Ms Christina Cramphorn v Communicare Inc

[2013] FWC 773

[2013] FWC 773

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Christina Cramphorn
v
Communicare Inc
(C2012/6408)

COMMISSIONER CLOGHAN PERTH, 5 FEBRUARY 2013

Application to deal with contraventions involving dismissal.

[1] On 30 November 2012, Ms Christina Cramphorn (“Applicant”) made application to Fair Work Australia, now Fair Work Commission (“Commission”) to deal with a general protections dispute in which she alleged that she had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (“FW Act).

[2] The application was made pursuant to s.365 of the FW Act.

[3] Ms Cramphorn alleged that she was dismissed by Communicare Inc (“Employer”).

[4] Ms Cramphorn states in her application that she was dismissed by the Employer on 21 September 2012.

[5] The Employer submits, as a preliminary jurisdictional issue, that the Applicant has not filed her application within the standard statutory time of 60 days as required in paragraph 366(1)(a) of the FW Act. As the Applicant’s dismissal took effect prior to the commencement of the Fair Work Amendment Act 2012, the amendment to s.366(1)(a) which took effect on 1 January 2013 does not affect this application.

[6] Section 366 of the Fair Work Act 2009 (“the FW Act”) (as was in force on the date the dismissal took effect) provided:

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.

[7] At a conference on 8 January 2013, the Employer in response to the application, asserted that:

● the application was not made 60 days after the dismissal took effect;

● the Applicant was dismissed in accordance with the Employer’s disciplinary procedures and within her probationary period of employment; and

● in any event, the Applicant was not dismissed in contravention of Part 3-1 of the FW Act.

[8] The Applicant commenced employment on 3 July 2012 as a Therapeutic Programs Officer. The Applicant was dismissed from her employment on 21 September 2012.

[9] The application was made on 30 November 2012 which is 70 days after the dismissal took effect.

APPLICANT’S SUBMISSIONS ON WHY THERE ARE EXCEPTIONAL CIRCUMSTANCES TO ALLOW THE APPLICATION TO BE MADE 70 DAYS AFTER DISMISSAL TOOK EFFECT

[10] The Applicant sets out broadly three areas in relation why there are exceptional circumstances to allow the application to be filed on 30 November 2012. Firstly, circumstances which occurred in the home environment during her period of employment. Secondly, a home invasion and burglary which occurred after she had been dismissed on 24 October 2012. Thirdly, issues of an administrative nature involving the Commission beginning on 21 November 2012.

Circumstances which occurred in the home environment during her period of employment

[11] This ground can be dealt with by simply stating that such matters, while unfortunate, occurred while the Applicant was employed. Further, the circumstances do not go to the reasons why Ms Cramphorn could not, and did not, make application to the Commission within 60 days of being dismissed.

[12] Having to transport a son to hospital after his motor cycle accident, which occurred during her employment, while time consuming, is not a reason which results in the exclusion of other matters which have to be attended to. This is particularly so if a matter has a statutory deadline such as an application to the Commission.

Home invasion and burglary on 24 October 2012

[13] Between the Applicant’s dismissal on 21 September 2012 and 21 November 2012, Ms Cramphorn submits:

“On 24 October I experienced another home invasion burglary and a month after losing my job this took a terrible toll on my self (sic) and me (sic) esteem safety and confidence and had a deep impact on my children.” (para 9)

[14] While it cannot be disputed that a “home invasion burglary” is an invasion of privacy and creates a sense of insecurity, for the purposes of my consideration, it occurred over a month after Ms Cramphorn had been dismissed. Further, while such an act leads to, of necessity, spending time on the consequences, it cannot account for all the remaining time between 24 October and 21 November 2012.

Administrative issues concerning the application beginning on 21 November 2012

[15] The Applicant states in her submission:

“I initially tried to submit a general protections complaint on 21 November 2012 which was within the 60 day limit...however, it was not able to be filed and could not be filed. I was completely unaware of this and had flown over to Melbourne...Upon returning from my trip I realised that the application had not been accepted for filing and I then filed it by hand on 30 November 2012.”

[16] First, from my own enquiries, the Applicant first attempted to file the application at 11:49 pm on 21 November 2012. The application was in such a form that it could not be successfully opened. On the following day (22 November 2012), the Applicant was advised by the Commission Registry at 12:10 pm that:

“FWA is unable to open the document in the format which it is in...Until we are in receipt of the application, the application is unable to progress.”

[17] The Applicant also provides, in her submission, correspondence from the Fair Work Ombudsman in response to an email enquiry dated 20 November 2012. Finally, an automatic email receipt from the Fair Work Australia Help Line dated 20 November 2012. While the documentation indicates that Ms Cramphorn was doing something about her dismissal, on or around 20 November 2012, the plain fact is that she unsuccessfully attempted to make her application on 21 November 2012 and eventually and successfully made the application on 30 November 2012.

[18] The Applicant claims that the unsuccessful application on 21 November 2012 was “within the 60 day limit”. This is not correct. For the Applicant to have met the statutory timeline of 60 days, she would have had to successfully made the application by no later than 20 November 2012. Consequently, in both cases (21 November or 30 November 2012), I am required to consider whether there are exceptional circumstances to allow the application to be filed on 21 November or 30 November 2012.

[19] The Employer has provided a submission which focuses, in part, on some of the circumstances which I have described in paragraphs [15] to [18].

[20] I now turn to the criteria set out in subsection 366(2) of the FW Act which I must take into account in determining whether there are exceptional circumstances.

The reason for the delay

[21] With the exception of a home invasion burglary on 24 October 2012, the Applicant provides no other reason why she could not have made the application within 60 days after the dismissal took effect.

[22] While the Applicant does not elaborate on the amount of time the home invasion impeded her in filing the application, if I was to speculate that it was 5-10 days, this does not address why Ms Cramphorn was unable to make application within the remaining 50-55 days. Further, this submission is burdened with the fact that the home invasion burglary took place on the 33rd day after the dismissal took effect. In such circumstances, the Applicant invites the Commission to ask the question; why couldn’t Ms Cramphorn make application to the Commission between 21 September and 23 October 2012? The Applicant’s submission does not address this void.

[23] For the above reasons, I am not satisfied that the home invasion on 24 October 2012 is a compelling and substantive reason of itself to demonstrate that there were exceptional reasons as to why Ms Cramphorn could not have made application within 60 days of the dismissal taking effect.

Action taken by the person to dispute the dismissal

[24] The Applicant does not refer to this criterion in her submission. Consequently, I consider it reasonable to infer that, with the exception of making the unsuccessful application to the Commission on 21 November 2012, the applicant has not disputed her dismissal.

Prejudice to the Employer due to the delay in filing the application

[25] In view of the relatively small amount of time beyond the statutory timeline of 60 days, and the fact that this issue was not addressed by the Employer in its submission, I consider that there is no prejudice to the Employer.

The merits of the application

[26] Without the benefit of submissions and tested evidence, I am reluctant to speculate on the merits of the application. I intend to adopt a neutral view with respect to this criterion.

Fairness between the Applicant and other persons in a like position

[27] The circumstances of the dismissal do not lead to a direct comparison with another person in a like position. However, the fact is that the overwhelming majority of applicants who made similar applications to the Commission, do so within 60 days. It is reasonable to presume that those applicants have done so, notwithstanding the many obstacles they have faced in their daily lives. To allow the Applicant’s application, in all the circumstances described above, would provide Ms Cramphorn with an advantageous position compared to others. However, this criterion is not determinative of my consideration; it is a matter I must take into account as part of the accumulation of circumstances which I have considered.

CONCLUSION

[28] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“...a circumstance which is such as to form an exception, which is out of the ordinary, or unusual, or special, or uncommon. 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[29] It is not necessary that I determine whether Ms Cramphorn successfully made her application on 21 November 2013. An application made on 21 or 30 November 2012 would have been out of time. In my view, it is plain that the construction of s.366 of the FW Act requires the Commission, in the first instance, to determine whether there are exceptional circumstances, within the 60 days after the dismissal took effect, that prevented the Applicant from making the application. If there are exceptional circumstances within the first 60 days after the dismissal took effect, it is only then necessary to consider whether those exceptional circumstances were continuous beyond the 60 days, and when, if at all, they ceased to enable the application to be made. As a consequence, for the reasons set out above, it is not necessary to determine whether the application was successfully made on 21 November 2012.

[30] In conclusion, for the reasons which I have set out generally and in particular, I am not satisfied that exceptional circumstances existed which led to the delay in filing Ms Cramphorn’s application. Accordingly, the application must be dismissed. An order to this effect will be issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 24 January 2013.

Respondent: 1 February 2013.

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