Lee Charles v Anglican Care

[2016] FWC 4664

[2016] FWC 4664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Lee Charles
v
Anglican Care
(C2016/3887)

COMMISSIONER WILSON MELBOURNE, 14 JULY 2016

Application to deal with contraventions involving dismissal; whether extension of time should be granted.

[1] This matter concerns an application made by Ms Lee Charles for the Fair Work Commission to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Ms Charles’s application relates to the termination of her employment by the Respondent, Anglican Care, on 1 September 2014, and was received by the Commission on 25 May 2016.

[2] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. It is apparent from the dates referred to above that the application is 611 days out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Ms Charles for the making of her application and, for the reasons set out below, I am not satisfied that a further period should be allowed for the making of the application.

[4] In considering an application for an extension of time the Actrequires that I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application, that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 In the same legislative context it has been held that a decision as to whether to extend the time period involves the exercise of a discretion.2

[5] The Respondent, Anglican Care, objects to the application continuing given that it was commenced after the statutory period for the making of a general protections application and that the circumstances of the matter are such that an extension of time should not be granted.

[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Ms Charles, the Applicant, and the submissions of Ms Catherine Mordaunt, the Respondent’s Human Resources Manager.

BACKGROUND

[7] Ms Charles was employed by Anglican Care in April 2011 and worked as a casual Hotel Services Assistant at several of the Respondent’s facilities, which are throughout the Hunter Region in NSW. She reports working over five of the Anglican Care sites. Her employment with Anglican Care appears, from the material filed by her as well as by the Respondent, to have been the subject of some significant disharmony in at least 2013 and afterward.

[8] During 2013, Ms Charles was asked to respond to allegations of breaches of Anglican Care’s code of conduct on at least two occasions in August 2013 and October 2013. Ms Charles made complaints to Anglican Care’s human resource manager about treatment from her managers. Mediation processes conducted by an internal human resources manager were undertaken, but were inconclusive.

[9] According to the Applicant’s evidence, she became ill in October 2013, having being diagnosed with depression and anxiety which she put forward as being due to workplace issues. Leave associated with the conditions and other matters was taken by her and she did not work in any of the Anglican Care sites after 24 October 2013. A workers compensation claim was made by Ms Charles on 31 October 2013 which was refused by WorkCover on 7 November 2013 and was then the subject of a review which was also denied. In December 2013, and again in March 2014, Anglican Care instructed Ms Charles in writing that she was not to attend any of its premises either because she was presently on sick leave or otherwise not rostered on to work. She was, however, permitted to attend an administration site of the Respondent for the limited purpose of submitting medical certificates to be processed by Anglican Care.

[10] As 2014 started and progressed, the Respondent, Anglican Care, requested to meet with Ms Charles in order to develop a return to work plan, and sought information from her about her likely return to work date. Neither request was met in substance.

[11] On 23 July 2014 Anglican Care wrote to Ms Charles advising her that her continued absence on what it regarded to be a non-work-related medical condition could not continue indefinitely. It advised her that it had held her position open since December 2013 but that such situation could not be further sustained and that it took the view that Ms Charles was, because of the evidence available to the Respondent, unfit to perform the inherent requirements of her role and that she was unlikely to be able to do so in the foreseeable future. The same correspondence sought from Ms Charles any medical evidence she might have as to when she would soon be able to perform on an ongoing basis the inherent requirements of her role as a service assistant.

[12] When it did not receive a response from Ms Charles about that request, Anglican Care again wrote to Ms Charles on 7 August 2014 in terms advising that it no longer considered her employment to be protected through the provisions of s.352, which prevents an employer from dismissing an employee because they are temporarily absent from work because of illness or injury of a prescribed kind. The correspondence set out the following;

“Dear Lee

RE: YOUR EXTENDED ABSENCE

I refer to our letter of 23 July 2014 regarding your ongoing absence from duty due to a non work related illness.

In this letter you were requested to provide medical evidence to enable us to be informed about your ability to return to work and whether you were able to, in the foreseeable future, perform the inherent requirements of your role as a Service Assistant on an ongoing basis. I note that you have since provided a medical certificate 28 July 2014 and leave application; however this medical certificate does not stipulate any detail only that you will not be able to return to work until September 2014.

Under the Fair Work Act an employee is protected from dismissal when temporarily absent due to illness or injury unless the employee’s absence on unpaid personal/carer’s leave extends for more than 3 months, or total absences of 3 months within a 12 month period.

As you have been unfit and on leave without pay since 9 December 2013, which is a period longer that 3 months, we seek some further advice as to the likelihood of you being able to return to perform the duties associated with your position in the near future.

We have held your position as a Service Assistant open during this time that you have been absent from work but do require a more permanent solution to your role.

Unless you are able to provide evidence or information to support that there is a likelihood that you will be able to return in a reasonable time frame Anglican Care will be unable to hold your position open for any longer.

As such we request that you make a time to come and see Rebecca Felton, HR Advisor, to discuss this matter urgently and are giving you a further 14 days. Please bring any supporting medical evidence/reports relating to your ability to perform your role. Please be aware that you can bring a support person to that meeting. Please arrange a suitable time to see Rebecca by calling [number].

However, as we have requested that you attend our offices before to discuss your extended leave and you have failed to, we can only presume that you are unwilling or unable to do so. Therefore if you cannot attend our offices to meet with Rebecca then please provide any necessary evidence in such as medical reports within 14 days which will allow us to make a decision on your ability to return to your position.

Should you fail to contact us or provide us with any further evidence within 14 days of the date of this letter we will have to make a decision about terminating your employment based on the information we currently have.

Please note that any entitlements owing to you will be deposited into your bank account, and other documents such as your Group Certificate, Statement of Service and Employment Separation Certificate will be forwarded to you.

Yours sincerely

Catherine Mordaunt
Human Resources Manager
Anglican Care” 3

[13] In response to the above letter Ms Charles wrote to say that she confirmed that she was unfit to attend work until 1 September 2014 and that;

“Neither myself nor my doctor knows yet whether I will remain unfit after that and if so for how long.

In those circumstances I really cannot see any point in a meeting to discuss something I do not know.

Yours faithfully

Lee Charles” 4

[14] On 28 August 2014 Anglican Care wrote to Ms Charles terminating her employment with effect from 1 September 2014. It set out the following in that correspondence;

“Dear Lee

RE: TERMINATION OF AN EMPLOYEE ON EXTENDED LEAVE WITHOUT PAY

This letter is to formally advise you that your services with Anglican Care have been terminated effective Monday 1 September 2014.

We contacted you on 23 July 2014 and 7 August 2014 inviting you to provide further information and attend a meeting to discuss the likelihood that you would be able to return to work due a long term unexplained personal illness/injury. Based on the following information we have decided that:

• You have been absent from work and been unable to perform your pre-illness/injury duties as a Service Assistant over the past 8 months and



• Based on ·the length of your absence and the fact that your medical certificates state “unfit for work” that you will be unable to perform the inherent requirements of your role. Further, that it is unlikely that you will be able to return to your position in the reasonably foreseeable future.

Anglican Care has made a number of reasonable requests to you to provide medical evidence that you will soon be able to perform the inherent requirements of your role as a Service Assistant. We note that you have only ever provided a medical certificate that does not stipulate when your doctor believes that you will be able to return to work, nor any specifics of the type of personal illness/injury you are suffering from in order to assist us with our determination.

Under the Fair Work Act an employee is protected from dismissal when temporarily absent due to illness or injury unless the employee’s absence on unpaid personal/carer’s leave extends for more than 3 months, or total absences of 3 months within a 12 month period.

As stated in our previous letter, we have held your position as a Service Assistant open for a period longer than 3 months and you have been on leave personal/carer’s leave without pay for a period of 8 months.

Any entitlements owing to you will be deposited into your bank account, and other documents such as your Group Certificate, Statement of Service and Employment Separation Certificate will be forwarded to you.

We thank you for your work at Anglican Care in the position of Service Assistant and we wish you well in the future.

Yours sincerely

Colin Osborne
Chief Executive Officer
Anglican Care” 5 (original emphasis)

[15] The evidence provided by Ms Charles also includes that there was a “workers compensation commission” arbitration which appears to have been at some stage between August 2014 and April 2015 and that in the course of that arbitration;

“… my lawyer asked me to sign an agreement stating that if I did not sign it, I would lose.

62. I believe I was pressured into signing away my further rights to compensation by both my lawyer and my support person …” 6

[16] In making her general protections application to the Commission, Ms Charles puts forward two reasons for the delay in making her application. The first is her belief that she was unable to make the claim within the necessary timeframe due to her mental health issues and confusion relating to her termination. Secondly, she puts forward that the legal advice she had received prior to lodging the claim was misleading with it being said to her that she had no rights for compensation or rights regarding her injury.

LEGISLATION

[17] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act;

366 Time for application

(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).

(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.

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 366(2) OF THE ACT

[18] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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

[19] In considering whether an extension of time should be granted to Ms Charles, I am required to consider all of the criteria in s.366(2), which I now do.

1. The reason for the delay

[20] It is appropriate in this case to be guided by authorities in relation to similar legislative considerations for an extension of time for the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 8 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.9 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.10

[21] Consideration of this criterion requires examination of whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application.

[22] As referred to above, Ms Charles puts forward two reasons for the delay in making her application. The first is her belief that she was unable to make the claim within the necessary timeframe due to her mental health issues and confusion relating to her termination. The second reason she advances is that the legal advice she had received prior to lodging the claim was misleading, with it being said to her that she had no rights for compensation or otherwise regarding her injury.

[23] Neither reason is the subject of cogent or persuasive evidence. Ms Charles has not brought forward any evidence to verify either of the circumstances. She has neither brought forward evidence of her medical incapacity during the relevant period or evidence about the misleading legal advice that she claims was given to her or when she may have received the advice. In connection with both, I note that some of the evidence from Ms Charles includes a reference to conducting a workers compensation arbitration at some stage between August 2014 and April 2015. While noting that her evidence in this regard is highly imprecise, it has nonetheless been brought forward by her, partly as an explanation for the reason for there being a delay in the making of this application. It appears therefore that the conduct of that litigation may well have been the focus of her attention during that period and that it was only after the workers compensation matter had concluded that she turned her attention to making a general protections application.

[24] In any event the delay to which I must turn my attention is the period after 22 September 2014, which was the last day on which a general protections application could have been made by Ms Charles within the time period allowed by s.366 of the Act.

[25] Overall, and in the absence of cogent or persuasive evidence about either her medical incapacity or the misleading legal advice that she says was provided to her, I am unpersuaded that there is an acceptable reason put forward by Ms Charles about the reason why there was a delay in making a general protections application.

[26] Accordingly, this criterion does not resolve in her favour in my consideration of whether an extension of time for filing should be granted.

2. Any action taken by the person to dispute the dismissal

[27] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 11

[28] The only evidence before me of any action taken by Ms Charles to dispute her dismissal is the commencement of this general protections application. Accordingly, I am satisfied that Ms Charles took no substantive action to dispute her dismissal until the making of this application to the Fair Work Commission on 25 May 2016, more than 20 months after her dismissal on 1 September 2014.

[29] In the circumstances of this matter, consideration of this criterion resolves in favour of the Respondent.

3. Prejudice to the employer (including prejudice caused by the delay)

[30] The delay in the filing of the application is 611 days. The Respondent notes that the long delay in commencing the action will require it extensive resources to respond to the action and alleged contraventions.

[31] It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. It has been held, within the context of similar legislative considerations for an extension of time to the making of an unfair dismissal application, that in the event that such evidence is brought forward, the employee would need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 12

[32] In relation to this matter, while there is no direct evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted, I consider it would be difficult for Anglican Care to adequately respond to the application.

[33] Notwithstanding this observation, there is not direct evidence before me of prejudice to the Respondent because of the delay and so I find my consideration of this criterion to be neutral.

4. The merits of the application

[34] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.

[35] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.¹³

[36] In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question. 14

[37] The merits of the application to which Ms Charles refers are twofold. Firstly, that she was discriminated against for exercising a workplace right in several respects; namely her right to make a complaint about management decisions. Secondly, Ms Charles claims that she was discriminated against because she was refused permission to take sick leave as well as to drop off medical certificates at her workplace. Respectfully I consider that the evidence brought forward to date does not disclose a likely prospect of success in either respect.

[38] The evidence in relation to the first potential area of merits, adverse action for reason of having exercised a workplace right, demonstrates that there was a period of some contention between Ms Charles and Anglican Care about matters at work. There is not strong evidence before me about the nature of any complaint she may have made, or that the making of those complaints may then have resulted in adverse action within the meaning of s.342 of the Act being taken against her.

[39] The material submitted by the Respondent instead puts forward a construction of those circumstances as being about its endeavours to deal with less than satisfactory conduct on the part of Ms Charles which it expected to be the subject of its performance management processes.

[40] In all, and bearing in mind that it is the Respondent’s responsibility to first answer the allegations, it is unlikely that Ms Charles would be able to demonstrate that the adverse action had been taken against her for a proscribed reason. Instead, it would appear to me that the evidence would resolve with a finding that the Respondent adequately discharged its burden of proof with a demonstration that any adverse action was for reasons other than those alleged by Ms Charles and including for reason firstly of her own conduct, and secondly for reason of her extensive absence from work.

[41] The second argument put forward by Ms Charles is that she was dismissed in contravention of s.352 of the Act, namely that she had been dismissed because she was temporarily absent from work because of illness or injury of a kind prescribed by the Fair Work Regulations 2009 (see reg.3.01). There is no material before the Commission that would allow a finding of such nature. Instead the evidence before the Commission would more than likely show that while Ms Charles, at the time of her dismissal, was in fact absent from work it was neither a temporary absence or of a kind prescribed by the Regulations.

[42] My consideration of this criterion is that it therefore resolves in favour of the Respondent.

5. Fairness as between the person and other persons in a like position

[43] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past. 15

[44] In applying Ms Charles’ facts to this criterion, it is my view that fairness to other general protections applicants in similar circumstances to her would give rise to an expectation that there had been some process of diligent inquiry or dispute by her not long after the dismissal. However, this was not the situation in Ms Charles’ case.

[45] After consideration of the legislative criteria and the whole the material before me, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for a general protections application to be made by Ms Charles.

[46] For these reasons, I decline to grant an extension of time pursuant to s.366 of the Fair Work Act 2009 and will issue an order dismissing Ms Charles’ application as being out of time.

COMMISSIONER

Appearances:

Ms L Charles on her own behalf.

Ms C Mordaunt on behalf of the Respondent.

Hearing details:

2016.

Melbourne (by telephone):

8 July.

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

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [9].

 3   Form F8A - Response to general protections application, Attachment N.

 4   Ibid Attachment O.

 5   Ibid Attachment P.

 6   Form F8 - General Protections Application Form, Second Statutory Declaration of Lee Charles, 25 May 2016 [61]-[62].

 7   Nulty v Blue Star GroupPty Ltd (2011) 203 IR 1 [13].

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 9   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 11   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 12   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

13 Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 14   Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941, (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445.

 15   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

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