Parker v Department of Human Services

[2009] FWA 1638

[2009] FWA 1638

The attached document replaces the document previously issued with the above code on 15 December 2009.

Paragraph [32] has been replaced.

Thérèse Newton

Associate to Commissioner Whelan

Dated 16 December 2009

[2009] FWA 1638

FAIR WORK AUSTRALIA

DECISION

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

Parker
v
Department of Human Services, Southern Metropolitan Region
(C2009/10426)

COMMISSIONER WHELAN MELBOURNE, 15 DECEMBER 2009

Extension of time; section 366.

[1] On 8 September 2009, the applicant Ms Parker lodged an application under Chapter 3, Part 3 of the Fair Work Act 2009 in which she alleged that her employer had altered her position to her prejudice, caused her injury, denied her benefits and terminated her employment, and that these adverse actions arose from a complaint she had made concerning health and safety issues.

[2] The application was the subject of a conciliation conference before a member of Fair Work Australia. The respondent employer had agreed to participate in the conference but put the applicant on notice (in correspondence copied to Fair Work Australia) that if the matter was not resolved it reserved its right in respect to the fact that the application was lodged outside the time limit specified in the Act.

[3] The matter did not settle in conciliation and the respondent pressed its objection to the application being accepted out of time.

Background

[4] The applicant’s employment was terminated on 9 July 2009. The reason for the termination given was ‘leaving your shift while rostered on for the direct care of clients and the falsification of departmental records for personal gain’.

[5] The termination followed an investigation which commenced on 24 October 2008 when the applicant was notified that a number of complaints of inappropriate conduct had been made against her.

[6] A preliminary investigation was conducted which included Ms Parker being interviewed on two occasions where she was given the opportunity to respond to both the initial allegations and other matters raised during the course of the investigation.

[7] As a consequence of the preliminary investigation the then Manager of Disability Accommodation Services for the Southern Metropolitan Region, Mr Young, decided that a formal investigation should be conducted and Ms Parker was notified of this on 22 December 2008. The investigation was conducted by an external investigator who interviewed Ms Parker on 4 February 2009. Towards the end of March 2009 a report was made to the Department which concluded that there was support for a finding that a number of the allegations were substantiated.

[8] Mr Young on receiving the report recommended that due to the seriousness of the allegations the Department should proceed to a discipline inquiry in accordance with the Discipline Procedure contained in Schedule D of the HSUA Department of Human Services Agreement 2004.

[9] Ms Parker was informed in writing that the matter would be heard before a Delegate of the Secretary of the Department and the inquiry commenced on 22 May 2009. The applicant was represented by the Health Services Union (HSU), who questioned witnesses and made submissions on her behalf.

[10] On 17 June 2009 the Delegate released his determination finding that in relation to two of the four allegations that there was insufficient evidence to make an adverse finding or a finding of serious misconduct against Ms Parker. In relation to the other allegations, that she had on a number of occasions, and after being counselled by her supervisor, failed to complete her rostered shifts by leaving prior to the completion of the shift and that she misrepresented her hours of work on her time sheet, the finding of the delegate was that the charge of serious misconduct was substantiated.

[11] Following the determination the applicant was invited to make submissions as to penalty. A submission was made by the HSU on Ms Parker’s behalf. On 8 July 2009 Ms Parker was advised that the decision of the Delegate was that her employment should be terminated and this occurred on 9 July 2009.

[12] On 23 July 2009 Ms Parker lodged an application for a dismissal remedy under clause 394 of the Fair Work Act 2009. On 4 August 2009 the employer lodged a response.

[13] A telephone conference was held with a conciliator on 7 August 2009 and on 10 August 2009, Ms Parker discontinued her application under section 394.

Submissions

[14] Ms Parker submits that the reason for her late lodgement of the section 365 application was her understanding that she had 60 business days to lodge her application. She found the whole process intimidating and she had made a mistake.

[15] Apart from lodging this application she had not taken any other action to dispute the dismissal. She did not believe that the employer could be prejudiced because it is a huge organisation.

[16] Ms Parker submitted that the reason for her dismissal was the fact that on 2 January 2008 she had made a complaint to the Cluster Manager for the region raising her concerns about members of staff bringing their pets to the workplace. One of the members of staff doing this was the house supervisor. She believed that she was dismissed for dobbing in the house supervisor and that house supervisors, cluster managers and regional managers were all backing each other up. Rather than investigate the supervisor it was easier to dismiss the employee.

[17] In relation to the allegations of leaving work early Ms Parker referred to a supervisor’s report of 18 July 2008 which notes ‘Eileen believes that others are leaving the shifts early. Eileen says she is taking time in lieu due to being up on her sleepover and not being paid’. That continued to be her position. Ms Parker submitted that there was merit in her claim and she felt strongly that justice must be served.

[18] Mr Maddison submitted that the only adverse action which could be the subject of a claim was the applicant’s dismissal as the other matters she has raised pre-date the operation of the Fair Work Act. The Department noted that the first application, under section 394, was lodged within 14 calendar days of the dismissal. The applicant was able to lodge that matter although she was not represented. Her ignorance of the time limit for applications under section 365 is not an acceptable reason for the delay. Mr Maddison referred to the decision in Lim v Downer EDI 1 which dealt with late lodgement of an application under section 394 but where the test to be applied was essentially the same.

[19] Mr Maddison noted that the Ms Parker had taken other action with respect to her dismissal. She discontinued that application, without notifying the respondent and without any indication that a different application was to be made. He submitted that after the first application was discontinued the employer was entitled to, and did, believe that no further action would be taken.

[20] On the merit of the application Mr Maddison referred to the evidence of Ms Ashfield concerning the employer’s response to the letter of complaint written by Ms Parker in February 2008. The evidence sets out the actions taken by the Department in response to the complaint. Mr Maddison further submitted that the claim that the dismissal was somehow linked to this complaint was never raised during the course of the internal disciplinary inquiry and nor was it raised in the submissions made on her behalf with respect to penalty.

[21] The allegations, as a result of which the applicant’s employment was terminated, were essentially admitted by the applicant. The document submitted by her to the Tribunal – the supervisor’s report – records a counselling of Ms Parker due to her failure to complete all shifts and take leave in accordance with Departmental policy. It sets out the conditions under which time in lieu may be taken.

[22] The finding of the Disciplinary Inquiry was that the day following the counselling, Ms Parker left her shift 40 minutes early without proper approval and without any record being made. The Inquiry found that there were at least 12 occasions where Ms Parker was in breach of the policy and that this amounted to a dereliction of her duty to her clients in that she compromised the level of supervision and support available to residents and staff.

[23] The report also noted that Ms Parker admitted that on a number of occasions she misrepresented hours of work on her time sheets.

[24] Mr Maddison also made submissions on the requirement that Fair Work Australia be satisfied that there are exceptional circumstances for allowing an extension of time to lodge an application under section 365. He referred to the decisions in Lim v Downer EDI Mining 2 and Shields v Warringarri Aboriginal Corporation.3

Conclusions

[25] Section 366(1) provides for an application under section 365 to be lodged within 60 days after the dismissal took effect. Section 336(2) provides for Fair Work Australia to allow a further period ‘if FWA is satisfied that there are exceptional circumstances’ taking into account the following:

(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. 4

[26] With the exception of one subsection, section 366(2) is in the same terms as section 394(3) which provides for Fair Work Australia to allow for a further period to lodge an application for an unfair dismissal remedy in certain circumstances. Both section 366(2) and section 394(3) require Fair Work Australia to be satisfied that there are ‘exceptional circumstances’ which would justify extending the time period allowed.

[27] Under the Workplace Relations Act, similar provisions were expressed in terms of a broad discretion (section 643(14)) subject only to the principles established by the Industrial Relations Court in Brodie-Hanns v MTV Publishing Ltd. 5 Those principles expressly stated that ‘special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended’.

[28] It is therefore to be assumed that in requiring the employee to establish that there are exceptional circumstances the discretion of the Tribunal to grant an extension of time is more constrained.

[29] In Baker v R, Gleeson CJ said with respect to the expression ‘special reasons’:

There is nothing unusual about legislation that requires courts to find ‘special reasons’ or ‘special circumstances’ as a condition of the exercise of power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.  6

[30] Branson J in a decision of the Full Court of the Federal Court 7 described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision also noted that the expression had been considered by the courts on numerous occasions:

Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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.  8

[32] Ms Parker gave as the reasons for the delay her understanding that she had 60 ‘business days’ within which to lodge her claim. The dismissal occurred on 9 July. The applicant lodged an application under section 394 which was discontinued on 10 August 2009. This application was not lodged until 8 September 2009. It would therefore appear that the applicant had ample time to ensure that she lodged the application within the time frame set out in the legislation.

[33] While I am of the view that there may be circumstances in which an employee who is ignorant of the time frames can establish special circumstances, e.g. poor English language skills or physical or intellectual impairment, most employees would be able to access the information needed to lodge an application within the 60 days allowed by section 366(1).

[34] Ms Parker did take action to dispute her dismissal by lodging the section 394 application but following a conference with a conciliator she discontinued that action and then took no other action for a period of some 27 days. The employer, quite rightly, had by then assumed that the matter was over. The respondent claims no prejudice should the application be granted other than its reasonable expectation that following the withdrawal of the section 394 application the applicant did not intend to seek further redress.

[35] I am unable to find merit in the application. On the material submitted by the applicant herself she was counselled about not complying with Departmental policy in relation to time in lieu. The document states, ‘Eileen to complete all shifts and take leave in accordance with policy’. The applicant has admitted that she did not do this. The findings of a lengthy and detailed internal inquiry and discipline process found that she failed to complete shifts, breached Departmental policy in relation to the accessing of time in lieu and did not record accurately her attendance on time sheets. These are matters which would provide a valid reason for terminating her employment.

[36] The applicant maintains that the termination can be linked to a complaint she made in January 2008 about staff bringing pets into the workplace. The material before me shows that the Department investigated that complaint and took appropriate action. The incidents for which she was dismissed occurred at a different work location. Further, no such link was sought to be drawn at any time between October 2008 when she was first notified of complaints against her and July 2009 when she was dismissed.

[37] The applicant suggested that she was victimised because she was a ‘whistle blower’. There appears to be no evidence of this in the material before me.

[38] There was nothing to suggest that it would be unfair to refuse the applicant an extension in circumstances where others in a similar position had been allowed a further period of time within which to lodge their application.

[39] I am cognisant of the fact that the applicant in this case was lodged only a short time after the 60 days. That might be a factor where an employee was able to show substantive reasons for the delay. That is not the case here.

[40] For these reasons I am not satisfied that there are exceptional circumstances which would cause me to exercise my discretion to allow a further period within which to lodge this application. There is nothing which is unusual or special about the circumstances which gave rise to the late lodgement or to the nature of the applicant’s claims which made it unjust or inequitable not to allow her to proceed with this application

[41] The application is dismissed.

COMMISSIONER

Appearances:

E. Parker, applicant in person.

J. Maddison for the Department of Human Services, Southern Region.

Hearing details:

2009.

Melbourne:

November 27.

 1   Lim v Downer EDI Mining (2009) FWA 457.

 2   (2009) FWA 457.

 3   Shields v Warringarri Aboriginal Corporation (2009) FWA 860.

 4   Fair Work Act 2009, section 366(2).

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 6   Baker v R (2004) HCA 45 at 13.

 7   Hewlett Packard Aust Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256.

 8   Maan v Minister for Immigration and Citizenship (2009) FACFC 180.

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