Ms Revalyn Naidoo v Medibank Health Solutions Telehealth Pty Ltd T/A Medibank Health Solutions
[2012] FWA 4799
•6 JUNE 2012
[2012] FWA 4799 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Revalyn Naidoo
v
Medibank Health Solutions Telehealth Pty Ltd T/A Medibank Health Solutions
(U2011/13730)
COMMISSIONER JONES | MELBOURNE, 6 JUNE 2012 |
Application for Relief from Unfair Dismissal - Extension of Time Granted.
Background
[1] An application was lodged on behalf of the Applicant by the New South Wales Nurses Association (NSW Nurses Association) under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal.
[2] The Applicant’s dismissal took effect on 4 November 2011 by letter sent to her from the Respondent dated 4 November 2011.
[3] The application was stamped by Fair Work Australia (FWA) Sydney Registry as having been filed on 21 November 2011.
[4] The NSW Nurses Association claims that it attempted to file the application electronically at 3.08pm, 18 November 2011. However, the email was not delivered to FWA and notification that the email had not been delivered was not sent by FWA automated email system to the relevant officer of the NSW Nurses Association until 5.10pm on Sunday, 20 November 2011. This email was not sighted by the relevant officer of the NSW Nurses Association until the morning of 21 November 2011 at which point the application was once again sent and received by FWA Sydney Registry.
[5] I am in possession of an email from the Systems Administrator to the FWA Sydney Registry. The email was sent on Sunday, 20 November 2011 at 5.10pm. The subject is headed “Undeliverable: Application for Unfair Dismissal Remedy.” It states: “Your message did not reach some or all of the intended recipients.” Below this, the subject is identified as, “Application for Unfair Dismissal Remedy”. The date and time sent is identified as, 18 November 2011 at 3:00pm.
[6] It is to be noted that at this time FWA was experiencing problems with its systems server.
Legislation
[7] S.394(2) of the Act provides that an application for relief for unfair dismissal must be made within 14 days after the dismissal took effect or within such period as FWA allows under subsection (3).
[8] Subsection 394(3) of the Act provides:
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.
[9] The Applicant and Respondent both submit that although the application was lodged out of time a further period should be allowed.
Consideration
[10] As both the Applicant and Respondent have requested in writing (with reasons provided) that an extension of period within which the Applicant can make an application under s.394 of the Act, I have decided to determine this issue on the papers.
Reasons for Delay
[11] I am satisfied that the reason for the application being lodged two days out of time is due to technical systems error which were matters outside the control of both FWA and the Applicant.
[12] In circumstances referred to at [4] to [6] above, I am satisfied that there were exceptional circumstances, resulting in the delay of the application.
Applicant’s Awareness of Dismissal Taking Effect
[13] Although not the subject of the Submission, it is apparent that the Applicant was notified by letter of her dismissal after it had taken effect not before.
[14] This is a relevant factor in considering whether the time for the application should be extended.
Action to Dispute the Dismissal
[15] The action taken to dispute the dismissal is described by the NSW Nurses Association as follows:
“Reason for Delay
The applicant upon becoming aware of being terminated, sought advice and assistance from the Workplace Ombudsman, Fair Work Australia and the NSW Nurses Association. The applicant contacted the Fair Work Ombudsman via email on 9 November 2011 seeking assistance, and received a message advising that a response would be provided within 7-10days. The applicant called Fair Work Australia and was advised that legal advice could not be provided, however that the applicant should contact her industry association. The applicant then contacted the NSW Nurses Association.
Before accepting instructions to act, the NSW Nurses Association was required to check its policies and investigate the date of commencement of the applicant’s membership in order to determine her eligibility for representation. Authority to act was confirmed on 19 November 2011 and the application was prepared and lodged thereafter.”
[16] I am satisfied that, in the circumstances, the Applicant took reasonable steps to dispute her dismissal.
Prejudice to the Employer
[17] No prejudice is claimed by the Employer and I am satisfied that a delay of two days in making an application does not operate in a manner which prejudices the employer.
Merits of the Application
[18] The question of the merits of the application were expressed on behalf of the Applicant as follows:
“The applicant was dismissed. The Small business Fair Dismissal Code did not apply and the dismissal was not a case of genuine redundancy. The dismissal was harsh, unjust and unreasonable given that:
1. There was no valid reason for the dismissal relating to the applicant’s capacity or conduct, and the only possible reason of absenteeism is explained reasonably by the applicant’s workplace injury and need for treatment. The failure to submit to medical examination by a medical practitioner employed by the applicant’s employer is unreasonable, and not a valid reason for termination.
2. Notice of reason for the termination was only provided after the decision to terminate had been made - on 9 November 2011.
3. No opportunity was given for the applicant to respond to the termination notice of 9 November 2011, as termination was already effective from 4 November 2011.
4. There was no warning as to unacceptable performance - only warnings as to failures to submit to medical examinations and provide medical reports, which were not reasonably required given the circumstances of the applicant’s work injury and compliance with her obligations under the Workcover scheme.
5. The employee should have been dealt with more fairly having regard to the size of the enterprise.”
[19] No Submissions were made by the Respondent regarding the merits.
[20] In the circumstances I regard this issue as neutral in my consideration.
Fairness
[21] I am satisfied that having regard to the reasons for delay dealt with in [11] to [12], fairness between the parties necessitates a granting of a further period.
Conclusion
[22] In the circumstances, having regard to the matters dealt with earlier, particularly having regard to the reasons for the delay and the limited two day period by which the application was out of time, I have decided to grant a further period, being until 23 November 2011, for the Applicant to make her application under s.394 of the Act.
[23] I am satisfied there are exceptional circumstances which favour an extension in the period in which an application can be made.
[24] An Order to this effect will be issued today.
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