Ms Margaret Mills v Bupa Aged Care Australia Pty Ltd
[2022] FWC 875
| [2022] FWC 875 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Margaret Mills
v
Bupa Aged Care Australia Pty Ltd
(U2022/2016)
| COMMISSIONER YILMAZ | MELBOURNE, 13 APRIL 2022 |
Application for an unfair dismissal remedy – out of time – representational error – extension of time granted.
This decision concerns an application by Ms Margaret Mills (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act).
The Applicant was dismissed on 25 January 2022 from her position of registered nurse that she held from 21 January 2013. The application was filed on 16 February 2022, one day late of the statutory 21-day time frame.
Ms Kara Young, of Gordon Legal took instructions from Ms Mills and filed the application. Ms Young gave evidence that the lateness of one day was due to representative error and the applicant was blameless for the late application. The Respondent contends that the matter is not a classic case of representative error as contended by the Applicant.
The Applicant was granted leave to be represented by Gordon Legal and the Respondent was self-represented.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3).
The date the dismissal “took effect” is when notice of the dismissal is communicated to the employee and if notice is given, then the dismissal takes effect at the end of the notice period. The letter of termination of employment from BUPA Aged Care Australia Pty Ltd (BUPA) to Ms Mills was dated 25 January 2022 and terminated her employment immediately without notice. The date of termination of employment was not contested.
The Applicant asks the Commission to grant a further period for the application to be made under s.394(3).
The Respondent opposes the extension of time application and submits that the Applicant has failed to demonstrate any exceptional circumstances to warrant an extension of time.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made, only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s. 394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reason for the delay
For the application to have been made within the 21 days after the dismissal, it needed to be made by midnight on 15 February 2022. The delay in the application is the period until the application was made. It is not contested that the application was made at 4.41am 16 February 2022.
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[3]
Ms Mills submits that she sought assistance from her union, the ANMF on 21 January 2022, which was the date that the allegations, subject to investigation, were put to her. She further submits that on 25 January 2022, after her dismissal, the ANMF referred her to Gordon Legal. A copy of the email was tendered in evidence.
On 1 February 2022, Gordon Legal scheduled an appointment for Ms Mills with a solicitor on 7 February 2022. A copy of the email was tendered in evidence.
On 7 February 2022, Ms Mills attended the scheduled appointment and met with Ms Kara Young. Ms Mills gave evidence that she instructed her solicitor to file an unfair dismissal application. Ms Mills was aware of the 21-day timeframe for applications, and she gave evidence that Ms Young assured her that the application would be lodged on time; she understood that no further action was required from her. Ms Mills gave evidence that she was informed that she would be sent a completed copy of the application once it was lodged.
Ms Mills also gave evidence that on 9 February 2022, that she forwarded additional information by email to Gordon Legal and 11 February 2022 she forwarded photographs of the empty BUPA Boutique. Evidence of the emails was tendered.
During cross examination Ms Mills stated that she did not expect further communication with her solicitor after she sent the additional information, and she was contacted after 16 February 2022 that her application was filed late.
The Respondent submits that the materials filed by the Applicant in their view suggest the Applicant was responsible for the late filing of the application due to her inaction from the date of meeting with her lawyer and the date of filing.[4] It further submits that the additional information forwarded post meeting with Gordon Legal and the inaction by Ms Mills was evident of failure to provide clear instructions to her representative. The Respondent relies on McLennan v Northern Territory Stolen Generations Aboriginal Corporation.[5]
Ms Young gave evidence that she drafted the application, did not need to forward the application to Ms Mills prior to filing and while she noted the due date, she missed filing on time, due to conflicting deadlines. Ultimately, Ms Young filed the application at 4.41am on 16 February 2022. In respect to the additional material emailed by Ms Mills, Ms Young gave evidence that it was unnecessary in relation to her instructions to file the application.
Ms Mills submits that representative error may constitute exceptional circumstances and is sufficient to extend the time beyond 21 days.[6]
When considering whether exceptional circumstances exist where the reason for delay is an error by the Applicant’s representative, it is relevant to consider whether the Applicant caused or contributed to the representative’s error, whether by act or omission.[7]
Where an applicant has given clear and timely instructions to their representative to file their application, the applicant is generally entitled to rely on the representative to carry out those instructions.[8] I observe that Gordon Legal submit that their arrangement with the ANMF does not require a costs agreement with the Applicant or confirmation of instructions, unlike a traditional client relationship. The evidence of both Ms Mills and Ms Young related to the instructions given for filing an application; I am satisfied that Ms Mills had done so, and there were no reasons for her not to rely on her solicitor.
There is no evidence that Ms Mills did not act promptly having been stood down then dismissed by contacting her union and then taking the appointment arranged immediately after the dismissal. I am satisfied that Ms Mills provided to Ms Young, her representative, clear instructions to file the application. There was no further requirement of Ms Mills to communicate with Ms Young, and the error in filing late is attributable to representative error. The evidence shows that Ms Young realised her error and filed the application promptly by filing 4.41 hours after the deadline. It is unreasonable to expect that Ms Mills having fulfilled her obligations by providing timely and clear instructions would anticipate a late lodgement by her representative, to take further action to ensure the application was made by midnight. Ms Mills was entitled to rely on her representative to complete the application on time.
I note that the Respondent relies on a previous decision of mine, however, the matter can be distinguished as Ms Mills did meet with Ms Young, provided all of the information necessary to file the application, there was no apparent need for further follow-up and Ms Young was not on holidays, nor were there any evident reasons that the timeframe for filing was at risk.
While the reason for the delay is relevant to the consideration of exceptional circumstances in an extension of time application, the balance of the considerations pursuant to s.394(3)(b) to (f) must be considered.
Whether the person first became aware of the dismissal after it had taken effect
Ms Mills was aware of her dismissal and through her communication with her union and subsequently with Gordon Legal, she was well aware of the 21-day statutory time frame to file her application. Awareness of the dismissal date in this matter has no bearing on Ms Mill’s delay.
Action taken to dispute the dismissal
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[9]
Ms Mills took action to dispute her dismissal by seeking assistance from her union then providing instructions to her solicitor, however, neither party refers to any action where the Respondent was put on notice by the Applicant that the dismissal would be contested. While the Respondent states that Ms Mills had her union as her support person during the termination of employment process,[10] it is unclear if it was on notice that the dismissal would be contested. For these reasons, I consider this consideration to be neutral.
Prejudice to the employer
Both parties do not contend that the delay causes prejudice to the Respondent. While I do find no prejudice to the Respondent, the authorities provide that the mere absence of prejudice is insufficient to grant an extension of time.[11] This consideration does not weigh up with the other considerations in favour of the assessment that there are exceptional circumstances.
Merits of the application
Ms Mills submits that her employment was terminated on 25 January 2022 without notice because she had removed the items from the Boutique and donated them to an international charity. She disputes that the reason for the dismissal amount to serious misconduct.
By way of background, Ms Mills submits that approximately five years ago she set up the Boutique with another staff member as a second-hand shop where every item cost $1.00. Resident families, staff and management would donate to the Boutique, then items were sold to residents. The “earnings” from the Boutique were deposited into a bank account set up by the Applicant. Ms Mills submits that management were aware of the initiative, but no policy or procedure was established, nor a workplace policy that the goods became the property of BUPA Mildura. Further, Ms Mills submits that she and the other staff member would regularly clean out old and unwanted items on a regular basis. Those unwanted items were donated to a charity.
Ms Mills submits that during the COVID pandemic restrictions, families did not visit the facility and the Boutique became inactive. On 16 January 2022, Ms Mills and another employee cleared out the items. She submits that she did not obtain express authority, but management were aware of the usual practice of discarding items that were unwanted. Ms Mills describes her activities with the Boutique as above and beyond her nursing duties. She submits that the allegations do not constitute serious misconduct and do not give rise to grounds for dismissal.[12]
The Respondent submits that the unfair dismissal application lacks merit. It submits that on 16 January 2022, it found that all the items in the BUPA Boutique had been removed from BUPA Mildura. The Boutique is an initiative where items are donated for purchase of $1.00 by residents to provide them with the ability to engage in a shopping activity, and the $1.00 is donated towards other home-based activities for the residents. The items in the Boutique consisting of books, clothing and such were disposed of by Ms Mills. The Respondent submits Ms Mills had no authority to dispose of the items which were the property of BUPA Mildura.
The Commission is not required to consider the detail of the substantive case but may consider whether the Applicant has a sufficient case based on the merits.[13] While the BUPA Boutique may have commenced as an initiative over and beyond the duties of Ms Mills, the items in the Boutique arguably were the property of BUPA Mildura. Therefore, relevant to this matter will be whether the Applicant had “authority” to dispose of the items, whether her actions were part of her usual procedures, among other considerations, including whether the summary dismissal was proportionate in response to her actions.
Having regard to the matters referred to above, I find the matters will turn on the evidence and in the absence of a hearing of that evidence, it is not possible to make an assessment of the merits of the application. Although in all the circumstances, I do find that the contention by the Applicant that her actions did not amount to serious misconduct, while clearly to be contested by the Respondent, the facts tested against the criteria for assessing whether the dismissal was harsh, unjust or unreasonable” may not be without merit. On balance, I do consider that there may be merit in the application, and this is a valid consideration in an extension of time.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. The Applicant submits she is unaware of the outcome of any action taken against another employee in a similar situation and the Respondent does not consider this consideration relevant. I am satisfied that this consideration is a neutral assessment as to whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), all of the matters raised by the Applicant, I am satisfied that there are exceptional circumstances to grant an extension of time. In my view, there are exceptional circumstances taking into account the reasons for the delay together with the merits of the application. I consider it appropriate to extend the period for the application to be made.
Accordingly, the application for an unfair dismissal remedy will be listed for directions.
COMMISSIONER
Appearances:
Mr J. McKenna for the Applicant.
Ms N. Campbell for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
21 March
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[4] Respondent’s outline of submissions at [4].
[5] [2012] FWA 3167.
[6] Applicant’s outline of submissions at [6] referencing Robinson v Interstate Transport Pty Ltd[2011] FWAFB 2728.
[7] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [30].
[8] See, eg, Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759. See also Donohoe v QuickComms Australia Pty Ltd[2020] FWCFB 5426.
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[10] Form F3, Employer Response to unfair dismissal application at 3.1.
[11] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300.
[12] Applicant’s outline of submissions at [32] – [33].
[13] Kyvelos v Champion Socks Pty Ltd, Print T2421 (unreported, AIRCFB, Guidice J, Acton SDP, Gay C, 10 November 2000)[14].
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