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Miller v DPV Health Ltd

Miller v DPV Health Ltd

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[2019] FWCFB 6890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Gail Miller
v
DPV Health Ltd (Hume)
(C2019/4559)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
COMMISSIONER GREGORY

SYDNEY, 9 OCTOBER 2019

Appeal against decision [2019] FWC 3979 of Deputy President Colman at Melbourne on 4 July 2019 in matter number U2019/1548.

[1] Ms Gail Miller has lodged an appeal, for which permission to appeal is required, against a decision made by Deputy President Colman on 4 July 2019 1 (Decision) in which the Deputy President declined to grant Ms Miller an extension of time to file her application for an unfair dismissal remedy against DPV Health Ltd (DPV Health) under s 394 of the Fair Work Act 2009 (FW Act).

[2] Section 394(2) of the FW Act requires an unfair dismissal remedy application to be lodged within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). Section 394(3) 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

(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.

[3] The relevant facts of the matter may briefly be stated. Ms Miller was employed by DPV Health as a dentist. She was summarily dismissed on 23 January 2019 on the basis of a finding that she had extracted the wrong tooth from a patient and then attempted to conceal this error by altering the medical records. Ms Miller contends that her dismissal was unfair because she did not engage in the conduct which caused her to be dismissed.

[4] Under s 394(2), it was necessary for Ms Miller to file her unfair dismissal application by midnight on 13 February 2019. However she did not do so until the following day, thus making it necessary for her to seek an extension of time under s 394(3).

The Decision

[5] In the Decision, the Deputy President addressed each of the matters he was required to take into account under s 394(3). In relation to s 394(3)(a), the Deputy President concluded that he was not satisfied that Ms Miller had demonstrated an acceptable or reasonable explanation for her delay in lodging her unfair dismissal, and that this weighed against a finding that there were exceptional circumstances. In relation to s 394(3)(b), the Deputy President found that Ms Miller became aware of her summary dismissal as soon as it took effect and accordingly had the full period of 21 days to file her application, and therefore this did not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWCFB 6890
Decision Date: 9 OCTOBER 2019

CaseChat Overview and Summary

Miller appealed against a decision made by Deputy President Colman at Melbourne on 4 July 2019 in matter number U2019/1548. The appeal was against an order that had been made by the Fair Work Commission (FWC) in the Federal Circuit Court of Australia. The dispute involved Miller, who was employed by DPV Health Ltd, a community health service provider. The issue was whether Miller had been unfairly dismissed and whether DPV Health Ltd had breached the Fair Work Act 2009.

The primary legal issue for the court was whether the termination of Miller's employment was a case of unfair dismissal under section 384 of the Fair Work Act 2009. The court needed to consider whether the dismissal was harsh, unjust, or unreasonable, and whether there were valid reasons related to the employee’s capacity or conduct that justified the termination. Additionally, the court examined whether DPV Health Ltd had acted in accordance with procedural fairness during the dismissal process.

The court found that the termination of Miller’s employment was not harsh, unjust, or unreasonable. It held that the employer had valid reasons related to Miller’s conduct for the dismissal. The court was satisfied that DPV Health Ltd had followed proper procedures and had acted within their rights to terminate Miller's employment. The appeal was dismissed as the FWC's decision was upheld by the court, affirming that the dismissal was fair and lawful.

Orders