Ms Roxanne Dennehy v KinCare Health Services Pty Ltd T/A KinCare

[2017] FWC 6455

[2017] FWC 6455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Roxanne Dennehy
v
KinCare Health Services Pty Ltd T/A KinCare
(C2017/2522)

COMMISSIONER CIRKOVIC MELBOURNE, 5 DECEMBER 2017

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.

[1] On 10 May 2017, Ms Roxanne Dennehy (Applicant) lodged a general protections application (application) with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is KinCare Health Services Pty Ltd T/A KinCare (Respondent).

[2] The Applicant commenced employment with the Respondent on 31 March 2014. 1 She was a home care worker employed under the provisions of the Social, Community, Home Care and Disability Services Industry Award 2010.2

[3] Whilst there was originally some debate and confusion as to the position of the parties regarding the date the dismissal took effect, ultimately the Respondent consented, that for the purposes of this application, 3 November 2016, is the date that the dismissal took effect, being the date most favourable to the Applicant. 3 I accept that the date on which the Applicant was dismissed was 3 November 2016 and the dismissal took effect on that day.4

[4] The application was therefore lodged 166 days out of time.

Alleged Contravention

[5] The Applicant submits that she was dismissed because she was on light duties for a hand and back injury sustained at work when the Respondent advised her that they did not ‘have any work for her.’ 5 A breach of ss.340, 343, 344, 351, 352 and 358 are alleged.

Respondent’s Submissions

[6] The Respondent submits that the Applicant was a casual employee and that it did not have an obligation to offer further periods of employment. The Respondent further submits that in October 2016, the Respondent repeatedly requested satisfactory evidence as to the Applicant’s capacity to work and the Applicant failed to produce such documentation. The Respondent submits that the Applicant was formally terminated for the sole reason of failing to provide the Respondent with satisfactory evidence as to her capacity to work and denies the Applicant was terminated for any other reason. 6

Legislative scheme

[7] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(1) 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 (2).

[8] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[9] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 7where the Full Bench said:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgment of documents in the Commission and provides as follows:

13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgment facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.

Approach of the Commission

[11] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach. 8

Background

[13] On 7 June 2017, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of an Outline of Argument: extension of time as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. In this correspondence, the Applicant was advised as follows:

To assist in making a determination on whether Commissioner Cirkovic should allow an extension of time, you’re required to complete an outline of argument for extension of time…In preparing your response you must explain the whole of the delay in lodging the application. Further, if you want Commissioner Cirkovic to take into consideration a medical condition, you should supply a medical certificate or report. The report should explain how your medical condition prevented you from making the application in time. 9

[14] On 21 June 2017, the matter was listed for hearing on 5 July 2017.

[15] On 4 July 2017, the Applicant sent correspondence to my chambers seeking an adjournment of the hearing on 5 July 2017 on the basis of a medical condition. 10 The adjournment request was granted.

[16] The matter was relisted for hearing on 7 September 2017 via video link following correspondence between my chambers and the parties as to their dates of availability.

[17] The Applicant was self-represented. Mr Ben Gee of FCB Workplace Law sought permission to appear pursuant to s.596(2) of the Act. 11 I granted permission to appear on the basis of the Respondent’s submissions as to s.596(2)(a) of the Act,12 and note that the Applicant did not object to permission to appear being granted.13

[18] At the hearing, the Applicant confirmed that the material she was seeking to rely on in support of the granting of the extension of time was as follows:

•  The Form F8 General Protections application together with a bundle of documents of 86 pages; 14

•  Submissions of two pages dated 20 June 2017; 15

•  Email correspondence of 6 September 2017, a document of 10 pages.  16

[19] It became apparent during the hearing that the Applicant was seeking to rely on a series of medical conditions to demonstrate that her medical conditions prevented her from making her application within the 21 day time period. 17 In response to a question from me as to the evidence that she sought to rely on the Applicant replied as follows:

I have evidence from Centrelink, WorkCover, specialists and GPS. 18

[20] In light of the above, I stood the matter down and provided the Applicant with further time to provide the Commission with evidence of her medical condition. 19

[21] On 8 September 2017, my chambers issued directions directing the Applicant to file her medical evidence by 5.00 p m, Thursday, 14 September 2017. 20

[22] On 14 September 2017, the Applicant forwarded a facsimile to my chambers which provided that:

As discussed, I have copies of all the paperwork you will need for this hearing. 21

[23] No further documents were attached to this correspondence from the Applicant.

[24] On 14 September 2017 at 8.18 pm, the Applicant sent further correspondence to my chambers requesting an extension of time to provide further materials as follows:

I am leaving the Library now but I will be faxing or emailing you, over the next few days, if that is ok? 22

[25] On 18 September 2017, the Applicant forwarded by facsimile a series of documents to the Commission. The covering letter to the documents provided as follows:

I have attach(sic) a few certificates for you to read… 23

[26] On 20 September 2017, the Applicant filed a ‘Form F52 Application for an Order requiring production of documents etc to the Fair Work Commission’ (order for production of documents). 24

[27] On 20 September 2017, the Respondent’s representative sent correspondence to my chambers requesting that the Commission not consider or determine the Applicant’s request for an order for production of documents until the jurisdictional objection had been determined. 25

[28] On 2 October 2017, I listed the matter for mention via telephone on 6 October 2017.

[29] At the mention on 6 October 2017, I explained to the Applicant that the matter before me was to determine whether or not I should grant her an extension of time to make her application, and that the Applicant’s request for an order for production of documents related to the merits of her application. 26

[30] Further, the Applicant confirmed that there were no additional materials upon which she sought to rely in support of the extension of time application. 27

[31] On the basis of the above, I have determined this application on the materials that were filed by the parties.

Matters to be taken into account pursuant to s.366(2)

[32] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[33] The Applicant submits that the principle reason for the delay is that she has suffered from medical conditions during the last ‘couple of years.’ 28

[34] The Applicant submits that she has suffered from the following:

•  A back and hand injury which the Applicant refers to as a ‘trigger finger’ and ‘repetitive strain injury in her hand and thumb’; 29

•  Stress; 30

•  A heart attack followed by 2 seizures; 31

•  Having trouble walking without pain or tremors; 32

•  Neuropathy/Parkinson’s disease. 33

[35] The Applicant further submitted that she has been in and out of hospital on and off for months. 34

[36] The Respondent submits that the onus of establishing “exceptional circumstances” rests on the Applicant to establish that she was unable to file her application for the period of the delay or a substantial part of it and that there cannot be a substantial period of the delay for which there is no reasonable explanation. 35

[37] The Respondent submits that the Applicant has not filed any material to support a submission that there are “exceptional circumstances” in her case. 36

[38] Whilst I sympathise with the Applicant and any employee who suffers from distress at losing their employment involuntarily, the medical evidence supplied does not support a finding that the Applicant was incapacitated such that she was unable to file her application on time.

[39] In coming to this conclusion, I have taken into account the written material provided by the Applicant, and the ample opportunities provided by me to enable the Applicant to present the necessary evidentiary material to support her assertions. On the material before me, the medical evidence supplied does not, in my view, support a finding that the Applicant’s medical condition prevented her from lodging her application on time.

[40] For this consideration there must be an acceptable reason for the delay 37 and this must be for the whole period that the application was delayed.38 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[41] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 39

[42] The Applicant did not specifically provide any submissions regarding any action taken to dispute her dismissal. The Respondent submits that there is no evidence to explain the Applicant’s delay in taking any action to contest the cessation of her employment. 40

[43] There is limited material before me of the action taken by the Applicant to contest her dismissal. At best, this factor is neutral in this case.

(c) Prejudice to the employer (including prejudice caused by the delay)

[44] Prejudice to the employer will go against the granting of an extension of time. 41 The Respondent submits that the Respondent’s employees who made the decision in October 2016 are no longer employed by the Respondent. The Respondent further submits that the delay has real potential to cause prejudice to the Respondent in circumstances where the key decision makers may not be available to give evidence of the reason for the decision (the critical factor in determining the merit of the Application)42 or if they are available, the impact of the delay on the quality of any evidence able to be adduced.43

[45] While I note the Respondent’s submission, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) Merits of the application

[46] The Applicant submitted that following a workplace injury, the Respondent telephoned her and advised that they would not have any further work for her. 44 The Respondent submits that the Applicant’s employment was terminated for failing to provide satisfactory evidence as to her capacity to work and that the Applicant was not terminated for any other reason as contended by the Applicant. The Respondent further submitted that the Applicant was employed pursuant to a casual contract and as such, the Respondent was under no obligation to offer the Applicant further periods of employment.45

[47] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 46 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.47 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.

(e) Fairness as between the person and other persons in a like position

[48] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 48

[49] The full bench in Perry v Rio Tinto Shipping Pty Ltd[2016] FWC 6963 considered this criterion and said (at [41]):

Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission on matters previously decided by the Commission.

[50] The parties did not make any submissions in relation to this consideration.

[51] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[52] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances”, while not specifically defined in the Act, has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but that cannot be circumstances that are regular, routine, or normally encountered.

[53] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 49

[54] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[55] An order to that effect 50 will be published separately to this decision.

COMMISSIONER

Appearances:

Ms Roxanne Dennehy, Applicant;

Mr Ben Gee of FCB Workplace Law for the Respondent.

Hearing details:

2017.

Melbourne and Sydney (by video):

September 7.

2017.

Melbourne (by telephone):

October 6.

 1   PN54, Transcript 7 September 2017.

 2   PN70, Transcript 7 September 2017.

 3   PN219.

 4   PN214, PN219 and PN280.

 5   Exhibit #A1, Form F8 – General Protections application involving dismissal lodged 10 May 2017, q. 1.3, PN210.

 6   Form F8A – Employer response to general protections application lodged 5 June 2017, q. 2.2.

 7   [2011] FWAFB 975.

 8   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349.

 9   Letter from Chambers of Deputy President Clancy to Applicant dated 7 June 2017.

 10   Letter from Applicant to Associate to Commissioner Cirkovic dated 4 July 2017.

 11   Transcript at PN18.

 12   Ibid at PN28.

 13   Ibid at PN22 to PN23.

 14   PN46, Exhibit #A1 Applicant’s Form F8 General Protections Application with attachments.

 15   Exhibit #A2, Applicant witness evidence dated 20 June 2017.

 16   Transcript at PN46, Exhibit #A3, Applicant witness evidence dated 6 September 2017.

 17   Transcript at PN256.

 18   Ibid at PN256.

 19   Ibid at PN289.

 20   Directions of Commissioner Cirkovic dated 8 September 2017.

 21   Fax from Applicant dated 14 September 2017.

 22   Email from Applicant dated 14 September 2017, 8.18 pm.

 23   Fax from Applicant dated 18 September 2017 with documents attached.

 24   Form F52 Application for Order for production of documents filed by the Applicant dated 20 September 2017.

 25   Email from the Respondent’s representative to my Chambers dated 20 September 2017, 9.01 pm.

 26   Transcript at PN354.

 27   Ibid at PN373 and PN416.

 28   Exhibit #A2 Applicant Witness Evidence dated 20 June 2017, PN191.

 29   Exhibit #A1 Applicant’s Form F8 General Protections Application, q. 1.3; Exhibit #A2 Applicant Witness Evidence dated 20 June 2017, PN191, Letter from Applicant dated 26 November 2016 attached to Exhibit #A1 Applicant’s Form F8 General Protections Application.

 30   Exhibit #A1 Applicant’s Form F8 General Protections Application, PN230.

 31   Exhibit #A1 Applicant’s Form F8 General Protections Application, Exhibit #A2 Applicant Witness Evidence dated 20 June 2017, PN191, PN230.

 32   Exhibit #A2 Applicant Witness Evidence dated 20 June 2017, PN191.

 33   Exhibit #A2 Applicant Witness Evidence dated 20 June 2017, PN191.

 34   Transcript at PN152.

 35   Ibid at PN154.

 36   Outline of Submissions of Respondent dated 6 September 2017, filed 6 September 2017, para 1.8, PN152-160.

 37   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 38   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409.

 39   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 40   Transcript at PN171, Outline of Submissions for the Respondent filed 6 September 2017, para 2.2 .

 41   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 42   Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32.

 43   Outline of Submissions for the Respondent filed 6 September 2017, para 5.1, PN173.

 44   Exhibit #A1, Form F8 – General Protections application involving dismissal lodged 10 May 2017, q. 1.3, PN210.

 45   Form F8A – Employer response to general protections application lodged 5 June 2017, q. 2.2.

 46   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 47   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 48   Wilson v Woolworths [2010] FWA 2480, [24]-[29].

 49   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

 50   PR598372.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR598369>