Jane Surace v ISS Health Services Pty Limited

[2024] FWC 2477

[2024] FWC 2477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Jane Surace
v

ISS Health Services Pty Limited

(U2024/8913)

COMMISSIONER THORNTON ADELAIDE, 11 SEPTEMBER 2024

Application for an unfair dismissal remedy – Extension of time- no exceptional circumstances – extension of time refused – application dismissed

[1]       Ms Surace (the Applicant) is seeking an extension of time in which to file her unfair dismissal application. She was dismissed on 21 June 2024 and filed her unfair dismissal application on 31 July 2024, 19 days after the statutory time limit expired.

[2]       For the reasons set out in this decision, I find that no exceptional circumstances exist in this matter and therefore no extension of time can be granted.

Background

[3]       Ms Surace was employed in the classification of Health Ancillary Employee, Level 3 pursuant to the ISS Facility Services South Australia Public Hospital Enterprise Agreement 2024. She worked at the Modbury Hospital. She had been employed by ISS Health Services Pty Limited (the Respondent) for almost 5 years at the time of her dismissal.

[4]       On 14 June 2024, the Respondent alleged that Ms Surace accepted fifty dollars from a vulnerable, older patient after she had assisted him to return to the hospital from a nearby shopping centre, prior to the commencement of her shift. The Respondent alleged that Ms Surace kept the money, placed it in her personal locker and did not report the incident or otherwise return the money to the patient.

[5]       Ms Surace says that she returned the patient to the entrance of the hospital rather than his ward, so he could smoke outside. She says the patient would not accept her refusal of the money he offered and placed it in her hand. Ms Surace says it was always her intention to return the money, once she had identified the patient and the ward he was admitted to and had a chance to do so after completing her initial work duties.

[6]       The patient apparently told another employee that he had given Ms Surace the money and when she was called to the ward at 10:00am the same day she admitted that she had received the money. Ms Surace has always maintained that she intended to return the money.

[7]       The allegation was put to Ms Surace in writing on the same day and she responded in writing on 17 June 2024.[1] A meeting was held between the Applicant and Respondent on 20 June 2024 to allow Ms Surace a further opportunity to respond to the allegations verbally. On the same day a letter was issued to the Applicant confirming the allegation had been substantiated and she had until midday on 21 June 2024 to make submissions as to why her employment should not be terminated.

[8]       The Applicant provided a further submission as requested. Also on 21 June 2024, the Respondent sent a letter to the Applicant by email advising that they had considered her response but did not identify any mitigating circumstances. The letter confirmed the Respondent had found that the Applicant had breached the Respondent's Code of Conduct and had brought the company into disrepute with their client. They determined to dismiss the Applicant and pay her a 4 week notice period. Ms Surace acknowledged in her evidence that she received the letter on the day it was sent and understood her termination took effect on 21 June 2024.

Matters for consideration

[9]       Section 394(3) of the Act allows the Commission to exercise discretion to extend the time for an unfair dismissal application to be made if exceptional circumstances exist in the matter. In determining whether exceptional circumstances exist, the Act requires the Commission to take into account the following factors: 

(a)the reason for the delay;

(b)whether the person first became aware of the dismissal after it had taken effect;

(c)any action taken by the person to dispute the dismissal;

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

(e)the merits of the application; and

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

[10]     The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.  

Reason for the delay

[11]     Ms Surace gave evidence, which I accept, that following her dismissal, she took the following steps to inform herself as to whether she could lodge an unfair dismissal claim:

(a)After spending the first two or three days coping with the shock of the dismissal and spending time on her own, Ms Surace spoke to family members who suggested she speak to a lawyer about her dismissal. Her brother suggested she speak to Mr Clemente, a lawyer at C+F Lawyers.

(b)Ms Surace also contacted the union with whom she was previously a member and was informed they could not assist her because she had ceased paying union fees sometime in 2023.

(c)On 2 July 2024 she spoke with Mr Clemente’s assistant, Andrew, who made an appointment for her to speak to Mr Clemente on 30 July 2024 after Mr Clemente had returned from leave.

(d)Ms Surace says that she asked Andrew if she should file her claim before Mr Clemente returned from leave and was told by Andrew to wait to file her unfair dismissal claim until after she had spoken with Mr Clemente.

(e)When she met with Mr Clemente on 30 July 2024, he advised her that he did not practice in employment law and could not assist her with her claim.

(f)Andrew then sent Ms Surace an email containing the details of a lawyer who practiced in employment law and a link to assist her to file the claim in the Commission.

(g)Ms Surace had a telephone discussion with an employment lawyer, Mr McCarthy on 31 July 2024 and says he recommended that she represent herself in the Commission. 

(h)Ms Surace then used the link provided by Andrew and filed her claim the same day she spoke to Mr McCarthy.

[12]     Ms Surace told the Commission in her evidence that at the time of her dismissal she was aware that she could make a claim for unfair dismissal. She also said that she knew an unfair dismissal claim had to be filed in 21 days. Ms Surace said she was not told about the 21 day time limit when making enquiries with the union or the solicitors she spoke with. Her evidence was that she knew of the 21 day time limit but she “didn’t know what [she] was doing”[2] with regards to filing the claim and “[she] was trying to get help”[3].

[13]     Ms Surace admitted that she did not make her own enquiries as to how she might file the claim herself without the assistance of a representative. She accepted that she has some proficiency in using the internet, and prior to her dismissal she was actively engaged on social media. However, Ms Surace accepted that she did not do an internet search about how to make an unfair dismissal claim.

[14]     Ms Surace also gave evidence that she experienced stress and anxiety after her dismissal and was distressed after giving her evidence. She did not give detailed evidence about the effects on her mental health and told the Commission she did not see a doctor about her symptoms, but rather another practitioner that she could not identify by practice area that assisted her with her breathing to address her panic attacks and anxiety.

[15]     Ms Surace explained her delay as being primarily caused by her acceptance of the information that she says was given to her by Mr Clemente’s assistant to wait until Mr Clemente returned from leave in order to get legal advice. At the time she spoke to Mr Clemente’s assistant, Mr Clemente was not engaged as her lawyer and she was merely seeking initial advice from him. Her evidence was that Andrew was Mr Clemente’s assistant and not a lawyer himself who was giving her advice.

[16]      Despite that, and being unable to get assistance from the union, Ms Surace did not seek alternative advice. She did not do an internet search to ascertain her options for filing her claim without the assistance of a representative. This is despite Ms Surace’s evidence that she was aware she had a 21 day time limit to file her application.

[17]     Waiting to obtain legal advice is not a circumstance that is “out of the ordinary course, or unusual or special, or uncommon”[4] but rather is a circumstance that is “regularly, or routinely, or normally encountered.”[5] It is not an exceptional circumstance. It is incumbent on Ms Surace to take steps herself to find other advice or explore her options with more urgency.

[18]     The explanation for the delay provided by Ms Surace is not a credible explanation for delay. This consideration weighs against the finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[19]     There is no dispute that Ms Surace became aware of her dismissal on the date it took effect. She was informed in writing that her employment had been terminated and accepted that she received the letter on the date it was sent by the Respondent. Ms Surace had the opportunity of the full statutory time period to lodge her claim.

[20]     This consideration does not weigh in favour of a finding that exceptional circumstances exist.

Any action taken by the person to dispute the dismissal

[21]     Ms Surace confirmed in her oral evidence that she had no further contact with the Respondent after she received the letter of termination until she filed the unfair dismissal claim. She participated in the investigation and defended her actions in the course of the disciplinary process. However, Ms Surace took no additional steps to dispute the termination other than filing the application.

[22]     This consideration does not weigh in favour of a finding that exceptional circumstances exist.

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

[23]     The Respondent made submissions that the late filing of the application has caused it prejudice on account of “lost productivity with members of its senior Employment Relations team being deployed to compile responses to the matter”.[6]

[24]     The submission made by the Respondent addresses the inconvenience they say the application has caused them but did not specify other particular difficulties or unfairness that arose for them because the application was filed outside of the statutory time limit.

[25]     I am not persuaded that inconvenience arising from the filing of the application rather than prejudice to the Respondent arising from the late filing is a matter to which I should attribute any weight. This consideration is neutral in my decision.

Merits of the application

[26]     The assessment of the merits of Ms Surace’s claim is best left to a decision maker who has the benefit of all of the evidence.

[27]     There is merit in the Respondent’s decision to dismiss an employee who has accepted and held on to money given to her by a vulnerable patient, in circumstances where she has been certified able to work with vulnerable people. It is arguable that Ms Surace had opportunities to report the incident to more senior people and give the money to an appropriate person, rather than keeping it in her purse in her locker.

[28]     Alternatively, there may be merit in Ms Surace’s case. The evidence may reveal that she did not have time to report the incident or hand over the money and a decision maker may believe that she had always intended to turn it in. Her honest admissions about what occurred may also assist her in arguments that the dismissal was unjust or unreasonable. Ms Surace has submitted, since she filed her claim, that the dismissal is harsh in the circumstances and a warning was a more appropriate outcome.

[29]     The merits of the application, even when considered on a preliminary basis, are not sufficiently clear to weigh in favour of, or against, a finding of exceptional circumstances. This consideration is neutral in the decision.

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

[30]     The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[7] considered this criterion and said: 

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[8] 

[31]     There are many decisions of the Commission that do not find exceptional circumstances exist where an applicant is aware of the statutory time limit and does not take adequate steps to file their application, as is the case here.[9]

[32]     To find exceptional circumstances and grant an extension of time in this matter would be unfair to other applicants in a similar position to that of Ms Surace.

Conclusion

[33]     There are a number of considerations that weigh against the finding that exceptional circumstances exist in this case. There are others that are neutral in my decision. Weighing the considerations I am required to consider, I find that there are no exceptional circumstances in this matter and therefore no extension of time can be granted.

[34]     Ms Surace’s application is therefore dismissed.

COMMISSIONER

Appearances:

J Surace, Applicant on her own behalf.

D O’Rourke for ISS Health Services Pty Ltd.

Hearing details:

Adelaide (Hybrid hearing via MS Teams)
2024
4 September.

[1] The Applicant’s correspondences sent in the disciplinary process are not in evidence but I accept they were provided to the Respondent.

[2] Transcript, Part 2 – at 6:23.

[3] Transcript, Part 2 – at 6:27.

[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[5] Ibid.

[6] Submissions of Respondent at paragraph 1g.

[7] [2016] FWCFB 6963.

[8] As above at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] 750.

[9] Burns v Frank Cirillo [2024] FWC 2110; McMillan v Congress of Aboriginal and Torres Strait Islander Nurses and Midwives Ltd[2021] FWC 6525; Gardner v Conti's Dairy T/A Contis Dairy[2020] FWC 4869.

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