Jane Wilson v Baptistcare Inc

[2015] FWC 6276

[2015] FWC 6276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jane Wilson
v
Baptistcare Inc
(U2015/8974)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Jane Wilson alleged that the termination of her employment by Baptistcare Inc on 15 December 2014 was unfair.

[2] Ms Wilson’s unfair dismissal application lodged on 2 July 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[5] Ms Wilson said that some fellow workers had seen a solicitor and they were told they did not have a case. Subsequently another worker had told her that she had gone to Fair Work and had been successful. Ms Wilson said she did not know that there was anything she could do about her dismissal as she did not know about the Fair Work Commission.

[6] Ms Wilson did not know the circumstances of the other workers so it is difficult to see how advice given to them could be relevant to her case. It is not unusual for employees to be unaware of the existence of the Fair Work Commission but Ms Wilson took no steps to investigate her rights.

[7] I am not satisfied that Ms Wilson had a reasonable explanation for delay in lodging her application. This weighs against a finding that there are exceptional circumstances.

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

[8] Ms Wilson was aware of the dismissal when it took effect. She had the full 21 days to lodge her application. This weighs against a finding that there are exceptional circumstances.

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

[9] Ms Wilson disputes some of the events relied upon by Baptistcare to justify her dismissal but she did not dispute the dismissal. This weighs against a finding that there are exceptional circumstances.

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

[10] There was no evidence of any prejudice to Baptistcare. This weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[11] Ms Wilson does not deny she gave medication to a patient. The parties are in dispute about whether, in the circumstances, Ms Wilson was authorized to give the medication. It was her evidence that she did so after seeking authorization from the relevant staff who did not respond to her telephone calls as well as seeking the advice of Central West Mental Health. She also submitted that the decision to terminate her employment was taken prior to the meeting.

[12] Baptistcare submitted that Ms Wilson was not protected from unfair dismissal because she was a casual employee and she was not a regular and systematic employee. No detailed submission was made about how Ms Wilson’s change of status from a weekly to a casual employee impacted on the calculation of the length of service with Baptistcare.

[13] Ms Wilson accepted that she had become a casual employee in January 2014 but she had been employed as a weekly employee for 10 years and said had therefore served the minimum period of employment.

[14] I am not able to make a final assessment of the merits of either the objection raised by Baptistcare or Ms Wilson’s claim that she was unfairly dismissed as there are factual disputes between the parties that have not been tested. However I am unable to conclude that Ms Wilson’s claim lacks merit and therefore this weighs in favour of finding exceptional circumstances.

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

[15] No submissions were made on this criterion. I consider that this criterion is neutral.

Conclusion

[16] I am not satisfied that there are exceptional circumstances. I am not satisfied that Ms Wilson had a reasonable explanation for the delay. This is not a case where the merits of the case are sufficiently strong as to outweigh the other criteria. Ms Wilson’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

J. Wilson on her own behalf.

D. Larson for the Respondent.

Hearing details:

2015.

Melbourne and Perth (telephone link):

September 9.

 1   [2011] FWAFB 975

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