Miss Ashleigh Flanagan v Lifestyle Boom Pty Ltd T/A Lifestyle Boom
[2016] FWC 200
•13 JANUARY 2016
| [2016] FWC 200 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Miss Ashleigh Flanagan
v
Lifestyle Boom Pty Ltd T/A Lifestyle Boom
(C2015/2189)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 13 JANUARY 2016 |
Application to deal with contraventions involving dismissal - extension of time - exceptional circumstances warranting allowing a further period for the making of an application – period for making the application extended to 20 March 2015.
[1] Miss Ashleigh Flanagan (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 20 March 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Lifestyle Boom Pty Ltd T/A Lifestyle Boom (the Respondent) on 2 March 2015 in contravention of the general protections provisions in the Act.
[2] On 2 April 2015 the Respondent advised the Commission that Miss Flanagan’s dismissal took effect on 2 February 2015. As the application had, on the Respondent’s version of events, been lodged 25 days outside the statutory timeframe for lodgement, the Commission issued Directions on 7 April 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.
[3] The extension of time issue was the subject of a telephone hearing on 9 July 2015. At the telephone hearing, Miss Flanagan appeared on her own behalf, together with her support person and cousin, Ms Kristy Bumbak, while Mr Scott Wescombe appeared for the Respondent. Witness statements were provided by Miss Flanagan and Ms Bumbak.
[4] For the reasons set out below I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act and extend the timeframe for lodging the application to 20 March 2015.
Background
[5] The Respondent is a physiotherapy practice. Miss Flanagan commenced employment with the Respondent on 8 July 2014. Miss Flanagan was employed a pilates physiotherapist.
[6] On 27 January 2015 Miss Flanagan advised the Respondent that she was in need of urgent medical treatment for depression and would require hospitalisation as soon as possible. Miss Flanagan deposed in her witness statement that Ms Tarryn Wescombe on behalf of the Respondent reassured her that her job was secure and that Miss Flanagan could use her annual leave if she ran out of sick leave. Miss Flanagan further deposed that she undertook to keep in contact with the Respondent, particularly in respect of her return to work.
[7] Ms Wescombe spoke with Miss Flannagan’s psychiatrist who subsequently advised Miss Flanagan on 2 February that she had been dismissed from her employment Miss Flanagan then contacted Ms Wescombe who confirmed that her employment had been terminated and asked Miss Flanagan to contact her when she was better/out of hospital to discuss future employment. Ms Wescombe sent an email to Miss Flanagan on 3 February 2015 confirming the termination. The email stated:
“Hi Ash
I am writing to confirm your termination of employment at Lifestyle Boom as of 2nd February, 2015.
As agreed before you were admitted to Perth Clinic, we will pay out all of your sick leave first and then go onto annual leave. If there is any additional annual leave accrued it will also be paid out to you on your final pay.
Given the situation, I can confirm that you will not be required to return to work for the next four weeks even if you are released from the Perth Clinic prior to March 2nd, 2015 …”
[8] Miss Flanagan remained in hospital until 25 February 2015.
[9] On 26 February 2015 Ms Bumbak called Ms Wescombe in an effort to find out what was going on and left a message for her to return the call. Ms Wescombe did not call back.
[10] On 9 March 2015 Ms Bumbak was advised by a legal firm of the 21 day timeframe for making a general protections application with the Commission. That advice also stated that “as the termination of Ashleigh’s employment took effect on 2 March 2015, she has 21 days from this date to lodge a claim.” It is not clear from the email on what basis the termination date was established.
[11] On 11 March 2015 Mr Bumbak called Ms Wescombe again and left another message for her to call back. Ms Wescombe returned the call that evening.
[12] As previously noted, Miss Flanagan’s general protections application was received by the Commission on 20 March 2015, 25 days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. The application was prepared and lodged by Ms Bumbak on Miss Flanagan’s behalf.
[13] In her application, Miss Flanagan contends that she was dismissed in contravention of ss.351 and 352 of the Act as a result of her illness and resultant temporary absence from work. The Respondent submitted the sale of Lifestyle Boom had been agreed in December 2014 and the handover had commenced in January 2015. Accordingly, the termination was inevitable as it was unable to maintain Miss Flanagan’s employment given that it was no longer operating the business. The Respondent also submitted that there were grounds for Miss Flanagan’s immediate dismissal as a result of her failure to disclose her illness as required by her employment agreement.
The Relevant Legislation
[14] Section 366 of the Act provides:
“366 Time for application
366(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Whether to allow a further period for the application to be made
[15] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.
(a) The reason for the delay
[16] The primary reason relied upon by Miss Flanagan for the delay is her hospitalisation. Miss Flanagan’s hospitalisation was confirmed by Dr Lawrence Blumberg, Consultant Psychiatrist, in an open letter which stated that Miss Flanagan “was an inpatient under my care at Perth Clinic from 28 January 2015 to 25 February 2015.”
[17] Ms Flanagan also submitted that she understood from the termination email sent to her by Ms Wescombe on 3 February 2015 that her termination was effective from 2 March 2015.
Further, Ms Bumbak submitted that she spoke with Miss Flanagan on 26 February 2015 describing her as “really confused” and not having a clue as to what was going on. Ms Bumbak submitted that, as outlined above, she tried to call Ms Wescombe that day without success and was not able to speak to Ms Wescombe until the evening of 11 March 2015. More specifically, Ms Bumbak submitted that the delay in Ms Wescombe responding to her calls was a further reason for the delay. Ms Bumbak contended that Miss Flanagan was still in a bad state as at 11 March 2015 and that she was not only difficult to get hold of but that it was also difficult to get information from Miss Flanagan. Accordingly, Miss Bumbak submitted that it took her several days to gather the necessary information and complete the application, adding that this process involved several discussions with Miss Flanagan’s psychiatrist.
[18] At the telephone hearing, the Respondent submitted that it made it clear to both Miss Flanagan and her psychiatrist that the termination took effect from 2 February 2015, adding that the conversations were unambiguous in this regard. As to the reference in the email of 3 February 2015 to Miss Flanagan not being “required to return to work for the next four weeks even if you are released from the Perth Clinic prior to March 2nd, 2015 …”, the Respondent contended that this reflected the provision of four weeks’ notice as specified in Miss Flanagan’s employment agreement.
[19] As the Full Bench in Cheval Properties Pty Ltd (T/A Penrith Hotel Motel) v Smithers 1 concluded, a credible reason must be provided for the entire period of the delay.
[20] The material before the Commission indicates that Miss Flanagan was hospitalised until 25 February 2015 and that following her release from hospital that she remained in a highly affected mental state such that she relied on Ms Bumbak to have conversations with the Respondent and both prepare and submit her general protections application. In other words, I accept that Miss Flanagan’s health was a significant reason for the entire period of the delay.
[21] Further, I consider that Ms Wescombe’s failure to respond to Ms Bumbak’s message of 26 February 2015 also contributed to the delay in lodging the application in circumstances where Ms Bumbak submitted that her reason for calling was to find out what was going on.
With regard to the alleged ambiguity of the email of 3 February 2015, the reference to 2 March 2015 is somewhat confusing despite the very clear opening paragraph of that email. With regard to the Respondent’s submission that the reference related to the notice period as per Miss Flanagan’s employment agreement, Ms Bumbak deposed that in her conversation of 11 March 2015 with Ms Wescombe she raised the fact that Miss Flanagan had not been paid until 2 March 2015 as per her email. Ms Bumbak further deposed that Ms Wescombe stated that this was because she had contacted “fair work” after sending the email and was advised that Miss Flanagan was only entitled to one weeks’ notice. While the email is likely to have contributed to confusion regarding the date of Miss Flanagan’s dismissal it does nevertheless confirm Miss Flanagan’s “termination of employment at Lifestyle Boom as of 2nd February, 2015.”
[22] In the circumstances, I am satisfied that the reasons for the delay relied upon by Miss Flanagan point to the existence of exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[23] As mentioned above, Miss Flanagan submitted that the delay in Ms Wescombe responding to Ms Bumbak’s calls was a reason for the delay. Miss Flanagan further submitted that Ms Wescome only returned Ms Bumbak’s call of 11 March 2015 as Ms Bumbak’s message had stated that if she did not return the call she would seek further legal advice. As previously alluded to, Miss Flanagan sought legal advice in early March 2015. At the telephone hearing, Ms Bumbak submitted that she also contacted the Commission to discuss the matter on or around 11 March 2015.
[24] The Respondent submitted that Miss Flanagan did not contact either it or the new owners of Lifestyle Boom about employment opportunities, other than what it described as Ms Bumbak’s abusive phone message to Ms Wescombe of 11 March 2015.
[25] The material before the Commission indicates that Ms Bumbak sought to contact Ms Wescombe the day after Miss Flanagan was released from hospital in an attempt to dispute the dismissal and to try and find out what was going on. It also indicates that Ms Bumbak sought legal advice in early March and contacted the Commission around 11 March 2015 to discuss Miss Flanagan’s circumstances. This was followed by the further telephone call to Ms Wescombe on 11 March 2015. Taken together this supports a finding that Miss Flanagan did seek to dispute her dismissal as soon as she was in a position to do so, i.e.after her release from hospital.
[26] This supports a finding that there were exceptional circumstances.
(c) Prejudice to the employer (including prejudice caused by the delay)
[27] Miss Flanagan did not address this consideration.
[28] The Respondent submitted that it was prejudiced because Miss Flanagan was using her illness against the business. This submission does not go to how the Respondent would be prejudiced were an extension of time were granted.
[29] In the absence of any submissions directly going to this factor I consider it to be a neutral consideration.
(d) The merits of the application
[30] Miss Flanagan contends that she was dismissed as a result of her illness and resultant temporary absence from work and that she had not been given any reason for her dismissal. In support of that contention, Ms Bumbak deposed that Ms Wescombe had said during their phone conversation of 11 March 2015 that:
● as she had no idea as to when Miss Flanagan would be able to return to work, “what else was she supposed to do but terminate her”; and
● Miss Flanagan was ‘mentally unstable’ considering she was now in a ‘mental institution’ and so she obviously wasn’t able to work.
[31] In its written submissions, the Respondent relied on three grounds for the dismissal – the sale of the business, Miss Flanagan’s failure to disclose her illness as per her employment agreement and a number of performance related issues, most of which the Respondent contends only became apparent once Miss Flanagan was hospitalised. At the telephone hearing the Respondent submitted that the sale of the business was the sole basis for Miss Flanagan’s dismissal and contended that the issue had been mentioned when Ms Wescombe discussed the dismissal with Miss Flanagan on 3 February 2015. The Respondent did not press the other grounds mentioned in its written submissions at the telephone hearing.
[32] What is clear from the material before the Commission is that Miss Flanagan advised the Respondent of the circumstances leading to her hospitalisation on 27 January 2015 and that she was dismissed while in hospital. Beyond that much of the details in this matter are disputed. Despite that, I consider there to be a prima facie case that Miss Flanagan may have been dismissed in contravention of the general protections provisions of the Act, though the weight that can be attributed to that view is diminished given the issues in dispute. The issues in dispute can only determined by way of a substantive hearing of the evidence.
[33] Against that background, I consider this factor to be a neutral consideration.
(e) Fairness as between the person and other persons in a like position
[34] Neither party directly addressed this consideration in their submission. Accordingly, I consider it to be a neutral consideration.
Conclusion
[35] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 2(Nulty) in the following way:
“[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.”
[36] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Key considerations in reaching that conclusion were Miss Flanagan’s hospitalisation and the steps taken on her behalf to dispute her dismissal following her release from hospital.
[37] The timeframe for lodging the application is extended to 20 March 2015. The application will now be listed for a conference aimed at resolving the dispute.
Appearances:
A. Flanagan with K. Bumbak for the Applicant.
S. Wescombe for the Respondent.
Telephone Hearing details:
2015.
Canberra and Perth:
9 July.
1 (2010) 197 IR 403 at paragraph 20
2 [2011] FWAFB 975
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