[2016] FWC 3946

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Gray
v
Fountain Corner Family Practice
(U2016/2537)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 23 JUNE 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Mrs Gray has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with The Partnership of Dr Verity Jane Cooper and Dr Belinda Jane Capon T/A Fountain Corner Family Practice (Fountain). At a telephone conference convened on 23 June 2016 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Mrs Gray’s application was lodged on 30 May 2016. In that application she advised that her employment was terminated with effect from 8 February 2016. In her application Mrs Gray acknowledged that the application was not made within time and requested that the following advice be taken into account in favour of an extension of time:

● I came back from annual leave on the 8th February and was called into the office for a meeting which is when the initial dismissal was explained to me on the grounds of serious misconduct which was based on discrepancies between claimed working hours, wages and actual working hours.

● At the meeting on the 8 February accusations were made that my hours claimed did not match my hours I was working per week and there were 2 days that were put down as working which were in fact ½ days in December that should have been claimed as annual leave, this was acknowledged as a mistake and could be easily rectified.

● The Employer provided limited evidence at the meeting and did not give me time to examine the details properly or explain the discrepancies they were claiming. The meeting lasted no longer than 10 minutes, I was asked to leave the meeting stating they were going to make a decision, approximately 2 minutes later they called me back in and handed me the dismissal letter effective that day.

● The letter stated I was being dismissed on the basis of serious misconduct and that I was not entitled to a redundancy

● I was embarrassed and did not think I had any recourse as they did not give me time to think, It had appeared to be a forgone conclusion.

● On the 21 February I heard through another employee that I was being accused of stealing $30,000, I immediately contacted Belinda Capon one of the partners of the Medical practice to find out what was being said and they denied that they had said this to anyone, Belinda said that she had no knowledge of this and did not offer any further information despite my enquiry.

● On the 24th March I received a letter from lawyers working on behalf of the Fountain corner Family Practice (Belinda Capon) stating that they were seeking reimbursement of $21,000 for gross overpayments. There was no discussion or mention of this at the dismissal meeting.

● I wrote back to the lawyers on the 29th March seeking clarification, stating that this was the first time that this had been discussed and that I wanted certain evidence to back up this claim to establish the basis for this within 14 days as they should have this information immediately available to allow me time to take further action

● I received a letter back from the Lawyers on the 26th May stating that the gross overpayments was now $19,706 with only part of the information I requested, this information was based on hours claimed against log on hours of the computer.

● I will be writing back to them to seek the original information I requested which was a copy of my contract and other information which they have not supplied.

● I believe they have been delaying the details to prevent me from lodging an unfair dismissal claim and claiming redundancy.

The Partners in the business have never stated that our pay would be calculated using our log on hours on the computer. Therefore when I received the evidence and they had used the log in hours in the letter dated the 25 May 2016 I decided to seek assistance from the Fair work commission.

Log on hours on the computer does not take into account meetings, or mornings where I have not logged on as there are duties that do not require use of the computer and various times the computers were not up and running. I also had access to the business via the internet to be able to work from home and after hours for alterations to rosters etc, when I accessed emails via my Iphone or ipad from home the time is not logged but emails would be evident, I have a letter from Belinda Capon stating that I am required to use the computer and internet to work from home as part of my duties, therefore I am expected to be paid for this and all use of phone and ipad emails etc 1

[3] On 1 June 2016 my Associate corresponded with both Mrs Gray and Fountain and advised that the extension of time issue would be considered through a telephone conference on 23 June 2016. Substantial information about the extension of time issue was provided to the parties. Mrs Gray was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 15 June 2016.

[4] Mrs Gray provided a response on 7 June 2016. This response confirmed the information in her application. Mrs Gray further advised that it was only after she received email advice from Fountain’s Lawyers on 26 May 2016 that her dismissal was based on a comparison of her “log in computer hours to actual hours claimed in my time book”. Mrs Gray continued to state:

“I immediately arranged to lodge an unfair dismissal claim. I also looked up the practice website and noticed that Anne who was the second Admin Manager in the Practice is now listed in my role and there has been no replacement for her role this indicates that they have restructured the Business by combining two roles into one making one role redundant.

The basis of my claim is that they used the clouded issue of the contract hours and log in hours versus wages payed to dismiss me and not pay a redundancy due to the changing business set up. I also believe that the evidence they used to dismiss me was not credible and was not available at the time to be able to justify the dismissal.” 2

[5] Mrs Gray then referred to the dismissal discussions. She stated:

“I was blindsided by this dismissal meeting and it has taken 12 weeks from my dismissal to produce only some of the information that their claim is based on. I delayed lodging the unfair dismissal as I did not understand they basis for it, there is also no acknowledgement of my work afterhours for the practice.” 3 (sic)

[6] Mrs Gray concluded her statement on the following basis:

“My reason for an extension of time limit is based on being blindsided by the dismissal and not provided the evidence to determine the basis of their claims for why I was dismissed. I was going to walk away from this and seek employment elsewhere as I was upset with my treatment by the business partners, in hindsight I should have sought an unfair dismissal claim earlier but I was very upset and thought it would be better to walk away as I got the message that they no longer wanted me there. I could not take any information with me and at the time did not think to do so, therefore my contract and time books were all left in the office at the practice.

The time book information which would correlate my hours claimed for the period they are stating has not been provided, the signed contract or any other process or policy change indicating that Log on hours are now used for paying wages has also not been provided.

I believe the claim for overpayment on their behalf is false and misleading and I believe they used this to remove me from the business without having to pay a redundancy. They have combined two roles into one and to reduce costs in the business they have made one position redundant, without paying redundancy.

The Business Partners have put me and my family through a lot of stress with the dismissal which is based on incorrect evidence and the overpayment allegation.

Attached are the letters from the lawyers and my replies

8^th Feb – Dismissal letter

25 March – Letter 1 from Lawyer requesting payment for $21,000

29 March – Letter 1 from me back to lawyer denying the claim and requesting more information

25 May – Letter 2 from Lawyer with some information and reduction of claim to $19,706

Copy of excel spreadsheet of hours supplied by the Lawyers with the 25 May letter.

2 June – Letter 2 from me denying the claim and requesting the information that was not sent.” 4

[7] The Employer’s Response to the application indicated that Fountain opposed the extension of time and asserted that there was no jurisdiction to grant the remedies sought by Mrs Gray. In this response Fountain stated:

“The Application is out of time by 92 days. The Application was filed on 30 May 2016. The termination occurred on 8 February 2016. An extension of time is not appropriate. There are no exceptional circumstances. The Applicant has not provided any reasonable justification for the delay. The termination was clearly communicated to the Applicant on 8 February 2016.

…

This Commission does not have the appropriate jurisdiction to make the orders sought by the Applicant as they relate to al alleged redundancy payment, payment of notice in lieu or payment of outstanding leave.”

[8] Mrs Gray participated in the telephone conference but was represented by her husband, Mr Gray. Mr Kay, of counsel was granted permission to represent Fountain pursuant to s.596(2)(a). In this respect I note that Mrs Gray did not oppose that request for a grant of permission. I also note that Dr Capon from Fountain participated in the conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. This information did not require any participation in the conference proceedings by Mr Kay. I note that a sound file record of this telephone conference was kept.

[9] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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

(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.”

[10] I have concluded that the termination of Mrs Gray’s employment took effect on 8 February 2016. Accordingly, I am satisfied that the application was made 92 days outside of the 21 day time limit. Consequently, the application can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd⁵ which stated:

“[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.”

[11] Mrs Gray advances a number of reasons for this substantial delay. Firstly, she asserts that she only became aware of the full reasons for her dismissal on 26 May 2016. That may well be the case, but it does not represent a credible reason for the delay. Mrs Gray appears to be asserting that, until 26 May 2016, she accepted the termination of her employment and was not inclined toward challenging that dismissal. This cannot represent an exceptional circumstance relevant to the granting of an extension of time.

[12] Mrs Gray asserts that she considered the termination of employment process to be procedurally unfair. However she did not challenge that allegedly unfair process through an application of this nature until details of the quantum of payments claimed from her were specified. Given her concerns about the process followed to dismiss her, Mrs Gray has not properly or adequately explained the consequent delay. She has not established to me that she took actions in a timely fashion so as to dispute her dismissal. Her advice that she did not lodge the application at an earlier time because she wanted to “move on” means that she made a conscious decision not to challenge the termination of her employment within the time limit prescribed by the FW Act.

[13] Additionally, Mrs Gray asserts that after 26 May 2016 she examined the Fountain website and concluded that her position had been restructured so that she now considered that she had been made redundant and was entitled to a redundancy payment. In this respect, this cannot be an application for redundancy payments which are the domain of the Courts. More particularly, such a belated and simplistic analysis of the work arrangements at Fountain cannot represent exceptional circumstance so as to warrant an extension of time.

[14] Mrs Gray advised that she was hospitalised for two days in early April and incapacitated because she was wearing a “moon boot” for some time after that. I am not satisfied that this adequately explains the substantial delay.

[15] Mrs Gray also claims that she felt intimidated and upset by the termination of her employment. This is an understandable reaction, but it does not explain the very long delay in this matter.

[16] Finally, the information before me indicates that a critical factor impacting on the lodgement of this application relates to the extent to which Mrs Gray’s awareness of the civil action proposed against her by Fountain made her look further into the matter and ultimately lodged this application. Those factors cannot represent an acceptable reason for this application or an exceptional circumstance.

[17] Mrs Gray does not dispute the extent to which she was aware of the termination of her employment on the day on which it took effect.

[18] It is clear that Mrs Gray took action to challenge the prospect of a substantial claim being made against her by Fountain. Her actions included correspondence with the Fountain lawyers from March to May 2016. That correspondence however, appears more focussed on the overpayment allegations than on the fairness, or otherwise of her dismissal.

[19] In terms of prejudice to the employer associated with this very long delay, I think it most likely that the delay would represent such a prejudice. However, I have not taken that factor into account in reaching a decision on this issue.

[20] I do not think that the merits of Mrs Gray’s application favour an extension of time. The material before me does not suggest that her application is at all likely to succeed or that the merits represent any form of exceptional circumstance. In broad terms it appears to me that Mrs Gray acknowledged some discrepancies in her time records at the time of the termination of her employment and that the merits of the application substantially go to matters of degree about her behaviours.

[21] Considerations of fairness relative to other persons in similar positions to that of Mrs Gray do not generally support an extension of time.

[22] I have concluded that the material before me does not establish that Mrs Gray’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR581756) giving effect to this decision will be issued.

Appearances (by telephone):

R Gray with J Gray, for the applicant.

B Capon, for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

June 23.

1 Form F2, para 1.4

2 Applicant Submissions on Extension of Time, dated 6/6/2016, pg 2, paras 4 and 5

3 Applicant Submissions on Extension of Time, dated 6/6/2016, pg 2, para 8

4 Applicant Submissions on Extension of Time, dated 6/6/2016, pg 3, Summary

5 [2011] FWAFB 975

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Julie Gray v Fountain Corner Family Practice

[2016] FWC 3946

23 JUNE 2016

REASONS FOR DECISION