Leah Fox v My Care Solution Pty Ltd
[2021] FWC 21
•4 JANUARY 2021
| [2021] FWC 21 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Leah Fox
v
My Care Solution Pty Ltd
(C2020/6812)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 4 JANUARY 2021 |
Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.
[1] This decision concerns an application by Ms Leah Fox under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
[2] There was some confusion in the materials as to the date upon which Ms Fox’s dismissal took effect. However, at the hearing the parties agreed that the effective date of dismissal was 11 August 2020. Ms Fox’s application was lodged on 4 September 2020. Accordingly, the period of 21 days for lodgement ended at midnight on 1 September 2020 and the application was therefore lodged three days out of time. Ms Fox seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.
[3] On 12 October 2020, I issued directions for the parties to file materials. Materials were filed by Ms Fox on 2 and 6 November 2020 and by the Respondent on 23 November 2020.
[4] On 14 December 2020 I conducted the proceeding by way of hearing by telephone. At the hearing Ms Fox appeared on her own behalf. Pursuant to section 596 of the Act Ms Arvin Bisbal of Workplace Partners appeared on behalf of the Respondent.
Background
[5] Ms Fox commenced employment with the Respondent in March 2020 1 as a casual Caregiver.2 Ms Fox’s employment with the Respondent also formed her vocational placement for her TAFE course. On 11 August 2020 Ms Fox was advised in a telephone call with Ms Corrie Burnside, Regional Care Manager at My Care Solution Pty Ltd, that she would not receive any further shifts with the Respondent.3 On the same date, Ms Fox also received an email from Ms Burnside4 stating:
“Good morning Leah
Apologies for not getting back I was away from last Friday till this morning, I have tried to phone you but it goes to message bank. Further to your email to Maria, Michelle and myself My Care Solution is not able to provide you with any further work. I wish you well in your future endeavours and if you could return the ID Badge that would be very much appreciated.” 5
[6] The last shift worked by Ms Fox for the Respondent was on 16 July 2020. 6
Consideration
[7] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 7
[8] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 8 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.9
[9] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.
Reason for the delay
[10] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 10 or a reasonable explanation.11 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd12 the Full Bench noted that the absence of an explanation for any part of the delay, will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.13 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.14
[11] In her materials and at the hearing, Ms Fox says that the reasons for the delay in lodgement were manifold.
[12] Firstly, Ms Fox says that at 3:00 pm on 11 August 2020, shortly after Ms Burnside confirmed the termination of Ms Fox’s employment, Ms Fox contacted Mr Maria Nye, Director of Operations at My Care Solution Pty Ltd, by telephone to raise concerns regarding her dismissal. 15 She says that this was followed by an email to Ms Nye on 12 August 2020.16 Ms Fox says that a series of phone calls between herself and Ms Nye took place on 13, 14 and 15 August 2020 in relation to her dismissal.17 Secondly, Ms Fox says that on 13 August 2020 she spoke with her TAFE lecturer to discuss the termination of her employment and her options going forward. She says that her TAFE lecturer advised her to apply for other home and community organisations to try to obtain another position.18 Thirdly, she says that on 14, 17, 20 and 26 August 2020 she attended various job interviews.19 Fourthly, Ms Fox says she had a number of appointments and matters to attend to including:
• a hearing appointment on 14 August 2020;
• a tax return appointment on 14 August 2010;
• a GP appointment on 19 August 2020;
• driving her husband to medical appointments on 18 and 24 August 2020;
• returning a holter heart monitor on 19 August 2020;
• a gynaecologist appointment on 21 August 2020 which involved a surgical procedure requiring two days of rest;
• a maintenance company visiting her house to look at a leaking ensuite on 22 August 2020;
• cleaning client’s homes for her cleaning business on 27 and 28 August 2020; and
• a maintenance company visiting her house to re-grout her ensuite on 1 September 2020. 20
Fifthly, Ms Fox says that she was advised by SafeWork SA to lodge an application with the Equal Opportunity Commission South Australia (Equal Opportunity Commission) and that she proceeded to do so on 21 August 2020. 21 She says that on 3 September 2020, she was advised by the Equal Opportunity Commission that they were unable to assist her and suggested she contact SafeWork SA. Ms Fox says that she then telephoned SafeWork SA on 3 September 2020 and was advised to lodge a Psychological Risk Complaint Form, which she proceeded to do on 4 September 2020. She says SafeWork SA then advised her to lodge an application with the Fair Work Commission.22 At hearing, Ms Fox says that SafeWork SA advised her of the 21 day statutory time limit to lodge a general protections application in the Commission. Finally, at hearing, Ms Fox said that until she spoke with SafeWork SA on 4 September 2020, she was unaware that a 21 day statutory time limit applied.
[13] Although the circumstances following dismissal must be considered in assessing the explanation for the delay, the period of the delay to be considered is the period immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. None of the matters relied upon by Ms Fox account for the period of delay, being the period between 1 September 2020 and the time of lodgement. They therefore cannot provide an acceptable or reasonable explanation for the delay. As to the circumstances following dismissal, on her own material Ms Fox’s discussions with Ms Nye ceased after a conversation on 15 August 2020. 23 Accordingly, such discussions can only account for the time between Ms Fox’s dismissal on 11 August 2020 and that date. Ms Fox did not lodge her application for a further 20 days. As to Ms Fox speaking with her TAFE lecturer, no reason was given nor is it readily apparent as to how that prevented Ms Fox from lodging her application in time. Further, after speaking with her TAFE lecturer, Ms Fox still had a further 18 days to lodge her application within the statutory timeframe. In respect of the various job interviews, matters and appointments Ms Fox said she attended to between 14 and 28 August 2020, firstly, none of these are supported by any probative evidence. Secondly, in no way can any of these matters be considered out of the ordinary course, unusual, special, or uncommon, either when considered separately or together. These matters therefore cannot provide an explanation for the delay.
[14] It appears that through Ms Fox’s interactions with the Equal Opportunity Commission and SafeWork SA, and her submission at hearing, that she was unaware that a 21 day statutory time limit applied and was unclear as to the jurisdiction in which to raise her concerns regarding her dismissal. However, it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement. 24 Further, it is clear that through contacting and lodging complaints with the Equal Opportunity Commission and SafeWork SA, Ms Fox had capacity to lodge the application in time.
[15] In light of the above, I do not consider that Ms Fox has provided a reasonable or acceptable explanation for the delay. This weighs against the grant of an extension of time.
Action taken by the person to dispute the dismissal
[16] As set out at paragraph [12] above, it is uncontested that shortly after her dismissal, Ms Fox raised concerns regarding her dismissal with Ms Nye on 11 August 2020 and by email on 12 August 2020. In her email of 12 August 2020 Ms Fox says that she is “shocked that [her] employment has been terminated” and raises a number of concerns and matters which she requests Ms Nye to take on board. 25 The Respondent agrees that Ms Fox disputed her dismissal.26 It says that Ms Fox attempted to ask for reinstatement during telephone conversations with Ms Nye on 11 and 13 August 2020, however she was advised by Ms Nye that reinstatement was “not a good idea”.27 At hearing the Respondent submitted that Ms Fox still had sufficient time to lodge her application after being denied reinstatement.
[17] I find that in contacting Ms Nye by telephone and email on 11 and 12 August 2020 Ms Fox did take action to dispute her dismissal. This weighs in favour of the grant of an extension of time.
Prejudice to the employer
[18] The Respondent submits that it will suffer prejudice as it has had to expend significant time and resources in responding to the application and dealing with the extension of time matter. 28 It further says that Ms Fox has lodged a general protections application as she is ineligible to make an unfair dismissal application. It says that Ms Fox has failed to identify “any actual discrimination, bullying or breach of workplace rights”.29 At the hearing, the Respondent further submitted that prejudice is suffered as the claim is unmeritorious. Ms Fox disputes that any prejudice is suffered by the Respondent as the application is only three days out of time.30
[19] Whilst noting the Respondent’s submissions, I do not consider that in the circumstances the need to defend the application if an extension of time were granted will result in prejudice to the Respondent. However, the mere absence of prejudice is not, in my view, a factor that would weigh in favour of the grant of extension of time. I consider this to be a neutral consideration in the present case.
Merits of the application
[20] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
[21] In her materials, Ms Fox alleges that adverse action was taken against her in breach of sections 340, 343, 344 and 351 of the Act. However, at the hearing Ms Fox conceded that sections 344 and 351 have no application in the present circumstances. Section 340 provides, amongst other things, that a person must not take adverse action against another person because the other person has a workplace right, or has, or has not, exercised a workplace right. Section 343 provides, amongst other things, that a person must not take adverse action against another person with intent to coerce the other person to exercise, or not exercise, a workplace right.
[22] At the hearing Ms Fox said that she exercised her workplace right to make complaints and was dismissed because she raised these complaints. In her materials, she says that she raised a number of concerns with the Respondent during her employment including concerns about client’s health and wellbeing, carers “doing the wrong thing”, being required to perform tasks she was unauthorised to perform, being told to work a shift without a client support plan and unsafe work environments. 31 She says that she also spoke up about her rostered hours being reduced which she says occurred after raising concerns about a client’s family member’s request to administer a drug she was unauthorised to administer.32 Ms Fox says that on 16 July 2020, she sent an email to Ms Burnside, copied to Ms Nye, providing “feedback suggestions” to which Ms Burnside responded on 17 August 2020.33 Ms Fox also says she contacted Ms Nye on 10 August 2020 raising concerns about her access to the Respondent’s MyCareConnect app, her allocated shifts and TAFE assessments. Ms Fox says that she also raised in this email the she “felt discriminated, harassed and bullied” by Ms Burnside and “did not know what to do”. She says that Ms Nye responded to this email on the morning of 11 August 2020 stating that she had received the email and would be in contact.34 At the hearing, Ms Fox said that section 343 is engaged as she was coerced by Ms Burnside to do things outside of her scope of practice and that she asked administrative staff where she could voice her concerns about Ms Burnside, however was advised that she had to raise concerns with Ms Burnside herself. She said that the workplace right she was being coerced not to exercise was speaking up against what Ms Burnside was requiring her to do.
[23] The Respondent agrees that adverse action in the form of dismissal was taken against Ms Fox. However, in its materials and at the hearing the Respondent says that Ms Fox was dismissed due to her performance and conduct which it says resulted in it deciding that Ms Fox was “not the ‘right fit’ for the business”. 35 It says that Ms Burnside had spoken to Ms Fox on several occasions about her performance and conduct, specifically her inability to “take direction and follow company policy/procedure”. 36 The Respondent says that Ms Fox was advised of issues with her performance and conduct in a series of emails between April and July 2020.37 The Respondent says that it at all times took reasonable management action in a reasonable manner and “neither discriminated, bullied or prevented [Ms Fox] from exercising a workplace right.”38
[24] Given the interlocutory nature of these proceedings, and on the material currently available to the Commission, it is not possible to form a concluded view as to whether adverse action was taken against Ms Fox in breach of section 340 and/or 343 of the Act. The evidence of Ms Fox and the Respondent would need to be fully tested under oath. In these circumstances, I am prepared to consider the merits of Ms Fox’s application to be a neutral consideration.
Fairness as between the person and another person in a like position
[25] Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.39 Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.40 The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Ms Fox and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
[26] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
[27] Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Ms Fox’s application.
[28] Accordingly, I decline to grant an extension of time under section 366(2). Ms Fox’s application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
L Fox on her own behalf
A Bisbal for the Respondent
Hearing details:
2020.
Melbourne (by telephone):
14 December.
Printed by authority of the Commonwealth Government Printer
<PR725961>
1 Form F8 Application at q.1.1; Form F8A Employer Response, Attachment
2 Form F8A Employer Response, Attachment
3 Applicant’s outline of argument: extension of time at q.1b
4 Ibid
5 Applicant’s outline of argument: extension of time, Attachment 7
6 Form F8 Application at q.1.3; Form F8A Employer Response at q.2.2
7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
8 [2011] FWAFB 975
9 At [13]
10 Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
11 Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
12 [2018] FWCFB 901
13 Ibid at [39]
14 See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
15 Applicant’s outline of argument: extension of time at q.1d
16 Ibid
17 Ibid
18 Ibid
19 Ibid
20 Ibid
21 Ibid
22 Ibid
23 Ibid
24 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975
25 Applicant’s outline of argument: extension of time, Attachment 4
26 Respondent’s outline of argument: extension of time at q.1(e)
27 Ibid
28 Ibid at q.1(g)
29 Ibid at q.1h
30 Applicant’s outline of argument: extension of time at q.1f
31 Ibid at q.1h
32 Ibid
33 Ibid
34 Ibid
35 Respondent’s outline of argument: extension of time at q.1h
36 Ibid
37 Ibid; Respondent’s outline of argument: extension of time, Annexure A
38 Ibid
39 Wilson v Woolworths [2010] WA 2480 at [24-29]
40 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
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