Jacqueline Broun-Batty v Southern Cross Care (WA) Inc

[2016] FWC 2030

[2016] FWC 2030

The attached document replaces the document previously issued with the above code on 31 March 2016.

Under appearances on page 5 the name “J. Weaver” is corrected to read “G. Weaver”.

Janet Hall

Associate to Deputy President Kovacic

Dated 4 April 2016

[2016] FWC 2030

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacqueline Broun-Batty
v
Southern Cross Care (WA) Inc.
(U2016/4384)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 31 MARCH 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] The following decision, now edited, was handed down in the hearing of this matter on 31 March 2016.

[2] Ms Jacqueline Broun-Batty (the Applicant) made an application on 8 February 2016 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Southern Cross Care (WA) Inc. (the Respondent) on 9 October 2015 was harsh, unjust and unreasonable.

[3] On 11 February 2016 the Fair Work Commission (the Commission) wrote to Ms Broun-Batty indicating that her application appeared to have been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was made 101 days outside the 21 day statutory timeframe. The letter requested that Ms Broun-Batty complete an Outline of Argument and Statement of Evidence to assist the Commission in determining whether or not to extend the time for Ms Broun-Batty to make her application.

Background

[4] Ms Broun-Batty commenced employment with the Respondent on 14 March 2013 as a Multi-Skilled Carer.

[5] On 24 September 2015, Ms Broun-Batty was stood down from her duties on full pay following allegations that she had physically and verbally assaulted a resident while under her care.

[6] On 30 September 2015 Ms Broun-Batty attended an initial meeting with the Respondent to discuss the allegations. In inviting Ms Broun-Batty to that meeting, the Respondent recommended that she bring a support person with her. A further meeting occurred on 9 October 2015 to provide Ms Broun-Batty with a final right of reply prior to the Respondent concluding its investigation and providing an outcome. Again, Ms Broun-Batty was advised of the opportunity to have a support person attend the meeting with her. Having considered Ms Broun-Batty’s response and after careful consideration of the matter, the Respondent decided to terminate her employment with effect from 9 October 2015.

[7] As previously noted, Ms Broun-Batty filed her application on 8 February 2016, 101 days outside the 21 day statutory timeframe.

The Relevant Legislation

[8] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(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).

394(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[9] 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.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[10] Ms Broun-Batty submitted the she was in no state to lodge her application after suffering anxiety and depression due to the shock of the allegations. In support of her contention, Ms Broun-Batty provided a copy of a Centrelink Medical Certificate dated 31 October 2015 which stated that she is/has been unfit for work/study from 30 October 2015 to 10 January 2016 with her symptoms described as anxiety.

[11] Ms Broun-Batty further submitted that she asked a colleague to submit all documents to the Commission and that her colleague advised her that she had done so via facsimile within the 21 day timeframe but that there had been no response. Against that background, Ms Broun-Batty‘s daughter, Ms Broun, contacted the Commission earlier this year and was informed that there was no record of any documents having been received. After contacting various departments, Ms Broun-Batty lodged her application on 8 February 2015.

[12] The Respondent submitted that no copy of the alleged original application had been provided to the Commission, nor had there been any explanation as to why it took four months for Ms Broun-Batty to follow up on that application. The Respondent also noted that shock and distress were not uncommon reactions to being dismissed.

[13] Ms Broun-Batty provided no evidence to substantiate her contention that a colleague had lodged an application on her behalf within the 21 day period. Further, I note that the Medical Certificate provided by Ms Broun-Batty was dated 31 October 2015, which is one day outside the 21 day timeframe. As noted above, the Medical Certificate states that Ms Broun-Batty is/has been unfit for work/study until 10 January 2016 yet her application was not lodged until 8 February 2016. Even if it is accepted that Ms Broun-Batty was unable to lodge her application until 10 January 2016, she provided no explanation as to why she did not file her application until 8 February 2016. As noted by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 1, an employee needs to provide a credible reason for the whole of the period that the application was delayed. I am not satisfied that Ms Broun-Batty has done so.

[14] Taken together, the above considerations do not point to the existence of exceptional circumstances.

(b) Whether the person became aware of the dismissal after it had taken effect

[15] It was not disputed that Ms Broun-Batty was aware that her employment was terminated on 9 October 2015.

[16] I therefore consider this factor to be a neutral consideration.

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

[17] It was not disputed that Ms Broun-Batty took no action to dispute her dismissal.

[18] This does not point to the existence of exceptional circumstances.

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

[19] Ms Broun-Batty considered that the Respondent would not be prejudiced were an extension of time granted.

[20] The Respondent submitted that, given the delay in lodging the application, the capacity of those involved to recollect events is likely to have diminished, potentially prejudicing its capacity to defend the application.

[21] While I note the Respondent’s contention, I nevertheless consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[22] Ms Broun-Batty contended in her written submissions that her dismissal was unfair because the event she was accused of did not occur, adding that since her dismissal she had been made aware that the resident who accused her of physically and verbally assaulting her had admitted to having a bad day and taking it out on Ms Broun-Batty. At the hearing, Ms Broun questioned whether in fact an investigation had been undertaken by the Respondent, stating that Ms Broun-Batty had not been provided with a Police reference number.

[23] The Respondent submitted in its written submissions that the evidence obtained in the course of its investigation, including the doctor’s report and photographs of the resident’s face and neck contusions and abrasions, clearly demonstrated that Ms Broun-Batty had used inappropriate physical force in restraining the resident. The Respondent further submitted that Ms Broun-Batty’s actions were inconsistent with the resident’s care plan and the Respondent’s core values and guiding principles and justified her dismissal.

[24] The Respondent submitted at the telephone hearing that its investigation was both thorough and diligent and undertaken in a fair manner. The Respondent also stated that consistent with its regulatory obligations it had reported the matter to the Police. However, the Police had not investigated the incident.

[25] Based on the material before the Commission, the merits of Ms Broun-Batty’s application do not appear to be strong. This weighs against the existence of exceptional circumstances.

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

[26] Ms Broun-Batty in her written submissions stated that she did not think her situation was any more or less fair than anyone else in a similar position as anyone who is innocent deserves a fair trial. Ms Broun-Batty made no submissions regarding this factor at the telephone hearing.

[27] The Respondent submitted that it dealt with this matter in accordance with its procedures and regulatory obligations.

[28] I consider this factor to be a neutral consideration.

Conclusion

[29] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 2(Nulty) in the following way:

“[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.”

[30] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[31] Accordingly, Ms Broun-Batty’s application will be dismissed. An order to that effect will be issued with this decision.

Appearances:

J. Broun-Batty and J. Broun for the Applicant.

G. Weaver and C. Duke-Smith for the Respondent.

Hearing details:

2016.

Melbourne and Perth (telephone hearing):

March 31.

 1 (2010) 197 IR 403 at 408-409

 2 (2011) 203 IR 1

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