Ms Tara Perrett v Teeth Health Life Dental T/A THL Dental (Teeth Health Life)

[2016] FWC 8312

[2016] FWC 8312

FAIR WORK COMMISSION

DECISION

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

Ms Tara Perrett
v
Teeth Health Life Dental T/A THL Dental (Teeth Health Life)
(C2016/6160)

COMMISSIONER RIORDAN SYDNEY, 21 NOVEMBER 2016

s.365 Application to deal with contraventions involving dismissal .

[1] This decision relates to a general protections application by Ms Tara Perrett (the Applicant) who had her employment terminated by Teeth Health Life Dental t/a THL Dental (the Respondent) on 22 September 2016.

[2] The Applicant filed her application on 14 October 2016 at 12.06am – some 6 minutes outside of the twenty one day statutory time limit.

[3] The Applicant now seeks an extension of time to lodge her application.

[4] The Applicant represented herself at the telephone hearing on 15 November 2016. Leave was granted to allow the Respondent to be represented by Mr Mark Rinaldi of Counsel.

Statutory Provisions

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances,” taking into account the following five criteria:

“(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.”

[6] The principles to be applied in an extension of time case are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group 1. In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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.”   

Background

[7] The Applicant had worked part time for the Respondent as a dental nurse since April 2013. Allegedly, one week before her termination, the Applicant advised the Respondent that she was pregnant.

[8] On 22 September 2016 the Applicant was called into a meeting with the principal dentist of the Practice, Dr Poulsom and Mr Vincent Donato, who is the Practice Manager. At this meeting, the Applicant was handed a letter terminating her employment immediately on the ground of redundancy. I note that Dr Poulsom and Mr Donato own the Dental Practice.

[9] The Applicant submitted that she was unaware that the Dental Practice was suffering any financial difficulty. The Applicant claimed that she had never been involved in any discussions about restructuring the business or that the Respondent has ever consulted with her in relation to the possibility of staff cuts or a reduction in available hours.

[10] The Applicant, who has a young child and has already taken maternity leave with the Respondent, is of the view that her termination was due to her pregnancy announcement rather than a bona fide redundancy.

[11] The Respondent submitted that the Applicant knew that the Practice was facing financial difficulties on the basis that Dr Poulsom has been unable to work full time for approximately 2 years due to an illness. As a result, an associate dentist had been employed to maintain the Practices’ patient list. Unfortunately, this proposition has not worked. The Respondent advised that the associate dentist was also made redundant on the same day as the Applicant.

[12] The Respondent further submitted that Dr Poulsom, in an attempt to protect the practice, has had to return to full time duties at a reduced rate of pay, even though her health is still not 100%.
[13] The Respondent advised that the profit and loss statement for the first quarter of the 2016-17 financial year shows a loss of $40,000.

[14] The Respondent claims that Mr Donato has contacted the FWC on numerous occasions to seek advice as to his options and obligations, in relation to the Applicant’s redundancy. Following investigations from my Associate, it would appear that Mr Donato has been in contact with the Fair Work Ombudsman (FWO), not the Fair Work Commission (FWC).

Consideration

Section 366(2)(a) – reason for the delay

[15] The Applicant claims that she was in shock for the first ten days following her termination where she claims that her “whole life had been turned upside down.” Further, that it was only after a number of people advised her that she had been treated unfairly that she decided to speak to the FWC hotline. The Applicant claims that she contacted the FWC on two occasions, approximately 5 days before and the day prior to submitting her application.

[16] The Applicant was quite forthright in claiming that the only reason that she seeks to rely upon as to why her application was 6 minutes late is the fact that she experienced problems with the FWC website, particularly when she was trying to pay her lodgement fee. The Applicant claims that she had been advised by the FWC that her application had to be submitted by midnight on 13 October 2016 and that she had commenced the process at 11.35pm on the evening of 13 October 2016.

[17] As a result of the Applicant’s submission in reply on this issue, I asked the NSW Manager of the FWC to investigate the issue. He responded in the following terms:

“Commissioner,

I have investigated the lodgement of the matter you referred to me. This appears to have been finally received, according to our online lodgement system (OLS), at 12.06am on Friday, 14 October 2016.

Since the commencement of OLS on 21 August 2016 there have been a number of technical issues that we have needed to work on post implementation. Many of these issues we have only become aware of as a result of problems reported to us by applicants trying to complete an online applications and then complete the payment process. In a number of instances there have been significant delays with matters ‘crossing over’ into our internal systems as well as issues with the technical design of the online form causing problems for applicants. These problems have resulted in applicants believing that applications have been lodged when they have not actually been submitted. This has then required the applicant to recomplete the submitting of their application. We have also had incidents where payment details have been declined.

I am unable to ascertain with any great accuracy if there were any technical issues at midnight on 14 October 2016 and so I am unable to say unequivocally that the issue of our website needing to refresh and payment details being declined did not occur. Similar issues have been reported in the past so it is not implausible.

Since October, we have continued to make improvements to the OLS and its reliability is now far more certain. However, we still experience some technical issues which our OLS support team continue to troubleshoot.

I hope this information is of assistance and apologise for any issues our system issues may have caused.

Kind regards

Robin Godfrey

State Manager NSW”

[18] I provided a copy of this email to the parties at 7.40am on 16 November 2016.

[19] The Respondent accepted that the website may have been slow but that such an incident does not provide an actual exceptional circumstance. The Respondent argued that the Applicant should not have left her general protections application to the literal last minute and that she should have known that things can go wrong if you take that risk.

[20] I am satisfied that the FWC website probably malfunctioned on the evening of 13 October 2016. Whilst I agree that the Applicant should have submitted her application well before the due date, the fact that she did attempt to do so before the deadline but was frustrated by the FWC’s website is an unusual situation. The Applicant could not have been aware of the technical difficulties that the FWC had been experiencing.

Section 366(2)(b) – action taken by person to dispute the dismissal

[21] The Applicant submitted that she contacted the FWC on two occasions. The Respondent accepted this claim to be true. I am satisfied that the Applicant’s actions in seeking advice from the FWC’s helpline shows sufficient enquiry to satisfy this provision. The Applicant was clearly seeking advice in relation to her rights and what processes were available to her in an attempt to remedy her situation.

Section 366(2)(c) – prejudice to the employer

[22] It was held in Brody Hans v MTV Publishing 2 that prejudice to an employer will weigh against the granting of an extension of time. However, it is up to the employer to produce evidence that they would be prejudiced if an extension of time was granted.

[23] The Respondent submitted that it will suffer prejudice by the way of the inconvenience and expense of defending itself in any further litigation if an extension of time is granted.

[24] I acknowledge the submission of the Respondent that it will suffer inconvenience if the Applicant’s application proceeds to the Federal Circuit Court. I also accept that if such a scenario occurs and the Respondent continues to be legally represented that such a scenario will result in the Respondent incurring expenses.

[25] I also accept that these factors are commonplace in every litigation. There is always inconvenience and costs associated with preparing submissions, evidence and attendance for a hearing – no matter what the jurisdiction or who undertakes the work. Self-represented parties still suffer the opportunity cost of undertaking these tasks as well. I find that this factor is a neutral consideration.

Section 366(2)(d) – merits of the application

[26] In Kornicki v Telstra-Network Technology Group 3 (Kornicki) the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 4

[27] Detailed evidence on the merits of a case are rarely dealt with at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” for the purpose of determining whether to grant an extension of time to the applicant to lodge their Application.

[28] The Respondent argued that there is absolutely no merit in this application on the basis that the Applicant’s termination is clearly a case of genuine redundancy. Further, when the Respondent sought advice from the FWO (as we now know) the Respondent had no idea that the Applicant was pregnant. Also, the Respondent has absolutely no problems with the attitude or competency of the Applicant. Further, the Respondent submitted that if the business is able to be turned back into a profitable endeavour, that they would gladly re-employ the Applicant.

[29] The Respondent also advised that the Applicant was paid 4 weeks’ pay in lieu of notice when she was terminated.

[30] Whilst I acknowledge the Respondent’s submission in relation to the precarious financial position of the Practice and the bona fide nature of the redundancy, such a scenario does not necessary extinguish the possibility of adverse action having occurred on this occasion. I do not believe that any other possible solutions were discussed between the parties, such as the introduction of split shifts or regular transfers between the Practices or alternate rostering. I am not convinced that the requisite level of consultation, as required by the Health Professionals and Support Services Award (2010), has occurred in this instance.

[31] In this matter a determination on the merits is not within the domain of the FWC. I adopt the reasoning of the Full Bench of the AIRC in Kornicki. I accept that the Applicant’s claim is not without merit.

Section 366(2)(e) – fairness as between the person and other persons in a like position

[32] In Morphett v Pearcedale Egg Farm 5, Deputy President Gostencnik said;

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

[33] I am satisfied that this is not a relevant matter in these proceedings.

Conclusion

[34] In determining this matter, I have taken into account all of the submissions of the parties.

[35] I am satisfied and find that the failure of the FWC’s website in not allowing the Applicant to submit her application on time was a scenario that satisfies the test in Nulty v BlueStar, ie it was “a situation which is out of the ordinary course, unusual, special or uncommon.”

[36] I have taken into account that the Applicant’s application was 6 minutes late. The application wasn’t hours late or days late, it was only 6 minutes late.

[37] It would seem unfair and incongruous to me if the FWC were to accept the excuse that a legal practitioner’s error can provide an exceptional circumstance 6 for the time to submit an application be extended but deny any applicant the same outcome due to the incapacity or malfunction of its own website. In both of these scenarios, the applicant is not at fault.

[38] Accordingly, the jurisdictional objection is dismissed and the Applicant’s time is extended to allow for the lodgement of her application.

COMMISSIONER

 1 [2011] 203 IR 1

 2 (1995) IR 298

 3   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 4   Ibid.

 5   [2015] FWC 8885

 6 (2011) 211 IR 347

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