Nina McMath v Woodside Energy Ltd

[2017] FWC 716

[2017] FWC 716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nina McMath
v
Woodside Energy Ltd
(U2016/12575)

COMMISSIONER PLATT ADELAIDE, 2 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] Ms Nina McMath has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Woodside Energy Limited (Woodside) which took effect on 19 September 2016.

[2] The application was lodged on 14 October 2016.

[3] Ms McMath’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“I have not physically been able to take any steps to dispute the dismissal for a number of reasons. I have severe depression which caused me to be absent from work, I attended my doctor and the Woodside doctor at their request therefore my manager and Human Resources at Woodside were aware. I subsequently provided numerous medical certificates to support this, however due to the nature of my illness on many occasions I've been unable to leave the house. In addition I have do not have access to a computer at home.”

[4] On 5 December 2016, my Associate corresponded with Ms McMath and Woodside and advised that the extension of time issue would be considered at a telephone conference on 10 January 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms McMath was directed to provide a statement concerning the extension of time and any documents to be relied upon by 2 January 2017. Woodside was invited to file any material in reply by 9 January 2017.

[5] Woodside filed an F3 Employer’s Response on 25 October 2016 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[6] Ms McMath provided a written submission summarised as follows:

• Her house was burgled several times in the past year.



• She lost her computer and several telephones.



• She was unable to advise Woodside of her inability to attend for work.



• She was suffering from depression which was exacerbated by the dismissal.



• She was unable to leave the house or communicate with anyone for three weeks.



• When she felt able, she asked a friend to attend her house with a computer and they lodged the application on 14 October 2016.

[7] A hearing was conducted by way of telephone conference on 10 January 2017. A sound file record of the telephone conference was kept.

[8] At the teleconference, Ms McMath expanded on the material filed and advised;

• Her house was burgled by her neighbours.



• Her house was 20kms away from the CBD and it would have taken her 1 hour and 15 minutes to travel to the Fair Work Commission premises.



• She could supply medical certificates to support her contention that she was suffering from depression.



• She made the decision to lodge her claim on 15 October 2016.



• She does not dispute the allegations made against her but was depressed, had no telephone and was unable to advise the employer of her absence from work.

[9] At the telephone conference Mr Sproule on behalf of Woodside contended that there were no exceptional circumstances on the basis that;

• Ms McMath’s medical condition (supported by Acting Professor Thompson’s medical reports) was not such so as preventing her from lodging an application.



• It was common for employees to suffer shock/trauma from a dismissal.



• The merits weight heavily in favour of Woodside.



• There was no prejudice to the employer.



• Fairness to others was a neutral factor.



• Ms McMath took no action to contest the dismissal using Woodside’s internal processes.

[10] At the conference both parties under took to provide the medical certificates/reports referred.

[11] Ms McMath subsequently provided a referral dated 5 February 2016 from Dr Sidhu to the Cygnet Clinic which advised Ms McMath had a history of depression and was to be treated by attending six psychology sessions. Ms McMath also provided a medical certificate from Dr Loh dated 25 August 2016 which advised that Ms McMath had a medical condition and would be unfit for her normal activity from 23 August 2016 to 26 August 2016.

[12] Woodside provided copies of medical reports from Acting Professor Thompson for the period 29 January 2016 to 1 September 2016 which had been sought to determine Ms McMath’s fitness to work. The reports indicated that initially Ms McMath was suffering from depression and recommendations were made for treatment. Ms McMath does not appear to have adopted the recommendations but despite that her condition improved slowly. On 22 April 2016, Dr Dayoub found she was fit to resume full time duties with reduced responsibilities. In late May 2016, Ms McMath advised Acting Professor Thompson that she had not been at work for six weeks and had stopped taking her anti-depressant medication but would soon resume. Acting Professor Thompson considered Ms McMath to be fit for work and participate in disciplinary discussions. In Late June, a further report by Acting Professor Thompson indicated Ms McMath remained fit for work and was following her case management instructions. In early August, Ms McMath had regressed. In the final report arising out of a consultation on 1 September 2016, Acting Professor Thompson indicated that Ms McMath was “much brighter than he had seen her before” and was fit for a graduated return to work.

[13] Section 394 relevantly states:

“394 Application for unfair dismissal 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.”

[14] Ms McMath’s unfair dismissal application was made 4 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[15] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, 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.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[16] Ms McMath contends that she was unable to lodge and unfair dismissal application because of her medical condition which prevented her from confronting the issues at hand, her inability to leave her house, and lack of access to the internet or telephone. The only supporting medical evidence consists of a medical referral which states Ms McMath had a history of depression and a medical certificate dated 5 February 2016 which described that Ms McMath was suffering from a “medical issue” and was unfit for work. Ms McMath did not provide any medical information which related to the period at or after the time of dismissal. Woodside submitted a number of medical reports for the same period which supported the contention that Ms McMath was suffering from depression, but indicated her capacity for work had improved by September 2016 and described Ms McMath as fit for work and able to participate in disciplinary processes.

[17] There is no evidence as to why Ms McMath could not attend the Fair Work Commission to lodge an application, or that she could not access a public telephone or internet facility.

[18] The medical evidence does not appear to support Ms McMath’s contention that she was incapacitated by her medical condition such that she was unable to pursue her claim. If she was fit to perform work (even if only for 2-3 days per week), I cannot see any reason why Ms McMath could not submit an application for unfair dismissal.

[19] Ms Lisa Goodchild who attended the conference advised that it was her that intervened whilst Ms McMath was “housebound” and facilitated the lodgement of the application on 14 October 2016. Ms Goodchild stated that Ms McMath raised the issue of her dismissal on Friday 16 September 2016 but was unable to deal with the issue until 14 October 2016 when she brought a computer around to assist with lodging the application. Whilst Ms Goodchild was able to motivate Ms McMath to submit an application, Ms McMath appears to have had the capacity to reach the conclusion that her dismissal was unfair but failed to do anything about it until Ms Goodchild intervened. In light of the medical evidence, the failure to act appears to be a decision by Ms McMath rather than as a result of any medical incapacity to do so.

[20] The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[21] There is no submission that the granting of an extension of time represents prejudice to Woodside.

[22] Consideration of fairness relative to other persons in similar positions does not support an extension of time.

[23] In terms of the merits of the application, Woodside contended that Ms McMath was the subject of numerous discussions and warnings concerning her work attendance, failure to advise of absences and failure to provide medical certificates. Mr Sproule said that Ms McMath was absent 105 days out of a possible 170, and 29 of those days were unauthorised leave. Ms McMath did not dispute these allegations. Accordingly, I have regarded the merits as a factor which weighs against the extension of time issue.

Conclusion

[24] For the reasons I have set out above, I am not satisfied that Ms McMath’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms Mc Math, on her own behalf.

Mr Sproule, on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

January 10.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 3   PR589949

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