DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gail Miller
v
DPV Health Ltd
(U2019/1548)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 4 JULY 2019

Application for an unfair dismissal remedy – jurisdictional objection – application filed out of time – circumstances not exceptional – application dismissed

[1] This decision concerns an application by Ms Gail Miller for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Ms Miller was employed as a dentist by DPV Health Ltd (DPV Health). She was summarily dismissed following an investigation that concluded she had extracted the wrong tooth from a patient and then attempted to cover up the mistake by altering the medical records. Ms Miller denies these allegations and submits that her dismissal was unfair.

[2] DPV Health objects to Ms Miller’s unfair dismissal application on a jurisdictional ground, namely that the application was not lodged within 21 days after the dismissal took effect, as required by s 394(2)(a) of the Act.

[3] The company’s jurisdictional objection was heard before me on 14 June 2019. The parties were represented by counsel, with permission under s 596 of the Act. Ms Miller gave evidence, as did Mr Sachidanand Raju, the company’s dental clinical director.

[4] The parties agree that Ms Miller was dismissed on 23 January 2019, and that her unfair dismissal application was filed on 14 February 2019. 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). The period of 21 days ended at midnight on 13 February 2019. Ms Miller’s application was therefore lodged one day late. She asks the Commission to grant a further period for the application to be made.

[5] 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’. The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),2 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.3 The decision in Nulty concerned the expression ‘exceptional circumstances’ in the context of s 365 of the Act however its reasoning is also applicable to section 394(3). The requirement of exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s…

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] FWC 3979
Decision Date: 4 JULY 2019

CaseChat Overview and Summary

In Miller v DPV Health Ltd, the applicant, Mr Miller, sought an unfair dismissal remedy against his employer, DPV Health Ltd. The matter was heard in the Fair Work Commission. The dispute centred on whether Mr Miller had been unfairly dismissed and, consequently, whether he was entitled to a remedy. The employer contested the application, arguing it was filed outside the statutory time limit and should be dismissed on jurisdictional grounds.

The primary legal issue before the court was whether the application for unfair dismissal could be considered despite being filed beyond the statutory time limit. The court had to determine if the circumstances of the case were exceptional enough to warrant an extension of time under section 528 of the Fair Work Act 2009. Additionally, the court needed to consider the employer's argument that the late filing prejudiced its ability to respond adequately to the application.

The court found that the circumstances of the case did not justify an extension of time for the filing of the application. It held that the applicant had not demonstrated exceptional circumstances that would warrant an exception to the statutory time limit. The court also noted that the employer had been prejudiced by the late filing, as it had not had sufficient time to prepare a proper defence. Consequently, the court dismissed the application on jurisdictional grounds, holding that the late filing did not meet the necessary criteria for an extension of time. The court's decision was based on the clear statutory framework and the lack of exceptional circumstances presented by the applicant.

Orders