Paul Turnock v Masonic Care Tasmania
[2023] FWC 1885
•1 AUGUST 2023
| [2023] FWC 1885 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Turnock
v
Masonic Care Tasmania
(U2023/5685)
| COMMISSIONER WILSON | MELBOURNE, 1 AUGUST 2023 |
Application for an unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed
This decision concerns an application made by Paul Turnock alleging unfair dismissal against Masonic Care Tasmania. Mr Turnock’s employment ended on Thursday 11 May 2023 when his resignation, notified to the Respondent on Thursday 27 April 2023, came into effect. Mr Turnock’s application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on Monday 26 June 2023.
The application originally named the Respondent as Freemasons (Masonic Care); however, it is agreed between the parties that the business of Masonic Care was acquired by the Respect Group Ltd with effect from 1 July 2023 which now trades as Masonic Care Tasmania. An order amending by consent the name of the Respondent to Masonic Care Tasmania was issued by the Commission on 26 July 2023.
Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates referred to above, Mr Turnock’s application was made outside of the statutory time limit, with it having been made after the expiry of the 21-day time period allowed for by the FW Act, which ended on Thursday 1 June 2023.
Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Turnock’s application. Masonic Care Tasmania object to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.
Mr Turnock represented himself and gave evidence in the hearing convened by me to determine the matter of an extension of time, and evidence was also received from his partner, Ms Carolyn Singh. Ms Emma Schumann, Masonic Care Tasmania’s People and Culture Business Partner represented and gave evidence on behalf of the Respondent.
In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion[1] and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[2]
I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Mr Turnock’s case and that an extension of time should not be granted for the making of his unfair dismissal application.
BACKGROUND
Mr Turnock was employed by Masonic Care Tasmania at its Derwent Views residential aged care facility in the capacity of a part-time registered nurse in charge.
A complaint was received about the Applicant’s professional conduct while working on 7 February 2023. Masonic Care Tasmania considered the complaint was serious enough to require an investigation which was undertaken. Mr Turnock strongly contests that his conduct on the shift in question justified investigation. The Respondent’s investigation processes are described in Masonic Care Tasmania’s response to these proceedings:
“the investigation process included: written notification of concerns and allegations raised; notification of the potential breaches and potential disciplinary action if any allegations were substantiated; opportunities to provide responses to the allegations; opportunity to have a support person present; and access to support via an independent and confidential employee assistance program”.[3]
By 14 April 2023 the investigation had progressed to the point of communication to Mr Turnock of preliminary findings of the initial investigation; the raising of additional allegations and providing Mr Turnock with an opportunity to respond. Masonic Care Tasmania also advised Mr Turnock that there may be a necessity for it to advise the professional regulator of any substantiated allegations. The correspondence also stood down Mr Turnock on normal remuneration and invited him to a meeting for the purposes of response to the allegations.
There were difficulties in obtaining a response from Mr Turnock and in finality he was given until 1 May 2023 to respond. However, on 27 April 2023 Mr Turnock resigned when he sent an email to a number of people which stated:
“I am writing to you today (Thursday 27.4.23) to submit my letter of resignation from Freemasons/Respect/Derwent Views as a Registered Nurse, with two weeks notice.
Paul Turnock RN”.[4]
The resignation email was sent to Ms Malycha, Masonic Care Tasmania’s General Manager; Ms Emma Schumann, its People and Culture Business Partner, and to a union email address entitled “ANMF Member Support Team”.
Ms Malycha accepted Mr Turnock’s resignation on behalf of Masonic Care Tasmania the same day it was given, noting that his last day of employment would be 11 May 2023. Masonic Care Tasmania also communicated that it would waive Mr Turnock’s obligation to attend for work during the notice period stating:
“Masonic Care acknowledges that you currently have a medical certificate covering the period to Sunday, 7 May 2023 (inclusive). To support you, Masonic Care does not expect you to return to work after this date and has decided to pay you in lieu of notice for the period Monday, 8 to Thursday, 11 May 2023. In addition, any leave entitlements will be paid to you as required.”[5]
Mr Turnock was notified on 24 February 2023 that the conduct complaints against him required investigation. He was absent from work for significant periods after being notified of the need for an investigation:
28 February 2023 to 14 March 2023 – Mr Turnock was certified as receiving medical treatment with him being “unfit to continue his usual occupation” in the stated period.[6]
14 March 2023 to 4 April 2023 – Mr Turnock was certified as having a medical condition with him being unfit for work for the period.[7]
5 April 2023 – Mr Turnock was certified as being “unfit for work” for a single day absence, owing to “a medical condition”.[8]
18 April and 20 April 2023 – Mr Turnock was certified as being absent due to a “medical condition” with him being advised “to not return to work until after 20th Apr 2023”.[9]
21 April 2023 to 7 May 2023 – Mr Turnock was certified as being “unfit for work” owing to “a medical condition”.[10]
8 May 2023 to 11 May 2023 – Mr Turnock was certified as being “unfit for work” owing to “a medical condition”.[11]
Mr Turnock did not attend to work after 17 April 2023 providing a series of medical certificates explaining his absence. Mr Turnock concedes in his submissions to the Commission on the matter of the extension of time that his unfair dismissal application was made out of time as:
“I was too traumatised by the series of events that unfolded. I wasn’t in a fully mental functioning capacity to undertake the process. I was undertaking Counselling and attending Psychologist appointments”.[12]
Ms Carolyn Singh, Mr Turnock’s partner provides support for this submission confirming:
“… he was not psychologically fit to commence the process with the Fair Work Commission within the 21-day requirement. He was at that time staying with me due to serious concern for his physical safety (Paul was actively suicidal) as a direct result of being forced to resign rather than being terminated and potentially reported to AHPRA (as is stated in the letter he received from Freemason’s Homes).”[13]
Mr Turnock saw a general practitioner, Dr Susan Hodgman, on 21 July 2023 who provided this assessment on his behalf:
“21/07/2023
To whom it may concern,
Re: Mr Paul Turnock
[private details omitted]I have been treating Paul to assist with management of his acute stress reaction due to events which have occured within his workplace at Respect Care and subsequent dismissal from work.
Paul was very distressed when reviewed on 21st April 2023 and 19th May 2023. He was not in a position at that time to be able to reflect on the events which had occured or make decisions about seeking review or support other than psychological support.
Paul has tried to return to work with a different employer however he has been unable to work due to ongoing emotional distress related to the events which occured at Respect Care.”[14]
Since leaving Masonic Care Tasmania, Mr Turnock sought and obtained employment with a community nursing organisation, however then resigned from that position as he “couldn’t perform to the best of my ability due to still being traumatized from the above series of events, so I had to resign. Currently I am unemployed”.[15]
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria.
Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” [16]
The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[17]
In considering whether an extension of time should be granted to Mr Turnock, I am required to consider all of the criteria in s.394(3), which I now do.
1. The reason for the delay
The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[18] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[19] An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[20] While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[21]
The delay to be considered in matters such as this is the delay in making the application after the expiry of the statutory time limit. In Mr Turnock’s case the relevant period to be considered is that after the last day for a lodgement to be within time, namely Thursday 1 June 2023.
The Applicant submits he had no capacity for medical reasons to make an unfair dismissal application before the date he did, 26 June 2023. He gave evidence that he was “too traumatised” by the events he had experienced and was not sufficiently functioning in order to undertake the application process. Further he has undertaken counselling events and attended a psychologist. The evidence of his partner, Ms Singh, went further, saying that Mr Turnock was “actively suicidal” with that condition arising “as a direct result of being forced to resign” as an alternative to dismissal and being subject to a regulatory report.
These matters are supported somewhat by the letter from Mr Turnock’s general practitioner, Dr Hodgman, who says in a letter dated 21 July 2023 that she assisted Mr Turnock with his “acute stress reaction” to the workplace events, including his “subsequent dismissal”. After noting she had reviewed his condition on 21 April 2023 and 19 May 2023 it states Mr Turnock was not in a position at that time to either reflect on the events or make decisions to seek review or support, other than psychological support. Plainly the correspondence does not give any insight about Mr Turnock’s condition after 19 May 2023 or how Dr Hodgman may have interpreted it. Mr Turnock concedes he did not consult Dr Hodgman after 19 May 2023, the date of her second review, until 21 July 2023 when she wrote the letter referred to above.
The two review dates mentioned by Dr Hodgman are respectively less than a week before Mr Turnock provided his resignation letter and greater than a week after the notified resignation had taken effect. The second review date of 19 May 2023 is also 13 days before the expiry of the statutory filing time limit and about five weeks before Mr Turnock’s application was actually lodged on 26 June 2023.
At best Dr Hodgman’s letter serves as an explanation for why Mr Turnock did not file an unfair dismissal application only up to the date of her second review, 19 May 2023 as she says he was in the state she reports at that time. The correspondence though does not provide an opinion as to Mr Turnock’s health in two relevant periods:
After 19 May 2023 and 1 June 2023 (the last day for an in-time filing);
After 1 June 2023 and 26 June 2023 (the date on which the application was made).
Dr Hodgman was not brought forward as a witness in these proceedings and her correspondence, while probably well-intentioned, does not even provide evidence to the necessary weight about Mr Turnock’s actual incapacity to make an application in the period up to her second review date of 19 May 2023.
I note and take into account Ms Singh’s evidence that Mr Turnock was “actively suicidal” in the period before the expiry of the statutory filing time limit. While I accept the gravity of such statement, and am concerned for both, I am not able to accept it as a medical opinion that the Applicant had no or insufficient capacity to make an in-time application.
The proposition that a medical illness caused a filing delay requires compelling medical evidence to that effect.[22] The absence of medical evidence, or “generalised” medical evidence, will typically be insufficient to establish a contention that the delay is occasioned by medical incapacity.[23] In order to accept evidence of a medical condition explaining a delay in lodging an unfair dismissal application, the Commission would expect to have an insight into the extent to which the Applicant was incapacitated during the whole of the period following termination of employment.[24] Medical evidence must be adduced which shows that the stress or other condition adversely affected a person’s cognitive functioning and that this caused, contributed, or at least explained the delay.[25] Medical evidence is relevant in the consideration of an applicant’s capacity to lodge an unfair dismissal application, as well as the assessment of other evidence which may otherwise undermine a contention that a person’s capacity provides a credible reason for the delay.[26]
These considerations are well established in the Commission’s application of s.394 and have no less or greater significance than the application of maxims dealing with applicants who do not understand the law or who have technological difficulties in making their applications. Such difficulties may explain why a person has not filed within the time limit; however, they are not automatically determined to be acceptable reasons accumulating to exceptional circumstances. The same may be said about reliance upon a person’s medical situation: there is no automatic determination to be made that medical reasons amount to an acceptable explanation for the delay which makes it equitable to extend the time limit for the filing of an unfair dismissal application.
In short, and of application to Mr Turnock, it is not exceptional to be devastated about the loss of a job, or the conduct allegations that led to its loss. Neither is it exceptional to be withdrawn and listless in the three weeks after dismissal. Reliance on those factors risks findings that they are not an acceptable explanation for the delay in making an application.
The statutory deadline requires active engagement with the making of an unfair dismissal application, personally or through one’s representative which in this jurisdiction does not have to be a lawyer, union or even paid agent. The lack of active engagement with the deadline, and a consequential late lodgement means an inevitable retrospective examination of an applicant’s circumstances to ascertain whether there was an acceptable explanation for the delay.
In this case, I am not satisfied that Mr Turnock has provided the Commission with an acceptable explanation for the delay in making his unfair dismissal application. The evidence about his state of mind does not meet the requisite standard. There were likely opportunities for him to have made an in-time application notwithstanding his evident distress at losing his job and the associated injustice he perceives about how it was managed. By the time he came to contemplate making an application he was aware it would be out of time and had the opportunity to bring forward compelling evidence about his situation.
Accordingly, consideration of this criterion does not resolve in favour of Mr Turnock for the granting of an extension of time for the making of his application.
2. Whether the person first became aware of the dismissal after it had taken effect
Mr Turnock provided an emailed resignation to Masonic Care Tasmania on 27 April 2023 with his email giving the required two weeks’ notice. Shortly after receiving the resignation Masonic Care Tasmania responded to Mr Turnock accepting his resignation and noting that his last day of employment would be 11 May 2023, as well as authorising his absence without the need to work out the notice period.
There is no suggestion within the evidence to date at least that Masonic Care Tasmania communicated a dismissal to him after 11 May 2023 or at any time. Accordingly, this is a neutral factor in my consideration.
3. Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[27]
The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time”[28] (underlining added).
Taking into account Mr Turnock’s claim that he was forced to resign in order to safeguard his position through not being dismissed and not being subject to a regulator investigation, there is no evidence presently before me either that Mr Turnock disputed being forced to resign before sending the resignation email on 27 April 2023 or in the period after it took effect and before the unfair dismissal application was made.
The absence of these things does not weigh in favour of the Applicant.
It may be easier to sway consideration of this circumstance for someone who had not only complained before a resignation email that what was being asked of them was wrong but also who followed through with the same or stronger complaints after their resignation took effect and seeking redress on the subject from the former employer. An applicant who could demonstrate that they had consistently objected to their forced resignation and had made a late application simply because the former employer strung them along could more easily demonstrate exceptional circumstances for an extension of time for the filing of an unfair dismissal application.
Mr Turnock did neither of those things and so consideration of this factor weighs against an extension of time being granted to him.
4. Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 25 days.
The Respondent does not point to any prejudice that would arise to it if the Applicant were granted an extension of time for the filing of his application.
As a result, consideration of this criterion is also a neutral factor in considering whether there were exceptional circumstances.
5. The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[29] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[30]
Mr Turnock puts forward that he was forced to resign and that such was unfair. For its part Masonic Care Tasmania submit that neither contention can be found in the Applicant’s favour. Plainly there is both insufficient evidence before me on those matters at this time, and it would in any event not be required of me at this time either to fully receive such evidence or make findings about it.
As a result, it is the case in this matter, as with most extension of time matters, that the uncertainties about each party’s case lead me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of Mr Turnock’s unfair dismissal application.
6. Fairness as between the person and other persons in a similar position
This consideration is concerned with the consistent application of principles in applications of this kind, ensuring fairness between an applicant and other persons in a similar position, noting that applications for an extension of time generally turn on their own facts.[31] This may require consideration of applicants whose applications are either currently before the Commission, or have been decided in the past.[32] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[33]
No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances.
CONCLUSION
Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Turnock.
As a result, Mr Turnock’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.
COMMISSIONER
Appearances:
Mr P. Turnock for himself
Ms E. Schumann for the Respondent
Hearing details:
Melbourne (via video conference);
27 July;
2023.
[1] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[3] Exhibit R2, Respondent Outline of Argument: Objections, 13 July 2023 appearing at Digital Court Book, p.70.
[4] Digital Court Book, p.128.
[5] Ibid, p.127.
[6] Ibid, p.126.
[7] Ibid, p.125.
[8] Ibid, p.124.
[9] Ibid, p.122.
[10] Ibid, p.123.
[11] Medical Certificate 8 May 2023 filed by Applicant on 10 July 2023 and owing to readability issues refiled 27 July 2023.
[12] Exhibit A3, Applicant Outline of Argument: Extension of Time, 10 July 2023, appearing at Digital Court Book, p.11.
[13] Exhibit A2, Witness Statement of Carolyn Singh, 10 July 2023, within Applicant Outline of Argument: Extension of Time, appearing at Digital Court Book, p.13
[14] Letter from General Practitioner 21 July 2023 filed by Applicant on 22 July 2023 and owing to readability issues refiled 24 July 2023.
[15] Exhibit A1, Witness Statement of Paul Turnock, 10 July 2023, appearing at Digital Court Book, p.21.
[16] Nulty v Blue Star Group, 2011, 203 IR 1, [13].
[17] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
[18] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[19] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].
[20] Ibid, [40].
[21] Ibid, [41].
[22] Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu Duo (Lynda) - [2018] FWCFB 1643, [38], [67].
[23] Robertson v Bega Dairy & Drinks[2022] FWC 2636, [23].
[24] Ibid.
[25] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9]
[26] Robertson v Bega Dairy & Drinks[2022] FWC 2636, [23].
[27] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[28] Ibid.
[29] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[30] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[31] GHD Pty Ltd v Kevin Alan Black[2023] FWCFB 38, [94].
[32] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[33] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
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