Karen O'Hare v Peninsula Health

[2014] FWC 6057

[2014] FWC 6057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Karen O'Hare
v
Peninsula Health
(U2014/10437)

SENIOR DEPUTY PRESIDENT ACTON MELBOURNE, 3 SEPTEMBER 2014

Application for unfair dismissal remedy - jurisdiction - extension of time refused - application dismissed.

Introduction

[1] This decision concerns whether the Fair Work Commission (FWC) should extend the time for Ms Karen O’Hare to make her unfair dismissal remedy application (UDR application) against Peninsula Health (PH) to the FWC.

[2] At the commencement of the hearing of the extension of time matter, I granted PH permission to be represented by a lawyer pursuant to s.596(2)(a) of the Fair Work Act 2009 (Cth) (FW Act). I was satisfied it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter which involved cross-examination of witnesses in the context of a pending other jurisdictional issue. I was also satisfied I should exercise my discretion to grant the permission, there being no objection to PH being represented by a lawyer.

Time limit for UDR applications

[3] Section 394 of the FW Act provides as follows with respect to the time limit for making a UDR application:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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

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

[4] I will turn to deal with each of these matters.

s.394(3)(a) - Reason for the delay

[5] Ms O’Hare was employed by PH in the early 1990s. In September 2011, Ms O’Hare went on maternity leave and she was due to return to work at PH in March 2012. However, Ms O’Hare never returned to work at PH. In March 2012, Ms O’Hare went on annual leave, sick leave and long service leave. Her paid leave was exhausted around October 2012. The evidence of Ms Pat Kardinaal, Ms O’Hare’s supervisor at PH, was that PH did not receive any medical certificates covering Ms O’Hare’s absence from work at PH after 19 March 2013. Ms O’Hare, however, maintains that she handed in medical certificates at PH or posted medical certificates to Ms Kardinaal at PH.

[6] On 8 April 2014, PH wrote to Ms O’Hare advising that the last medical certificate they had from her was one dated 31 March 2013 for the period 22 January 2013 to 19 March 2013 and they had no record of any further request for approval to further extend her leave. The letter also indicated that the last contact PH had had from her was on 10 September 2013 when she had called PH to advise that a real estate agent would be contacting PH to confirm her period of employment, and that Ms Kardinaal had attempted to contact her by telephone without success. The letter went on to advise that unless PH heard from her by 17 April 2014 with a reasonable explanation of her absence from work at PH and inability to keep in contact with them, PH would deem that she had abandoned her employment and would have no option but to terminate her employment contract with them.

[7] PH did not receive a response to their 8 April 2014 letter from Ms O’Hare and her employment with PH ceased on 23 April 2014.

[8] Ms O’Hare’s evidence was that she did not receive the 8 April 2014 letter, it having been sent to addresses she no longer resided at.

[9] On 5 June 2014, Ms O’Hare contacted Ms Kardinaal to advise that she was definitely ready to return to work at PH and would like to discuss coming back to work for one day a week to ease back into her work at PH. Ms Kardinaal advised Ms O’Hare she would need to speak to Mr Andrew Bickell, an Operations Director at PH to whom Ms Kardinaal reported, and requested Ms O’Hare’s contact telephone numbers. Mr Bickell subsequently telephoned Ms O’Hare on 5 June 2014 to explain that her employment with PH had ceased on 23 April 2014 because of her abandonment of her employment.

[10] Ms O’Hare made her unfair dismissal remedy application to the FWC on 30 June 2014.

[11] Ms O’Hare said the reason for her delay in making her UDR application was that she was unaware of the termination of her employment until 5 June 2014, that she had difficulty contacting relevant persons about making a UDR application and was given incorrect advice about whether she was eligible to make a UDR application, and that her becoming aware that her employment with PH had been terminated had caused a deterioration in her ill health.

[12] In Ozsoy v Monstamac Industries Pty Ltd, 1 a Full Bench of the FWC said the following about s.394(3)(a) of the FW Act:

“[31] Section 394(3)(a) of the Act requires regard to be had to the reason for the delay in lodgement. The delay is the period beyond the 21 day period specified in s.394(2)(a) after which the application was lodged—one day in the current case. The explanation for the delay is the explanation as to why the application was lodged beyond the 21 day period and goes to circumstances from the time of the dismissal until the lodgement explaining that delay. An applicant needs to provide a credible reason for the whole of the period that the application was delayed.” [Footnote omitted]

[13] Ms O’Hare’s lack of awareness until 5 June 2014 that her employment had been terminated explains the reason for her delay in making her application to that date. However, Ms O’Hare’s UDR application was made 25 days after 5 June 2014.

[14] Ms O’Hare’s evidence about her difficulty in contacting relevant persons about making a UDR application and being given incorrect advice about her eligibility to do so, generally lacked detail about the dates on which events occurred and with whom she made contact and by whom she was given advice. Ms O’Hare’s evidence was insufficient to persuade me that her difficulties in contacting relevant persons and her getting incorrect advice were such as to cause her to be unable to make her UDR application before 30 June 2014.

[15] Ms O’Hare’s evidence that her becoming aware that her employment with PH had been terminated had caused a deterioration in her ill health was supported by Mr Kieran Stueven, her son’s father. However, a copy of a medical certificate Ms O’Hare provided to the FWC dated 30 May 2014 and which covered the period from 4 June 2014 to 4 July 2014 did not indicate any deterioration in her ill health. No other medical certificate for this period was provided to the FWC.

[16] In the circumstances, even if I accept the 21 days for her making her UDR application ran from 5 June 2014, I am not persuaded there was a deterioration in her ill health from 5 June 2014 such as to cause her to be unable to make her UDR application before 30 June 2014.

[17] Ms O’Hare provided no other reason for her delay in making her UDR application before 30 June 2014.

s.394(3)(b) - Whether Ms O’Hare first became aware of the dismissal after it had taken effect

[18] I accept that while Ms O’Hare’s employment was terminated on 23 April 2014, she did not become aware of the termination until 5 June 2014. However, as I have just indicated, she did not make her UDR application until 25 days after 5 June 2014.

s.394(3)(c) - Action taken by Ms O’Hare to dispute the dismissal

[19] Once she became aware of the termination of her employment, Ms O’Hare raised with PH her understanding about PH’s expectations of her while she was absent from her work at PH and her compliance with those expectations, the means by which her employment with PH was terminated and that it had not been her intention to resign from PH. After 5 June 2014, as previously indicated, she also made contact with several persons about what she could do in respect of the termination, including about making a UDR application.

s.394(3)(d) - Prejudice to PH

[20] There is no prejudice to PH, including prejudice caused by Ms O’Hare’s delay in making her UDR application or prejudice if the FWC was to allow her a further period for the making of her UDR application.

s.394(3)(e) - The merits of the application

[21] On the material before me, I am unable to conclude Ms O’Hare’s UDR application is without merit.

s.394(3)(f) - Fairness as between Ms O’Hare and other persons in a similar position

[22] In this case, I am not satisfied there are any issues relevant to the matter of fairness as between Ms O’Hare and other persons in a similar position. Ms O’Hare submitted she should be given an extension of time for the making of her UDR application consistent with that afforded other people with depression but provided no information in support of her submission about those other people.

Conclusion

[23] Taking into account my findings on the matters in s.394(3)(a) to (f) of the FW Act, I am not satisfied there are exceptional circumstances for allowing Ms O’Hare a further period for the making of her UDR application.

[24] My findings on the matters in s.394(3)(a) to (f) neither individually nor collectively constitute exceptional circumstances warranting the FWC allowing Ms O’Hare a further period for the making of her UDR application.

[25] While Ms O’Hare first became aware of the termination of her employment at PH after it had taken effect, she took another 25 days to make her UDR application after becoming aware of the termination taking effect. For the reasons already given, I do not accept that Ms O’Hare’s reasons for the delay in making her UDR application were such as to prevent her making her UDR application before 30 June 2014.

[26] Although Ms O’Hare took the action I have earlier set out to dispute her dismissal prior to making her UDR application and I am unable on the material before me to conclude her UDR application is without merit, these do not represent exceptional circumstances.

[27] My findings in respect of the remaining s.394(3) matters also neither individually nor collectively constitute exceptional circumstances.

[28] I therefore decline to allow Ms O’Hare a further period for the making of her UDR application and, to the extent necessary, dismiss her UDR application. An order to that effects is being issued at the same time as this decision. 2

SENIOR DEPUTY PRESIDENT

Appearances:

K. O’Hare on her own behalf.

J. Tracey, counsel, for Peninsula Health.

Hearing details:

2014.

Melbourne:

August 29.

 1   [2014] FWCFB 2149.

 2   PR554983.

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<Price code C, PR554982>