Janine Seckold v Kingscliff Family Medical Services Pty Ltd T/A Kingscliff Family Medical Services

[2015] FWC 8941

[2015] FWC 8941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Janine Seckold
v
Kingscliff Family Medical Services Pty Ltd T/A Kingscliff Family Medical Services
(C2015/6972)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 24 DECEMBER 2015

Application to deal with contraventions involving dismissal.

[1] On 16 October 2015 Ms Janine Seckold (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Kingscliff Family Medical Services Pty Ltd T/A Kingscliff Family Medical Services (the Respondent).

[2] The Applicant commenced employment with the Respondent on 13 April 2015. She was employed as “Practice Manager” at the Respondent’s medical centre in northern New South Wales. She says that she was dismissed by a termination letter sent by registered post on 21 September and the dismissal took effect on that date. The Applicant says that she did not receive the letter until the afternoon of 22 September.

Alleged Contravention

[3] The Applicant submits that she was dismissed in response to the lodgement of a WorkCover claim. A breach of s.352 was alleged in her F8 application. The Applicant had a medical certificate from 21 September to 7 October.

Respondent’s Submissions

[4] The Respondent’s letter of termination purported to terminate the Applicant’s casual employment. It submits that she was engaged as a casual but that the Applicant had, falsely, included an entitlement for annual leave and personal leave on payslips. The Respondent denied the allegation made by the Applicant. In turn, the Respondent says that there were a number of performance issues with respect to the Applicant. There was no written contract of employment. It appears that the Respondent intended for the Applicant to be employed on a casual basis during an unspecified probationary period.

Relevant Legislation

[5] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(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.”

Approach of the Commission

[6] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[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.”

[7] On 5 November 2015, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 4 December 2015.

[8] The Applicant was represented by Mr N. Job, solicitor. The Respondent was represented by Mr S. Gorval, solicitor together with Mr B. Eddy, the Managing Director.

Matters to be taken into account pursuant to s.366(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.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[10] The application was lodged four days late. The Applicant had raised issues concerning under-payment of wages with the Fair Work Ombudsman (FWO). She says that she assumed that the FWO would deal with issues covering her dismissal. She does not say on what basis she made that assumption. She also relies on her medical condition and the fact that there was a delay in obtaining legal advice.

[11] There is no suggestion of incorrect legal advice in this case. The Applicant’s account of what the FWO is alleged to have said was not consistent. In any event, the FWO was not required to provide advice as to a possible General Protections claim

[12] The reasons for delay cited by the Applicant do not, in my view, establish exceptional circumstances.

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

[13] The Applicant disputed the dismissal by raising it with the FWO. Much of the debate between the parties related to the applicant’s employment status.

[14] I have treated this factor as neutral.

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

[15] The employer did not expend many resources in meeting this claim prior to the hearing. I have treated this factor as neutral.

(d) The merits of the application

[16] The main contest that occupied the parties was the Applicant’s employment status. Whether she was casual or not is not likely to be the major issue.

[17] The question would be whether the Respondent could establish that the Applicant’s poor performance was the substantial and operative reason for the dismissal. There is some evidence to support the Respondent’s case.

[18] The Applicant submitted that the lodging of the workers compensation was a workplace right. She says that she was dismissed because she lodged it, therefore ss 340 and 341 are attracted.

[19] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[20] This factor was not addressed and has not been taken into account.

Conclusion and Order

[21] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

Order

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Janine Seckold under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

N. Job, solicitor with J. Seckold, Applicant.

S. Gorval, solicitor with B. Eddy for the Respondent.

Hearing details:

2015

Telephone Hearing:

December 4.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR575456>