Lee Turnock v Ramsay Health Care Australia Pty Ltd
[2023] FWC 3114
•28 NOVEMBER 2023
| [2023] FWC 3114 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lee Turnock
v
Ramsay Health Care Australia Pty Ltd
(U2023/10447)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 28 NOVEMBER 2023 |
Application for an unfair dismissal remedy
The issue and outcome
On 24 October 2023, Mr Lee Turnock (the Applicant) applied for an unfair dismissal remedy having been dismissed by Ramsay Health Care Australia Pty Ltd (the Respondent) on 7 September 2023.[1] The Respondent objected to the unfair dismissal application on the basis it was made outside of the statutory time limit prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three matters are not relevant for present purposes.
As observed, the Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are taken into account.
The Applicant, who was represented, and the Respondent, informed the Commission that it was their preference to have the matter determined on the papers. I acceded to that request in light of there being no factual dispute in respect of the points argued.
The Applicant’s application was made 26 days outside of the statutory period. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[2] to this effect will be issued with this decision.
Background
The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are as follows.
The Applicant commenced working for the Respondent on 16 May 2019.[3]
On 4 September 2023, he was notified that his position was to be made redundant and on 7 September 2023, his employment terminated by way of redundancy.[4] The Applicant holds the view that it was not a ‘genuine redundancy’.[5]
On or around 13 September 2023, the Applicant contacted his union, the United Workers Union (UWU), and informed it that he wished it to file an unfair dismissal (presumedly application) with the Commission on his behalf.[6] The Applicant stated that this is what he understood would happen.[7]
On 23 September 2023, the Applicant travelled to Greece with his family for a two-week holiday that had been planned for a long time.[8]
The Applicant noted that the build up to the holiday had not been ideal due to losing his employment and his wife having to depart to Scotland three weeks prior to the holiday to tend to her mother who had fallen very ill.[9] This in turn meant that the Applicant had to fly to Greece with his children absent his wife, who would later meet him in Greece.[10] This left the responsibility on the Applicant to plan and prepare for the holiday.[11]
The Applicant states that his stress compounded when two days prior to leaving for Greece, he was informed that his sister had terminal cancer, and had only weeks to live.[12] The Applicant said that at that point he made the decision that he would fly back to Glasgow after the Greek holiday and spend time with his sister, which he subsequently did.[13]
Exacerbating matters further, the night before the Applicant’s wife was due to fly to Greece, her bag was stolen at the airport, along with her bank cards, passport and jewellery.[14] The Applicant’s wife was therefore three days late in arriving to Greece.[15]
The Applicant stated that by this time he was exhausted, and as a family they decided to put everything else to one side for the time being,[16] and presumedly make the most of their holiday.
On 30 September 2023, the Applicant received an email from the UWU informing him that it would not be making an unfair dismissal application on his behalf.[17] The Applicant said he was unhappy about the decision, but decided he would try and deal with it when he returned to Australia.[18] The Applicant acknowledged that he was aware of the 21-day time limit for making an unfair dismissal application, but did not understand what his choices were outside of this timeframe.[19]
The Applicant returned to Australia on Friday, 13 October 2023, and called his union organiser on Monday 16 October 2023, and again on Tuesday, 17 October 2023, but was unable to speak to him.[20]
By Tuesday, 17 October 2023, the Applicant managed to speak to an industrial officer who now had responsibility for his matter and instruct her that he still wanted the unfair dismissal application to be filed.[21] The Applicant said that he understood that the application was subsequently made on 24 October 2023.[22]
Extension of time
For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. As noted, s 394(3) of the Act provides that the Commission may allow a further period for the application 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) 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.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd, where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[23] It is accepted 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.[24]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[25]
The Applicant’s last day of employment was 7 September 2023 and his unfair dismissal application was made on 24 October 2023, some 26 days late. Shortly stated, the Applicant presses that the delay in making his application in the prescribed period can be broken down into three distinct periods:
(a) within a week of being dismissed, he contacted the UWU and informed it that he wished for it to make an ‘unfair dismissal’ on his behalf;
(b) two days after the statutory deadline, whilst on holiday, the Applicant became aware the UWU would not be filing an application on his behalf; and
(c) upon his return to Australia, the Applicant contacted the UWU at the earliest opportunity and repeated his instructions to file an unfair dismissal application.
In respect of the reason for the delay, the Act does not specify what reasons for a delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[26] The absence of any 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 of the circumstances must be considered.[27]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[28] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[29]
One of the reasons relied upon by the Applicant with regard to the delay between the time the application was due to be filed and the time the application was actually made, was representative error.
A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application.[30]
In McConnell v A & PM Fornataro,[31] a Full Bench decision that considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:
Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.[32]
It is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[33] However, as the Full Bench explained in Long v Keolis Downer, ‘an applicant cannot simply instruct [their] solicitor then sit on [their] hands for an extended period while the prescribed time for filing the application passes by.’[34]
The Applicant argues that having contacted the UWU within a week of his dismissal and having informed the UWU he ‘wished’ for ‘an unfair dismissal to be filed on his behalf’, it was reasonable for him to expect that this would happen. In support of the proposition that it was reasonable to place reliance on the UWU, the Applicant referred to the decision of the Full Bench in Robinson v Interstate Transport Pty Ltd (Robinson).[35] In Robinson, the Full Bench stated at paragraph [24]:
We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
At paragraphs [29] and [30] the Full Bench continued:
[29] We find that the Commissioner erred in diminishing the significance of the representative error on the basis that Mr Robinson was inactive between 13 May 2010 and 18 June 2010.
[30] Mr Robinson arranged legal advice three days after the termination of his employment. At that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.
In Robinson, it was said, referring to the decision of La Rosa v Motor One Group Pty Ltd,[36] that little might be required to satisfy the Commission that the applicant was blameless in the delay.[37] For example, in the context of a relatively short delay, it may simply be a matter of establishing that the applicant gave instructions to lodge a ‘notice of election’ and thereafter left matters in the handsof his or her representative.[38]
It is uncontroversial that six days after having been dismissed the Applicant contacted the UWU regarding his dismissal. The Applicant gave evidence that he informed the UWU that he wished it to file an unfair dismissal on his behalf and understood that this would happen. From the evidence, it is unclear whether the Applicant communicated an unequivocal instruction to the UWU to lodge an unfair dismissal application, had provided the requisite information to allow that to occur, and the UWU had accepted his instruction.
From the Applicant’s evidence, it would appear that there had not been confirmation on 13 September 2023, that the UWU would run the case on the Applicant’s behalf. So much is evident from the Applicant stating that he received an email from the UWU on 30 September 2023, informing him that it would not be making an unfair dismissal application on his behalf. It is noted that the purported email of 30 September 2023 was not provided to the Commission.
Notwithstanding, it is uncontested that the UWU advised the Applicant on 30 September 2023 that it would not lodge an unfair dismissal application on his behalf, the UWU had communicated that message two days after the statutory period for filing such application and as such I consider that provides plausible explanation for that two-day period of the delay.
At the time the Applicant learnt the UWU had not lodged an unfair dismissal application on his behalf, he was on holiday in Greece. The Applicant acknowledged he was not isolated and had access to information technology, albeit he had been under mental stress. The mental stress that the Applicant referred to appears to have arisen from news received on 21 September 2023, concerning his sister having been diagnosed with terminal cancer and also that his wife had departed three weeks earlier to Scotland to care for a gravely ill mother.
In Shaw v Australia and New Zealand Bank Group Ltd, the majority of the Full Bench observed that stress, shock and confusion, in and of themselves, were not exceptional. [39] The majority continued that the loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.[40] However, it is accepted that an applicant’s medical condition can be so significant that it affects their mental capacity to prepare and file an application. As acknowledged in Mamo v ICLED Australia Pty Ltd, in some cases the Commission has found there were exceptional circumstances connected to an applicant’s mental illness and in other cases the Commission has not found exceptional circumstances.[41]
In Roberts v Westech IT Solutions Pty Ltd,[42] Senior Deputy President O’Callaghan allowed an applicant further time to make his application after being satisfied that the primary reason for the delay related to the applicant’s depression. In that case, the applicant provided advice from his doctor that included details of the applicant’s clinical depression over a number of years, his use of prescription medication and details of his history of panic attacks after stressful events.[43]
However, in Underwood v Terra Firma Pty Ltd (Underwood),[44] the Full Bench accepted a finding at first instance that the applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from making the application within 21 days. At paragraph [15], the Full Bench clarified:
Roberts cannot be taken as authority for the proposition that in every case where the applicant is suffering from depression, exceptional circumstances will be found for the purposes of s.394(3) of the Act.
In Higgins v FQM Australia Nickel Pty Ltd,[45] the Full Bench affirmed at paragraph [28] what was stated in Australian Postal Corporation v Zhang:[46]
The Full Bench’s comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench’s comments in Zhang that ‘compelling medical evidence’ is required to support a conclusion that the reason for the delay was due to the individual’s medical condition. The Deputy President in the present matter had no medical evidence before her, let alone ‘compelling medical evidence’, to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant’s opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.
In the case before me, the Applicant brings no medical evidence in the form of a medical report or certificate to support his contention of mental stress, and it is apparent from his evidence that he was not so incapacitated that he could not attend the activities of a Greek holiday. It is the Applicant’s evidence that he made a conscious choice to put everything to one side at that time. Whilst no criticism is levelled at the Applicant in this respect, the evidence shows that the Applicant was not seized with a sense of urgency whilst on holiday to make an unfair dismissal application at this time – a time when the statutory period for making such application had expired. The Applicant knew that there was a 21-day time limit for the making of an unfair dismissal application and whilst he speaks of ignorance of choices available once the statutory time limit had expired, ignorance of the law has not been found to be an exceptional circumstance under the Act in relation to the granting of an extension of time.[47]
The Applicant arrived back to Australia on Friday, 13 October 2023. The Applicant gave evidence of having visited his sister in Scotland after his Greek holiday. It is unclear precisely when that visitation occurred and for how long.
On arriving back to Australia on 13 October 2023, the Applicant said he proceeded to call his union organiser on Monday, 16 October 2023 and again on Tuesday, 17 October 2023. It is difficult to fathom, given the period that had now passed since his application was due to be filed, why the Applicant did not simply submit an unfair dismissal application himself. The unfair dismissal application (Form F2) is a simple document requiring little effort to complete and submit.[48] Again, no sense of urgency appeared to have seized the Applicant, such that he sought to address the lateness of his application by attending to the application himself.
The Applicant has provided a plausible explanation for two days of the delay where the UWU waited until two days past the statutory period to inform the Applicant it would not lodge an unfair dismissal application on his behalf. Further, whilst satisfied that the period in which the Applicant spent time with his dying sister provided sound reason for part of the delay, I am unable to discern the length of that period. For the remainder of the delay, I do not consider that the Applicant has provided an acceptable or reasonable explanation for the delay. The fact that the Applicant was unable to secure representation and provide instructions to lodge an unfair dismissal application until Tuesday, 17 October 2023, is of no significance. There is ample information on the Commission’s website concerning dismissal applications and people routinely represent themselves.[49] In all of the circumstances and on balance, I consider that this weighs against a finding of exceptional circumstances.
I consider the following matters to be neutral considerations. Firstly, this is not a case where the person first became aware of the dismissal after it had taken effect (s 394(3)(b)). Secondly, there is no prejudice to the employer (s 394(3)(d)) notwithstanding the Respondent’s contentions to the contrary. Thirdly, I am not aware of any matters that are relevant to the question of fairness as between the Applicant and other persons (s 394(3)(f)).
However, the Applicant contends that the UWU, on his behalf, challenged his dismissal as early as June 2023, noting that the matter was referred to the Commission in August 2023 and was only discontinued some weeks after the Applicant’s employment was terminated.[50]
In respect to the challenge of his dismissal, the Applicant relies upon the Form F3 – Employer response to unfair dismissal application, at paragraphs [8]–[26] of section 2.2. Those paragraphs detail that as of 26 June 2023, the Applicant was provided with notice of consultation about changes to Theatre roles and by 29 June 2023, consultation meetings were held with staff and information on how to provide feedback was provided. As of 30 June 2023, formal notification of the changes was provided to the UWU, and on 19 July 2023 a meeting was held with the Applicant where he was advised his role was being made redundant and a period of redeployment was commencing. On 21 July 2023, the UWU submitted a dispute relating to consultation, citing representation of the Applicant and others. In addition to notifying the Commission of a dispute regarding consultation, the UWU wrote to the Respondent seeking clarification about the Applicant’s severance pay and ‘other matters’. On 31 October 2023, the UWU discontinued application C2023/4540, regarding the Applicant’s dispute over consultation.
It is evident from the materials filed, the Applicant disputed the consultation that had been engaged in by the Respondent, not his dismissal. The Form F3 at paragraph 8 of section 2.2 states:
On 21 July 2023 the UWU submitted a dispute relating to consultation, citing representation of the Applicant and others.
It cannot therefore be said that the dispute raised was about the Applicant’s dismissal, because the dispute arose at least one month prior to the termination of the Applicant’s employment. Further, enquiries about severance pay and ‘other matters’ provide little in the way of evidence to support a finding that the Applicant disputed his dismissal. As such, I consider the factor neutral, all circumstances considered.
In respect of the merits of the application, in Telstra-Network Technology Group v Kornicki,[51] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[52]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[53] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
In this case the Applicant contends his dismissal was unfair because it was not by way of genuine redundancy and was otherwise ‘harsh, unjust and unreasonable’. Regarding the ‘genuine redundancy’ component of the Applicant’s case, he argues that there was a failure to consult about the redundancy as provided in clauses 2.2.2, 2.2.3 and 2.2.5 of the Ramsay Health Care WA – Enrolled Nurses & Support Services Union Collective Agreement 2020.[54] I am prepared to accept that the Applicant has at least an arguable case that his dismissal was unfair. On the other hand, the Respondent also has a prima facie defence. It follows that I consider the merits of the application to be a neutral factor.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
Based on the evidence before me, the Applicant has not provided a satisfactory explanation for the whole period of the delay in making his application. The remaining matters I need to consider are otherwise neutral. In these circumstances, having considered all submissions, I am unconvinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.
The Applicant was clearly confronted by personal challenges following his dismissal, including the devastating news about his sister. However, he made a conscious choice to make the most of his Greek holiday and whilst it always open to him to make his unfair dismissal application himself, he decided to further delay the making of his application by waiting for assistance from the UWU. The Applicant did not treat the making his application with the sense of urgency which is required when attempting to meet a statutory requirement.
The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] Applicant’s Outline of Submissions, [1].
[2] PR768702.
[3] Statutory Declaration of Lee Turnock, [2].
[4] Ibid.
[5] Ibid.
[6] Ibid [3].
[7] Ibid.
[8] Ibid [4].
[9] Ibid [5].
[10] Ibid.
[11] Ibid.
[12] Ibid [6].
[13] Ibid.
[14] Ibid [7].
[15] Ibid.
[16] Ibid [8].
[17] Ibid [9].
[18] Ibid.
[19] Ibid [10].
[20] Ibid [11].
[21] Ibid [12].
[22] Ibid.
[23] (2011) 203 IR 1, 5 [13].
[24] Ibid 6 [13].
[25] (2018) 273 IR 156, 165 [38] (emphasis in original).
[26] Ibid 165 [39].
[27] Ibid.
[28] Long v Keolis Downer (2018) 279 IR 361, 371 [40] (Long).
[29] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12] (Shaw).
[30] See, eg, Davidson v Aboriginal & Island Child Care Agency (1998) 105 IR 1; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 (Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long (n 28).
[31] (2011) 202 IR 59.
[32] Ibid 65 [35].
[33] Rogers (n 30) [17]; Long (n 28).
[34] Long (n 28) 375 [60].
[35] (2011) 211 IR 347, 351 [24].
[36] (Australian Industrial Relations Commission, Watson and Kaufman SDPP and Commissioner Foggo, 12 November 2002), [24].
[37] Ibid.
[38] Ibid.
[39] Shaw (n 29) 366 [15].
[40] Ibid.
[41] [2021] FWC 3903, [19].
[42] [2014] FWC 4226.
[43] Ibid [5].
[44] [2015] FWCFB 3435.
[45] [2023] FWCFB 113.
[46] [2015] FWCFB 5285.
[47] Uhlhorn v P and J Mentiplay Investments Pty Ltd[2013] FWC 1353, [21].
[48] Stackpole v JB HiFi Group Pty Ltd[2020] FWC 6685, [7].
[49] Davis v Ambulance Victoria [2022] FWC 956, [4].
[50] Applicant’s Outline of Submissions, [11].
[51] (1997) 140 IR 1.
[52] Ibid 11.
[53] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[54] AE511234.
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