Margaret Beddoe v Monashheart, Monash Medical Centre
[2023] FWC 547
•9 MARCH 2023
| [2023] FWC 547 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Margaret Beddoe
v
Monashheart, Monash Medical Centre
(U2023/902)
| COMMISSIONER LEE | MELBOURNE, 9 MARCH 2023 |
Application for an unfair dismissal remedy
Margaret Beddoe commenced employment with Monash Health, on or about 27 May 2003. Ms Beddoe was employed in the position of a Reception Supervisor.
The reason given by the Respondent for the decision to terminate the Applicant’s employment was that the Applicant’s decision to relocate to Ireland with an unknown date of return was considered a repudiation of the employee’s contract of employment which the employer accepted and consequently terminated her employment.
The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 6 February 2023.
Application was filed outside the statutory timeframe.
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
The Applicant’s employment was terminated by the Respondent with effect from 27 October 2022.
Based on a termination date taking effect on 27 October 2022, the application for a remedy should have been lodged by no later than 17 November 2022.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 102 days after the dismissal and 81 days after the last date on which it could have been made. The Act allows the Fair Work Commission (Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, I will outline the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay,
· whether the Applicant first became aware of the dismissal after the date it took effect,
· any action taken by the Applicant to dispute the dismissal,
· prejudice to the Respondent including prejudice caused by the delay,
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[1]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.[2] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.
I now consider these matters in the context of the Application.
a)Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension however, decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[3]
In the Form F2, the Applicant stated that in answer to question 1.6 as to the reasons for the delay, that she had Covid-19 twice and was trying to work things out with her employer. Further that this is the second attempt to submit an application as a previous application was rejected due to corrupt data.[4]
In response to the directions I issued for the purposes of determining whether or not to grant an extension of time, the Applicant submitted the following:
On 14 February 2023 my Chambers was sent an email providing:
“I received an email dated 27th October advising me about termination of my employment.
I replied stating I hadn't received the earlier email of 18th October so hadn't been given an opportunity to explain my situation.
My belief was that the matter was under investigation, I did not receive a termination payment until Christmas week.
The Christmas/New Year break delayed proceedings, my first application to Fair Work was on 29th Jan, unfortunately the online form was corrupt so needed to be redone
I am going through a marriage break up after 34 years of marriage, I have been unwell with Covid.”
Subsequent to this email, on 15 February 2023 my Chambers was sent an email providing:
“In addition to my earlier email, I also felt it was wrong that the person who emailed me a 'repudiation of contract' was the same individual that was accused of bullying me.”
At the hearing, the Applicant gave evidence that she tried to contact the employer on the phone, apparently around the Christmas period but did not succeed. The Applicant stated that “After Christmas, there was a delay. I did try to contact Monash on the phone and I literally could not get through. I'm overseas, so I couldn't get through. I also found that I did send a couple of the emails to contact persons in there and they just came back saying that they were on leave. It's just Christmas, New Year time, so I wasn't able to follow up the matter with anybody for a number of weeks, due to leave.”[5]
The Applicant has been in Ireland since June of 2022 and has been continuing her studies on medical coding during that time.[6] The Applicant also claimed to have had Covid-19 “Quite a few times, sort of slow recovery” and has had depression and anxiety.[7] The Applicant also referred again to her marriage break up after 34 years as a factor.[8] The Applicant also referred again to her belief that the termination was “under consideration” until the Christmas week.[9]
Having considered the evidence, I am not satisfied the Applicant has provided an acceptable reason for the delay. The Applicant made a previous application which did not progress as the Commission could not open the documents. The fact that an earlier application was made does not particularly assist the Applicant as that application was made well outside the 21-day period (On the 29 January 2023) in any event.
Other reasons cited for the delay was that the Applicant claims that she was trying to work things out with her employer and thought that the matter was under consideration. There is simply no evidence this was occurring. The email from Ms Beddoe to Ms.Garner, the Director of Clinical Operations on 27 October 2022 states she is disappointed with the decision to terminate her contract, makes a reference to having Covid-19 and makes a number of accusations as to the past conduct and behaviour of Ms Garner. There is nothing about this letter to indicate the Applicant was attempting to work things out with her employer. To the contrary, the correspondence states that it was impossible for her to remain in her role.[10] While the Applicant did not receive her termination payment until Christmas as a result of administrative failures by the Respondent, that was not a basis to form a view that the matter was under consideration given the clear indication from the employer on 27 October 2022 that the employment was terminated, and the hostile response sent by the Applicant on the same day. As the only reason the Applicant did not lodge the unfair dismissal application from the time of the dismissal to Christmas was because she thought the matter was under consideration, this is simply not an acceptable reason for that part of the delay.[11]
The Applicant stated in her Form F2 that she has had Covid-19 twice, and during the hearing this increased to a claim that the Applicant has had Covid-19 “quite a few times”.[12] The Applicant also stated, for the first time at the hearing, that she suffers from depression and anxiety.[13] The Applicant provided no medical evidence to support any of these claims, including when the Applicant had Covid-19 and as to how it affected her. While it is well known that Covid-19 affects individuals in varying degrees ranging from no symptoms to catastrophic effects including death, there is no evidence as to how the Applicant in this matter having Covid-19 has prevented her from lodging an application for such a lengthy period. I am prepared to accept that some part of the delay since the Christmas period might be explained by the effects of Covid-19 combined with the Applicant suffering depression and anxiety for some unspecified period. However, this has to be balanced against the Applicants evidence that she has been studying medical coding while in Ireland, albeit with some interruptions due to illness. In the circumstances, I am not satisfied that the Applicants Covid-19 symptoms and “sort of slow recovery” and general references to depression and anxiety are acceptable reasons for the delay given the vagueness of the evidence as to when and how the Applicant was affected.
The Applicants references to difficulties contacting the employer during the Christmas/New Year period is not an acceptable reason for the delay. The Applicant did not need to get in touch with her employer in order to lodge an application. It is also relevant that the Application was lodged well past the Christmas/New Year period in any event.
It is unfortunate that the Applicant is going through a marriage break up. While that is no doubt difficult for the Applicant, there was no evidence as to how that fact lead to the Applicant being unable to make an application within the time period. It does not in itself constitute an acceptable reason for delay.
In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
b)Whether Applicant first became aware of the dismissal after the date it took effect
Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 27 October 2022 that her employment would end on 27 October 2022. The Applicant was well aware that her employment was being terminated on that date.
In the circumstances, that is a matter that weighs against the Applicant.
c)Action taken by the Applicant to dispute the dismissal
Turning next to the question of the action taken by the Applicant to dispute her dismissal. The evidence was:
The Applicant wrote a letter on 27 October 2022 disputing her dismissal and indicating she was not put on notice via the 18 October 2022 letter that dismissal was contemplated because the Applicant claims that correspondence was never received by her. As I set out earlier, there is no indication in the email sent by the Applicant on 27 October 2022 that she is seeking a review of the decision to terminate her employment. However, I accept that it could be considered as action to dispute the dismissal.
In the circumstances, that is a matter that weighs in favour of the Applicant, but not strongly.
d)Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. A long delay gives rise to a general presumption of prejudice.[14]
However, as no particular submission was made by the Respondent on this point, this is a neutral consideration.
e)Merits of the application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
On the Applicants own evidence it appears to be strongly arguable that the factual circumstances are that the Applicant moved to Ireland in June and advised her employer on 3 September 2022 of that fact and that she was unsure about her return date. The Respondent claims that on 6 October 2022 the Applicant advised the Monash Health Injury Management Team that she was staying in Ireland. The Applicant disputes that she indicated she was relocating to Ireland and it is not her intention to live permanently in Ireland. Nevertheless, the Applicants evidence is that she has been in Ireland since June 2022, and she remains in Ireland. On 13 October 2022 the employer sent an email to the Applicant advising that they considered her relocation to Ireland was a repudiation of contract. The Applicants evidence is that she did not receive that email. However, it is clear that the Applicant received the email sent on 27 October 2022 wherein the employer advised of their acceptance of the Applicants alleged repudiation of the contract and terminating her employment.
At the time the Applicant was terminated she had not worked since 15 February 2021 as she was on Workcover. The Applicant was on work cover weekly payments up until 29 August 2022 when those payment ceased.
It would seem that the Respondent would have a strongly arguable claim that there was a valid reason for dismissal in the event the facts as alleged above were established. However, there are other factors to consider in determining an unfair dismissal. There is the issue of whether the Applicant was aware of the 13 October 2022 letter putting her on notice that she may be terminated. The Applicant had a long period of employment. These factors may weigh in favour of a finding the dismissal is unfair. There may be other factors that are relevant.
It seems to me therefore, that the Applicants claim is, on a preliminary assessment basis, weak, although it is not without some merit. In the circumstances, that is a matter that is neutral.
f)Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
g)Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
As I have indicated I am not satisfied that there is an acceptable reason for the delay and this weighs against the Applicant. The Applicant was aware of the dismissal when it took effect and this also weighs against the Applicant. The action taken by the Applicant to dispute the dismissal weighs in favour of the Applicant but not strongly so. All other factors are neutral.
The only consideration in favour of the Applicant is that of the action taken to dispute the dismissal, all others either weigh against the Applicant or are neutral.
In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will separately be issued. [15]
COMMISSIONER
Appearances:
M Beddoe appearing on her own behalf
B Skeels appearing on behalf of the Respondent
Hearing details:
2023.
Melbourne (via Microsoft Teams)
February 27
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[4] Applicant’s Form F2. 6 February 2023, Question 1.6.
[5] PN31.
[6] PN33-38.
[7] PN39-40.
[8] PN44.
[9] PN65.
[10] Applicant’s Form F2. 6 February 2023, Attachment 2.
[11] PN65-66.
[12] PN40.
[13] Ibid.
[14] Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (2 October 1996), [(1996) 186 CLR 541, at p. 556].
[15] PR760170
Printed by authority of the Commonwealth Government Printer
<PR760063>
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