Margaret Betty Milton v Bucklands Aged Care Services
[2022] FWC 1874
•27 JULY 2022
| [2022] FWC 1874 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Margaret Betty Milton
v
Bucklands Aged Care Services
(U2022/5095)
| COMMISSIONER HAMPTON | ADELAIDE, 27 JULY 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – all other factors considered and weighed – not satisfied that exceptional circumstances exist – no basis for extension and application dismissed.
What this decision is about
This decision concerns an application by Mrs Margaret Milton (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
Mrs Milton’s employment with Bucklands Aged Care Services (Respondent) concluded on 4 April 2022 with a letter of termination sent via email advising the Applicant of her dismissal. The letter advised that the dismissal took effect on that day. The reasons provided for the termination of Mrs Milton’s employment related to an alleged failure to follow a series of lawful and reasonable directions to wear an N95 mask during a Covid-19 outbreak. The dismissal letter stated that the mask mandate was a legal requirement imposed upon the facility by the Public Health Unit (NSW Department of Health) and that the dismissal followed a meeting on 31 March 2022 to discuss the allegations.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) on 5 May 2022. That is, the day it was received by the Commission.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). Adopting 4 April 2022 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 26 April 2022.[1] The application was therefore filed 9 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). Amongst other matters, Mrs Milton principally relies upon some incorrect advice apparently provided to her by a staff member of her Accountant about the time limits that apply to make an application to contest her dismissal. The Respondent opposes the extension of time request, principally on the basis that there are no exceptional circumstances. The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[2]
The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Mrs Milton participated in the hearing and gave sworn evidence on her own behalf. Mr Brockhaus, the Chief Executive Officer of the Respondent, appeared on behalf of the Respondent.
As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations, I have determined that there are no exceptional circumstances. As a result, there is no basis to consider the exercise of discretion to grant an extension of time for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
Mrs Milton provided an email response and submissions dealing with the matters supporting her request seeking an extension of time. As stated above, Mrs Milton also gave sworn evidence at the hearing. The Respondent did not submit any witness evidence or written submissions, instead relying upon the Form F3 – Employer Response form filed with the Commission and submissions made at the hearing. I draw no negative inference from this given the nature of the present proceedings.
The Commission was also provided with the termination letter and arranged for a copy of the express post envelope used by Mrs Milton to post the application to the Commission to be provided to each party prior to the hearing.
In evidence, Mrs Milton could not recall much of the detail of the events leading to her making the application. Despite some assistance from the Commission seeking to explore the sequence of events by reference to dates that were objectively clear, much of the delay in lodging the application was not clearly explained. I consider that Mrs Milton was being open and honest in giving her evidence; however, I must decide the matter based upon the evidence that is before the Commission.
The events relevant to the explanation for the delay in lodging the application
At the time of her dismissal, Mrs Milton was employed as an Assistant in Nursing (AIN) at Buckland Aged Care Services in Springwood, New South Wales. Mrs Milton had been employed with the Respondent for 10 years, having started as a General Services Officer (GSO) in 2012.
The events leading to the dismissal occurred in the context of the Covid-19 Pandemic, which involved various government directions including those applying to aged care facilities. At some time in the lead up to events relied upon by the Respondent in the termination letter, there was an active Covid-19 outbreak in the facility where Mrs Milton was engaged.
Upon her dismissal on 4 April 2022, Mrs Milton was paid outstanding annual leave entitlements, payment in lieu of notice, and long service leave.
In the week after her dismissal and over the days that followed, Mrs Milton made a number of phone calls to the Respondent’s Chief Executive Officer, Mr Brockhaus, to discuss her dismissal. These discussions included a face-to-face meeting. During these discussions, Mrs Milton sought to return to the workplace, and whilst the Respondent did make offers to reduce the impact of the dismissal, there was no resolution of the matter.
Around the same period, Mrs Milton contacted the office of her Accountant seeking to obtain her tax file number. During an informal discussion with an Assistant, the notion of taking an unfair dismissal application arose and Mrs Milton understood the Assistant to indicate that she had 90 days to lodge such an application. I observe that the Accountant was not representing Mrs Milton and that the information provided could not be considered to be professional advice.
At some point in the week or so after the dismissal, Mrs Milton contacted the Commission’s Helpline, obtained information about making an unfair dismissal application, and was referred to the Commission’s website for further information and the relevant application form. Mrs Milton could not recall the precise timing or detail of that conversation. This included not recalling what she understood about the time limit after having accessed Commission’s information that contains the details of the 21-day initial time limit for lodgement.
There was no substantive explanation given for the delay between obtaining the information from the Commission and when the application was posted to the Commission. I will return to this aspect shortly. The application was posted on 28 April 2022 by express post to the Commission’s Brisbane office.[3]
The Commission had a postal redirection in operation at that time and the envelope containing the application was redirected from the Brisbane Post Office to the Melbourne Office of the Commission on 3 May 2022 and received there on 5 May 2022.[4]
Should an extension of time be granted?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[5] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) of the Act is a high hurdle.[7] This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) of the Act requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, the Commission must take into account the following:
(a)the reason for the delay;
(b)whether the person first became aware of the dismissal after it had taken effect;
(c)any action taken by the person to dispute the dismissal;
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
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. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[8] I now consider these matters in the context of the application currently before the Commission.
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 for the delay. 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 an applicant’s favour; however, all of the circumstances must be considered on their own merits.[9]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[10] The delay in this matter is 9 days and this is the focus of the present consideration.
The explanation for part of the delay by the Applicant is that Mrs Milton was wrongly advised by an Assistant, with whom she spoke at her Accountant in the course of an unrelated discussion, that she had 90 days to file an application. This was not professional advice; however, I accept on face value that this was her understanding at that time.
Late lodgement due to representative error may form part of a credible explanation for a delay and be relevant to the consideration of exceptional circumstances.[11] In this case, the Accountant was not acting as a representative and for reasons already stated the “advice” was not in the nature of professional advice.
Even if considered to be advice, when considering whether exceptional circumstances exist where the reasons for delay are related to incorrect advice, it is relevant to consider whether an applicant caused or contributed to the error, whether by act or omission.[12]
I accept that it was not until contacting the Commission that Mrs Milton was advised that the time limit was 21 days. I observe that this, of itself, is not unusual and not a satisfactory explanation without more.[13] Given the uncertainty as to the precise timing of some of the events discussed earlier, it is difficult to be confident as to the precise sequence of events. However, Mrs Milton suggested that her contact with the Commission was proximate to the early discussions she had with Mr Brockhaus. On that basis, I can only presume that either Mrs Milton preferred the “advice” of the Assistant over the information from the Commission, or alternatively, that the information from the Commission came after the “advice” but that this did not lead to the filing of the application with any urgency. It is apparent from the application itself[14] that Mrs Milton was aware of the 21-day time limit when she prepared the document in late April 2022.
Further delaying receipt of this application by the Commission was the Applicant’s decision to post the application on 28 April 2022, rather than lodging it online on that day. Due to office closures related to the Covid-19 pandemic, mail redirections were in place for a number of Commission offices around the country. Whilst posted to the Brisbane office, and date stamped 3 May 2022, the mail was automatically redirected to the Melbourne office where it was received and acknowledged on 5 May 2022. I accept that Mrs Milton’s decision to use the post was reasonable given her particular circumstances and she was not responsible for the additional 2-day delay arising from the Commission’s mail redirection.
However, when viewed as a whole, there is not a satisfactory or reasonable explanation for much of the delay based upon the evidence and objective information before the Commission.
The absence of a satisfactory or reasonable explanation for much of the delay in lodging the application weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Mrs Milton was aware of the termination on the day it took effect as she received the termination letter via email that day. This meant that Mrs Milton had the full 21 days to lodge the application.
This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant contends she had “several conversations and one meeting” with Mr Brockhaus to explain that she felt that she had been treated unfairly with a sudden termination and without warning letters. I do consider that this represents some action taken to dispute the application.
This consideration supports a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent has not raised any issues of prejudice. In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.[15]
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[16] Further, the primary consideration is whether the applicant has an arguable case.[17]
The basis of the dismissal has been outlined earlier in this decision. Mrs Milton contends that the dismissal was unfair on the basis that she had not received three written warnings, that the dismissal was harsh because she was trying to do the right things, and that the dismissal was a very sudden event that prevented her from retiring in the near future. I observe that there is no rule requiring multiple warnings in the case of misconduct and that the dismissal followed a meeting during which the allegations were put and largely accepted by the Applicant. The issue of mask wearing was, at the time, a very significant matter for the aged care facility concerned. Although not given as formal warnings, Mrs Milton was instructed on several occasions that she was required to wear an approved mask.
There is no contest that the mask wearing requirements were valid or that Mrs Milton failed to comply with that requirement on a number of occasions at the time. Although Mrs Milton indicated that, at some point after her dismissal, she obtained a “medical exemption”, this was in the context of seeking other employment. There is no material to suggest that a medical exemption was cited as a factor in the discussions leading to the dismissal. However, I take into account that I have heard no substantive evidence about the detail of these matters, and this must impact upon the assessment of the merits of the application for present purposes.
As a result, although I consider that the Applicant does not have a strong case on the merits, it is not possible (or necessary) to make a more definitive assessment of the merits of the unfair dismissal application at this point. I have taken the competing views as to the merits of the application into account in making my assessment of whether there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
With the exception of the actions to contest the dismissal, the other considerations in s.394(3) of the Act do not favour a finding of exceptional circumstances or are, in effect, of neutral significance. All factors must be taken into account and given appropriate weight.
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the Act and weighed them accordingly, I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.
As the unfair dismissal application was lodged beyond the initial 21 day period provided by s.394(2)(a), and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis it is appropriate to dismiss the application and an Order[18] to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
M Milton, the Applicant on her own behalf.
J Brockhaus, on behalf of the Respondent.
Hearing details:
2022
July 20
Video Hearing.
[1] The 21-day time limit does not include the day of the dismissal itself; the 21-day limit would also have expired on 25 April 2022 (a public holiday) and the application could have been filed on the following day – Acts Interpretation Act 1901 (Cth) s.36(1) and s.36(2) respectively.
[2] Section 394(3) of the Act.
[3] Confirmed by the express post envelope.
[4] Confirmed by the express post envelope.
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[6] Ibid.
[7] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[8] Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[10] Ibid.
[11] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420.
[12] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [30].
[13] Nulty v Blue Star Group[2011] FWAFB 975 and Miller v Allianz Insurance Australia[2016] FWCFB 5472.
[14] Inferred from the response to the questions about the timeframe for lodging the application.
[15] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].
[16] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[17] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[18] PR744054
Printed by authority of the Commonwealth Government Printer
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