Janet Morrison v Cerebral Palsy Association Inc t/a the Ability Centre

[2019] FWC 3569

[2019] FWC 3569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Janet Morrison
v
Cerebral Palsy Association Inc t/a The Ability Centre
(C2019/988)

DEPUTY PRESIDENT BOYCE SYDNEY, 28 MAY 2019

Application to deal with contraventions involving dismissal – application filed out of time – not a strong case on merits (liability or damages) – no exceptional circumstances – extension of time refused.

[1] On 13 February 2019, Ms Janet Morrison (“Applicant”) lodged an application with the Fair Work Commission (“Commission”) pursuant to s.365 of the Fair Work Act 2009 (Cth)(“the Act”). The Applicant did so by filing a Form F8 with the Commission’s Registry in Western Australia (“the Application)”. The Applicant’s employment with Cerebral Palsy Association Inc t/a The Ability Centre (“the Respondent”) was terminated (by the Respondent) on 6 December 2018.

[2] An application for the Commission to deal with a dismissal dispute must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2

[3] The Applicant acknowledges that she lodged her Application 48 days outside of the statutory time limit. To be within time, the Applicant was required to have lodged her Application on or before 28 December 2018.

[4] On 9 May 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge her Application.

[5] The Applicant represented herself at the Hearing. The Respondent was represented by an employee of the Respondent, Ms Leah Piper, Manager of People Culture. Ms Piper was assisted by another employee of the Respondent, Ms Rebecca Coghill, Employee Relations Business Partner.

[6] I have determined that the Applicant’s request for an extension of time should be dismissed. These are the reasons for that decision.

Background of the employment relationship and events leading to the dismissal

[7] The Applicant was employed by the Respondent as an Enrolled Nurse on a casual basis, pursuant to a written contract of employment dated 9 August 2019. The Applicant submitted that her employment began on Monday, 3 September 2019. The Respondent did not contend otherwise.

[8] The Respondent submitted that there were three “incidents” involving the Applicant that led to the Respondent’s decision to terminate the Applicant’s employment.

[9] The first incident is said to involve the Applicant incorrectly administering PRN Atropt eye droplets to a patient. The prescribing General Practitioner instructed that the medication was to be delivered orally in an effort to reduce the amount of saliva. However, the Applicant is alleged to have administered the eye drops into the patient’s eyes.

[10] At the hearing, the Applicant acknowledged that she had administered the medication incorrectly. The Applicant could not offer an explanation as to why she did so.

[11] The second incident is said to involve the Applicant having signed for dispensing medication to a patient when she in fact did not dispense that medication at the time of signing.

[12] At the hearing, the Applicant acknowledged that she should have contemporaneously signed the medication chart when dispensing the medication. The Applicant described her actions as an “error in judgement”.

[13] The third incident is said to involve the Applicant having made a diagnosis to a patient without authority.

[14] The Respondent’s position is that the Applicant was acting outside the scope of her role as an Enrolled Nurse and that such a diagnosis and/or suggestion for a swab test was the responsibility of a Registered Nurse or a General Practitioner.

[15] At the hearing, the Applicant contested the Respondent’s position. The Applicant claimed it was in her purview to make the diagnosis that she did, and to suggest the swab test.

[16] Regardless of the correct position, the Respondent suspended the Applicant’s employment and undertook an investigative process into the above allegations.

[17] Allegations of the incidents described above were put to the Applicant in writing on the 15 November 2018. The Applicant responded, in writing, to those allegations in a letter dated 17 November 2019.

[18] The Respondent terminated the Applicant’s employment on 6 December 2019. The Respondent communicated its intention to do so in a letter addressed to the Applicant dated 6 December 2019 (“Termination Letter”).

Matters to be taken into account

[19] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[20] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3 A decision whether to extend time under s.366(2) involves the exercise of a discretion.4

[21] Section 366(2) makes clear that each of the matters set out therein need to be taken into account in assessing whether there are exceptional circumstances. The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of (then) Fair Work Australia in Nulty v Blue Star Group Pty Ltd  5(Nulty)as follows:

“[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.” (emphasis added)

[12] Generally speaking, the assessment of whether exceptional circumstances exists will require consideration of all the relevant circumstances because, even though no individual factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. 6

[22] I now turn to address the particular matters to which regard must be had.

Reason for the delay

[23] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.

[24] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired, and ending on the day on which an application is ultimately lodged.

[25] That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 7 

[26] In summary, the Applicant submitted that the delay in bringing her Application was for the following reasons:

a) there was an insufficient amount of time between the Applicant having erroneously filed a Form F2 in the Unfair Dismissal jurisdiction of the Commission (being 24 December 2019), withdrawing that claim after having learnt of her ineligibility to enliven that jurisdiction (that is, not having met the minimum employment period to make such a claim), and then proceeding with the her current Application;

b) the Applicant was employed in a full-time position with another employer and had to tend to her other work duties;

c) the Applicant was engaged in proceedings before the Family Law Court;

d) the Applicant did not have enough time to seek legal advice;

e) the Applicant, being a layperson, was unfamiliar with the jurisdiction and procedures required by the Act;

f) the Applicant, rightly or wrongly, sought to file a large volume of paperwork in support of her Application, and the collation of that documentation took a considerable amount of time; and

g) the Applicant took it upon herself to identify the applicable industrial award or enterprise agreement but, for the same reasons that she was unfamiliar with the law, the Applicant took longer than a lawyer would in determining the appropriate instrument.

[27] At the hearing, the Applicant asserted that these reasons, when viewed collectively, made it difficult for the Applicant to set aside time to complete and file her material before the statutory deadline.

[28] None of these factors lend toward a finding of “exceptional circumstances”. They are neither out of the ordinary when viewed in isolation, nor when viewed collectively.

[29] To the contrary, the challenges encountered by the Applicant are best described as regular, routine, or that which is normally encountered. So too is an ignorance of the jurisdiction and statutory deadline.

[30] The Applicant’s foregoing reasons for delay are not satisfactory. They do not weigh in favour of a finding as to exceptional circumstances.

Action taken by the Applicant to dispute the dismissal

[31] Apart from lodging the Application, there is no evidence of the Applicant contacting the Respondent to dispute her dismissal. Further, the Respondent submitted that it did not receive any correspondence from the Applicant disputing the dismissal.

[32] Despite the Applicant apparently making no effort to dispute the dismissal directly with the Respondent, I nonetheless consider this lack of effort to be a neutral factor in this matter.

Prejudice to the employer

[33] The Applicant made no submissions as to whether the Respondent was prejudiced by the Applicant’s delay in filing the Form F8.

[34] The Respondent made several submissions on this point which may be summarised as follows:

a) the Applicant’s termination occurred several months ago; and

b) the Respondent has already dedicated considerable resources in investigating the circumstances leading to the Applicant’s termination, as well as defending an out of time claim that—on the face of the submissions and material before the Commission—does not warrant an exercise of the Commission’s discretion to grant an extension of time (there being a fundamental lack of merit to the Applicant’s claim).

[35] I find that these reasons do indeed give rise to prejudice to the Respondent.

[36] That said, I find the prejudice suffered by the Respondent to be limited. The prejudice the Respondent faces is one that all employers face in defending these claims. It is not the kind of prejudice that would warrant the Commission to err against exercising its discretion. As such, I consider any prejudice to the Respondent to be a neutral factor.

Merits of the application

[37] The Applicant acknowledges that the reasons for her termination were for the reasons articulated to her by the Respondent and described above between [9] to [15].

[38] At the hearing, the Applicant submitted that the Respondent should not have terminated her for those reasons, and that there were alternative disciplinary avenues open to the Respondent. In other words, the Applicant asserted that the termination was harsh, and a disproportionate response to her actions.

[39] The Respondent maintained that the reasons for the dismissal were for the reasons articulated in the Termination Letter, which were valid reasons in their own right, and not ones that give rise to any breach of the General Protections provisions.

[40] There was much said by both the Applicant and the Respondent in regard to the allegations made against the Applicant. For present purposes, however, it is unnecessary to make a determination of the varying characterisation of the allegations and the quality of the Respondent’s investigative procedure.

[41] The question to be answered in this matter is simply whether the reason for the termination is a prima facie breach of the General Protections; it is not an assessment of the “fairness” of the termination.

[42] The Applicant did not articulate, and I cannot infer on the material before me, a breach of the General Protection provisions under the Act. I find the absence of any discernible breach of those provisions to heavily weigh against an exercise of the discretion in the Applicant’s favour.

Fairness as between the Applicant and other persons in a like position

[43] Neither party made submissions on this point. I consider this point to be a neutral factor in this matter.

Conclusion

[44] At the hearing, the Applicant accepted that the reasons for her termination were her failure to perform her duties. She accepted that she was responsible for her actions. I find the Applicant to be a truthful and sincere person.

[45] No matter how truthful the Applicant may be, however, and no matter how aggrieved she is by the Respondent’s decision to terminate her employment, such matters are not a basis upon which an extension of time ought be granted.

[46] As is evident from the analysis above, those matters that must be taken into account as to whether there are exceptional circumstances confirm no such conclusion can be made. None of the factors weigh in favour of there being exceptional circumstances. Two of the factors weigh against the Applicant. The other factors weigh neutrally.

[47] I am not persuaded that there are exceptional circumstances warranting an extension of time. The Applicant did not raise any issue which might persuade me to exercise my discretion otherwise, notwithstanding that I might conclude that there are no exceptional circumstances. Likewise, I am not aware of any persuasive discretionary consideration which would warrant an alternative conclusion.

[48] The request for an extension of time is refused and, accordingly, the Application will be dismissed. An order to this effect will be issued in due course.

DEPUTY PRESIDENT

Appearances:

Ms Janet Morrison for herself

Ms Leah Piper for the Respondent

Hearing details:

Thursday, 9 May 2019, Sydney (with videolink to Perth)

Printed by authority of the Commonwealth Government Printer

<PR708620>

 1   Fair Work Act 2009 (Cth) s 366(1) and (2).

 2   See s.36 Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009; see s.40A of the FW Act; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 4   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.

 5   [2011] FWAFB 975.

 6   Misconi v Negri Contractors (Vic) Pty Ltd[2019] FWCFB 654 at [13]. See also: Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).

 7   See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]. See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.