Fitzpatrick v Danila Dilba Health Service

[2013] FWC 4565

[2013] FWC 4565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Peter Fitzpatrick
v
Danila Dilba Health Service T/A Danila Dilba Biluru Butji Binnilutlum Medical Service Aboriginal Corporation
(U2013/8385)

VICE PRESIDENT CATANZARITI SYDNEY, 16 JULY 2013

Application for unfair dismissal remedy - application lodged out of time - whether exceptional circumstances exist such as to extend time for filing application - no exceptional circumstances - application dismissed.

[1] Dr Peter Fitzpatrick (the applicant) was employed by Danila Dilba Health Service (the respondent) from 1 November 2010 until his dismissal on 15 March 2013. On that day, the applicant was dismissed due to alleged concerns regarding his conduct, escorted off the premises and paid four weeks’ wages in lieu of notice.

[2] On 10 April 2013, the applicant filed an application for unfair dismissal remedy (the application) pursuant to s.394 of the Fair Work Act 2009 (the Act) with the Fair Work Commission (the Commission). Accompanying that application was a covering letter which acknowledged that the application was filed outside of the 21 day statutory time limit for lodgment imposed by s.394(2)(a) of the Act. Accordingly, the applicant sought an extension of time for lodgment of his application.

[3] On 18 April 2013, Ms Chenoa Ellison of Chamber of Commerce NT, on behalf of the respondent, filed an objection to the application for unfair dismissal remedy on the basis that the application was lodged five days after the expiry of the 21 day statutory time limit, with 16 March 2013 being counted as the first day.

[4] I heard this application by video link on 9 July 2013. The applicant represented himself and Ms Ellison appeared for the respondent.

[5] The applicant gave evidence in support of his application. Ms Olga Havnen, Chief Executive Officer of the respondent and Mr Foster Stavridis, People, Learning and Development Manager of the respondent were called to give evidence for the respondent.

Statutory framework

[6] The relevant legislative framework for the exercise of the Commission’s discretion in relation to applications of this kind is as follows:

“394 Application for unfair dismissal 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.”

Meaning of ‘exceptional circumstances’

[7] A considerable body of authority has now been developed within the Commission as to the meaning of ‘exceptional circumstances’ in the statutory context of s.394(3) of the Act. A Full Bench of Fair Work Australia, as it then was, in Nulty v Blue Star 1, summarised the meaning of the expression in the following way; albeit in the context of a general protections application:

“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.” 2

(my emphasis)

See also Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers[2010] FWAFB 7251.

[8] In a decision of Fair Work Australia, as it then was, in Varcoe v Leo Fardell Pty Ltd [2010] FWA 6025, Drake SDP considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd (2003) 135 FDR 206 and said that:

“... Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”

Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.”” 3

See also Johnson v Joy Manufacturing Co Pty Ltd[2010] FWA 1394.

Consideration

[9] I have considered the circumstances of this case in light of the criteria set out for consideration in s.394(3) of the Act.

[10] Given that the applicant first became aware of the dismissal on 15 March 2013, when he was given the termination letter, I give this factor no weight in the determination of the application for the extension of time. Similarly, I find that the issue of fairness as between the person and other persons in a similar position does not arise in this instance.

[11] The respondent accepted that it suffers no prejudice apart from the usual prejudice in extending the time to file the application of being required to expend further costs and time in defending the substantive claim and I have given this factor some weight.

[12] However, the issues which I deem to be of particular relevance in this instance are whether the applicant has provided a sufficient explanation for the delay, any actions undertaken by the applicant to dispute the dismissal and the merits of the application.

Actions undertaken by applicant to dispute the dismissal

[13] During oral evidence, it came to light that the applicant, very soon after his dismissal, sought advice from the Australian Medical Association/ Australian Salaried Medical Officers' Federation of the Northern Territory (the union). A representative from the union then contacted the respondent about a week after the applicant was terminated and sought documents and information relating to the performance management of the applicant. Specifically, the union sought details of any meetings between the applicant and Ms Havnen and any formal written warnings given to the applicant.

[14] As Ms Havnen was on leave, Mr Stavridis spoke to the representative from the union and explained to her that he was unable to obtain the required documents, particularly Ms Havnen’s diary entries. Although attempts were made to contact Ms Havnen while she was on leave, she was unable to provide the information sought. Mr Stavridis explained to the union representative that he would need to wait for Ms Havnen to return from leave. In evidence before me, although seemingly not conveyed to the union at the time, Ms Havnen was not returning from leave until 13 May 2013. Ultimately, the applicant filed the application without receiving the documents.

[15] At the hearing of the application for extension of time, it was the respondent’s evidence that it had concluded that, as the union was not involved with the hearing and it was the union who had sought the documents and not the applicant himself, the information and documents sought were no longer required. A view of the respondent which I would describe as highly improbable.

[16] I do not accept the evidence presented by Ms Havnen and Mr Stavridis that the respondent was not put on notice that the applicant was seeking to challenge the dismissal. In light of the letter the applicant had written and distributed to other employees of the respondent which questioned, in some detail, the decision of management to terminate his employment, I fail to see how the respondent was not put on notice. The information sought by the union goes to the issue of whether procedure was followed in dismissing the applicant and whether the applicant was afforded procedural fairness.

[17] In light of above, I find that the applicant took steps to dispute the dismissal and that the respondent was put on notice. This finding weighs in favour of the extension of time being granted.

Merits of the application

[18] While the substantive basis of the applicant’s dismissal appear to be contested, particularly with respect to the procedure followed by the respondent in terminating the applicant’s employment, I was not presented with detailed evidence on the merits of the application. I note that submissions were made by Ms Ellison as to the acrimonious nature of the employment relationship.

[19] On the face of the documents filed with the Commission, which are notably sparse, and the oral evidence presented at the hearing, I am of the view that the application cannot be said to be completely unmeritorious, although I am not able to form the view, based on the evidence before me, that the application has significant merit.

[20] Overall, the merits of the application, as can be ascertained on the materials before me, do not favour an extension of time being granted.

[21] It is also noted that the applicant had received four weeks’ salary in lieu of notice from the respondent, and that on his own evidence, the applicant had continued to work on a part-time basis with a different employer after his employment was terminated by the respondent. This part-time employment became full-time employment four weeks after his termination on 15 March 2013.

Reason for delay

[22] The reason for the delay, which was proffered by the applicant at the time the application was filed, and again during the hearing on 9 July 2013, is that he was only told of the 21 day statutory time limit by an email he received from the union representative a day before the 21 day limit expired. The applicant claimed, and it was not contested, that he did not see that email until the 21 day limit expired, specifically, on the 22nd day.

[23] On the applicant’s evidence, he then went about preparing his application and filed it, via facsimile, on 10 April 2013, four days after he was made aware that there was a 21 day statutory limit on filing the application.

[24] Although I accept that the applicant was guided by the union in this instance and due to no error of his own was not notified of the time limit until the day before the time limit expired, I do not accept that this delay was caused by the respondent due to its failure to provide the information and documents sought by the union (discussed at [13]-[14] above).

[25] While the documents sought by the union may be relevant for a hearing on the application - assuming that procedural fairness had been pursued as a ground, failure to receive those documents did not prevent the applicant from filing the application with the Commission.

[26] Significantly, the applicant, on his own evidence, was notified of the 21 day statutory limit on the 22nd day, but did not file the application until four days later; five days after the statutory limit had expired. No explanation was provided for this further delay. This weighs heavily against the exercise of my discretion to extend time for filing of the application.

[27] Notably, the respondent submitted, and it was not contested, that the applicant is familiar with industrial relations matters and was involved, with the union, in the enterprise agreement negotiations with the respondent.

[28] Given that the applicant provided no explanation for the delay past the 22nd day after his dismissal took effect, I find that sufficient explanation has not been provided for the delay in filing the application. As such, I find the circumstances surrounding the delay to be regularly, or routinely, or normally encountered and not out of the ordinary course, or unusual, or special, or uncommon.

[29] For all the reasons above, I find that the applicant has not satisfied the onus he bears in convincing the Commission to exercise its discretion, pursuant to s.394(3) of the Act, to extend the time for filing his unfair dismissal application. Accordingly, the application for an extension of time for lodgment of this application is refused and the application is dismissed.

ORDERS

1. Application Number U2013/8385, Peter Fitzpatrick v Danila Dilba Health Service T/A Danila Dilba Biluru Butji Binnilutlum Medical Service Aboriginal Corporation, is dismissed.

2. The above order shall take effect on and from 16 July 2013.

VICE PRESIDENT

Appearances:

P Fitzpatrick representing himself.

C Ellison of Chamber of Commerce NT appearing for the respondent.

Hearing details:

2013.

Darwin and Sydney (video hearing):

July 9.

 1   [2011] FWAFB 975.

 2   Nulty v Blue Star [2011] FWAFB 975, [13].

 3   Varcoe v Leo Fardell Pty Ltd [2010] FWA 6025, [6]-[7].

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