Ms Rosita Dris v St Luke's Family Practice

[2015] FWC 3

[2015] FWC 3 [Note: An appeal pursuant to s.604 (C2015/1371) was lodged against this decision - refer to Full Bench decision dated 31 March 2015 [[2015] FWCFB 2168] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Ms Rosita Dris
v
St Luke's Family Practice
(U2014/14615)

COMMISSIONER CLOGHAN PERTH, 5 JANUARY 2015

Application for relief from unfair dismissal - jurisdictional objection - out of time.

[1] On 26 October 2014, Ms Rosita Dris (Ms Dris or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, St Luke’s Family Practice (Employer).

[2] Ms Dris states in her application that her dismissal took effect on 24 September 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Ms Dris has not made the application within 21 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 26 October 2014), if it is satisfied that there are exceptional circumstances.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 26 October 2014, I issued procedural directions to the parties on 3 November 2014, advising that the matter would be determined by written submissions.

[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the Applicant to file the application on 26 October 2014.

APPLICANT’S SUBMISSION

[9] The Applicant’s submission is brief and reproduced in its entirely, as follows:

“My application for alleged unfair dismissal is not within the 21 day as I have not actually been told I have the sack.

I took some time off work as my father was sick and then passed away.

Ms Fleming rang 24/9/2014 to ask when I would be returning to work. I stated 1/10/2014.

Ms Fleming then said we’ll just let Audrey continue doing your job. I asked why is that, Ms Fleming said the practice is not busy. As I was grieving I left the conversation at that.

I rang Ms Fleming on 8/10/14 to ask what was going on, and if I was sacked, Ms Fleming said she will have to wait till Dr Nikky comes back and discuss it with him, she would neither confirm nor deny, but did say she would call me back.

As I had not received any returned phone call I rang Dr Nikky on 10/11/14 to ask if I still have my job and he said he would have to wait till Ms Fleming comes back from leave.

I have made numerous calls since 1/10/2014 to try to ascertain if I still have my job. I have had no formal dismissal, and neither Dr Nikky or Ms Fleming are returning my calls nor are they confirming my dismissal.”

EMPLOYER’S SUBMISSION

[10] The Employer admits that the Practice Manager telephoned the Applicant on 24 September 2014, to enquire when Ms Dris intended to return to work. In that telephone conversation, the Employer advised that it would leave the current arrangements as they existed until Dr Du Preez returned to work.

[11] The Employer admits that it advised the Applicant on 8 October 2014 that Dr Du Preez remained on leave and a review of employment arrangements would be considered on his return.

[12] The Employer admits that a telephone conversation took place between Dr Du Preez and the Applicant on 10 November 2014, in which Dr Du Preez advised Ms Dris that any change to the current arrangements would have to await the return of the Practice Manager who was, at that time, absent due to surgery required by her son in Perth.

[13] The Employer admits that it has never formally advised the Applicant of her dismissal.

[14] The Employer submits that:

“At the time that the Applicant advised the Respondent of her unavailability to work due to the illness of her father, there was no agreed return date. It was merely agreed that the position as to the Applicant’s return would be discussed when she was able to make herself available for future work, which was expected to be in approximately one month’s time.

Due to the Applicant’s unavailability to work and the fact that the Respondent had become aware that the Applicant was considering resigning, the Respondent had to make alternative arrangements in the Applicant’s absence.”

[15] The Employer asserts that it was its intention to review the employment arrangements of Ms Dris following the return of Dr Du Preez and subsequently the Practice Manager on 17 November 2014. This action was rendered impracticable following receipt of Ms Dris’ application for unfair dismissal on 7 November 2014, which had been filed by the Applicant on 26 October 2014.

[16] It is notable that the Applicant did not respond to the Employer’s submission including its comments in paragraph [14] above despite having the opportunity to do so pursuant to the Directions.

CONSIDERATION

[17] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[18] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[19] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days after the dismissal has taken effect. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[20] The burden lies with Ms Dris to make out her case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I shall now consider those circumstances as set out by the Applicant within the legislative provisions.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[21] As I apprehend Ms Dris’ submission, the delay in filing the application was due to the fact that she had not been advised by the Employer that her employment has been terminated. The Employer agrees that it did not inform Ms Dris that her employment had been terminated. Notwithstanding these circumstances, Ms Dris asserts that her employment was terminated on 24 September 2014. This date was fortuitous or unplanned as it was the date of the Employer’s enquiry as to when Ms Dris would be returning from a period of unpaid absence. After this date, I have no reason, valid or otherwise, as to why the Applicant could not file an application in the Commission within the statutory timeline except for the fact that Ms Dris had not been dismissed from her employment.

Paragraph 394(3)(b) - (f)

[22] Neither party has addressed specifically the criteria in paragraphs 394(3)(b)-(f) of the FW Act. The Applicant was specifically required to do so in the Directions.

[23] The Applicant states in her application that she was notified of her dismissal on 24 September 2014. However, in her submission, Ms Dris asserts that she was not formally dismissed or “I have not actually been told I have the sack”, and furthermore, the Employer has not confirmed her dismissal which she asserts was on 24 September 2014.

[24] As I apprehend the Applicant’s actions, she claims that she was dismissed on 24 September 2014 for the purposes of making her application. However, for the purposes of the reasons for delay in filing the application, the Applicant claims that she was not formally dismissed. This situation is even more complex as the Employer has submitted that it has not dismissed the Applicant.

[25] The parties are in agreement with respect to the material elements surrounding the circumstances leading to Ms Dris’ application.

[26] Clearly, Ms Dris made herself unavailable for employment for good reason. I have not been provided with the commencement date of her unavailability.

[27] Importantly, the Employer’s uncontested submission is that the ongoing employment arrangements of Ms Dris would be discussed when she was available to return to work.

[28] As I have already noted, it was the Employer who initiated a telephone call to ascertain when the Applicant intended to return to work; that fact is not in dispute.

[29] What is in dispute between the parties is what was discussed during the telephone conversation. The parties agree that the Employer was satisfied with the person who was carrying out the current cleaning duties.

[30] If, as the Applicant asserts in her application, that she was dismissed on 24 September 2014, because the Employer was satisfied with her replacement and that the General Practice was not busy, she has provided no valid reason for the delay in filing the application.

[31] While Ms Dris infers in her submission that, on or around 24 September 2014, she was still grieving over the passing of her father, she acknowledges that notwithstanding her grief, she was sufficiently able to make a telephone call to her Employer on 8 October 2014. With the exception of this telephone call, the Applicant has provided no explanation as to what prevented her from making an application to the Commission within 21 days from the date of the alleged dismissal on 24 September 2014.

[32] It is notable that on receipt of Ms Dris’ application, Directions were issued by the Commission on 3 November 2014 and forwarded by postal mail to bother parties on the same date. Notwithstanding this situation, the Applicant submits that she made a telephone call to her Employer on 10 November 2014 “to ask if I still have my job”. Such an action appears to be a contradiction, if not a denial to Ms Dris’ statement, that she was dismissed on 24 September 2014.

[33] The uncontradicted submission from the Employer is that Ms Dris was given leave of absence from her employment as a casual cleaner at the General Practice, subject to a review of the current working arrangements. That review did not take place. For that reason, Ms Dris has either not been dismissed, or if she has been dismissed, she considered herself dismissed on 24 September 2014.

[34] In view of the circumstances of the application, I find that the Applicant considered her employment ceased on 24 September 2014, when the Employer determined to continue with its current cleaning employment arrangements notwithstanding its intention to conduct a review of these arrangements. In addition, in view of the applicant’s submission, I have considered the possibility that the Applicant’s employment ceased on 1 October 2014. With respect to this date of dismissal, the Applicant also failed to provide the application within 21 days of the date of dismissal.

CONCLUSION

[35] In conclusion, for the reasons set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Ms Dris filing her application. An Order to this effect will be issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 17 November 2014.

Employer: 9 December 2014.

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