Jan-Maree Garner v CFHMC Pty Ltd as Trustee for the CFHMC Unit Trust

[2015] FWC 2594

[2015] FWC 2594 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Jan-Maree Garner
v
CFHMC Pty Ltd as Trustee for the CFHMC Unit Trust
(U2014/14916)

DEPUTY PRESIDENT SAMS SYDNEY, 20 APRIL 2015

Application for relief from unfair dismissal - enrolled nurse - long unblemished record - dismissed because of lack of supervision - whether application out of time - extraordinary circumstances - reasons for dismissal confusing and contradictory - serious misconduct - Union representation - representative error - merits overwhelmingly strong - exceptional circumstances made out - extension of time granted - remitted for further hearing.

BACKGROUND
[1] This decision arises from an application to the Fair Work Commission (the ‘Commission’) for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The substantive application was lodged on 7 November 2014 by the Queensland Nurses Union (the ‘Union’) on behalf of its member, Ms Jan-Maree Garner (the ‘applicant’). The applicant had been employed as an Enrolled Nurse (EN) by CFHMC Pty Ltd t/as Trustee for the CFHMC Unit Trust (‘the respondent’)) since March 2003.

[2] The circumstances surrounding the termination of the applicant’s employment were very unusual and raise a question as to whether the application for an unfair dismissal remedy was, in fact, filed within time. Moreover, the reasons given by the respondent for the applicant’s dismissal were both confused and contradictory and, in my opinion, quite extraordinary.

[3] On 11 September 2014, the applicant was verbally advised by Mr Adam Ryder, a Director of the respondent, that she could no longer work at the medical practice due to a lack of supervision by a Registered Nurse (RN). When she asked if she was dismissed, Mr Ryder said ‘no’. Relevantly, the applicant received no prior warning of her dismissal and was not provided, in writing, with the reason for her dismissal. Her Union subsequently inquired as to the applicant’s outstanding entitlements, including redundancy pay, long service leave and notice on 8 October 2014. Ramsden Lawyers, acting on behalf of the respondent, wrote to the Union on 29 October 2014 and now advised that the applicant had been dismissed for serious misconduct. I have extracted the relevant parts of that letter below:

‘1. Ms Jan-Maree Garner was not made redundant by our client. Rather, her employment came to an end due to serious misconduct on the basis that she wilfully and knowingly refrained from complying with her obligations to be supervised by e registered nurse as required by the Nursing Act 1992 (QLD) (‘Act’) and the Australian Practice Nurses’ Association Standards (‘Standards’);

2. Ms Garner was knowingly practicing outside her scope of employment as an enrolled nurse, without our client’s knowledge, consent or permission in contravention of the Act and the Standards;’

[4] The respondent denied any liability for redundancy entitlements by claiming it was a small business, as defined, in that it employed less than 15 employees at the relevant time (The Union disputes this contention). Notwithstanding the allegation of serious misconduct, Mr Ryder provided the applicant with a glowing reference on 15 September 2014.

[5] At this juncture, I would observe that, even with this brief summary, it is little wonder the applicant was confused and shocked by her dismissal after 11 years of unblemished service.

[6] That said, given the inconsistency of the respondent’s position, it would be open to the Commission to find that the applicant’s dismissal for alleged serious misconduct, of which she was completely unaware until 29 October 2014, meant that her application for an unfair dismissal remedy, filed 9 days later, was clearly filed within time. However, for abundant caution, I shall rely on the uncontested evidence that the applicant was told on 11 September 2014 she no longer could work for the employer and did not do so beyond that day. As the Act mandates a 21 day time limit for initiating an application for an unfair dismissal remedy, this puts her application 5 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[7] Section 394(3) sets out the matters the Commission is required to consider in applications of this kind. The section is expressed as follows:

‘394 Application for unfair dismissal remedy

...

(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.’

THE PROCEEDINGS

[8] On 15 January 2015, the Commission issued directions for the filing and service of evidence. When submissions were received, it was apparent that much of the material was directed to the merits of the application; albeit that a prima facie finding by the Commission as to merits is a necessary requirement under s 394(3)(e) of the Act and, in many cases where there is a dispute about dates of dismissal, an overlap of merit and jurisdictional evidence will be obvious.

[9] At a hearing of the application on 4 March 2015 in Brisbane, the applicant was represented by Ms C Taylor and Ms L Hauser from the Union and Mr T Horry and Mr A Ryder, Directors, represented the respondent. Early in the hearing it was clear the Union intended to adduce evidence and put submissions as to the jurisdictional issue and the substantive merits of the application. Understandably, Mr Horry had understood the Commission would only be determining the jurisdictional issue at this point and was unprepared to argue beyond this confined issue (notwithstanding the material filed by both parties extensively dealt with both matters). However, after some discussion with the Bench, and again, in order to ensure procedural fairness to the respondent, the parties were content for the jurisdictional issue only to be determined at this juncture.

THE EVIDENCE

For the applicant

[10] The applicant deposed that she believed that she had been dismissed on the day she was told by Mr Ryder that ‘we have to let you go immediately’ (11 September 2014). This was because the respondent had decided, after legal advice, that it could no longer employ ENs without supervision by a RN. Mr Ryder had not mentioned that the four RNs at the practice had refused to supervise her.

[11] The next day, she emailed Mr Ryder and requested a reference and a letter of termination. She had received the reference dated 15 October 2014 as set out below, but did not receive written confirmation of her dismissal:

‘Dear Whom it may concern,

Re: Jan-Maree Garner

Jan Maree has worked at Coastal Family Health since 2004. I have worked with her for 18 months and can highly recommend her approach to her work as a nurse.

She has many years of first hand General Practice experience and a wealth of knowledge to draw on.

Her work style is task oriented and her knowledge of the needs of patients and their families well placed, and would no doubt have been a factor in the initial growth and popularity of Coastal Family Health.

Jan-Maree possesses increasingly rare qualities in relation to her work ethic, sense of duty and responsibility. At the same time she does not shy away from new technologies & software. She is known for her reliability.

Self-assured and confident in her nursing abilities, Jan-Maree had been with CFH throughout many accreditation inspections, major software changes and differing doctors & procedures over the years.

I can recommend Jan-Maree’s skills for employment in a similar position or any endeavour that she chooses to pursue. I am available at [number supplied] for any further information that you may need.

Adam Ryder
Director
Coastal Family Health’

[12] The same day, the applicant contacted the Union about what had happened to her. Ms Nelda Bruins of the Union sent her a ‘Request For Representation’ form which she filled in and sent back to the Union the same day.

[13] On 22 September 2014, Ms Taylor sent the applicant an email advising that it appeared she had been made redundant. Ms Taylor requested further information about the respondent’s ownership of Coastal Family Health and whether it employed more than 15 employees.

[14] On 8 October 2014, the Union wrote to the respondent about her unpaid entitlements as follows:

‘Dear Mr Ryder

Re: Queensland Nurses' Union ("QNU") Member, Miss Jan-Maree Garner - Termination of employment by way of redundancy; failure to comply with lawful obligations

The QNU acts on behalf of our, member, Miss Jan Maree Garner in relation to her employment with Coastal Family Health.

Background:

Our member commenced working at Coastal Family Health ("CFH") as an Enrolled Nurse ("EN") on a casual basis in March 2003. In or around 2006/2007 Miss Garner's employment status changed to permanent part-time employment.

Our member advises that on 11 September 2014 you informed her that her employment was to be terminated effectively immediately, on the basis of "legal advice" that Coastal Family Health should be employing Registered Nurses (RN) rather than ENs. In doing so, you informed our member that she would receive two (2) weeks' severance pay and payment of her accrued annual leave.

The termination:

In terminating Miss Garner's employment, CFH has failed to comply with a number of provisions of the Fair Work Act 2009 ("the FW Act,).

In particular:

Notice specifying day of termination

S.117(1) of the FW Act provides that

"An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given)."

(Emphasis added).

The QNU notes that in terminating Miss Garner's employment, no written notice was provided, in contravention of this section of the Act.

Amount of notice or payment in lieu of notice

8.117(2) of the FW Act specified that an employer must not terminate an employee's employment unless:

- the time between giving the notice of termination and the date of the termination is at least the period specified at s.l17(3) of the FW Act; or

- the employer has paid to the employee payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee had the employment continued until the end of the minimum notice period.

The minimum notice period that CFH was required to provide Miss Garner, given her age and length of service was five (5) weeks. Our member advises that she was informed she would be paid two (2) weeks' in lieu of notice; and that to date, she has received payment for only one (1) week in lieu of notice.

Miss Garner is therefore owed four (4) weeks' wages for payment in lieu of notice, which equates to $3,456.00.


The QNU expects that this amount ($3,456.00), less relevant taxation, will be paid to our member within seven (7) days.
Failure to appropriately characterise the termination as a redundancy, and associated failure to pay redundancy entitlements

S. 119 of the FW Act provides that an employee is entitled to be paid redundancy pay by the employer if the employee's employment is tem1inated:

"(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer."

It is clear to the QNU that the circumstances of our member's termination constitute a redundancy.

As such, CFH is required to pay our member redundancy pay in accordance with the provisions of s.l19(2) of the FW Act.

Miss Garner is therefore owed twelve (12) weeks' wages as redundancy pay, which equates to $10,368.00.

The QNU expects that this amount ($10,368.00), less taxation (if relevant) will be paid to our member within seven (7) days.

Failure to pay out accrued unused annual leave

Upon cessation of employment, an employee is entitled to be paid their accrued unused annual leave entitlement, and applicable leave loading, as per s.90(2) of the FW Act.

Miss Garner advises that she has not been paid for the 36 hours of accrued unused annual leave owing to her. This equates to $972.00 plus $170.10 of annual leave loading.

The QNU expects that our member's annual leave entitlemen1, totalling $1,142.10, less applicable tax will be paid to our member within (seven) 7 days.

Failure to pay out accrued long service leave

In addition, you have failed to comply with the provisions of the Industrial Relations Act 1999 (Qld) in that you have failed to pay our member her accrued long service leave entitlement at the cessation of her employment.

The provisions for the payment of long service leave to casual or regular part time employees is contained at s.47-49 (inclusive) of the Industrial Relations Act 1999(Qld).

In order to determine the payment of long service leave owing to our member, you are required to use the following formula:

Total hours of service X 8.6667 X hourly rate

52 10

The QNU expects that CFH will immediately determine the quantum of long service leave owing to our member, and pay such sum within (seven) 7 days.

Summary:

In total, our member is owed the following amounts in unpaid entitlements:

• $3,456.00 -underpayment of wages in lieu of notice

• $10,368.00 -redundancy payment

• $1,142.10-accrued annual leave and applicable annual leave loading

• A yet to be determined amount -long service leave

(I.e. $14,966.10 plus an amount to be determined in respect of long service leave entitlements owing).

We confirm that should the above amounts not be paid to our member within (seven) 7 days, a recovery of wages action will be taken in the relevant tribunal. We confirm that in taking such action, we will additionally be seeking interest on the amounts owing to our member; and penalties where relevant regarding the failure of CFH to comply with its lawful obligations.

To discuss any aspect of this matter please contact QNU Industrial Officer, Ms Cheri Taylor on [phone number and email supplied].

Yours sincerely

Beth Mohle
Secretary’

[15] Ramsden Lawyers responded on 29 October 2014 in the following terms:

‘Dear Ms Mohle,

Costal Family Health Termination of Garner’s Employment

We refer to your letter to our client dated 8 October 2014 and confirm that we act for Coastal Family Health.

Instructions

We are instructed that:

1. Ms Jan-Maree Garner was not made redundant by our client. Rather, her employment came to an end due to serious misconduct on the basis that she wilfully and knowingly refrained from complying with her obligations to be supervised by a registered nurse as required by the Nursing Act 1992 (QLD) (‘Act’) and the Australian Practice Nurses’ Association Standards (‘Standards’);

2. Ms Garner was knowingly practising outside her scope of employment as an enrolled nurse, without her client’s knowledge, consent or permission in contravention of the Act and the Standards;

3. once it became known to our client that Ms Garner’s employment was not being conducted in accordance with the Act and the Standards, it made every attempt to find a suitably qualified registered nurse to supervise Ms Garner however neither Ms Garner nor our client were able to make suitable arrangements, notwithstanding considerable effort being expended by our client to find such a supervisor;

4. in any event, your member is not entitled to severance or redundancy pay given that our client is a ‘small business employer’ with less than 15 employees and is exempt from such requirements in accordance with section 121 of the Act; and

5. Ms Garner was paid two weeks’ pay in lieu of notice at the time that her employment came to an end.

Offer of Settlement

Our client has now had the opportunity to take advice on the matters surrounding Ms Garner’s employment coming to an end and, with no admission as to liability, we are instructed to make the following offer in full and final settlement of all matters pertaining to your member’s employment with our client:

(a) Our client, at its own costs, prepares a deed of settlement and release to be entered into by the parties providing for payment to your client of the amount equal to the aggregate of her accrued annual leave entitlement in the sum of $1, 142.10 (noting that this has never been in dispute) and a further 2 weeks’ pay in lieu of notice (‘Settlement Sum’);

(b) Our client makes payment of the Settlement Sun within 7 days of your client signing the deed;

(c) That the parties bear their own legal costs and outlays of and incidental to these negotiations and the steps taken under any settlement; and

(d) That these terms are confidential, and not to be disclosed to any third parties except as required to by the parties’ lawyers and other business advisors or as required by due proceed of law or where the parties agree in writing beforehand.

Further, we are instructed to seek that Ms Garner return the security key for access to the medical centre premises on acceptance of this offer.

This offer is open for a period of fourteen days from today’s date.

All rights reserved.

Yours faithfully
Ramsden Lawyers
Oliver Jones’

[16] When the applicant read this letter she was shocked at learning, for the first time, that the respondent had claimed she had been dismissed for serious misconduct.

[17] The next day, the applicant rang Ms Taylor, but could not contact her as she was on long service leave. On 3 November 2014, she spoke to Ms Allison Rossiter from the Union, who told her that the Union would file an out of time application for an unfair dismissal remedy. It was lodged on 7 November 2014.

[18] Ms Taylor provided a statement of evidence which corroborated the applicant’s version of events and described the Union’s attempts to establish the specifics of the applicant’s outstanding entitlements and its contact with Ramsden Lawyers. The Union was advised on 17 October 2014 that the firm was representing the respondent and it could expect a formal response by close of business on 27 October 2014 (later changed to 29 October 2014).

[19] Ms Taylor commenced long service leave for a month on 31 October 2014 and prepared a handover of her open matters for Ms Rossiter.

[20] Neither the applicant or Ms Taylor were required for cross examination.

For the Respondent

[21] Mr Adam Ryder deposed that at 4.35pm on 11 September 2014, he met with the applicant and placed the following three documents on the table:

● Australian Nursing Federation Competency Standards For Nurses in General Practice;

● Australian Practice Nurses Association - Guide for the Supervision of Enrolled Nurses in General Practice; and

● Practice Nurse Incentive Programme Guidelines.

[22] When Mr Ryder advised her that she was required to be supervised by a RN, she had said ‘Oh yes, we have been through this before [with the previous owner] and we used Robyn Berzinski’s name down as the supervisor.’ Ms Berzinski denied having ever acted as the applicant’s supervisor. Mr Ryder claimed to be shocked that the applicant had known of this supervision requirement and had completely disregarded it. Mr Ryder said the applicant asked if she was being ‘fired’. He replied, ‘No, but we cannot legally continue to employ you.’ While the applicant offered no solution to the problem, he had told her he would do everything in his power to help her. He said, at the time, she expressed no emotion, did not argue or act surprised.

[23] When the applicant asked again if she was being fired, he replied ‘No’; nor was she redundant. He said his hands were tied. Mr Ryder said the applicant was given as much time as she wanted to gather her possessions. He claimed that the respondent made multiple attempts to work out an agreement with the applicant, but she had not responded to any of the Company’s offers.

SUBMISSIONS

[24] The Union addressed each of the criteria in s 394(3) as follows:

‘(a) the reason for the delay:

22. The Respondent's reasons for the termination of Ms Garner's employment are contradictory. When the information provided by the employer is read as a whole, we assert the circumstances are exceptional.

23. Had Ms Garner been advised either in writing or verbally that the reason for the dismissal was for serious misconduct, the QNU would have lodged an Application for Relief in Relation to Termination of Employment ('an Application') on her behalf, within the required 21 day time frame.

24. The QNU and the Applicant deny the suggestion, put forward by the Respondent in their email to the Fair Work Commission on 17 December 2014 that all parties were in full possession of the facts "from day one". A copy of that email is attached herein and marked as AOS-5.

25. A thorough examination of the assertions put forward by the Respondent in AOS-5, attached herein, show that the Respondent continues to provide contradictory reasons for the cessation of Ms Garner's employment, including but not limited to:

a. Their denial that Ms Garner was terminated;
b. Their assertion that Ms Garner's employment came to an end due to her alleged serious misconduct;
c. Their assertion that they were legally unable to continue Ms Garner's employment;
d. Their assertion that the alleged inability of Ms Gamer to continue in her role was neither a redundancy nor a termination;
e. Their "summary" that "the confusion appears to be in the terminology".

26. Ms Gamer accepted the advice of the QNU and the QNU did not lodge an Application because of the information provided to Ms Gamer by her Employer. Ms Gamer sought advice regarding the termination of her employment on 12 September
2014. The Applicant and the QNU therefore viewed the termination as a clear case of
genuine redundancy.

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

28. The QNU submits that Ms Garner honestly and reasonably believed that she had been terminated on 11 September 2014 as her position was no longer able to continue, and that this was due to the Employer's misconceived belief that it could no longer employ Enrolled Nurses.

29. QNU notes the assertions of the Respondent in AOS-5, attached herein, that Ms Garner was aware on the date of her termination that the reason for her termination was “serious misconduct”. In her statement of evidence, Ms Garner confirms that no allegation of serious misconduct was ever referred to or put to her by the Respondent prior to her termination.

30. Ms Garner did not receive written notification of her termination, despite requesting that it be put in writing.

31. Ms Garner was not given an opportunity to respond to the real reasons for her dismissal, being alleged serious misconduct, as this reason was not provided to her until 29 October 2014, approximately six weeks after the termination.

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

32. The QNU submits that Ms Garner was advised by Mr Ryder that she was no longer required by CFHMC due to the concerns about supervision of her nursing duties and the legal advice that they had received. Ms Garner contacted the QNU the day following the termination (12 September 2014). The termination was pursued by the QNU as a redundancy based on the information provided to Ms. Garner by her employer.

33. When the advice was provided to the QNU from Ramsden Lawyers (29 October 2014) explaining that Ms Garner's position was not redundant but that she had been dismissed due to serious misconduct, the QNU immediately sought to file an Application (received by Fair Work Commission 7 November 2014).

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

34. The QNU notes the assertions of the Respondent in AOS-5, attached herein, regarding the issue of prejudice to the employer and disputes the assertion that they are prejudiced in his matter as

"Ms Garner can get free advice and assistance from her union. We are obliged to get legal advice for which we pay dearly. This is not an even process. We are more than happy to sit down with an independent arbitrator (no lawyers or unions) and have this matter heard. That would be a truly even process without prejudice".

36. The Respondent has a misconceived view of what "prejudice" in this context means.

37. The QNU asserts that CFHMC would not be prejudiced by the delay. We submit that the CFHMC have in their actions caused confusion resulting in the delay and have shown a complete disregard toward their former long standing employee.

38. The QNU notes that the Respondent has provided no evidence to support their assertion that they are prejudiced in this matter. Instead, they have made irrelevant and erroneous assertions about the involvement of QNU in this matter.

(e) The merits of the application:

34. The QNU submits that there is a meritorious claim of unfair dismissal and a strong case to be argued, particularly given that

a. the allegation that Ms Gamer engaged in serious misconduct was never put to her prior to her dismissal;

b. it can be proven that Ms Garner did not engage in serious misconduct; and

c. the Respondent has relied upon erroneous legal advice in terminating Ms Garner's employment;

35. The QNU submits that the actions of the Respondent in terminating Ms Garner due to serious misconduct were misconceived, noting the position put forward by the Respondent in AOS-5, attached herein, in which it was asserted that

"an enrolled nurse cannot work in a GP practice unless an RN is prepared to enter into a formal written supervisory agreement with an Enrolled Nurse".

38. The QNU confirms that there is no requirement, legislative or otherwise, for an Enrolled Nurse working in any setting to enter into a formal written supervisory agreement with a Registered Nurse.

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

38. The QNU submits that in this case there is no comparison or other person in a similar position.

39. The QNU notes that the Respondent has not provided any submissions regarding fairness as between the person and other persons in a similar position in AOS-5, attached herein.’

For the Respondent
[25] While it was difficult to understand the written submissions of the respondent, which really served to underscore Mr Ryder’s evidence, the submissions were summarised by Mr Horry as follows:

‘MR HORRY: Your Honour, can I just add that the advice that we had and the circumstances as we believed them to be, we are in a medical centre and obviously dealing with people’s health and if we have a situation where somebody is not being correctly supervised and something bad was to happen if someone was to get injured or, even worse, die, we are in an awful situation there; everyone is. And it is absolutely still our belief that supervision was in place. We were caught between a rock and a hard place as to if we allowed Ms Garner to continue and something was to happen, our legal advice was that we could be in trouble.’

CONSIDERATION
[26] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission said:

‘[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[27] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3), must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

Reasons for the delay (s 394(3)(a))

[28] Given the uncontested evidence in this case, it should come as no surprise to the respondent that I consider the circumstances of the applicant’s dismissal (and I deliberately use the term ‘dismissal’) to be extraordinary, unusual, out of the ordinary and uncommon. In all my years, I have not come across a similar set of circumstances in which an employer expressly claims to have not dismissed an employee, provides the employee a glowing reference and then claims the employee was dismissed for serious misconduct based on the same grounds it was said she had not been dismissed. As I said earlier, is it little wonder the applicant (and her Union) were confused.

[29] It is simply not good enough for the respondent to hide behind its lawyers’ legal advice when any reasonable person would have known that an allegation of wilful and serious misconduct was utterly inconsistent with what the applicant had earlier been told and had been led to believe. I find the respondent’s actions to be disingenuous in the extreme. In any event, it was always open to the respondent to issue clear and appropriate instructions to its solicitor, so as to not make itself look so stupid.

[30] In addition, I was curious that the respondent’s legal advisers did not appear in the proceedings. I was minded to issue a summons to attend so that a representative of Ramsden Lawyers could explain:

(a) its advice to the respondent;

(b) why it altered the basis of the applicant’s dismissal to one of serious misconduct; and

(c) why it took from 8 October 2014 to 29 October 2014 to respond to the Union’s inquiry.

While I take this matter no further, Ramsden Lawyers should be made aware that I am less than impressed with its role in this matter.

[31] Nor was it acceptable, let alone fair, for the respondent to craft its evidence, after the event, in order to blame the applicant for her predicament. If there really was a legal requirement for an EN to be supervised by a RN, and it could not force a RN to do so, (which I doubt) it was the responsibility of the employer to direct the RN to comply with her/his professional obligations or a reasonable direction to do so. Had the RN failed to comply, then it was the RN who should have faced disciplinary action, not the applicant. This was another utterly disingenuous submission of the respondent.

[32] The applicant acted at all times with expedition and in good faith, yet this was not reflected in the conduct of the respondent or its legal advisors, particularly when Ramsden Lawyers did not reply to the Union’s letter of 8 October 2014 until 29 October 2014. In addition there were gaps in the timing of actions taken by the Union, which it openly acknowledged, were not the fault of the applicant. The applicant was entirely blameless; See: Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728 at paras [26] and [41]. This, of itself, would account for ‘representative error’ as one of the reasons for the delay in filing the applicant’s unfair dismissal application.

[33] As was said by the majority in McConnell v A & PM Fornataro (t/as Tony’s Plumbing Service) (2011) 202 IR 59 at para [35]:

‘Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted [footnotes omitted’).’

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[34] It is apparent the applicant did not know the real reason for her dismissal until 29 October 2014, although she believed she had been dismissed on 11 September 2014. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[35] As outlined earlier, the day after her dismissal - 12 September 2014 - the applicant contacted her Union to query what had happened to her. She acted with speed and alacrity and was entitled to expect her Union to act in similar fashion. This is a positive factor in favour of an extension of time being granted.

Prejudice to the employer (s 394(3)(d))

[36] Even though the respondent misunderstood the notion of prejudice in s 394(3) of the Act, I am satisfied that there is no prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This is a neutral factor in this case.

The merits of the application (s 384(3)(e))

[37] In my assessment, there can be no doubt that the merits of the applicant’s case are strong, if not overwhelming. The uncontested evidence was that:

a) the applicant was given two diametrically opposed and inconsistent reasons for the termination of her employment;

b) the applicant was given no warning of her dismissal;

c) the applicant had an unblemished record of employment, as Mr Ryder’s reference for her makes abundantly clear;

d) as the applicant was accused of serious misconduct, she was given no opportunity to defend herself or respond to the allegations;

e) given that the applicant was accused of serious misconduct, the conduct alleged does not go any way close to a deliberate and wilful act of the applicant, such as to constitute misconduct, let alone serious misconduct; See: r 1.07 of the Act’s Regulations.

f) whilst there must be some doubt that the respondent was a small business, as defined, assuming it was, it would appear an inescapable conclusion that it had not complied with the Small Business Fair Dismissal Code (the ‘Code’).

[38] In this extraordinary case, I am not satisfied that the respondent’s reason for terminating the applicant’s employment was a valid reason; See: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. It is incomprehensible and illogical that a RN can simply refuse to supervise an EN. I agree with the Union’s submissions on this matter. It is also unclear to me that there is any requirement for a written supervision agreement between a RN or EN. The documents relied on by the respondent were criticised by the Union as being long out of date and just plain wrong. The latest relevant documents, concerning the competency standards for nurses, means supervision can be direct or indirect and, importantly, the onus is on the employer to ensure that supervising arrangements are in place. I accept this evidence as constituting the correct position. This onus was not only not discharged by the respondent, it blamed the applicant for its own failures.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[39] To the extent the applicant was appallingly treated by the respondent, I find that it would be highly unlikely to find another person or persons who were in a similar position. Nevertheless, this is a factor which does not tip the decision either way.

CONCLUSION
[40] For all the aforementioned reasons and having balanced all the factors in s 394(3) of the Act, I am satisfied that the applicant has established a case of ‘exceptional circumstances’ in this matter, consistent with the conclusions in Nulty. I propose to exercise my discretion to extend the time for filing of the application to 7 November 2014. The substantive application will be remitted to the Unfair Dismissal Unit for further processing in accordance with the Commission protocols. I would add however, my strong recommendation that the respondent should carefully reconsider its position in respect to settlement of this claim, if only to avoid further criticism and embarrassment for its conduct.

[41] An order extending time for filing this application will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms C Taylor and Ms L Hauser of the Queensland Nurses’ Union of Employees for the applicant.

Mr T Horry and Mr A Ryder for the respondent.

Hearing details:

2015:

Brisbane

4 March

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