Mrs Angela Harrold v Dr Sue Valmadre T/A

[2020] FWC 3733

[2020] FWC 3733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Angela Harrold
v
Dr Sue Valmadre T/A
(U2020/6558)

DEPUTY PRESIDENT CROSS SYDNEY, 16 JULY 2020

Application for an unfair dismissal remedy.

[1] On 12 May 2020, Mrs Angela Harrold (“the Applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant claimed she was employed, by Dr Sue Valmadre (“the Respondent”). The Applicant commenced her employment with the Respondent on 20 October 2014. The Applicant was notified of her dismissal on 26 March 2020, and that dismissal took effect on that date.

[2] Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 16 April 2020. The application was therefore lodged outside of the time prescribed and was lodged 26 days after the last day on which such an application could have been made.

[3] On 9 June 2020, a Directions Hearing was conducted to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge her application (“the Application”) would be determined (“the Directions”). The Applicant had already provided some submissions regarding her out of time application in an email dated 5 June 2020 to the Chambers of Vice President Catanzariti (the “Applicant’s Submission”). The Directions were:

1. Dr Sue Valmadre is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 23 June 2020.

2. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 30 June 2020.

3. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 23 June 2020.

[4] In the Directions Hearing the parties were specifically directed to the provisions of s.394(3) of the Act, and they were advised to address the considerations outlined therein where appropriate.

[5] The Respondent provided an Outline of Submission (the “Respondent’s Submission”), a statement of Dr Valmadre dated 23 June 2020, and a statement of Ms Sue Reginato dated 23 June 2020. The Applicant filed a submission in reply to the Respondent’s Submission (the “Applicant’s Reply Submission”) which contained 19 Annexures.

[6] In the hearing of the matter on 13 July 2020, Mr Alex Ronayne was granted permission to represent the Respondent. Further in that hearing, the Applicant and the Respondent were cross-examined.

Relevant Facts

[7] The relevant facts of the matter as disclosed by the materials filed are:

(a) The Respondent conducts a gynaecology and obstetric practice. On 20 October 2014, the Applicant was employed as a part time medical secretary to work three days per week on 20 October 2014.

(b) On 18 December 2019, a meeting was held between the Applicant, the Respondent and Sue Reginato. The Respondent raised perceived issues with the Applicant's behaviour and attendance. The Respondent also suggested to the Applicant that she obtain counselling as the Respondent had concerns about the Applicant’s mental wellbeing. The Respondent recommended a counselling service, but the Applicant refused counselling.

(c) On 3 February 2020, the Applicant's husband telephoned Ms Reginato and advised that the Applicant would be absent from work for the next few weeks without giving any reason, and stated the Applicant should not be contacted by the Respondent. The Applicant disputes that no reason was given, and states that her husband advised of “personal circumstances”. The Applicant was paid for her weeks of absence from 3 to 26 February 2020.

(d) On 5 February 2020, Ms Reginato sent the Applicant's husband a text enquiring as to how the Applicant was going and whether there were any further updates regarding the length of time she would be absent. The Applicant's husband replied by text message to Ms Reginato saying that the Applicant “…is more than likely to be back at work the Wednesday 19^th February, all things going to plan”. The Applicant returned to work on 26 February 2020.

(e) On 8 February 2020 the Applicant had a telephone conversation with Ms Reginato. The contents of that discussion are disputed. The Respondent claims the Applicant stated that she was no longer prepared to work three days per week as outlined in her employment contract and would only work one day per week or work on a casual basis. The Applicant says Ms Reginato suggested the reduction to 8 hours. Due to the conversation that occurred on 23, 24 or 25 March 2020, it is not necessary to resolve this controversy.

(f) On 26 February the Applicant returned to work and thereafter attended the workplace on one day a week for a period of three weeks ending on 18 March 2020.

(g) On 17 March 2020, at approximately 10.00pm in the evening the Applicant contacted the Respondent by telephone. In the course of that conversation the Applicant expressed unease at attending the Respondent’s workplace due to the COVID19 pandemic. The Respondent replied with words to the effect of:

"We have put in place appropriate precautions. Hand sanitiser has been placed both at the reception desk and outside the lift to the rooms, Viraclean is being used to regularly wipe down surfaces and gloves and masks are available for use.''

(h) The Applicant did attend the workplace the following day on 18 March 2020. The Applicant’s concerns particularly related to the fact that she was the main caregiver to her father who is 80 years old, and who resides with the Applicant.

(i) On 23, 24 or 25 March 2020, a further telephone conversation occurred between the Applicant and Ms Reginato. The Respondent claims the Applicant advised that she was not going to attend the workplace or perform her work duties until the threat of COVID-19 was over. In the Applicant’s Reply Submission she states that in this conversation she “…did not clearly state, give any indication or imply I would not be returning to the workplace until the end of COVID 19”. On this factual dispute I prefer the evidence of Ms Reginato. In oral evidence the Applicant agreed she said she would not return to work until COVID 19 was over. She also confirmed that with the state of the pandemic in Sydney as at the hearing date of 13 July 2020, she would still not have returned to work had her employment not been terminated.

(j) On 26 March 2020 the Applicant's employment was terminated. The termination took place in a telephone conversation between the Respondent and the Applicant. I accept the Respondent’s evidence that it was explained that the termination was because the Applicant had indicated that she was no longer prepared to attend the workplace. I accept that the Respondent said words to the effect of:

"I am terminating your employment because you have not been turning up for work without any valid reason and you have now said that you are unwilling to tum up at all or do any of your duties."

The Applicant’s versions of that conversation as recorded in the Applicant’s Submission and the Applicant’s Reply Submission are somewhat contradictory. In the Applicant’s Submission, she stated that in that meeting:

“•  My employer said that my position was no longer available and asked me not to return to the workplace

(My contract signed on 20/10/2014 stated my hours of work would be 24 hours on a Permanent Part Time basis)

•  I replied politely and stated I was disappointed that there would no longer be a position for me at “The Practice”

•  My employer stated “she would look after me” and offered to host a farewell lunch in the near future. It was a friendly and amicable conversation

•  I assumed that I was dismissed because of my unwillingness to work during COVID19." (Emphasis added)

In the Applicant’s Reply Submission, she stated:

“In the telephone conversation that took place on 26/03/20, the words used by my previous employer were kind and mentioned no reason of termination, dismissal or redundancy. She simply stated not to return to the workplace and offered to host a farewell lunch in my honour. I had not been expecting her call to finalise my employment in any case or not all at in the near future in any capacity. I deny I did not “turn up to work without any valid reason” and that I was “unwilling to turn up at all or do any of by duties” this statement is untrue and outrageous.” (Emphasis added)

(k) The Respondent is a provider of essential medical services. It was necessary for the Respondent to continue to trade, and consult and examine patients in person, notwithstanding the COVID 19 pandemic.

(l) On 7 and 8 April 2020, the Applicant sent the Respondent email enquiries about her final pay and redundancy pay.

(m) On 16 April 2020, the Applicant sent a further email enquiring about her final payments. In the Applicant’s Reply Submission, the Applicant noted that the email was sent, “After referring to the Fair Work Commission I was told all payments and entitlements were to be finalized within 7 days, so I understand this is a breach of the law.”

(n) The Applicant’s final payslip was sent by email on 20 April 2020, but did not include long service leave. The final payslip that included long service leave was received on 7 May 2020.

(o) On 30 April 2020, the Applicant sent an email to an address [email protected] that stated in part:

“Secondly I have been in contact with The Fair Work Ombudsman.

The State Government Legislation states that I do have outstanding entitlements. This is my pro-rata Long Service Leave. This can be referenced (industrialrelations.nsw.gov.au)

The calculation for my pro-rata Long Service Leave equates to 4.7012 weeks of pay.”

(p) On 12 May 2020, the Respondent sent an email to the Applicant that advised in part as follows:

“I note you have referred to your dismissal as a ‘redundancy’. As you are aware, you have not been made redundant. You were dismissed due to unsatisfactory conduct. You are accordingly not entitled to redundancy payments.”

Credibility of Witnesses

[8] As particularly noted at paragraph [7(j)] above, but also generally in relation to the evidence in the matter, where the evidence of the Applicant and the Respondent differed, I have preferred the evidence of the Respondent. The Respondent gave considered, sound and balanced evidence in the hearing. The Applicant, however, sought to tailor her evidence to suit the requirements for the establishment of exceptional circumstances. That tailoring of evidence was most pronounced in the Applicant’s evidence regarding her attempts to research her rights following termination. In the Applicant’s Submission she stated the following regarding reason for delay:

“I was upset and distressed regarding my dismissal via telephone on 26/03/2020 at approximately 4.45pm. I had concerns about the COVID 19 virus and the fact I have my 80 year old father residing with me and I am also his primary carer. It took a while to digest the situation and I had to research what my options were, given my distress. The reasons listed above combine to the delay in my application. I was in two minds about how to proceed as I considered my work colleagues as “friends” after such a long period of time.”

[9] When questioned in the hearing of the matter, the Applicant stated that no such research occurred before 11 May 2020, being the day before the filing of the Application. That evidence, however, is directly contradicted by the facts as found at paragraphs [7(m)] and [7(o)] above, which were contained in documents before the Commission.

Consideration

[10] Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:

“(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).”

[11] As the Application was lodged outside of the 21 day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. 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

(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.”

[12] It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[13] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[14] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWC 479 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[15] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[16] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[17] In the Form F2 the Applicant erroneously stated the Application was not out of time, when it was in fact 26 days out of time. In the Applicant’s Submission, the reason for delay was that outlined in paragraph [8] above. There was no departure from that reason in the Applicant’s Reply Submission.

[18] The Respondent submitted in response as follows:

“The reasons subsequently identified by the Applicant in her email dated 5 June 2020 do not afford her any additional support. It is not exceptional to be the primary carer for an elderly relative. Nor is it exceptional for an employee to be distressed following a termination of employment or to need to research what their options are.

There is evidence that the Applicant may have taken steps to research what her rights were within the permitted 21 day period following her dismissal.”

[19] It is clear that the Applicant began researching her rights well before 11 May 2020. In the email of 16 April 2020, which was the last day for filing the application within the 21 day limitation period, the Applicant stated, “After referring to the Fair Work Commission I was told all payments and entitlements were to be finalized within 7 days, so I understand this is a breach of the law.” While those enquiries were said to relate to “payments and entitlements”, the Applicant was also clearly able to “research what [her] options were”, as she stated in the Applicant’s Submission.

[20] I agree with the Respondent’s submission that being a care giver or being distressed are not exceptional circumstances, and note that notwithstanding those facts the Applicant was able to communicate on numerous occasions with her former employer regarding her final pay, and contact the Fair Work Commission and the Fair Work Ombudsman. It is clear that the sole reason for the Form F2 being filed was the Respondent outlining on 12 May 2020, that the termination was for unsatisfactory conduct.

[21] I find that there was no acceptable explanation for any part of the Applicant’s delay in filing the Form F2. Accordingly, this factor weighs in the Respondent’s favour.

(b)  Whether the person first became aware of the dismissal after it had taken effect

[22] This is not a relevant factor in this matter.

(c) Action taken by the person to dispute the dismissal

[23] The Applicant did not challenge her dismissal in any way. Nonetheless, the Respondent made no submission regarding this consideration being accorded any weight. Accordingly, I consider that this is a neutral factor.

(d) Prejudice to the employer

[24] The Respondent made the following submission regarding this consideration:

“The Respondent as an operator of a small business will suffer prejudice if the Application is allowed to proceed notwithstanding the delay in that it may incur legal costs in relation to the claim and will have to allocate human resources to deal with it. The Respondent has suffered no prejudice purely in respect of the delay in filing the Application.”

[25] The Applicant did not address this issue. I accept the balanced submission of the Respondent, and find that this factor weighs slightly in the Respondent’s favour.

(e) Merits of application

[26] This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.

[27] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[28] There are a number of facts in this matter, however, that are not contested. In particular, that the Applicant was unwilling to work during the COVID 19 pandemic. The Applicant agreed she said she would not return to work until COVID 19 was over, and confirmed that with the state of the pandemic in Sydney as at the hearing date of 13 July 2020, she would still not have returned to work had her employment not been terminated.

[29] I consider that the Applicant will have difficulty in establishing that her dismissal was harsh, unjust or unreasonable. In these circumstances, the question of the merits of the application weighs slightly in the Respondent’s favour.

(f) Fairness between the person and other persons in a similar position

[30] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[31] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight was acceptable reason for delay, with further slight apportionment of weight regarding prejudice to the employer and merits of the application. All factors weighed in the Respondent’s favour.

[32] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

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