Maria Rocca v Independent Practitioners Network Pty Ltd (IPN)

[2014] FWC 7150

[2014] FWC 7150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Rocca
v
Independent Practitioners Network Pty Ltd (IPN)
(U2014/9252)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 21 NOVEMBER 2014

Application for relief from unfair dismissal - extension of time granted.

[1] On 18 November 2014 I advised the parties that I would consider the matters raised at a hearing convened on that day and at a telephone conference held on 9 October 2014. This decision reflects my conclusions about those matters.

[2] On 15 September 2014 Mrs Rocca lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the termination of her employment with IPN Medical Centres Pty Ltd T/A Prospect Medical Centre. In that application, Mrs Rocca advised that her dismissal took effect on 22 August 2014. She asserted that the application was made within 21 days from this dismissal taking effect.

[3] The application was referred to me for consideration. On 17 September 2014 my Associate advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 9 October 2014. Mrs Rocca was required to provide a witness statement and a copy of any document relied upon, by 2 September 2014.

[4] The Employer’s Response (Form F3) to the application advised that the correct name of the employer was Independent Practitioners Network Pty Ltd. It confirmed that Mrs Rocca’s termination of employment took effect on 22 August 2014. I have amended the application so as to correctly identify the respondent as Independent Practitioners Network Pty Ltd (IPN).

[5] Mrs Rocca provided a statement 1 in the following terms:

“Dear Sir

Thank you for your letter dated 17th September 2014 regarding the Application for Unfair Dismissal Remedy and the extension of time issue. Please accept my apologies for the tardiness in sending the application but this was not my intention at all. Several attempts were made to lodge the application via eFiling on Thursday evening the 11th September and again on Friday the 12th September to no avail. There was an apparent download problem with the document I saved to my desktop, that is, the application was saved as doc. rather than docx and this did not match the Application for Unfair Dismissal Remedy. Form F2-4 is indicative of the number of times I attempted to lodge the application.

Furthermore, FWC website was performing a system maintenance during this period which may have interrupted or delayed the process.

I would also like to add that prior to submitting this application I was studying for my exams which took place on the 3rd and 4th September 2014. Immediately after the exams my family and I went to Wallaroo for a short break because I was very annoyed by this sudden and unexpected dismissal.

I hope you accept this statement detailing my position relative to the extension of time issue. My phone number, for the purposes of this statement and for the telephone conference on the 9th October 2014, is 08 xxxx xxxx.”

[6] The extension of time issue was initially considered through a telephone conference on 9 October 2014. A sound file record of this conference was kept. Mrs Rocca participated in this conference and the respondent was represented by Ms Earl.

[7] At the conclusion of this conference I advised the parties that I would further consider the application. I then sought advice from the FWC Information Technology function about the difficulties which Mrs Rocca had relative to lodging her application electronically. On 28 October 2014 I issued further directions in which I advised the parties that I would convene a hearing on 18 November 2014. The parties were directed to provide witness statements and further information in support of their respective positions.

[8] Ms Rocca provided additional material and evidence, all of which I have taken into account in considering the extension of time issue.

[9] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[10] The termination of Mrs Rocca’s employment took effect on 22 August 2014. The application was lodged 24 days later which is outside of the 21 day time limit specified in s.394(2). It can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mrs Rocca’s circumstances can be regarded as exceptional for the purposes of this subsection.

[11] In Nulty v Blue Star Group Pty Ltd 2 a Full Bench of the FWC addressed this concept of exceptional circumstances in the following terms:

“[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 everyday 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.”

[12] I have adopted this approach.

[13] The information provided by Mrs Rocca discloses a number of reasons for the delay. Mrs Rocca asserts that she attempted to lodge the application electronically on 11 and 12 September 2014 but was unable to do so. Consistent with the advice I provided at the conference, I investigated Mrs Rocca’s assertions in this respect and I was advised that numerous other electronic lodgements were made in the period between 11 and 15 September 2014. I was also advised that the FWC electronic lodgement system was operative over this time and that the FWC site was not under maintenance over that weekend. I have also noted Mrs Rocca’s advice that she attempted to telephone the FWC Helpline late in the afternoon of 12 September 2014 but that she discontinued that attempt shortly before 5.00 pm.

[14] In the hearing on 18 November 2014 Mrs Rocca provided a computer screen shot which demonstrated that on 11 and 12 September 2014 she made multiple attempts to access the FWC electronic lodgement facility. Additionally, Mrs Rocca provided copies of emails she sent to the FWC Melbourne Registry office on 23 October 2014, seeking advice about why her attempts to lodge her application electronically were unsuccessful. She provided a copy of an email reply advising that the FWC office would respond as soon as it could but that this could take 3 to 5 working days. Ms Rocca advised that nothing further has been received from the FWC.

[15] Mrs Rocca’s computer screenshots and the absence of a response to her enquiry raise questions about the integrity of the FWC system that have not been addressed by the FWC Information Technology function. In this context, I consider that the benefit of any doubt should favour Mrs Rocca. Had I been provided with an FWC Information Technology response to Mrs Rocca’s enquiry, I may have arrived at a different conclusion. Additionally, had I been able to access the FWC ‘e-filing’ system myself without that system failing, I may also have adopted a different conclusion. These factors raise doubts that the electronic filing system is, and was operative in September 2014 so that the reason for the delay detailed by Mrs Rocca is an exceptional circumstance.

[16] Whilst I have considered Mrs Rocca’s other explanations for the delay I do not consider that any of these are consistent with the requirement to demonstrate extraordinary circumstances.

[17] In terms of s.394(3)(b), Mrs Rocca was clearly aware of the termination of her employment on 22 August 2014.

[18] Apart from the late lodgement of this application, Mrs Rocca did not take any other action to challenge the termination of her employment.

[19] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter, but this, of itself does not form a basis for an extension of time.

[20] In terms of the merits of the application, the parties provided substantial additional information for consideration at the hearing on 18 November 2014. I have considered whether that information enables a conclusion about whether the extension of time should be refused on the basis that Mrs Rocca’s application must fail on the merits.

[21] Mrs Rocca was a receptionist for the IPN medical practice. The termination of her employment followed instances of customer complaints about her behaviour and actions. The IPN position is that this employment termination followed two written complaints from patients about her inappropriate and aggressive behaviour towards them. IPN provided a short video and a still photograph which appears to show Mrs Rocca making a rude finger gesture to a patient. Whilst that video and the photograph were not available in the initial telephone conference on 9 October 2014, they were shown at the 18 November 2014 hearing. Mrs Rocca disputes the extent to which she made a rude finger gesture to a patient and disputes the majority of the allegations made against her. She also disputes IPN’s assertion that she was aware of its Workplace Behaviour Policy, which addressed matters such as this.

[22] IPN met with Mrs Rocca on 22 August 2014. Mrs Rocca agreed that she had the opportunity to have a support person present at this meeting but did not take up this option. IPN and Mrs Rocca disagreed over the conduct of this meeting which concluded with the termination of her employment.

[23] IPN and Mrs Rocca also disagree over the nature of previous warnings or counsellings given to Mrs Rocca and the extent to which she was clearly notified of the reason for the termination of her employment.

[24] I have noted that Mrs Rocca’s evidence was given under oath and that IPN did not provide sworn testimony. Notwithstanding this, and simply put, I did not find Mrs Rocca’s evidence particularly compelling or believable. For example, I think it most likely that Mrs Rocca did gesture rudely to a patient and that she was aware of the behavioural expectations IPN had of her as a receptionist. However, the material before me does not permit a definitive conclusion in this respect and the dictates of procedural fairness require that both parties be given a more comprehensive opportunity to provide detailed evidence about the merits of the application. Suffice to say that, if on reflection, Mrs Rocca agrees that IPN is likely to establish its assertions, she should not further pursue the matter.

[25] Considerations of fairness relative to persons in similar circumstances to Mrs Rocca are inconclusive relative to the extension of time issue.

Conclusion

[26] For the reasons I have set out above, I am satisfied that Mrs Rocca’s circumstances support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). Whilst I have reservations about the merits of her application, on the material provided to me, I have concluded that if these matters remained disputed, the parties should both have the opportunity to provide more detailed evidence about those contested facts. An Order (PR556448) reflecting this decision will be issued and the matter will be listed for a determinative conference on the merits.

SENIOR DEPUTY PRESIDENT

Appearances:

M Rocca on her own behalf.

J Earle on behalf of the respondent.

Hearing Details:

2014.

Adelaide:

October 9 (by telephone)

November 18.

 1   Email - Statement of M Rocca dated 30 September 2014

 2   [2011] FWAFB 975

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