Mrs Julianah Adewumi v Helping Hand Aged Care Inc
[2011] FWA 8054
•25 NOVEMBER 2011
[2011] FWA 8054 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Julianah Adewumi
v
Helping Hand Aged Care Inc
(U2011/10471)
DEPUTY PRESIDENT BARTEL | ADELAIDE, 25 NOVEMBER 2011 |
Jurisdiction - Extension of time for lodging application
[1] Julianah Adawumi (the applicant) was a registered nurse employed by Helping Hand Aged Care Inc. (the respondent) until 20 July 2011 when she was dismissed for alleged abuse of a client. She filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) on 5 August 2011, two days outside the prescribed time limit of 14 days within which to file such an application, as prescribed in s.394(2)(a) of the Act.
[2] Sections 394(2) and (3) of the Act provide as follows:
“(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[3] The applicant, represented by Mr Elekwachi of counsel, 1 argued that there were exceptional circumstances which warranted the Tribunal extending the prescribed time limit.
Section 394(3)(a): The reason for the delay
[4] Mr Elekwachi referred to medical evidence that showed that the applicant was suffering depression, stress, anxiety and insomnia as a consequence of her dismissal, a related police charge of aggravated assault and the suspension of her registration by the Nursing and Midwifery Board of Australia. He submitted that the impact of this situation on her ability to financially support her husband in the United Kingdom and to obtain new employment compounded the applicant’s distress. As a result of her condition, it was contended that the applicant delayed taking steps to ascertain her legal position in relation to the assault charge until the 14 days had almost expired. Mr Elekwachi submitted that it was not until the 14th day after dismissal that the applicant received advice about the unfair dismissal jurisdiction and the time limit that applied. Attempts to find a lawyer to represent her in an unfair dismissal claim and problems with her home computer were said to have caused a further delay of two days.
[5] A letter of referral to a psychologist from the applicant’s treating doctor, Dr Pllana dated 5 August 2011, confirms the applicant’s medical condition. Attached to the doctor’s letter is a “Better Access Mental Health Care Plan” which includes a Patient Assessment. That assessment identifies that the applicant’s concentration was “good” and that her thinking, affect, perception, cognition, attention/concentration and insight were all “normal”. 2
[6] On 5 October 2011 Dr Pllana wrote a letter “To whom it may concern” in which he indicated that he saw the applicant on 19 July and 5 August 2011 and she presented feeling depressed, anxious and stressed. The letter stated that, considering the applicant’s symptoms and mental health assessment, “...I think it would have affected her concentration, motivation and decision making”. 3 There is no evidence of any assessment other than the Patient Assessment referred to above, which appears to contradict the doctor’s view expressed in the letter of 5 October. Dr Pllana was not called to give evidence and the respondent did not address this aspect of the applicant’s case.
[7] I consider that the Patient Assessment is the more reliable evidence given its purpose and the fact that it was completed closer to the dismissal date. The evidence before the Tribunal establishes that the applicant was suffering from depression, anxiety, stress and insomnia on 5 August 2011, and, I infer, in the period leading up to this date. This is not of itself an explanation for the delay in filing the application, since the applicant stated that she first consulted a solicitor on 1 August 2011, which was within the prescribed 14 day time limit. Nonetheless it may account for the fact that the applicant did not seek advice prior to this date.
[8] A statutory declaration filed by the applicant with the unfair dismissal application included the following paragraphs:
“8. It was not until 1 August 2011 that I was able to seek legal advice and guidance about the circumstances in which I found myself.
9. I initially only sought advice to defend the Assault charge and attended my solicitors’ office on the 1st and 2nd August and was made aware that I had the basis to make an application to Fair Work Australia for Unfair Dismissal.
10. I was also made aware that a time limit is imposed which requires applications need (sic) to be submitted within 14 days of the date of dismissal.
11. In view of my confused state following the circumstances of my dismissal I delayed seeking advice and I am now out of time.”
[9] The applicant also gave oral evidence during which she modified and expanded on this information.
[10] Contrary to her statutory declaration, she stated that the advice she received from her solicitor on 1 and 2 August 2011 related only to the criminal charge against her. She stated that it was only on a further attendance with her solicitor on 3 August that the issue of an unfair dismissal application and the time limit was discussed. The applicant’s evidence was that the solicitor advised her that FNE Lawyers would not represent her in relation to an unfair dismissal matter because they were acting pro bono in her criminal matter and that she should seek alternative representation. 4
[11] The applicant stated that later that day (3/8) she obtained the name of a Melbourne solicitor from a friend and sent a text message requesting that the solicitor contact her. She said that on the morning of 4 August the Melbourne solicitor’s assistant contacted the applicant and advised her to download the unfair dismissal application from the FWA website and lodge the claim herself.
[12] As a result of problems with her computer the applicant said she was unable to download the form. No further action was taken by her on that day, but she attended FNE Lawyers’ office again on 5 August at which time an application was completed and filed.
[13] Ms Stewart, the Human Resources Consultant for the respondent, submitted that the Tribunal should rely on the statutory declaration filed by the applicant on 5 August and not the later evidence presented at the hearing. She stated that the Statutory Declaration shows that the applicant was made aware of the time limit for filing the application 24 hours in advance of the deadline, and that she had the opportunity to file the application within the prescribed period. It was Ms Stewart’s submission that there are no exceptional circumstances which justify the granting of an extension of time.
[14] I find that the applicant’s Statutory Declaration is the more reliable evidence as to the date she was advised in relation to an unfair dismissal application, since it was completed within close proximity to the relevant events. The applicant’s oral evidence that she was only advised about an unfair dismissal application on her third attendance on consecutive days with the same solicitor and it follows, that she was sent away to get alternative representation on the last day within which to file an unfair dismissal claim, does not ring true. However, the applicant’s evidence that she took steps to seek alternative representation and attempted to download the unfair dismissal application from her computer was not challenged, and is accepted.
Section 394(3)(b): When the applicant became aware of the dismissal
[15] The applicant was aware of her dismissal on 20 July 2011
Section 394(3)(c): Any action taken to dispute the dismissal
[16] The applicant has taken no action to dispute the dismissal other than the filing of the application
Section 394(3)(d): Prejudice to the employer
[17] There is no evidence of any prejudice to the employer as a result of the delay in filing the application.
Section 394(3)(e): Merits of the application
[18] The applicant disputes the allegation that she physically assaulted a patient. I understand that the respondent proceeded with the investigation leading to the applicant’s dismissal on the basis of a complaint by a person who allegedly witnessed the abuse. The Tribunal’s role is not to embark on a fact finding exercise for the purpose of considering the criteria in s.394(3)(e) of the Act and in circumstances where key facts are in dispute, the Tribunal cannot conclude whether the case has a reasonable prospect of success or not.
Section 394(3)(f): Fairness between the applicant and other persons in a similar position
[19] This criterion is of no relevance to the present matter.
Exceptional Circumstances
[20] Taking into account the relevant factors as discussed above I am required to determine whether exceptional circumstances exist to extend the time limit for filing the application. In approaching this matter I note that the applicant bears the onus of satisfying the Tribunal that it should exercise its discretion to extend the time limit.
[21] I respectfully adopt the reasoning of His Honour Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd, 5 where the meaning of “exceptional circumstances”, as set out in Parker v Department of Human Services was applied. That is, I adopt the approach that to be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.6
[22] As noted earlier I have concluded that it was on 2 August that the matter of an unfair dismissal claim and relevant filing period was discussed with the applicant by the solicitor she consulted. On the applicant’s evidence I consider that she was let down by the solicitor when she was sent away to find alternative representation in circumstances where there was no barrier to the solicitor filing the application on her behalf. 7
[23] The other criteria in s.394(3)(b) to (f) inclusive are of limited weight in this matter, save that the absence of prejudice to the employer, no doubt due in part to the limited extent of the delay, is a relevant matter.
[24] The decision of the applicant’s solicitor not to file an application on her behalf, the steps taken by the applicant to lodge an application and the limited extent of the delay lead me to conclude that exceptional circumstances exist which support extending the prescribed time limit.
[25] Section 577 of the Act mandates that the Tribunal is to perform its functions and exercise its powers in a manner that is, among other things, fair and just. This general requirement must be exercised within the context of the specific statutory requirement of the power being exercised by the Tribunal. I consider that, given the serious nature of the allegations against the applicant, it would be unfair and unjust in the particular circumstances of this matter to deny her the opportunity to challenge the dismissal.
[26] An order extending the relevant time period is issued with this decision.
DEPUTY PRESIDENT
1 The Tribunal granted Mr Elekwachi leave to appear at the commencement of the proceedings on 15 November 2011. The respondent did not oppose leave being granted. PN [4]-[8]
2 Ex A1
3 Ex A2
4 PN [84]-[85]
5 [2010] FWA 1394 at PN [27]-[28]
6 [2009] FWA 1638 at PN [31]
7 The FNE Lawyers filed the application on 5 August.
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