Ms Pina Nardone v Spotless Management Services Pty Ltd T/A Spotless

[2012] FWA 10716

[2012] FWA 10716

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Pina Nardone
v
Spotless Management Services Pty Ltd T/A Spotless
(U2012/14135)

COMMISSIONER STEEL ADELAIDE, 21 DECEMBER 2012

Application under section 394 for unfair dismissal remedy

[1] This matter is an application pursuant to s394(1) of the Fair Work Act 2010 (The Act) for a review of the dismissal of Ms Pina Nardone (the applicant) by Spotless Management Services Pty Ltd trading as Spotless (the respondent).

[2] The applicant was dismissed on the 6 September 2012 and filed her application on the 15 October 2012 that is twenty five (25) days outside the statutory limit pursuant to s394(3) of the Act. The respondent submits that there is no jurisdiction for FWA to proceed with this application until its considers whether it is appropriate to exercise its discretion under s394(3) in respect to the delay by the applicant in filing.

Section 394 (3) of the Act is as follows:

394 Application for unfair dismissal remedy

(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.

Submission of the Applicant

[3] The applicant submits that in a meeting with the respondent on the 6 September 2012, in the company of her union official from United Voice, she was dismissed by the respondent for alleged misconduct.

[4] After this meeting, her union official advised her “he would be looking into an unfair dismissal case against the respondent”. The applicant asserts she left it in his hands as he was the expert in these matters.

[5] Between the 6 September 2012 and the 18 September 2012 she tried to contact the official without success. On the 18 September 2012 the Union official contacted her by phone and advised her to as follows, “the tribunal said that I didn’t have a case for unfair dismissal, that my case was very difficult and he and his colleagues agreed that the actions of Spotless were wrong and that that I had two days left to go and see a lawyer if I wished to do so.” The applicant has subsequently contacted her Union and sought their assistance in this matter but they have declined to assist her.

[6] The applicant asserts she visited her doctor on the 12 September 2012 and was prescribed continuing courses of “Valium” and anti inflammatories for neck pain as well as the anti depressant “Lexapro” for depression.

[7] Several weeks later on the 12 October 2012 her brother accompanied her to the office of the Fair Work Ombudsman ostensibly to enquire about an underpayment claim against the respondent. In those discussions she was apparently advised to make an application to FWA in regard to an unfair dismissal claim and was referred to the Working Womens’ Centre in SA (WWCSA) for assistance. The applicant completed her application on the 15 October before she transacted with the WWCSA.

[8] The applicant submits that her claim for an extension of time in this matter relies upon her medical grounds in that she was suffering from depression and also a lack of representation by the Union whose official advised her that the tribunal had indicated she did not have a case for unfair dismissal.

Submissions of the respondent

[9] The respondent asserts the substantial issues for the tribunal to determine is whether as a consequence of the health of the applicant she was unable to comply with the statutory time limit of 14 days and whether her advisors had acted appropriately as far as filing of the documentation.

[10] The respondent asserts that the applicant submits she was suffering from a mental condition in this period and the limited evidence from her doctor is that this was depression. The applicant’s evidence is that this condition continues, however no further medical evidence was produced to sustain this diagnosis or claim.

[11] The respondent points out that though apparently having this condition, the applicant has communicated with the Union several times, attended with the FWO and prosecuted her underpayment claim expeditiously and had participated significantly in these proceedings, yet she claims that she was unable to file an application in a period of in excess of two days. The respondent asserts it is self evident the applicant has been able to deal with her issues. She knew specifically of the time limit yet she did not act upon that information. The tribunal was invited to consider whether it could identify a change in the applicant’s condition in October 2012 when the applicant did eventually file an application.

[12] The respondent asserts that the applicant’s assertions in this regard are not believable, they assert that the nature of “exceptional circumstances” are not borne out as required for an exercise of discretion. The medical condition was not so extraordinary that she could not file a complaint or application. She was obviously able to instruct the union, to instruct the FWO and able to conduct her case.

[13] The evidence of the applicant in regard to the conduct of the official from United Voice should not be accepted as no evidence has been available to support the assertions in face of the reputation of that entity. Further that the assertions as to the conversations that took place are not credible as to the nature of advice provided by that the offices of FWA and therefore should not be believed. They say these are highly unlikely and improbable events.

[14] The respondent asserts that the applicant’s submissions on these matters should be rejected as not being believable, therefore the reasons for delay are not satisfied by either reasons put by the applicant and the application should be dismissed on jurisdictional grounds.

Consideration

[15] Giving regard to the matters nominated within sa394(3) of the Act, the Tribunal must determine that “exceptional circumstances” exist for the discretion to be exercised to extend the time limit for an application under s 394.

[16] The length of the delay is also a relevant consideration being twenty five days in excess of the limit. In isolation it is obviously a critical delay and affects the onus of evidence on the applicant as to the other matters to be considered. Such evidence must illustrate and support such a continuum of delay. In this matter that time frame is from the 18 September 2012 when she talked with her union advisor to the date of application in this matter.

[17] It is not contentious that the applicant became aware of her dismissal on the 6 September 2012 in the company of her union advisor.

[18] It is further not contentious that she took no direct action to dispute her dismissal except for the acceptance that her union official was to look into an unfair dismissal case on her behalf. When such official advised her twelve days (18 September) later to the effect the union was not going to assist her and she was referred to a lawyer with 2 days to file, she took no further action before discussions with the FWO on the 12 October 2012. Notably the applicant does not contend the union undertook to file on her behalf during this period, just “look into it”.

[19] The respondent asserts substantial prejudice to them in defending a claim where the applicant did not comply with the statutory time limit and also that the medical evidence asserted to be relied upon as to her state of health is now considered retrospectively as it was completed well after the events in question.

[20] The merits of this application are fluid given they were superficially referred to in proceedings. The respondent asserts the existence of witnesses to the conversation of abuse allegedly sustained by the applicant against an employee whilst the applicant denies this occurred and that she in fact was assaulted by the employee in question. The veracity of witnesses against the applicant is also in question since they are claimed to be all related. The “client evidence” was referred to but not available. Further the circumstances of the applicant resigning from her role and taking a new role have not been exhausted in evidence only in assertions. The applicant was in her role for in excess of 6 years and the evidence as to the input of the client as to her leaving that role is also not conclusive or obvious to the tribunal.

[21] In terms of fairness the respondent asserts no prejudice as they consistently require standards of conduct and consistently react to misconduct with similar disciplinary action.

[22] The reasons for delay are obviously critical in this matter. The applicant asserts a debilitating condition of depression, diagnosed and first prescribed on the 12 September 2012 after her dismissal. Prior to that date she suffered from periodic stress and was able to medicate with “Valium” when required.

[23] Her medical evidence in support of her contentions consists of two signed statements from her doctor. The doctor was not called to give evidence in support. The first dated 12 September 2012 after her dismissal refers to several consultations having occurred “as a result of workplace stress”. It noted in February she had lost her voice as a result of stress and “Valium” was prescribed. In May she was managing her stress but still having problems. Her final visit was in August 24 when after she reported she had been assaulted at work. She was prescribed anti inflammatories for her neck pain and Valium for her stress. The document states “we did not pursue other treatments as she was due to start a new position, so she thought things would settle down and she would be able to move on with her life.” This statement does not mention a condition of depression or any related medication whereas the applicant asserts she was prescribed such medication.

[24] The second statement is dated 22 November 2012 it refers as follows: That the applicant had to start on treatment for depression after her workplace assault and employment termination. She was unable to function and had trouble dealing with daily issues so her ability to plan and deal with the need to get legal advice was severely impaired. She started on medication for her depression on 12 September 2012.

[25] The tribunal consider this second statement does not provide sufficient evidence as to the applicant’s claim for a condition of debilitating depression. It obviously was intended to support the fact that she did not seek legal advice in the past though she had a need to do so and an imperative to do so. It is a response by the doctor to a request by the patient. Considered with the previous statement of 12 September 2012, it highlights this previous statement as being limited and deficient and hence questionable by this tribunal as to its intent and veracity.

[26] Further the tribunal in consideration of the submissions of the respondent and the evidence is persuaded that the applicant knew of the time limit that applied to her before its expiry. That at that time, she was awaiting a response and actively trying to transact with her Union. When faced with the union not seeking to represent her and having not filed an application on her behalf she did not act in regard to the time limit advised to her. She did not pursue a claim despite being referred to a lawyer for advice and advised of the need to do so within the time limit.

[27] The evidence is also persuasive that the applicant was able to transact with the FWO and transact with the WWCSA and represent herself in these proceedings. No evidence was provided as to any change in her asserted condition over the period for the tribunal to consider.

[28] The Tribunal is further concerned as to the substance of the allegations by the applicant that her Union stated to her that this tribunal (FWA) had provided advice as to the competency of her claim for unfair dismissal, and they had declined to act because of that advice. The respondent submits these assertions are not to be believed and should be rejected. In the absence of evidence of any kind apart from the submissions of the applicant, the tribunal considers that on the balance of probabilities, that the applicant was not adequately communicated with by the union and hence this above purported advice was not the intended message by the union. The information asserted to have been given to the applicant is so erroneous, illogical and incompetent and in conflict with the standards usually experienced by this tribunal in dealing with that registered employee organisation.

[29] For the above reasons the Tribunal considers the reasons for delay which are predominantly medical in nature and a consideration of the other aspects referred to as above do not fulfil the requirements of this Tribunal in consideration of what constitutes an “exceptional circumstance” required for an exercise of discretion to extend the period for filing of an application.

[30] In this respect the tribunal relies upon the authority of Haining v Deputy President Drake and ors FCA 1168 1998, that “it is an overall judgement as to the appropriateness of extending the time for lodgement of the application”.

[31] This application is therefore dismissed.

COMMISSIONER

Appearances:

For the applicant - Ms P Nardone

For the respondent - Mr J Douglas

Hearing details:

Wednesday 12 December 2012

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