Ms Julie Kennedy v The Department of Human Services
[2012] FWA 10068
•29 NOVEMBER 2012
[2012] FWA 10068 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Julie Kennedy
v
The Department of Human Services
(U2012/11426)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 29 NOVEMBER 2012 |
Application for an unfair dismissal remedy - extension of time
[1] This decision concerns an application under s.394 of the Fair Work Act 2009 (the Act) which application has not been made within 14 days after the dismissal of the applicant took effect. The applicant seeks a further period be allowed in accordance with s.394(2)(b) and s.394(3).
[2] The applicant was advised of the termination of her employment with The Department of Human Services (DHS or the respondent) in a letter dated 6 March 2012. On 16 July 2012 she filed an application for an unfair dismissal remedy. At that time it was either 112 or 118 days beyond the 14 day limit to lodge such applications 1. The letter of 6 March 2012 advised the applicant that her employment was to be terminated “with effect from the date of delivery of this letter”.2
[3] The applicant submits that her dismissal took effect some 6 days later than DHS contends. She relies on s.160 of the Evidence Act 1995 (Cth) which provides that it is “presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted”. I note the submission of DHS that in addition to mailing the letter it also delivered a copy, by hand, to the applicant’s home address. Little turns on these considerations and I need say no more than whichever date is taken to be the date the termination took effect the application is significantly out of time - at least 112 days. In these circumstances the applicant needs to persuade me to exercise my discretion to allow a further period for filing. In deciding whether I should do so I must take into account s.394(3) of the Act. That section reads as follows:
“(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”.
[4] It was not in issue that in determining what constitutes exceptional circumstances, the word "exceptional" should be given its ordinary meaning. 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. 3
My ruling on the tender of a medical report
[5] The applicant identified her psychiatric condition and actions taken (or not taken) by her solicitor as providing a reasonable explanation for the delay. I refer to these considerations later but I identify them here, in this summary way, for the purposes of explaining why I refused to allow the tender of a medical report from the applicant’s psychiatric medical officer, Dr Young.
[6] Prior to the commencement of the hearing I was not aware, nor was the respondent, that the applicant had any evidence from a medical practitioner that she wished to rely upon. The applicant indicated at the hearing she wished to tender a report of Dr Young dated 3 September 2012. That report had not been identified in the applicant’s written submissions as being a document she wished to rely upon. No advice about this report was given to the respondent’s solicitors. What had occurred is that on 12 September 2012 (the time when the applicant advised a conciliation settlement had “collapsed”) a letter was sent from the applicant’s solicitors to Fair Work Australia enclosing a copy of a medical report of Dr Young dated 3 September 2012. Nothing more was said about what the applicant wanted to do with this report. On 4 October 2012 directions were issued. The applicant did not file the report of Dr Young nor refer to it in any of the documents she filed pursuant to those directions. Not surprisingly, in these circumstances, DHS did not file any evidence in response to Dr Young’s report.
[7] The applicant submitted the report served three purposes. Firstly, it described the nature of the condition suffered by the applicant and secondly, it was evidence that her condition was the cause of her unfitness for work. The third reason the applicant wanted to rely on the report goes to the merits of the substantive application. The applicant submits it supports her claim that she was not aware of the need for her to participate in any medical assessments as requested of her by DHS. This in turn relates to an issue about whether a request for her to do so was sent to the applicant’s medical advisors rather than to her and whether she knew about these requests. The applicant submitted I should find there was a contest between the parties on the merits. She accepted however that no more could be achieved in respect of any merit finding in the context of this application for an extension of time.
[8] The respondent opposed the tender of the report. It submitted that, in any event, none of the uses the applicant wished to make of the report were in issue in the context of this application.
[9] The respondent accepted that the applicant had a medical condition and that the condition caused her to be unfit for work. Those two aspects did not need to be established by the doctor’s report; they were not in issue. The third reason the applicant wanted to rely on the doctor’s report related to the merits of her s.394 application. The respondent submitted I should find that to be a neutral consideration, a position not at odds with the applicant’s submissions about this issue. In these circumstances I was not satisfied the tender of the report should be allowed.
[10] Additionally, Dr Young was not available to give evidence nor to be cross-examined by the respondent. Mr Rauf, appearing on behalf of DHS, indicated that if the doctor was to be called he wished to cross-examine her. This was an entirely reasonable position for the respondent to take. This consideration also weighed against my allowing the report to be tendered.
[11] I turn to each of the provisions of s.394(3).
The reason for the delay
[12] The applicant submitted that that her “primary reason” for the delay in making her s.394 application was “because of inaction by her solicitor, rather than fault” on her part. She also submitted that her psychiatric illness should be “viewed in a holistic manner” and it had played a role in everything she had done including her response to the termination of her employment. 4
[13] There are two periods of delay relevant to this matter. The first is the period between 6 March 2012, the date on which the dismissal took effect and 5 July 2012, the date on which the applicant says she became aware of her right to make an application for an unfair dismissal remedy. The second is the period between 5 July 2012 and 16 July 2012, the date on which the applicant filed her s.394 the application. It is to be observed that this second delay in itself is significant in the context of a 14 day time limit.
[14] The applicant's evidence in relation to the first period of delay, although not expressly stated, appears to be that she was ignorant of her rights to make a s.394 application until a meeting with her solicitor and barrister on 5 July 2012. That meeting had apparently been arranged in relation to a workers' compensation claim the applicant was pursuing. The applicant's evidence is that it was only at that meeting that she was first advised of her rights to make an unfair dismissal application. Even if I was to accept that to be so, ignorance of the statutory time limit in s.394(2) is not an exceptional circumstance. 5 Her submissions relating to this consideration are not meritorious.
[15] There is a particular consideration in this matter which weighs against a finding the applicant was ignorant of her rights. The letter of dismissal expressly set out the applicant’s rights to make an application for an unfair dismissal. It contained the following two paragraphs:
“If you believe you have been the subject of an unfair dismissal, you have the option available to lodge an unfair dismissal application under the provisions of the Fair Work Australia Act 2009.
Of note, should you decide to make such an application, it must be made on the appropriate forms, available from Fair Work Australia, and must be lodged with Fair Work Australia within 14 days of the dismissal coming into effect”.
[16] Next the applicant relies upon her medical condition as providing an acceptable reason for the delay. Since May 2010 the applicant has been certified as unfit for work due to a psychiatric illness, she has had great difficulty managing her day to day affairs, and suffers significant health difficulties 6. I accept that to be so but the consideration for me is whether this provides an explanation for the delay in filing her s.394 application. About this consideration I agree with the respondent’s submissions. There is no medical evidence that the applicant was:
“(a) incapable of reading or understanding the letter from the respondent notifying the applicant of her dismissal and her rights to make an application for an unfair dismissal remedy and the required timeframe for doing so; nor
(b) incapable of instructing her solicitors to make an application for an unfair dismissal remedy within time”.
[17] It is also to be noted that the evidence does show that the applicant was capable of instructing her solicitors to undertake actions on her behalf. She had instructed her solicitor in relation to several applications related to her workers' compensation claim. She had attended a meeting with her solicitor, Mr Rowney, on 13 March 2012. He had noted in his diary that he saw the applicant on that day about her workers’ compensation claim. Although he had no positive recollection of being given the termination letter at this meeting he accepted he may have been given it then. It is likely that the termination of the applicant was discussed in this meeting. The applicant did not instruct her solicitor to file any application relating to her dismissal. What she did do was instruct him to contact DHS. He did so by email dated 22 March 2012 and, at a time prior to 27 March (the exact date he could not recall), he had a telephone conversation with the relevant DHS contact officer.
[18] The email of 22 March 2012 was in evidence. It records that the applicant had given Mr Rowney a copy of the letter of termination. It notes that the letter refers to an earlier letter of 12 December 2011 and advises that the applicant had not received that letter and asked that she be sent it again so she could provide a response. On 22 March 2012, DHS responded to the email and indicated that before any information could be provided it needed an authority form the applicant advising that Mr Rowney was acting on her behalf.
[19] None of this evidence provides a basis to find the applicant’s medical condition contributed to any delay. Further, there is no evidence about what the applicant did between this time and 5 July 2012 when she had an appointment with her solicitor and barrister and when she says she was advised of her “rights” and instructed her solicitors to file the application for an unfair dismissal remedy. There is no evidence that suggests that at some time prior to 5 July her medical condition had changed in a way such as to allow her then to seek advice and provide instructions to her solicitor concerning her dismissal.
[20] The references made by the applicant to numerous decisions of Fair Work Australia where the medical condition of an applicant had been raised as providing a reasonable explanation for a delay have been of little assistance. The applicant submitted that in a number of these other cases the medical condition of the applicant was less serious than her condition. I am not able to make a comparative assessment of how the medical condition of applicants in the selection of cases I was taken to compares to the applicant here and whether she was more or less able to properly instruct solicitors to pursue a remedy on her behalf. In this matter, the evidence does not persuade me the applicant’s medical condition was such that she was unable to seek advice in a timely manner nor instruct solicitors to commence any proceedings.
[21] I am not persuaded that the applicant's medical condition provides a reasonable explanation for her failure to take steps to ensure her s.394 application was made within the time prescribed by the Act.
[22] Next, the applicant relies on error by her solicitor as explaining the delay in filing her application. There was no dispute that the approach to be taken to this consideration is that most recently described in the Full Bench decision in M N Robinson v Interstate Transport Pty Ltd 7 (Robinson). It is accepted that depending on the particular circumstances, representative error may be an acceptable explanation for a delay. Of particular relevance to this case is the observation in Robinson that it is the conduct of the applicant which is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. It may not be “unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.”8
[23] DHS submitted that this case was the type referred to in the above example of circumstances where an extension of time should generally not be granted. The only apparent action by the applicant to ascertain what remedies she may have and to prosecute any claim was to provide a copy of her dismissal letter to her solicitor on or about 13 March 2012 and instruct her solicitor to correspond with DHS about its reconsidering her dismissal. On 22 March 2012 Mr Rowney sent an email to that effect.
[24] On 27 March 2012 Mr Rowney wrote to the applicant confirming the 6 March letter from DHS had terminated her employment. He advised that he had spoken to the DHS contact officer and an authority was required from her so that DHS could discuss her matters with him. An authority was enclosed with the letter and a request made that the applicant sign it. Mr Rowney had no record of the authority ever being returned to him and the applicant did not say she had done so.
[25] On these facts it is not apparent there is any representative error. Any delay in the applicant filing the s.394 application within time is attributable to the applicant’s actions. This is not a case where, for example, at a time prior to 5 July 2012, the applicant provided instructions to her solicitor to ensure a s.394 application was filed. This is not a case where the applicant can claim she is blameless for any delay.
[26] In addition, there is also no acceptable explanation for the second period of delay that occurred between the applicant meeting with her solicitor and barrister on 5 July 2012 and the application being filed 11 days later. In circumstances where an applicant is advised that an application is already significantly out of time, there is an expectation that the applicant will act to ensure that it is filed expeditiously. Again, there is no evidence that the applicant made any request for the application to be lodged immediately. To the extent this period of delay should be attributed to the slow pace at which the applicant’s solicitor and/or barrister may have acted I have taken that into account.
Whether the person first became aware of the dismissal after it had taken effect
[27] I find that the applicant was aware of her dismissal on or about the date it came into effect. At the very latest she was aware of that fact on 22 March 2012.
Any action taken by the applicant to dispute her dismissal
[28] As I have earlier noted, the applicant instructed her solicitor some time prior to 22 March 2012 to write to DHS to request a reconsideration of her dismissal. It does not appear that the applicant took any further action to dispute the dismissal prior to filing the s.394 application on 16 July 2012.
Prejudice to DHS
[29] If the extension of time is granted, DHS would suffer the prejudice of having to defend the application and in circumstances where witnesses' memories may have faded. I do not agree with the applicant’s submission that this appears to be a case solely about the receipt of documentation requiring the applicant to attend medical appointments and accordingly witnesses’ recollection will be of lesser importance. In any event this factor is a neutral consideration.
Merits of application
[30] DHS submitted that the merits of the application appeared to be weak. It says that the applicant was dismissed from her employment for repeatedly failing to comply with directions to attend medical assessments in circumstances where she had been absent from work for approximately two years. It was not in issue that DHS is entitled to direct employees to attend medical assessments nor is it in dispute that the applicant did not attend these assessments.
[31] Although it is not entirely clear it seems the applicant relies on a misunderstanding between her doctors and DHS about appointments made and her obligation to attend them. She also said that even if she had been aware appointments had been made for her she would have been unable to participate in them as she was unfit for work. 9
[32] I have proceeded on the basis the applicant’s case is not without merit.
Fairness as between the applicant and other persons in a similar position
[33] DHS submitted that if the extension was granted, this would create unfairness between the applicant and other persons who have failed to file applications for unfair dismissal remedies within the prescribed period and have been denied an extension of time in circumstances similar to those of the applicant. DHS made no submission about fairness between the applicant and other employees of DHS in a similar position. The applicant submitted that as there was no evidence about any other person at DHS in a similar position to the applicant this consideration did not arise in this case. 10
My conclusion
[34] I have considered all of the factors in s.394(3) of the Act and I am not satisfied that there are exceptional circumstances warranting the grant of an extension of time for the applicant to make her s.394 application. Her application for an extension of time under section 394(3) of the Act is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr M Vincent of counsel, for Ms Kennedy
Mr B Rauf, solicitor, for The Department of Human Services
Hearing details:
Sydney
2012
9 November
1 S.394(2)
2 Exhibit A3
3 Nulty v Blue Star Group Pty Ltd [ 2011] FWAFB 975 at para 13 ( although this was a s.365 claim the comments as to exceptional circumstances are also applicable to s.394(3))
4 Exhibit R1 paragraph 23 - 27
5 Ibid at [14]
6 Exhibit A2 paragraph 5, 6, 15 and 29
7 [2011] FWAFB 2728
8 Ibid at [25] quoting from Clark v Ringwood Private Hospital P5279
9 Exhibit A2 paragraph 28
10 Exhibit A4 paragraph 32 and PN265
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