Naicker v South Eastern Sydney Local Health District T/A Royal Hospital For Women

[2016] FWC 5697

[2016] FWC 5697

FAIR WORK COMMISSION

DECISION

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

Ms Sharmain Naicker
v
South Eastern Sydney Local Health District T/A Royal Hospital For Women
(C2016/4065)

COMMISSIONER RIORDAN SYDNEY, 2 SEPTEMBER 2016

Application to deal with contraventions involving dismissal.

[1] This decision relates to a general protections application in accordance with section 365 of the Fair Work Act, 2009 (the Act) by Ms Sharmain Naicker in relation to her termination by the South Eastern Sydney Local Health District t/a Royal Hospital for Women (SESLHD).

[2] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[3] Ms Naicker was terminated on 5 May 2015. Ms Naicker’s application to the Commission was received on 8 June 2016 – some 54 weeks’ outside of the statutory timeframe.

[4] A hearing was conducted on 11 August 2016 to deal with Ms Naiker’s application for an extension of time.

[5] Ms Naicker represented herself in these proceedings. SESLHD was represented by Ms Donna Young its Manager, Workforce Strategy and Employee Relations.

Evidence

[6] Ms Naicker accepted that her application was more than twelve months late but believed that the reasons behind her late application were exceptional.

[7] Ms Naicker submitted detailed information to substantiate her claim that she had suffered with poor health during this period. Numerous certificates from a variety of medical practitioners support Ms Naicker’s claim.
[8] Ms Naicker claimed that she was the breadwinner of the family and that, coupled with her health issues, the issue of her application was not her principal concern at the time.

[9] Finally, Ms Naicker claimed that, until she recently sought legal advice through Legal Aid, she was ignorant that she could make a claim to the Fair Work Commission (FWC). Ms Naicker accepted that she worked for the Department of Health which she believed was covered by the New South Wales Industrial Relations Commission (NSWIRC).

[10] Ms Young submitted that Ms Naicker’s application had serious jurisdictional issues based on the lateness of the application and the fact that SESLHD were not covered by the Fair Work Act.

[11] Ms Young advised that the matter has been dealt with by the NSWIRC which resulted in Ms Naicker being paid a settlement of $10,000 gross.

[12] Ms Young also advised that Ms Naicker had lodged an application with the Anti Discrimination Board (ADB) in March 2016.

Statutory Provisions

[13] 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.”

[14] The principles to be followed in determining the existence of an exceptional circumstance are well established and are 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.³ 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.”   

Consideration

Section 366(2)(a) Reason for the Delay

[15] I am conscious and have a great deal of sympathy for Ms Naicker and the circumstances surrounding her employment career and her personal life. I have taken this into account.

[16] I note that Ms Naicker was able to make applications to both the NSWIRC and the ADB since her termination. I have taken this into account.

[17] Whilst Ms Naicker’s claim that she was ignorant of the provisions of the Act, such a proposition is not a relevant consideration in these proceedings. Ignorance is not a sustainable defence. I have taken this into account.

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

[18] I note that Ms Naicker has made applications to both the NSWIRC and the ADB in relation to her dismissal. Ms Naicker has also threatened to pursue a civil remedy against SESLHD.

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

[19] It was held in Brody v MTV Publishing 4that 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.

[20] SESLHD did not produce any evidence or make any submissions in relation to this issue.

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

[21] In Kornicki v Telstra-Network Technology Group 5 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.” 6

[22] 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” 7 for the purpose of determining whether to grant an extension of time to the applicant to lodge their Application.

[23] I adopt the reasoning of the Full Bench of the AIRC in Kornicki.

[24] I accept the submission of SESLHD that Ms Naicker is jurisdictionally barred from bringing this application due to the Department of Health being a department of the NSW Government. However, that is a decision for the Federal Circuit Court – not the Commission.

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

[25] In Morphett v Pearcedale Egg Farm, 8 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”.

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

Conclusion

[27] I have taken into account all of the submissions and information that has been submitted by the parties.

[28] Whilst sympathetic to Ms Naicker’s situation in life, I am satisfied that Ms Naicker has not identified an exceptional circumstance to allow me to extend the date of her application. Mr Naicker’s ignorance of the Act is not of itself an exceptional circumstance.

[29] Ms Naicker’s application is more then 12 months out of time. Whilst I acknowledge that Ms Naicker has been ill during this period and that she has been dealing with some difficult personal circumstances, I note that these scenarios did not prevent Ms Naicker from making an application to the NSWIRC and the ADB.

[30] I also note that the matter before the NSWIRC was resolved and a payment was made to Ms Naicker. I accept that Ms Naicker did not sign a Deed of Release as a result of those proceedings.

[31] I find that Ms Naicker’s scenario does not produce the requisite situation which could be described as being out of the ordinary, unusual, special or uncommon.

[32] Ms Naicker’s application for an extension of time is dismissed.

COMMISSIONER

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by

reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to

begin after a specified day’ the period ‘does not include that day’).

 2   Section 366(2) of the Act.

3 [2011] 203 IR 1

 4 (1995) IR 298

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

 6   Ibid.

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

 8   [2015] FWC 8885

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