Ms Helen Hodder v Kincare
[2012] FWA 5082
•14 JUNE 2012
[2012] FWA 5082 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Helen Hodder
v
Kincare
(C2012/2830)
DEPUTY PRESIDENT LEARY | HOBART, 14 JUNE 2012 |
.
[1] This is an application made pursuant to s.365 of the Fair Work Act 2009 (the Act) by Helen Maree Hodder (the applicant). The application alleges that Stanhope Health Care Services Pty Limited (the respondent) has contravened s.341 and s.351 of the Act.
[2] The applicant was employed by the respondent from 4 July, 2011 and her services were terminated on 28 December, 2011.
[3] The applicant alleges that “the respondent has contravened Sections 341 and 351, leading to my termination of employment because I made a complaint in relation to my employment regarding concerns I was having regarding the way I was being treated by my Manager which resulted in me being injured in my employment.”
[4] The applicants states in her application that the reason provided by the respondent for her termination was due to “My continuing absence from the workplace during my period of probation which prevented them formally addressing a number of performance issues.”
[5] The respondent claims that “….it terminated the applicant’s employment for reasons of poor performance.”
[6] The respondent has submitted that the application was not filed within the prescribed time limit and seeks determination of that matter prior to the substantive matter proceeding.
[7] The applicant provided comprehensive written submissions albeit only a small part of those submissions addressed the jurisdiction issue.
[8] It was submitted by the applicant that the reasons for the delay were “...because of the depression/anxiety and stress I was suffering from which arose from bullying and harassment by my manager……and due to the fact that Management/HR did not deal with my complaint I had initially made….”
[9] The applicant also said that she was told “….I would not win any actions taken against them and that I would probably be faced with having costs awarded against me if I proceeded. I felt extremely intimidated by this, and delayed my application because of further stress associated with hearing this.”
[10] And further she submitted that “Because of the depression/anxiety and stress I was suffering from it simply saw me miscalculate the time frame for submitting my application on time.”
[11] The Act provides:
“366 Time for application
(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.”
[12] The respondent submitted that there is no basis for Fair Work Australia (FWA) to exercise its discretion to extend the time limit for the making of this application. It noted that the applicant provides only one reason for the delay and that is a miscalculation of the prescribed time for filing due to her stress, depression and anxiety which she alleges was caused by the respondent. The respondent denies the allegations.
[13] In support of its objection to any extension of the time the respondent noted that since the termination the applicant had:
● Represented herself at a hearing in the Workers Rehabilitation and Compensation Tribunal of Tasmania;
● Appealed the decision of the respondent’s workers compensation insurer to deny liability for the applicant’s workers compensation claim;
● Sought an Employment Separation Certificate from the respondent;
● After termination requested payment of accrued but untaken annual leave and copies of pay slips.
[1] The respondent submitted that the applicant has provided no medical evidence that her alleged illness prevented her complying with the time limit for filing her application.
[2] The claimed reason for non-compliance is not a credible reason for failure to comply.
[3] Claimed miscalculation of the time limit is not unusual or extraordinary and therefore does not satisfy the ‘exceptional circumstances’ requirement of the Act.
[4] The respondent referred to a decision of Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd[2010] FWA 1394 where the meaning of ‘exceptional circumstances’ (as set out in Parker v Department of Human Services [2009] FWA 1638) was considered and a finding made that to be ‘exceptional’ a circumstance cannot be one that is regularly, or routinely, or normally encountered. The respondent submitted that therefore a miscalculation of time could not be considered ‘exceptional’.
[5] The Vice President said:
“In Shields v Warringarri Aboriginal Corporation Kaufman SDP said:
“The requirement that there be exceptional circumstances was not found in the Workplace Relations Act 1996 (the WR Act), the Act that preceded and was repealed by this Act. [FW Act]. Time for making an application under the Act [FW Act] is also shorter than it was under the WR Act: 21 days under the WR Act and 14 days under the Act [FW Act]. It seems to me that the alterations between the two acts evince an intention by the parliament that applications for relief should be confined to 14 days, except in rare cases; cases where there are exceptional circumstances. The use of the word “exceptional” also, in my view, evinces an intention that the hurdle for extensions of time is higher under the Act [FW Act] than it was under the WR Act.”
In Parker v Department of Human Services , Whelan C addressed the issue as follows:
“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.
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]
While I agree with Kaufman SDP that the introduction of the requirement that there be “exceptional circumstances” means that “the hurdle for extensions of time is higher under the [FW Act] than it was under the WR Act.” However, with respect, I prefer the analysis of Whelan C in relation to what constitutes “exceptional circumstances” and I adopt it. The articulation of the meaning of the word “exceptional” relied upon by the Full Court in the judgment cited by Whelan C was directed at the ordinary English meaning of the word and, in the absence of any indication to the contrary in the FW Act, that is the meaning to be given to the word “exceptional” in s. 394(3).”
[6] When considering whether to exercise my discretion and extend the statutory time period for lodging an application I must have regard to whether there are exceptional circumstances taking into account:
[7] (a) The reason for the delay:
The applicant submitted that she had miscalculated the time requirements due to depression, anxiety and stress which she claimed was due to actions of the respondent. The respondent listed a number of actions the applicant had taken in respect to her employment and workers compensation claim during the 61 days since her termination which, it was submitted, would indicate she was capable of making an application within the prescribed time limit. Further, the applicant provided no medical documentation to support her claim that depression, anxiety and stress prevented her lodging an application within the 60 day prescribed period .
[8] (b) Any action taken by the person to dispute the dismissal:
The respondent submitted that the applicant had not disputed her termination and the first knowledge it had about any challenge was advice of this application. The applicant had been in contact with the respondent after her termination but had not raised her termination. In fact the letter of termination invites a response which the applicant did not pursue. The applicant provided no evidence that she had challenged her termination.
[9] (c) Prejudice to the employer (including prejudice caused by the delay):
The respondent submitted that it would be prejudiced if an extension of time was granted as it would incur legal and other costs as well as inconvenience and disruption as representatives who would be required to provide evidence in defence of the claim are located outside Tasmania.
[10] (d) The merits of the application:
The substantive application will involve contested facts and the not unusual position of the respondent claiming that the termination was due to performance issues whilst the applicant claims an environment of bullying and harassment. Due to the contested facts provided it is not possible to make an assessment of the merits, or otherwise of the application.
[11] (e) Fairness as between the person and other persons in a like position:
This consideration does not arise in respect to this application.
Conclusions:
[12] I am of the view that the reasons provided by the applicant do not reflect ‘exceptional circumstances’, the applicant had been pursuing other issues with the respondent following her termination but did not raise with, or challenge the respondent in respect to her termination although invited to do so in her letter of termination. The fact that she was able to pursue those other actions with or against the respondent would suggest that she was also able to file this application within the 60 day time limit.
[13] The applicant provided no medical evidence that her anxiety, stress and depression was reason for her in ability to file her application within the prescribed time requirement.
[14] The applicant complains that the respondent was granted additional time in which to file the response (Form 8A) to her application. The requirement to file an application pursuant to s.365 of the Act within a prescribed period is a statutory requirement, the filing of a form 8A response to an application is an FWA procedural requirement only.
[15] In a decision of the Industrial Relations Court of Australia in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 it was said that “The prima facie position is that the time limit should be complied with........ “
[16] I am of the view that the reasons provided by the applicant are not ‘exceptional circumstances’.
[17] A miscalculation of the time limit or claims of stress, anxiety or depression are not ‘exceptional circumstances’ as they can not be considered to be “out of the ordinary course, or unusual, or special, or uncommon”.......but are more likely to be circumstances that are “regularly, or routinely, or normally encountered.”
[18] Accordingly I do not intend to exercise my discretion and extend the time limit.
DEPUTY PRESIDENT
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