Linda Barningham v Domain Principal Group T/A Opal Bunbury Gardens

[2016] FWC 1672

[2016] FWC 1672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Linda Barningham
v
Domain Principal Group T/A Opal Bunbury Gardens
(U2016/4382)

COMMISSIONER BISSETT MELBOURNE, 21 MARCH 2016

Application for relief from unfair dismissal - Extension of time application - application dismissed.

[1] Ms Linda Barnighman was employed by DPG Services Pty Ltd T/A Opal Bunbury Gardens (Opal) as a Registered Nurse. She worked for Opal for about seven years until 23 December 2015 when she resigned. Days prior to resigning from her position Ms Barningham received a letter from Ms Carol van Buren, the Facility Manager for Opal indicating that Ms Barningham had left the dangerous drugs cabinet unlocked, with the keys in it and no staff in attendance and requesting that she attend a meeting about the incident.

[2] At the meeting on 23 December 2015 Ms Barningham resigned. She says that she was forced to resign because it was implied by management at the meeting that this was in her best interests and she felt that if she did not resign her employment would have been terminated.

[3] Ms Barningham made her application for unfair dismissal on 8 February 2016.

[4] Section 394(2) of the Fair Work Act 2009 (the Act) requires that an application for unfair dismissal must be made within 21 days of the time the dismissal took effect. In this case Ms Barningham made her application 47 days after the dismissal took effect. Her application is therefore 26 days outside the time period allowed by the Act.

[5] The application for an extension of time was listed for hearing by video link to Perth on 16 March 2016. Ms Barningham failed to attend the hearing and attempts to contact her by my Associate were unsuccessful. Representatives of Opal did attend. During the hearing I asked those representatives if Opal would be amenable to me determining the application of Ms Barningham on the basis of the written material I had received from each of the parties. They indicated that this was acceptable. My chambers then emailed Ms Barningham to query her non-attendance and to ask if she would be prepared to have the application determined on the papers. Ms Barningham in reply apologised for her confusion with the date of hearing but confirmed in writing that she is happy for the Commission to do so.

[6] On the face of the material before me there are no contested facts such that a hearing is necessary to resolve those matters. I am therefore satisfied that the matter can be determined on the basis of the written material before me.

Extension of time

[7] The Commission has the power, pursuant to s.394(3), to extend the time within which an application can be made if it 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.

[8] I have considered each of these matters.

Reason for the delay

[9] Ms Barningham said that she did not make her application between 23 December 2015 and 1 January 2016 because it was ‘the holiday period.’

[10] She said that on 1 January 2016 she fractured her wrist and was in hospital for two days but then on strong painkillers for two weeks. She said was not able to drive or use the computer during this time. Ms Barningham produced discharge papers from the hospital which attest to her injury and time in hospital but not to the strength or effect of her medication.

[11] As to why she did not make an application between mid-January 2016 and 8 February 2016 Ms Barningham says that she ‘did not feel well enough to complete the claim effectively.’

When the person first became aware of dismissal

[12] Ms Barningham resigned on 23 December 2015. She said it was a constructive dismissal and that it occurred on this day. I am therefore satisfied that she was aware of the dismissal on 23 December 2015.

Action taken by the person to dispute the dismissal

[13] Beyond making her application for unfair dismissal Ms Barningham had taken no other action to dispute the dismissal.

Prejudice to the employer

[14] No claim of prejudice is made.

Merits

[15] Ms Barningham agreed that she had received two previous written warnings although claims that she considers the written warning she should have been no more than a verbal warning.

[16] Ms Barningham said that discipline is inconsistent at Opal. She said that the drugs cabinet is in a small room that is full of clutter and in a different room to the register which must be completed and the cabinet is not visible from where the register is kept. She had never left the keys in the cabinet before but unintentionally did so on 21 December 2015. Subsequent to this incident she says the cabinet has been relocated and a new system implemented to allow the registered nurse to have the cabinet key around their neck at all times so as to not accidentally leave it in the lock. Further she said that the incident did not cause any injuries or interfere with the care provided to residents.

Fairness

[17] Nothing was put to me on this matter.

Consideration

[18] An extension of time can only be considered by the Commission if exceptional circumstances exist taking into account those matters outlined above.

[19] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group 1 where the Full Bench of Fair Work Australia found:

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…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.

[20] In Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 2it was found by the Full Bench that any explanation for the delay in making an application for unfair dismissal must cover the entire period of the delay.3

[21] I have carefully considered the matters put before me by Ms Barningham.

[22] Ms Barningham has given no good reason for the delay in making her application. Whilst the period 23-29 December may cover some public holidays it is not a period when all work stops. Ms Barningham would be aware of this as a nurse. Even if the weekend and public holidays were not considered (and there is no reason to exclude them) there were three working days in that week within which she could have made her application had she needed to deliver it to the Commission. In any event I am satisfied that Ms Barningham had access to a computer and could have delivered an application electronically had she put her mind to it.

[23] Whilst I accept that Ms Barningham did injure herself on 1 January 2016 and was hospitalised for a couple of days and if I accept that her pain medication made it difficult for her to do anything for the next two weeks that does not explain the failure to make any attempt to lodge her application until 8 February 2016. That she did not feel well enough, without any medical evidence to support this, does not provide a satisfactory reason for the delay.

[24] Even on Ms Barningham’s version of the incident on 21 December 2015 that led to the meeting on 23 December 2015 at which she resigned, she did leave the keys in the dangerous drugs cabinet. Whether such action provides a valid reason for dismissal would require a consideration of her past work performance, policies of Opal, training and so on. Even then a determination would need to be made as to whether the dismissal was harsh, unjust or unreasonable. Ms Barningham does not present a compelling case as to why her dismissal might be unfair but I have decided to consider this matter as neutral in making my decision.

Conclusion

[25] There are no exceptional circumstances surrounding this matter such that an extension of time should be granted. Ms Barningham has failed to provide any satisfactory reason for the totality of the delay in making her application. Had the delay been caused solely by her injury and pain medication exceptional circumstances might be found to have existed but she had ample opportunity either side of the injury to make her application and did nothing about it.

[26] That it was the ‘holiday period’ between 23 December 2015 and 1 January 2016 is no reason why she could not have made her application for unfair dismissal during this period. Had she still been at work the existence of the ‘holiday period’ would not be enough to disrupt her attendance at work. The holiday period does not put a stop to any other obligations on a person – bills must be paid, appointments kept and other timelines adhered to. Its existence does not put a freeze on the timelines that exist under the Act for making an application for unfair dismissal.

[27] Whilst the taking of strong pain medication may have had some effect I do not accept that this effect was felt through to 8 February 2016 and, in any event, on Ms Barnigham’s version of events the medication only affected her for about two weeks. That she then did not feel that she could complete the application effectively before 8 February 2016 is not a satisfactory explanation for the delay. Whilst I do not doubt that, with more time, she could have completed the application for more effectively this is no reason for not having made the application within time.
.
[28] I have considered all of the matters under s.394(3) and cannot identify any compelling reason as to how I could conclude that there are exceptional circumstances such that an extension of time should be granted.

[29] Ms Barningham’s application for unfair dismissal is made outside the time limits prescribed by the Act. Her application is therefore dismissed. An order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

R Pope and D Hueber of DPG Services Pty Ltd T/A Opal Bunbury Gardens.

Hearing details:

2016.

Melbourne:

16 March

 1 (2011) 203 IR 1.

 2 (2010) 197 IR 403.

 3   Ibid, 408‒409.

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