Mannon Milner v RBA Financial Group
[2018] FWC 3079
•30 MAY 2018
| [2018] FWC 3079 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mannon Milner
v
RBA Financial Group
(C2018/2318)
| Commissioner Platt | ADELAIDE, 30 MAY 2018 |
Application to deal with contraventions involving dismissal – date of dismissal – reasons for late application – no exceptional circumstances – application dismissed.
Summary
Ms Mannon Milner has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by the RBA Financial Group (RBA) in contravention of the general protections provisions of the Act. The application did not specify the date of the dismissal.
This application was lodged on 1 May 2018.
Ms Milner’s application identified that it was made beyond the 21 days from the date of dismissal but did not detail the reasons for the delay.
RBA filed a Form F8A Employer Response on 11 May 2018 which indicated that the dismissal occurred on 3 April 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.
On 16 May 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone Hearing on 28 May 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties who were directed to provide an outline of argument of their respective positions by 24 May 2018.
Submissions
Ms Milner provided a written submission which is relevantly summarised as follows:
· On 3 April 2018 she received an email from Ms Amanda Donaldson from RBA. Ms Milner contacted Ms Donaldson and was advised that her employment had been terminated.
· On 6 April 2018 she was advised by Ms Donaldson that due to the severity of the matter she had been dismissed without notice.
· Ms Milner received written confirmation of the dismissal on 18 April 2018 (by letter dated 9 April 2018).
· Ms Milner submitted she was dismissed/suspended on 28 March 2018.
· Ms Milner stated she tried to lodge her claim by email on 30 April but was unable to upload the attachments.
· The application was successfully lodged by email on 1 May 2018.
· On 20 April 2018 a close friend died and this impacted Ms Milner’s state of mind.
· On 23 April 2018 Ms Milner attempted to contact Maurice Blackburn Solicitors and received a return phone call on 26 April 2018 but was unable to take this call.
· Ms Milner left a message with the Fair Work Ombudsman (FWO) on 29 March 2018. Ms Milner spoke with a person from the FWO on 6 April 2018 who provided some advice regarding notice entitlements.
· Ms Milner advised Ms Donaldson that she would be lodging a general protections application.
RBA provided a written submission which is relevantly summarised as follows:
· The dismissal occurred on 3 April 2018.
· The dismissal was acknowledged by Ms Milner in an email dated 6 April 2018.
· The information provided by Ms Miner is insufficient for RBA to properly formulate a response.
· RBA will suffer prejudice as a result of the lack of information provided in the application.
· Ms Milner was dismissed as a result of performance and conduct issues.
A Hearing was conducted by way of a telephone conference on 28 May 2018. A sound file record of the telephone conference was kept. Ms Milner represented herself and Mr Douglas Caillard represented RBA with permission granted pursuant to s.596(2) of the Act.
Ms Milner provided further information as follows:
· Ms Milner was suspended from duties on 28 March 2018.
· Ms Milner was aware that she had been dismissed on 3 April 2018 but contended that her employment contract required the dismissal to be advised in writing.
· Ms Milner sent an email dated 6 April 2018 which advised she had been dismissed but contended that her employment contract required the dismissal to be advised in writing.
· Ms Milner tried to lodge the application on 30 April 2018 and provided a copy of an email to this effect. Ms Milner advised that an issue with the attachment prevented the application from being received. This position could not be confirmed by the Commissions IT records, an email to this effect was provided to the parties on 25 May 2018.
· After the dismissal, Ms Milner contacted the FWO but was unable to speak with them until 3 or 4 April 2018. Ms Milner discussed the reason for the dismissal and the absence of the notice of termination. Ms Milner received a reference number.
· On 6 April 2018 Ms Milner contacted Jobwatch and was advised she would have a claim under the general protections provisions.
· Ms Milner contends that at this time she was not in a “good space mentally”, no medical documentation was submitted. Ms Milner advised she had received a medical certificate stating that she was unfit for work on 26 and 27 March 2018. Ms Milner contends she was “lost within herself”.
· On 13 or 16 April 2018 Ms Milner downloaded the general protections application and was aware of the 21 day limit.
· Ms Milner submitted that she did not immediately lodge the application as she was not coping and that she did not want to do anything.
· Ms Milner left a message for Maurice Blackburn Solicitors on 20 April 2018 but did not receive a response until 26 April 2018. At that time a close family friend who was like a father to her children had died and the funeral was on that day. Ms Milner did not take the call from Maurice Blackburn Solicitors and did not further contact them.
· Ms Milder stated she was not in a place to fill in the application form as her children were her priority.
· The funeral was held on 26 April 2018.
· Ms Milner believed she needed to lodge the application by 30 April 2018.
RBA relied upon its written submissions and also contended that:
· Ms Milner’s dismissal occurred on 3 April 2018.
· RBA was prejudiced as a result of the lack of detail within the application.
· RBA asserts that no medical evidence had been provided to corroborate Ms Milner’s claims.
· RBA submits that Ms Milner has not established that there were any exceptional circumstances present.
Applicable Law
Section 366 of the Act relevantly states:
“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.”
I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
Consideration
I have considered the material submitted by the parties and summarised above.
It is clear that Ms Milner was aware that she had been dismissed on 3 April 2018. This was confirmed in the email written by Ms Milner on 6 April 2018 which refers to her dismissal 3 days prior. Whilst it may be the case that the employment contract requires the dismissal to be advised in writing, this requirement does not alter the fact that Ms Milner’s employment was terminated on 3 April 2018 and that she was aware of it.
The general protections application by Ms Milner was made 7 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
If an applicant fails to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances - Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2].
Ms Milner attributed the delay at various times between 3 April and 1 May 2018 to “not being in a good space mentally”, “being lost within herself” and “not coping and not wanting to do anything”. No medical evidence was submitted by Ms Milner to support these claims.
It is common for employees to suffer shock and trauma as a result of dismissal from employment: Rose v BMD Constructions Pty Ltd.[3].Whilst Ms Milner’s delay was not solely attributable to the shock and distress of losing her job, there is no medical evidence to support the impact of the loss of a close family friend and whether her medical condition reasonably prevented the lodgement of the application.
Ms Milner also appears to attribute the delay to two instances of “telephone tag” which occurred between her and the FWO and Maurice Blackburn. With respect, I do not accept “telephone tag” as an exceptional circumstance. It is reasonable to consider that if this was a matter which so aggrieved Ms Milner she should have either accepted the return telephone calls or made time to contact the legal advisor (or potential legal advisor) without delay. The fact that Ms Milner chose not to return the call to Maurice Blackburn reduces the weight I place on this as a reason for the delay.
Ms Milner was aware of the general protection provisions, she had the application form and was aware of the time limit by 13 or 16 April 2018. Despite receiving the advice from Jobwatch, Ms Milner prevaricated for a further two weeks before the claim was lodged. I accept that Ms Milner tried to lodge the application on 30 April, but this still indicates 13 days of inaction by Ms Milner after she was in a position to lodge.
Any action taken by the person to dispute the dismissal
Ms Milner corresponded with Ms Donaldson by email on 6 April 2018 which contested the appropriateness of the dismissal.
Ms Milner sought to contact the FWO at the time her employment was suspended and made contact on 5 April 2018. Specifically, she sought advice regarding the nature of the dismissal and the notice paid to her.
Ms Milner contacted Jobwatch on 6 April 2018 concerning the dismissal and was given advice to lodge a general protections application.
I do not consider the “telephone tag” process with Maurice Blackburn as evidence of Ms Milner disputing the dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in this matter is not minimal, however whilst I accept it may present prejudice to RBA, it is not determinative in this matter.
The merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
For the reasons I have set out above, I am not satisfied that Ms Milner’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[4] reflecting this decision will be issued.
COMMISSIONER
Appearances:
Ms M Milner the Applicant.
Mr D Caillard on behalf of the Repondent.
Hearing details:
2018.
Adelaide:
28 May.
<PR607571>
[1] [2011] FWAFB 975.
[2] [2018] FWCFB 901.
[3] [2011] FWA 673.
[4] PR607572.
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