptional

circumstances.’

[31]      Hence, the decision emphasised that while the delay to be considered is the

period subsequent to the expiration of 21 days, the circumstances from the time of the

dismissal must be considered in determining whether the reason for the delay

constitutes exceptional circumstances. For example if an applicant is in hospital for the

first 20 days of the 21 day period this would be a relevant consideration if the

application was filed 2 days out of time as occurred in this matter. The reason for the

delay by reference to the circumstances from the date the dismissal took effect is as

expressed in Shaw and ANZ the correct approach.”

Commission Proceedings

[11]      On 10 February 2016, the parties were advised by the Fair Work Commission (the

Commission) that the application had not been made within 21 days of the dismissal taking

effect. Directions were issued for the filing of witness statements and submissions as to

whether the Commission should grant further time for lodgement pursuant to s.366(2) of the

Act. The matter was listed for hearing on 1 April 2016.

[12]      The Applicant was self-represented. The Respondent was represented by Mr M. Felle,

its employee Relations Consultant.

Matters to be taken into account pursuant to s.366(2)

[13]      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

[14]      The Applicant submitted that her medical condition was the reason she lodged the

application beyond the 21 day limit. However, no specific medical evidence was provided.

The Applicant says that she had been hospitalised but this was not until January.

[15]      Accordingly, the reasons for delay cited by the Applicant fall short of establishing

exceptional circumstances.

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

[2016] FWC 2687

[16]      There is no evidence of the Applicant taking action to dispute the alleged dismissal

apart from lodging the application.

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

[17]      Given the overall facts, the Respondent would be prejudiced by the time and costs

involved in further litigation.

(d) Merits of the application

[18]      The Applicant alleges that she was forced to resign because of a broad campaign of

bullying by a range of people.

[19]      I note that the Applicant would need to get over the first hurdle of proving that her

resignation was in fact a dismissal. As well, the Respondent denies that the allegations of

bullying were ever put to it by the Applicant. In any event, the allegations are so generalised,

the Respondent submits, that it was impossible to deal with them.

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

[20]      This factor was not addressed and has not been taken into account.

Conclusion and Order

[21]      Having considered all of the factors set out in s.366(2), 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). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Helen Exton

under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

[2016] FWC 2687

Appearances:

H. Exton, Applicant;

M. Felle for the Respondent.

Hearing details:

2016

April 1 (by telephone).

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