Melissa Crowe v Mg Medical Group Pty Ltd T/A Australian Eye Care
[2018] FWC 1016
•23 FEBRUARY 2018
| [2018] FWC 1016 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Melissa Crowe
v
MG Medical Group Pty Ltd T/A Australian Eye Care
(U2017/13190)
DEPUTY PRESIDENT DEAN | SYDNEY, 23 FEBRUARY 2018 |
Application for an unfair dismissal remedy – extension of time.
[1] Ms Crowe commenced employment with MG Medical Group Pty Ltd T/A Australian Eye Care (the respondent) in June 2016.
[2] On 12 December 2017, Ms Crowe lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that she had been unfairly dismissed by the respondent, and that her dismissal took effect on 12 October 2017. Her application was made some 40 days outside the 21 day period prescribed by s.394(2) of the Act.
[3] The matter was listed for hearing on 16 February 2018 to determine whether Ms Crowe should be granted an extension of time pursuant to s.394(3) of the Act to make her application. At the hearing Ms Crowe appeared on her own behalf. Permission was granted, pursuant to s.596 of the Act, to Ms H Carter, solicitor, to appear on behalf of the Respondent.
[4] Ms Crowe relied on her written submissions and gave oral evidence during the hearing. The respondent relied on its written submissions and a statement of Dr Goodrich. Both parties were given the opportunity to expand upon their written submissions and give further evidence during the hearing.
[5] Section 394(3) of the Act provides:
(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.
[6] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Ms Crowe.
[7] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:
“[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.”
[8] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[9] The Applicant’s written submissions provided the following explanation for the delay:
a. On 2 November 2017 she filed a general protections application pursuant to s.365 of the Act. That application was made within the required time frame.
b. A conference was conducted by a FWC Conciliator on 1 December 2017. No agreement was reached at the conference and she was given time to seek legal advice and investigate her options further.
c. Having formed the view that her general protections application was not a suitable vehicle for her to pursue a dispute against the respondent, she withdrew the application on 12 December 2017. She then filed an unfair dismissal application against the respondent on the same day.
d. Prior to the discontinuance of the general protections application, she had two conversations with the Conciliator.
e. Her reason for commencing an unfair dismissal application were to take the respondent to “task for its actions against her and those aspects of their actions which she claims amounted to unfairness, bullying and constructive termination.”
[10] Ms Crowe also relied on her lack of legal education and understanding in the area as a reason for the delay. She said that she had sought legal advice but was “somewhat overwhelmed and misinterpreted her rights and the actions she should take.” She further stated the she “could not afford a lawyer to represent her legal rights under General Protections”.
[11] The respondent submitted that the matters raised by Ms Crowe as the reasons for the delay are not ‘exceptional circumstances. In particular:
a. ignorance of the law or legal rights is not an exceptional circumstance;
b. making a decision to file the wrong type of application is not an exceptional circumstance;
c. lack of funds to pay for legal advice has repeatedly been held not to be an exceptional circumstance.
[12] The respondent relied on various decisions 2 of the Commission in support of its submissions.
[13] Ms Crowe drew attention to the decision of Commissioner Wilson in Smith v MacFarlane Generators Pty Ltd3 (Smith) and in fact adopted much of what the Commissioner said in his decision to advance her arguments. Ms Crowe asserted that the circumstances in Smith were analogous to her circumstances, and the Commissioner had accepted in Smith that the circumstances were exceptional and granted an extension of time.
[14] It would seem that Ms Crowe tailored her submissions by replicating the matters raised in Smith which do not necessarily reflect her own circumstances. Examples can be drawn as follows:
a. In Smith, the applicant discontinued the general protections application on 28 November 2014 and filed an unfair dismissal application on the same day4. Ms Crowe made the same submission although she filed her unfair dismissal application the day after withdrawing her general protections application.
b. In Smith, the Commissioner said that the reason given by the applicant for commencing the unfair dismissal application was that he wanted to take the respondent to “task for its actions against him and those aspects of their actions which he claimed amounted to unfairness or bullying”5. Ms Crowe stated in her written submissions that she wanted to take the respondent to “task for its actions against her and those aspects of their actions which she claims amounted to unfairness, bullying and constructive termination”.
[15] Having considered all of the evidence and submissions made by Ms Crowe, I do not consider that this a case of an applicant misunderstanding the differences between a general protections application and an unfair dismissal application. The grounds advanced in Ms Crowe’s general protections application utilised the language of the general protections provisions. In this regard, she asserted that that her “summary dismissal constituted adverse action because Applicant exercised a protected workplace right”. In contrast, the grounds advanced in her unfair dismissal application used the language normally associated with the unfair dismissal regime. Here she asserted that “the allegations made by the Respondent towards the Applicant are damaging while terminating the Applicant’s employment were harsh, unreasonable and unjust, in the Applicant’s opinion and did not constitute gross misconduct.”
[16] Further, the similarities between the submissions of Ms Crowe and the language used in the decision of Smith referred to earlier suggest that Ms Crowe had undertaken a level of research that would not be consistent with a finding that she misunderstood the differences between the unfair dismissal and general protections jurisdictions.
[17] In any event, ignorance of the law or of legal rights is not normally considered to be ‘exceptional’. Nor is financial difficulty experienced by an applicant following their dismissal considered exceptional. There was no evidence given or submissions made by Ms Crowe that would persuade me that in this case, ignorance or misunderstanding of the law or financial constraints should be considered exceptional.
[18] I am not satisfied that the reasons for the delay provided by Ms Crowe demonstrate exceptional circumstances. I have considered the cases cited by the respondent and concur with those findings made by the Commission.
[19] This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[20] There is no dispute that Ms Crowe was advised of her dismissal on 12 October 2017.
[21] I find that this weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
[22] Ms Crowe took action to dispute her dismissal and lodged a General Protections application within the prescribed time limit.
[23] I find that this weighs in favour of the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[24] I am not persuaded that granting an extension of time would result in a prejudice to the Respondent. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[25] For the purpose of determining whether to grant an extension of time for Ms Crowe to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’6
[26] Ms Crowe provided a large volume of material that she submitted went to the merits of the application. She contended that “the merits of this application are sound and justified”, and that she had an arguable case. The respondent, on the other hand, submitted that Ms Crowe failed to explain the merits of her unfair dismissal application in her submissions, and based upon the information provided, the application had little prospects of success. Based on the material before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[27] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 7 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’8
[28] I do not consider that there are other relevant persons in a similar position to Ms Crowe, and I therefore find it to be a neutral consideration.
Conclusion
[29] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances as to warrant my granting an exception to the statutory time limit for the lodgement of this application. It follows that Ms Crowe’s application must be dismissed.
[30] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
M Crowe on her own behalf
H Carter, solicitor for the respondent.
Hearing details:
2018.
Sydney (By telephone).
February 16.
Printed by authority of the Commonwealth Government Printer
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1 [2011] FWAFB 975.
2 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]; Arpita Das v Technosoft (Australia)[2017] FWC 5727 at [8]; Genikas v Bourke Aboriginal Health Service[2012] FWA 7342 at [38]; Ardolli v Money Talk Pty Ltd[2015] FWC 4557 at [32] to [33]; Giannetti v Star Track ExpressPty Ltd[2017] FWC 3695; Inguanti v TRUenergy Gas Storage Pty Ltd[2011] FWAFB 6512 at [10] to [11]; Reeve v Ramsay Health Care Ltd[2011] FWA 5349 at [18] and Smith v Argosy Agricultural Group[2016] FWC 8297
3 [2015] FWC 632.
4 Ibid at [13].
5 Ibid at [19].
6 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
7 [2015] FWC 8885.
8 Ibid at [29].
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