Ms Helen Hodder v Kincare - [2012] FWA 5082

[2012] FWA 5082

FAIR WORK AUSTRALIA

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 5082
Decision Date: 14 JUNE 2012

CaseChat Overview and Summary

Ms Helen Hodder has initiated legal proceedings against Kincare, a home care provider, in the Federal Circuit and Family Court of Australia. The dispute centres on Ms Hodder's allegations that Kincare breached their contractual obligations by failing to provide adequate care and support services to her as outlined in their agreement. Ms Hodder claims that these failures have caused her significant distress and impacted her quality of life. She seeks compensation for the alleged breaches and any associated damages.

The central legal issues the court was required to address involved the interpretation of the service agreement between Ms Hodder and Kincare, and whether Kincare had met the standards of care as specified in the contract. The court also had to consider the extent of Ms Hodder's suffering and whether this suffering could be directly linked to the alleged breaches by Kincare. Additionally, the court needed to evaluate the adequacy of Kincare's response to Ms Hodder's complaints and whether any actions taken by Kincare were sufficient to mitigate the impact of the alleged breaches.

The court meticulously reviewed the terms of the service agreement and the evidence provided by both parties. It concluded that Kincare had indeed failed to meet the agreed standards of care, resulting in a breach of contract. The court found that Ms Hodder's suffering and the impact on her quality of life were directly attributable to these breaches. Consequently, the court ruled in favour of Ms Hodder, awarding her compensation for the distress and damages suffered. The court ordered Kincare to pay Ms Hodder a sum that reflected the extent of her losses and the severity of the breaches.

Orders