Olivia Downie v Naladra Pty Ltd T/A Park Road Medical & Cosmetics
[2015] FWC 8905
•23 DECEMBER 2015
| [2015] FWC 8905 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Olivia Downie
v
Naladra Pty Ltd T/A Park Road Medical & Cosmetics
(C2015/6464)
DEPUTY PRESIDENT LAWRENCE | SYDNEY, 23 DECEMBER 2015 |
Application to deal with contraventions involving dismissal.
[1] On 29 October 2015 Ms Olivia Downie (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Naladra Pty Ltd T/A Park Road Medical & Cosmetics (the Respondent).
[2] The Applicant commenced employment with the Respondent in April 2015. She was employed as Practice Manager/Administration at the Respondent’s medical centre in suburban Brisbane. She says that she was forced to resign on 4 October 2015 as a result of the conduct of the Respondent. The alleged dismissal took effect on that day.
Alleged Contravention
[3] The F8 application is some 160 pages long. It sets out in great detail the issues around the Applicant’s employment and her personal circumstances.
[4] In summary, she says that she was forced to resign as a result of a sequence of events including:
● Complaints about her underpayment were not addressed;
● Harassment and intimidation by the Respondent;
● Threats to her employment whilst on sick leave;
● Discrimination because she took sick leave;
● Discrimination because of the Applicant’s sex and age.
[5] Breaches of ss. 340, 343, 344, 345 and 351 are alleged.
Respondent’s Submissions
[6] The Respondent submits that the Applicant resigned of her own accord. The company and its systems were restructured under new ownership. The Applicant objected to this and would not co-operate with changes in the working hours of the medical centre so that she did not work excessive hours.
[7] The Respondent denies that there has been a breach of the General Protection provisions of the Act. The Respondent denies making threats to the Applicant or underpaying her. Moreover, the instances of discrimination which are alleged by the Applicant are all denied.
Relevant Legislation
[8] Section 366 of the Act provides:
“366 Time for application
366(1) An application under section 365 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).
366(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.”
Approach of the Commission
[9] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:
“[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] On 9 November 2015, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was set down for hearing by telephone on 4 December 2015.
[11] The Applicant was self-represented. The Respondent was represented by Ms M. Thorley, solicitor with Mr S. Ardalan. Ms Thorley was granted permission to appear pursuant to s.596 of the Act.
Matters to be taken into account pursuant to s.366(2)
[12] 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
[13] The Applicant lodged her application four days late. She relies primarily on her medical condition and the effect of the medication that she was taking. She also had difficulty in obtaining legal advice.
[14] It is clear that these factors did not prevent her from working on the application. She utilised the Commission’s website and bench-book. She clearly felt it essential that she put the level of detail into the F8 application that meant that it became a very lengthy document. This took many days work and was, in my view, the main reason for the delay in filing the application.
[15] The reasons for delay cited by the Applicant do not establish exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[16] There is no evidence of the Applicant disputing the dismissal, apart from preparing the s.365 application, such as would support a finding of exceptional circumstances.
(c) Prejudice to the employer (including prejudice caused by the delay)
[17] I have treated this factor as neutral in this matter.
(d) The merits of the application
[18] The Applicant alleges that she was forced to resign as a result of a series of instances of discrimination and harassment. There is directly contradictory evidence that the Applicant had not been co-operative with changes to the workplace introduced by new management. In any event, the need for the Applicant to establish that there was a constructive dismissal means that she would have an additional hurdle to get over for the application to be successful.
[19] The Respondent denies that any management action taken with respect to the Respondent was because of a reason that could be construed as a breach of the General Protections provisions. In any event, it says that it was not made aware of the Applicant’s medical condition.
[20] I do not consider the merits of the application give weight to the existence of exceptional circumstances.
(e) Fairness as between the person and other persons in a like position
[21] This factor was not addressed and has not been taken into account.
Conclusion and Order
[22] 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.
Order
Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Olivia Downey under s.365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
O. Downie, self-applicant;
M. Thorley solicitor with S. Ardalan for the Respondent.
Hearing details:
2015
Telephone Hearing:
December 4.
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