Ms Elizabeth Morrison v Yooralla
[2010] FWA 5850
•12 AUGUST 2010
[2010] FWA 5850 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Elizabeth Morrison
v
Yooralla
(U2010/7942)
COMMISSIONER GOOLEY | MELBOURNE, 12 AUGUST 2010 |
Application for unfair dismissal remedy.
[1] On 13 April 2010 Ms Elizabeth Morrison lodged an application pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that the termination of her employment was harsh, unjust or unreasonable. Ms Morrison was employed by Yooralla and her employment was terminated on 26 March 2010. Hence her application was lodged more than 14 days after her dismissal.
[2] Yooralla filed a response to the application and advised that it raised a jurisdictional objection to the application as it was lodged with Fair Work Australia outside of the prescribed time limit.
[3] The matter was not settled at conciliation and the jurisdictional hearing was conducted on 18 June 2010.
[4] Mr Harrington of Counsel appeared for Yooralla and Ms Aufgang of Counsel appeared for Ms Morrison. Permission was granted to counsel to appear.
[5] Ms Morrison gave evidence on her own behalf and Mr Ieuan Carter gave evidence for Yooralla.
[6] Section 394 of the FW Act provides as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
(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.”
[7] I will consider each element of section 394(3) in turn.
394 (3) (a) the reason for the delay
[8] It is not in issue that the application was made more than 14 days after the termination of employment though Ms Aufgang suggested that as 14 days means two weeks which is ten working days and as two public holidays fell during that time, the application was lodged within ten working days of the dismissal. 1
[9] Ms Aufgang submitted that the reason for the delay was that after being notified of the termination of her employment, Ms Morrison spoke to Mr Bell, an organiser from the Health Services Union (HSU), who was representing her in her dispute with Yooralla and that despite attempting to contact Mr Bell on a number of occasions, Mr Bell did not call her back. She submitted that Ms Morrison did not know about the 14 day limit and that she thought that the union was acting on her behalf and it was only after she did not get a response from the union, that she sought legal advice and was advised to file the application immediately, which she did.
[10] In her witness statement 2 Ms Morrison stated that meetings were conducted by Yooralla on 18 and 19 March 2010 about the allegations that led to the termination of her employment, and that she was represented at those meetings by Mr Bell. When she was notified of her termination on 26 March 2010 she contacted Mr Bell and she says she told Mr Bell that she wanted to take the matter further. In her witness statement Ms Morrison said that Mr Bell was “flabbergasted by her termination”, and he told her that he would speak to her employer and try to work it out. Her evidence was that she repeatedly rang Mr Bell with no response. She said that she thought the union was acting for her and that they did not tell her about the 14 day rule. She further gave evidence that after failing to get a response from Mr Bell she rang several lawyers and was given different responses and on 13 April 2010 she was advised by Mr McGregor, a solicitor with Victorian Law Co Pty Ltd, to file an application immediately which she did.
[11] In response to the claim that Mr Bell said that the union would be acting for her, the following exchange is relevant:
Mr Harrington: “When you spoke to Mr Bell about your termination, what you wanted to achieve and you say he suggested perhaps a resignation scenario, do you remember him saying at the time, ultimately he said the union is not going to be running this on your behalf?”
Ms Morrison: “They said that yes, they wiped their hands of it but he said he will try and get to change the plea, they're going to talk to Yooralla about it.”
Mr Harrington: “They were saying to you, you have got no case?”
Ms Morrison: “Yes, you have got no case because of the verbal abuse, yes.”
Mr Harrington: “The union communicated to you that they wouldn’t run it for you?”
Ms Morrison: “Well, he didn't say that, they wouldn't run it for me, he just said they were going to talk to Yooralla and I was waiting. I don't know what was going on, there wasn't an end to it.” 3
[12] Ms Morrison’s evidence was that she only spoke to Mr Bell once after the termination of her employment on 26 March 2010 and, on her own evidence on that day, Mr Bell told her that she had no case and that they wouldn’t run her case. There was some uncertainty about when Ms Morrison spoke to Mr Bell. In her witness statement Ms Morrison said that she spoke to Mr Bell “after the termination”. This occurred prior to her ringing her manager on 30 March 2010. 4 Therefore her telephone conversation with Mr Bell occurred between 26 March and 30 March 2010.
[13] Mr Carter’s evidence was that he spoke to Mr Bell on 31 March 2010 and Mr Bell asked him if the termination could be turned into a resignation. Mr Carter, after conferring with the managers, told Mr Bell that this was rejected. Mr Carter also gave evidence that on 7 June 2010 after reading Ms Morrison’s statement filed in this proceeding, he rang Mr Bell who told him that “we told her straight away that we would not be running it.” 5
[14] Mr Carter was not cross examined on this evidence but Ms Aufgang said I should not have regard to this evidence because it is hearsay and Mr Bell was not called to give evidence.
[15] In this matter both parties gave hearsay evidence about Mr Bell’s involvement and neither party called Mr Bell to give evidence.
[16] I do not accept Ms Morrison’s evidence that Mr Bell was flabbergasted at her termination. This evidence is not consistent with the admissions made by Ms Morrison in cross examination. Mr Carter’s evidence about his telephone call with Mr Bell on 7 June 2010 would normally be given little weight, however as his evidence about Mr Bell’s statement is consistent with Ms Morrison’s admissions, I accept Mr Carter’s evidence. To put it plainly the evidence establishes that Ms Morrison knew, after her first phone call to Mr Bell, that he was not going to do anything other than find out if Yooralla would change the termination to a resignation.
[17] On 30 March 2010 Ms Morrison told her manager that she “wanted to get a lawyer.” 6
[18] On her evidence she continued to call the union but after getting no response she telephoned “several lawyers and was given different responses”. Ms Morrison did not say what these different responses were. It was not clear from Ms Morrison’s evidence when she made these calls. There is no evidence about what the lawyers told her. She contacted Mr McGregor on 13 April 2010 and he told her to file the application which she did.
[19] No submissions were made that any representative other than Mr Bell caused Ms Morrison to file her application late.
[20] It is not clear on what basis the claim for representative error is put. Ms Aufgang submitted that “the reason for the delay was that Ms Morrison had spoken to her union representative ... and she had been under the impression that the union representative would have the matter in hand. ....She rang him about three times and then she had no idea, as I guess most lay people wouldn’t know there is a 14 day limit, but she really thought the union was acting and when she realised she was being ignored she contacted my instructor and he told her to file the application immediately which she did.” 7
[21] It is clear from the evidence that Ms Morrison could not have been under the impression that the HSU was going to run an unfair dismissal case for her. This not a case where a union told a member that they were going to file an unfair dismissal application and failed to do so. Nor is it a case where the member instructed the union to file an unfair dismissal claim and the union failed to do so. Ms Morrison told her representative that she wanted to take the matter further, but there is no evidence that any options, other than trying to have the termination changed to a resignation, was discussed with Mr Bell. There is no evidence that Mr Bell ever told Ms Morrison that the union would file an unfair dismissal claim.
[22] It may be suggested that Ms Morrison was waiting to find out if Mr Bell was successful in convincing Yooralla to change her termination to a resignation before deciding whether to lodge an application. However Ms Morrison did not give any evidence to that effect nor did she give evidence that, had Yooralla agreed with Mr Bell’s proposal, she would have accepted this outcome and not lodged an unfair dismissal. In fact her evidence was that the proposal to change the termination to resignation was Mr Bell’s idea. 8 In any event when she spoke to Mr Carter on 30 March 2010 he made it clear that Yooralla would not agree to this proposal. So from that date she knew that the termination decision was going to stand and further action was required. At that date she had sufficient time to lodge her application.
394 (3) (b) whether the person first became aware of the dismissal after it had taken effect
[23] Ms Morrison was made aware of her dismissal on 26 March 2010 the date the dismissal took effect.
394 (3) (c) any action taken by the person to dispute the dismissal
[24] Ms Morrison discussed the termination with her union representative. Mr Bell advised Ms Morrison that he would see if he could get the employer to change the termination to a resignation. Ms Morrison’s evidence is that she rang Mr Carter on 30 March 2010 about her entitlements and about whether Mr Bell had spoken to him about changing the termination to a resignation. 9 Mr Carter gave evidence that Ms Morrison raised with him the issue of changing the termination to a resignation.10 Mr Carter’s evidence is that Ms Morrison did not question “the justification for the termination of her employment or advise that she planned to contest the termination.”11
[25] Ms Morrison gave evidence that she repeatedly rang the union but got no response. She gave evidence that she rang several lawyers and was given different responses.
394 (3) (d) prejudice to the employer (including prejudice caused by the delay)
[26] Yooralla does not assert any prejudice if the application is granted.
394 (3) (e) the merits of the application
[27] Yooralla is a not for profit provider of services for people with intellectual and physical disabilities. Yooralla provides residential services for clients with varying levels and types of disabilities. Ms Morrison was employed at the Powley Parade service which had six clients and three staff in attendance at any one time except during sleepovers when only one member of staff is available. Sleepovers are conducted where clients, due to the nature of their disabilities, may require assistance during the night. 12
[28] Ms Morrison was employed as a disability support worker 13 conducting sleepovers for incapacitated clients since June 2008.14
[29] Ms Morrison’s employment was terminated for serious misconduct on 26 March 2010 after an investigation was conducted into three incidents.
[30] In the letter of termination dated 26 March 2010 a detailed description of the complaints received by Yooralla about Ms Morrison’s conduct is set out, as is Yooralla’s summary of Ms Morrison’s response to the allegations.
[31] The conclusion of the investigation found that on balance the following occurred:
- Ms Morrison stated on 11 March 2010 to a client that he should only use his buzzer if he was dying;
- During the same shift Ms Morrison failed to provide the client with the buzzer at the commencement of a sleepover shift; and
- On 9 March 2010 Ms Morrison was verbally abusive toward a client.
[32] Ms Morrison admitted saying “don’t buzz me unless you are dying” but she said that “I didn’t mean it and didn’t say it in an aggressive tone and it was merely a figure of speech.” 15 Her evidence was that she made the statement to all of the residents in the kitchen.16 Ms Morrison’s explanation for the statement was that clients buzz her on sleepovers for no reason17 and that she was really saying don’t buzz “unless it’s really, really necessary.”18 Ms Morrison subsequently apologised for saying it and would not say it again.
[33] In response to Mr Harrington’s question that some of the clients may have “misinterpreted the words” Ms Morrison said “yes, but we - the way we talk to people or to each other like that, we joke around, you know, we don’t take things seriously so they wouldn’t have - I don’t think they’d take it seriously, you know, the way I said it as well is in a joking way, you know, like hah hah.” 19
[34] In response to the allegation that she refused to provide a client with a buzzer Ms Morrison denied that she did so. 20
[35] In the letter of termination it was alleged that Ms Morrison had been verbally abusive towards a client. The particulars are set out in the letter of termination dated 26 March 2010 which was attached to Ms Morrison’s application.
[36] In response to that allegation, Ms Morrison admitted that she was having difficulty with the client and she felt she couldn’t cope and left the room saying, in the hearing of another staff member and a client, “someone else go in there before I do something to him.” 21 Ms Morrison admitted that this conduct was unprofessional but again said it was “a figure of speech and not meant literally”22 and that it had been said out of frustration. 23Ms Morrison denied yelling at the client and alleged that the client would make false accusations.
[37] There was a further incident referred to in the letter of termination in which it was alleged that Ms Morrison’s conduct in leaving a client hoisted over his bed instead of placing him in the commode was undignified. Ms Morrison said that this occurred but said it was because “we got distracted, we went and did other clients.” 24 Ms Morrison denied the substance of the allegations.
[38] Mr Harrington submitted that there was no merit in the substantive application because the primary facts relied upon by Yooralla to justify the termination of Ms Morrison’s employment were admitted by Ms Morrison. Mr Harrington said on the basis of the evidence before the tribunal, I could conclude that there was a valid reason for termination. He further submitted that the applicant was afforded procedural fairness and that she had her union representative present at each meeting.
[39] While Ms Morrison made a number of admissions in this matter I do not consider that I could at this stage determine that her claim was without merit. It may be that witnesses called by Ms Morrison might, as Ms Aufgang submitted, put the statements made into a context. 25 Further, Yooralla did not call the person who conducted the investigation into the complaints and Mr Carter was not able to give direct evidence of the matters complained of or the investigation.
[40] I am unable to conclude that Ms Morrison’s claim had no merit.
394 (3) (f) fairness as between the person and other persons in a similar position
[41] This is not a relevant factor in these proceedings and no submissions were made with respect to this criterion.
Conclusion
[42] In this matter Ms Morrison relies upon the fact that her application was lodged only a few days outside of the 14 day limit and what she says was representative error.
[43] To grant an extension of time I must be satisfied that there are exceptional circumstances taking into account the factors set out above.
[44] In Parker v Department of Human Services 26, Whelan C addressed the issue of what meaning should be given to exceptional circumstances as follows:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, 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.”
[Mann v Minister for Immigration and Citizenship [2009] FACFC 150]
[45] This approach has been adopted by other members of the Tribunal 27and I adopt this approach in this matter.
[46] Ms Aufgang’s submission that days in section 394(2) means working days must be rejected. The FW Act does not define days in Part 3-2. However it is clear that when the FW Act intends days to be working days it uses the term working days. 28 As such public holidays and weekends are included in the 14 days.
[47] I further do not find that because two public holidays fell in the 14 day period that Ms Morrison was prevented from lodging her application within time. Ms Morrison did not give any evidence that she was unable to obtain advice about her claim because of the public holidays falling during the 14 days. She did not for example give evidence that the lawyers she contacted to give her advice were unavailable during the 14 days.
[48] Ms Aufgang submitted that Ms Morrison’s substantive reason for not lodging the application on time was representative error. Ms Aufgang also submitted that Ms Morrison did not know about the time limit.
[49] I do not accept Ms Morrison’s evidence that, in response to her statement that she wanted to take the matter further, the union gave her any indication that they were representing her broadly. On her own admission Mr Bell told her she had no case but that they would try to get the dismissal changed to a resignation. On her own evidence by 30 March 2010 she knew that this would not occur and she told Yooralla that she wanted to get a lawyer which she did not do until 13 April 2010. This delay cannot be attributed to representative error. On the basis of Ms Morrison’s own evidence I find that there was no representative error.
[50] Further lack of knowledge of the 14 day time limit cannot on its own be an exceptional circumstance.
[51] Therefore taking into account all the factors set out above I do not consider that there are exceptional circumstances warranting the grant of an extension of time and the application is dismissed.
COMMISSIONER
Appearances:
S Aufgang of Counsel for Elizabeth Morrison.
N Harrington of Counsel for Yooralla.
Hearing details:
2010.
Melbourne.
June 18.
1 Transcript PN 9
2 Exhibit EM 1
3 Transcript PN 209-212
4 Exhibit EM 1 at [17]
5 Exhibit Y1
6 Exhibit EM 1 at [17]
7 Transcript PN 11
8 Transcript PN 204
9 Transcript PN 203 and 205.
10 Exhibit Y1 at [20]
11 Exhibit Y1 at [20]
12 Exhibit Y1 at [7]
13 Transcript PN 25
14 Exhibit EM 1 at [1]
15 Exhibit EM 1 at [8]
16 Transcript PN 138
17 Transcript PN 143
18 Transcript PN 149
19 Transcript PN 151
20 Transcript PN 138 and 151 Exhibit EM 1at [7]
21 Exhibit EM 1 at [15]
22 Ibid at [15]
23 Ibid at 154
24 Transcript PN 255
25 Transcript PN 434
26 [2009] FWA 1638
27 [2010] FWA 1394, [2010] FWA 4829
28 See s414(2)(a).
Printed by authority of the Commonwealth Government Printer
<Price code C, PR500090>
0
4
0