Linda Carr v Absolute Home Care Pty Ltd

[2015] FWC 5347

[2015] FWC 5347

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Linda Carr
v
Absolute Home Care Pty Ltd
(C2015/2304)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 5 AUGUST 2015

Application to deal with contraventions involving dismissal.

[1] Ms Linda Carr (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 30 March 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Absolute Home Care Pty Ltd (the Respondent) on 4 February 2015 in contravention of the general protections provisions in the Act. As the application had been lodged 33 days outside the statutory timeframe for lodgement, the Commission issued Directions on 31 March 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The Directions issued invited both parties to indicate if they wished to be heard on the extension of time issue and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. Neither party requested to be heard.

[3] Ms Carr filed a witness statement on her own behalf together with a witness statement by Ms Janice Baker, her legal representative. For the Respondent, two witness statements were filed by Ms Helen Armstrong, the owner and Director of Absolute Home Care, and Ms Helen DeBritt, Absolute Home Care’s Quality Improvement/Accreditation and Human Resources Officer.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[5] The Respondent provides community nurses to care for clients in their home environment. Ms Carr commenced employment with the Respondent on 16 December 2013. Ms Carr was engaged as an Enrolled Nurse, working on a variable roster.

[6] In her application, Ms Carr alleged that she was dismissed from her employment on 4 February 2015 after advising the Respondent that she had injured her back while at work on 2 February 2015 and, that as a consequence, she would need to take a temporary leave of absence from the workplace.

[7] Ms Carr filed an unlawful termination application under s.773 of the Act on 25 February 2015. That application was made within the 21 day statutory timeframe specified in s.774 of the Act. The following day, both Ms Carr and her legal representative were contacted by the Commission and advised that Ms Carr should have made a general protections application under s.365 of the Act. The reason for this being that s.723 of the Act precluded Ms Carr from making an unlawful termination application, as both Ms Carr and the Respondent were located in the ACT and were therefore a national system employee and employer for the purposes of the Act. Ms Carr confirmed on the basis of the information provided by the Commission that she wished to discontinue her unlawful termination application and an email confirmation to this effect was sent to her legal representative. According to the Commission’s records, Ms Carr’s representative was also advised during the course of her telephone conversation with the Commission that as the 21 day statutory timeframe had expired, any general protections application would be out of time and would require the Commission to determine whether or not there were exceptional circumstances warranting the granting of a further period for the making of the application.

[8] As previously noted, Ms Carr’s general protections application was received by the Commission on 30 March 2015, 33 days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In her application, Ms Carr contends that her dismissal was in contravention of s.352 of the Act. She also alleged that she had been dismissed because of her preparedness to complain about bullying and harassment in the workplace in contravention of s.341(1)(c)(i).

[9] The Respondent contended that Ms Carr’s dismissal was as a result of on-going complaints from clients regarding Ms Carr’s unprofessional behaviour, rudeness and poor nursing practices, not as a result of the injury or her claims of bullying and harassment.

The Relevant Legislation

[10] Section 366 of the Act provides:

“366 Time for application

366(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).

366(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.”

Whether to allow a further period for the application to be made

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] In her application Ms Carr referred to the contact from the Commission on 26 February 2015, i.e. the day after her unlawful termination application had been lodged, stating that the advice she received from the Commission confused her and that it was her understanding that she could amend her submission [sic application] and that it would not be out of time as the initial submission had been forwarded within 21 days. Further, Ms Carr stated that she was too physically ill and distressed to consider her application and that once she was physically able to do so her workers’ compensation application was her first priority.

[13] In her witness statement, Ms Carr deposed that she had lodged an application under s.773 of the Act on 25 February 2015 and that the following day she was contacted by the Commission. According to Ms Carr she was advised by the Commission on 26 February 2015 that she had “filled out the wrong form and needed to cancel it.” Ms Carr further stated in her witness statement that:

“I told them what had happened to me and they said if I wanted them to help me I needed to fill out another form. I didn’t know what this could be. I thought maybe they would just fix up the first form and the application would just go ahead. I didn’t realise the whole process would have to start all over again.”

[14] Ms Carr further stated that when she was called by the Commission she was on strong medication and in considerable pain.

[15] According to Ms Carr, from 13 March 2015 to 18 March 2015 she spent time with her family interstate, where she visited a doctor, and made further attempts to visit her doctor upon her return to Canberra, though her doctor was fully booked and moving premises. Ms Carr also looked into her financial options as she was concerned she might have been unable to return to work in light of her injury and contacted the “Workers Compensation people” and Centrelink by phone.

[16] Ms Baker deposed that Ms Carr visited her office on 5 February 2015 for advice and assistance and that she had indicated her intention to prepare an unlawful termination application. Ms Baker further deposed that Ms Carr was too unwell to proceed with her application but on 25 February 2015 asked that it be lodged on her behalf. Ms Baker confirmed in her witness statement that on 26 February 2015 Ms Carr discontinued her unlawful termination application and that she was advised that she would need to reapply under the general protections provisions of the Act. Ms Baker also deposed that her office received a copy of Ms Carr’s discontinuance of that application on 26 February 2015 which was “set to one side as we had not instructions from our client.” Ms Baker stated that her office did not receive any instructions from Ms Carr regarding a general protections application, nor did her office contact Ms Carr, and that Ms Carr had told her that she did not receive formal notice of the discontinuance of her unlawful termination application until 13 March 2015.

[17] Ms Baker attested that she was contacted by Ms Carr on 13 March 2015 to discuss a workers’ compensation claim. In a subsequent conversation, Ms Carr instructed Ms Baker to proceed with a general protections application, noting that Ms Carr had been confused by her conversation with the Commission and had not understood what the next steps would be. According to Ms Baker, Ms Carr told her that she thought there was no issue with time given she had already lodged a claim. Ms Baker further attested that Ms Carr’s distress was evident when she told her that this was not the case and that a general protections application would have had to have been lodged with the Commission within 21 days after her dismissal took effect as opposed to the date from which her unlawful termination application had been discontinued.

[18] Ms DeBritt attested that the Respondent had been advised by the Commission that the application made by Ms Carr on 25 February 2015 had not been made on the correct form and that she and Ms Armstrong were aware that a delay was likely. However, Ms DeBritt deposed that the Respondent was unaware that Ms Carr was too physically ill and distressed to consider the submission process.

[19] Drawing on the above, I would firstly observe that it is not uncommon for someone who has just lost their job to be stressed, anxious and distressed. This of itself does not support a finding of exceptional circumstances.

[20] Further, I note that Ms Carr did not provide any medical evidence in support of her assertion that she was adversely affected by the medication she was taking, though her doctor provided confirmation that the practice was relocating on 18–20 March 2015 and that Ms Carr was stressed and anxious about her dismissal. The material before the Commission shows that Ms Carr consulted her legal representative on 5 February 2015 to discuss her dismissal and instructed her representative on 25 February 2015 to lodge her unlawful termination application. In other words, Ms Carr does not appear to have been incapable of instructing her representative on 25 February 2015 despite being unwell. No reason was given by Ms Carr as to why, after having been contacted by the Commission and having discontinued her unlawful termination application on 26 February 2015, she did not immediately instruct her representative to lodge a general protections application on her behalf. This does not support a finding of exceptional circumstances.

[21] While Ms Carr contended that she was confused about what the next steps were after discontinuing her unlawful termination application and acknowledged that she was told by the Commission that she would need to lodge a new form, she did not discuss the matter with her legal representative until 13 March 2015, more than two weeks after the initial contact with the Commission. Even after speaking to her legal representative, it then took more than a further two weeks for her general protections application to be lodged with the Commission. Despite her medicated state, Ms Carr was in contact with her legal representative during this period to discuss her workers’ compensation claim, which Ms Carr described in her application as her first priority, and Centrelink. Again, this does not support a finding of exceptional circumstances.

[22] As noted above, the Commission’s records indicate that it also contacted Ms Carr’s legal representative on 26 February 2015 regarding her unlawful termination application and advised that any general protections application would be outside the 21 day statutory timeframe. Ms Baker’s evidence is that her office did not contact Ms Carr after receiving confirmation on 26 February 2015 that Ms Carr had discontinued her unlawful termination application. I find this astounding, particularly in circumstances where Ms Baker’s office was informed by the Commission of the process for dealing with general protections applications lodged outside the 21 day statutory timeframe.

[23] Taken together, the reasons for the delay cited by Ms Carr do not support a finding that there were exceptional circumstances in this case.

(b) Any action taken by the person to dispute the dismissal

[24] Ms Carr acknowledged in her witness statement that she took no direct action to dispute her dismissal because she was of the view that it would “get her nowhere”. Ms Baker stated in her witness statement that given the intimidation by management and the imbalance of power in the professional relationship, Ms Carr was not in a position to discuss any matter relating to her dismissal with the Director of the Respondent.

[25] The Respondent did not address this factor.

[26] It appears that other than lodging her discontinued unlawful termination application and subsequently her general protections application Ms Carr did not take any action to dispute her dismissal. This does not support a finding that there were exceptional circumstances.

(d) Prejudice to the employer (including prejudice caused by the delay)

[27] Ms Carr submitted that the delay in lodging her application would not interfere with the Respondent being heard by the Commission.

[28] Ms DeBritt deposed in her second witness statement that the Respondent would not suffer prejudice as a result of the delay.

[29] I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[30] Ms Carr contends that the Respondent dismissed her as a consequence of her complaining about bullying in the workplace in contravention of s.341(c)(ii) and because she would be absent from work due to a workplace injury in contravention of s.352 of the Act.

[31] The Respondent disputed that these were the reasons for the decision to terminate Ms Carr’s employment and instead maintained that Ms Carr had been dismissed as a consequence of numerous complaints that had been made about her by clients of the Respondent.

[32] Having reviewed the documentation before the Commission, I cannot conclude that the application is without merit, particularly given the close proximity between Ms Carr notifying the Respondent of her injury and the dismissal taking effect. However, what is also apparent from the material before the Commission is that many of the facts in this matter are disputed.

[33] As such, I consider the merits of the application give weight, albeit limited weight, to the existence of exceptional circumstances.

(f) Fairness as between the person and other persons in a like position

[34] Ms Carr stated that in her view it would be really unfair if her matter was not heard because she was out of time.

[35] The Respondent made no submissions in relation to this factor.

[36] In the absence of submissions going directly to this factor, I consider it to be a neutral consideration.

Conclusion

[37] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1 (Nulty) in the following way:

“[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.”

[38] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[39] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1   [2011] FWAFB 975

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