Ms Eva (Oyola) Marinas v RCR Energy

[2013] FWC 8535

[2013] FWC 8535

FAIR WORK COMMISSION

DECISION

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

Ms Eva (Oyola) Marinas
v
RCR Energy
(C2013/5750)

COMMISSIONER CARGILL SYDNEY, 31 OCTOBER 2013

Application to deal with contraventions involving dismissal - Extension of Time - Jurisdiction.

[1] On 26 or 27 August 2013, Ms Eva Marinas (the applicant) lodged an application pursuant to section 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (FWC) to deal with a general protections dispute concerning her dismissal. Her former employer, and the respondent to the application, is RCR Energy Pty Ltd (the respondent).

[2] A conference to deal with the dispute was held by telephone on 18 September 2013 before Senior Deputy President Hamberger. The matter was referred to me to deal with the issue of whether to allow additional time for the lodgement of the claim. The applicant was dismissed on 2 August 2013 and consequently the application was lodged three or four days out of time.

[3] A directions hearing was conducted by telephone on 27 September 2013. The representatives of the parties agreed that the issue could be dealt with on the basis of written material. A timetable was put in place for the filing and exchange of such material.

APPLICANT’S CASE

[4] The material in the applicant’s case consists of the following: a statement by the applicant; a statement by her legal representative; and, written submissions.

[5] In her statement the applicant says that she contacted the firm of her legal representative on 6 August to discuss her case. She spoke to her representative on 8 August. The representative advised that she would consider the matter and get back to the applicant. A discussion was held on 14 August about bringing a claim such as the present one. The applicant expressed her concern about the expiration of the time limit. On 15 August the applicant provided instructions to her legal representative to proceed with her claim. She was provided with a costs agreement which she signed and returned.

[6] The applicant became ill during the week in which her claim was due and this delayed her providing her representative with a written summary of relevant events. Within the final two days of the lodgement deadline the applicant was hospitalised in a psychiatric ward at St Vincent’s Hospital following an anxiety attack suffered while writing the summary of events.

[7] A medical and attendance certificate from the hospital is provided. It is signed by a Staff Specialist and certifies that the applicant was an inpatient from 21 to 22 August and would be fit to return to her usual activities on 23 August. The applicant says that she was unfit on 23 August.

[8] The applicant says that, prior to her hospitalisation, an ambulance attended her home on both 19 and 20 August due to her symptoms. She also says that, because of her medical issues, she was unable to properly complete the summary of events. She ultimately provided this summary to her legal representative on 26 August.

[9] In her statement, the applicant’s legal representative, Ms LaGreca, says that on 6 August she received an email enquiry from the applicant and on 8 August they had a telephone discussion in which she informed the applicant that an adverse action claim would be the most appropriate in the circumstances. Further telephone discussions took place on 14 and 15 August. During the first of these, the applicant pointed to the impending expiration of the time limit for lodgement. During the second, the applicant indicated that she wished to proceed with the claim.

[10] The applicant was requested to provide a detailed summary of events. During the week leading up to the lodgement deadline Ms LaGreca’s office followed up on this summary. The applicant informed them that she had been ill. On 21 August the office again contacted the applicant about the document and was informed that it would be provided on that day or the next.

[11] On 23 August Ms LaGreca herself followed up on the summary. The applicant informed Ms LaGreca of her hospitalisation and that she was still unwell. The summary was received by Ms LaGreca on 26 August. The claim was lodged on that day. Due to an administrative error it was not signed or dated. That was rectified and returned to the FWC the next day.

[12] Reference is made in the submissions to the decision of Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [25] and the comment therein that an exceptional circumstance is one which is unusual or uncommon. Reference is also made to Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300 and the requirement for an acceptable reason for the delay.

[13] It is submitted that illness is one such acceptable reason: Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group [2010] FWA 3863. It is noted that the period of delay in this case was of much shorter duration than in that particular matter.

[14] It is also submitted that part of the reason for the delay was due to the applicant’s representative. It is noted that the applicant gave clear instructions to her representative to proceed with the claim and was blameless in relation to the representative’s delay. In this regard reference is made to four decisions: Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-420; Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 at [35]; and Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347.

[15] It is noted that prejudice to the employer will go against the granting of an extension of time. It is submitted that the three day delay in this case would not give rise to any such prejudice. Reference is made to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556 and Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society [2010] FWA 4080.

RESPONDENT’S CASE

[16] The respondent has made written submissions. In those submissions it notes the date of lodgement as 28 August. I am not aware of the basis of this, perhaps it was the date on which the respondent received a copy of the application.

[17] The respondent notes that the applicant bears the onus of establishing that an extension of time should be granted. It also notes that such an extension of time can be given only if FWC is satisfied that there are exceptional circumstances and refers to the provisions of section 366 (2) of the Act. It submits that the applicant has failed to satisfy the elements of the subsection and notes that each element must be considered in deciding the issue.

[18] The respondent refers to two decisions concerning the meaning of “exceptional circumstances”: Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) and Micallef v Garfield Child Care Centre Pty Ltd t/as Garfield Child Centre [2013] FWC 5447 at [43] (Micallef). It draws particular attention to a comment at paragraph 57 of the latter decision as to the “high threshold” which needs to be met to establish exceptional circumstances.

[19] The respondent submits that the applicant’s medical certificate indicates that she would be fit to return to her usual activities on 23 August. It notes that there is no suggestion in it that the applicant was incapacitated for other than the period of her hospitalisation. The respondent further notes that the applicant has failed to provide any expert evidence that her symptoms arose out of her dismissal or that they prevented her being able to give instructions to her representatives. It notes that the applicant did have contact with her representatives on 21 and 23 August.

[20] The respondent refers to the decision of Zaghloul v Woodside Energy Limited [2013] FWC 4051 (Zaghloul) and comments therein that hospitalisation does not necessarily bring life to a halt for a period of time especially in light of modern technology. It also refers to Holder v Kincare [2012] FWA 5082 at [26] and Zaghloul in relation to the question of an absence of expert evidence.

[21] The respondent submits that the applicant’s anxiety is not exceptional. She must establish both that she had an uncommon reaction to her dismissal and that she was incapable of providing instructions. The respondent submits that the applicant has not established that her anxiety rendered her incapable of giving instructions during the time in hospital or on any of the other 19 days in the period for lodgement.

[22] The respondent notes that the applicant took until 15 August to provide instructions to her representative to proceed with her claim. Both were aware of the statutory time limitation. The respondent submits that, given the representative’s knowledge of the case and the fact that the applicant was capable of contacting her on 21 and 23 August, it is inconceivable that the applicant would not have been able to provide appropriate details for the claim to have been lodged in time.

[23] The respondent submits that the applicant’s reliance on representative error is misplaced. The error of the representative did not occur until after the expiry of the time for lodgement and hence is not relevant. The respondent submits that the failure of the representative to obtain sufficient instructions by telephone in order to complete the claim is not an error of that representative but a choice made by the applicant and/or the representative. The applicant’s failings are integral to the lodgement being late.

[24] The respondent submits that the applicant took no other action to contest her dismissal. There was no contact with the respondent after the termination.

[25] The respondent does not allege any particular prejudice other than cost and time in preparing its response. This should be a neutral factor in my determination.

[26] The respondent submits that the facts raised in the application do not support the proposition that there was adverse action. There is nothing to show that there is any causal link between the making of the complaint by the applicant and the termination. By way of contrast, the material in the application and the employer’s response, demonstrates that the respondent had concerns with the applicant’s performance such that it did not pass her initial probation. Those concerns continued and led to the dismissal.

[27] The respondent submits that it treated the applicant with more than the required degree of fairness. It could have terminated her employment earlier but gave her every opportunity to achieve the necessary standard.

[28] The respondent submits that a consideration of each of the factors in section 366(2) shows that the applicant has not achieved the high bar of establishing that there were exceptional circumstances which caused the late lodgement of her claim. It should be dismissed.

APPLICANT’S REPLY

[29] The applicant submits that the preparation of the summary of events was the operative cause of her condition. She also submits that the late lodgement was due to the condition occurring when it did rather than earlier during the lodgement period.

[30] The applicant submits that the decision in Micallef is distinguishable as that case did not involve an applicant with a mental health issue. Here the applicant could not continue with her preparation of the summary of events as that was the cause of her hospitalisation.

[31] The applicant submits that the representative’s general understanding of the events was not sufficient to enable an appropriate application to be completed. The applicant’s condition made it difficult for the representative to have meaningful discussions with her.

[32] The applicant notes that the respondent itself initiated the objection and consequently caused the cost and time to be expended on preparing its response. The applicant also notes that the respondent has not established any prejudice.

CONCLUSIONS

[33] As indicated earlier, the applicant’s dismissal took place on 2 August 2013. The unsigned and undated claim was lodged by email on 26 August. The dated claim which is signed by the applicant’s representative was lodged on 27 August. The Registry of the FWC has treated the application as having been made on 26 August. I incline to the view that that is correct and that, as a consequence, the application was made three days outside the 21 day time period provided for in section 366(1) of the Act. If however this is incorrect and the application lodged on 26 August was invalid, the claim was four days late. It should be noted that my decision would be the same regardless of whether the delay is three or four days.

[34] The question of whether to allow additional time for the making of an application of this type is governed by section 366(2) which is in the following terms:

“(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.”

[35] The Full Bench in Nulty reviewed the authorities on “exceptional circumstances” and provided a very useful summary at paragraphs 13 to 15 of its decision. I adopt and follow the approach of the Full Bench in this regard.

[36] The reasons for the delay in lodgement are said to be the applicant’s illness and representative error. The facts which are disclosed in the applicant’s material are that: she contacted her representative shortly after her dismissal; she provided instructions to that representative in good time; it was a requirement of her representative that the applicant provide a written summary of events leading up to the dismissal; the applicant promptly commenced to provide this summary; the applicant was overcome by illness as a result of her attempts to comply with her representative’s request; this led to an ambulance attending her on both 19 and 20 August and her hospitalisation on 21 and 22 August; the applicant says that she was still unwell on 23 August which was the last day for lodgement of her claim; 24 and 25 August were a Saturday and Sunday respectively; the applicant provided the summary of events to her representative on 26 August; the claim was lodged that same day; due to an error by the representative the claim was undated and unsigned; a completed claim was lodged on 27 August.

[37] I am satisfied that the applicant has advanced acceptable reasons for the delay. The applicant was not dilatory in taking action to inquire about and then lodging her claim. It is most unfortunate that her medical condition prevented her from providing the summary of events prior to the expiration of the statutory period for lodgement. Nevertheless I accept that it did so. Clearly the applicant should not bear any responsibility for the error involved in the lodgement of the incomplete claim.

[38] I have considered the cases referred to by the parties, especially the decisions in Micallef and Zaghloul, but note that applications for extensions of time turn on their own particular facts and circumstances.

[39] I note that the applicant took no action to dispute her dismissal other than by bringing the present claim.

[40] There is no particular prejudice to the respondent other than the usual cost and time caused by having to defend the claim.

[41] I am unable to form any concluded view in relation to the merits of the claim. It would appear that, like most claims of this type, a central question will be whether there is the necessary causal connection between the alleged exercise of a workplace right and the dismissal. Evidence will be crucial to the determination of this question. In the circumstances and on the basis of the limited material before me, I am prepared to accept that, on its face, the application is not without any merit.

[42] I have considered the respondent’s submissions on the issue of fairness as between the applicant and others in a similar position.

[43] I have taken into account each of the factors set out in paragraphs (a) to (e) of section 366(2). In the context of the facts in this case I am persuaded that there are exceptional circumstances in this matter which are sufficient to justify the granting of an extension of time of either three or four days for the making of the application. In particular I consider the acceptable reasons for delay and relatively short period of the extension required combine to produce exceptional circumstances.

[44] The time for lodgement of the application is extended. An order to that effect is issued with this decision. The file will now be returned to Senior Deputy President Hamberger’s chambers for the issue of a certificate pursuant to section 369 of the Act.

COMMISSIONER

Appearances:

Ms P. LaGreca, solicitor, for the applicant

Mr C. Earnshaw, for the respondent

Final written material received:

2013

October 16.

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<Price code C, PR543950>