Pauline Hancock v Superior Care Group Pty Ltd
[2021] FWC 6465
•3 DECEMBER 2021
| [2021] FWC 6465 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pauline Hancock
v
Superior Care Group Pty Ltd
(U2021/319)
DEPUTY PRESIDENT ASBURY | BRISBANE, 3 DECEMBER 2021 |
Application for an unfair dismissal remedy
Introduction
[1] This decision concerns an application by Ms Pauline Hancock (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). The Applicant was employed by Superior Care Group Pty Ltd (Respondent) from 28 July 2014 until her dismissal on 20 November 2020 as a cleaner on a permanent part-time basis. On her F2 application the Applicant states she was notified of her dismissal on 20 November 2021 and that it took effect on that date. In the Respondent’s Form F3 Employer Response it states the Applicant was notified of her dismissal on 25 November 2020 and that the dismissal took effect on that date.
[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3). The Applicant was uncertain in her evidence about the dates upon which certain events occurred. Accordingly, I accept the Respondent’s position on the date the dismissal took effect. This assumption is to the Applicant’s advantage and in the circumstances of this case is not material. Accepting the Respondent’s position on the date of the dismissal, the application was required to be filed by midnight on 16 December 2020. The application was filed on 12 January 2021, 27 days outside the required time. The Applicant seeks a further period in which to make her application.
[3] The Act allows the Commission to grant a further period in which to make an unfair dismissal application only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may 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 can be considered exceptional.2
[4] The requirement that there be exceptional circumstances before a further period can be granted under s. 394(3) of the Act contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
[5] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[6] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
Evidence and submissions
Hearing
[7] The matter was allocated to me to determine whether a further period should be granted. I issued Directions requiring that the Applicant file and serve material in relation to whether a further period should be granted addressing the matters in s. 394(3) which were set out in the Directions. The Applicant did not file material responsive to the Directions. The matter was listed for hearing on 26 March 2021. At the hearing the Applicant gave evidence on her own behalf and was assisted by her husband Mr Hancock. The Applicant was granted a further opportunity to provide evidence, including documentary evidence, to support her assertions.
Reason for the delay
[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4
[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.5
[10] On her form F2 application, in response to a question asking for an explanation for the delay in filing the application, the Applicant said that the reason for the delay was that she contacted “Fair Work” on 20 November 2020 and 28 November 2020 and “registered” and had to wait on a letter from the physio at the Mater Hospital Brisbane. Further, the Applicant stated she had to wait on her own doctor at Victoria Point Medical Centre to return from holidays to obtain her fitness for work documents.
[11] At the hearing, in response to questions from me as to the reasons for the delay, the Applicant stated she was computer illiterate, her husband worked away from home and the Applicant was waiting for him to return. The Applicant also reiterated she was awaiting her doctor to return from leave at a time in December, to get a medical certificate. Further, the Applicant stated she had attended the Mater Hospital to get a medical certificate and was told by the physiotherapist that she was fit to work.
[12] I put to the Applicant that the Commission’s file indicated that when she filed her application she did not attach any medical certificates, and that two medical certificates dated 23 December 2020 and 4 January 2021 were provided to the Commission on 10 February 2021 in response to correspondence from Vice President Catanzariti’s chambers advising that the application had been made outside the time required in s. 394(2) of the Act. The Applicant said that the certificates must have been left off her application when she filed it on 12 January 2021.
[13] The Applicant stated she contact Fair Work several times prior to her dismissal, and it wasn’t until December that she was advised that she should not have been sacked for having arthritis and that she needed to put in paperwork in order to dispute this. The Applicant said she received this advice on 3 December 2020. In response to a question from me as to whether the Applicant was advised of the 21 day timeframe in which to file an unfair dismissal application, the Applicant said she was not told about this, and was just told to get her paper work in.
[14] In response to a question from me as to why, if the Applicant received this advice on 3 December 2020 her application was not filed until 12 January 2021, the Applicant stated that she was waiting for her husband to come home to assist her. The Applicant also stated she was emailed the paperwork from the Fair Work Ombudsmen. The Applicant was given an opportunity to tender this email during the course of the hearing but could not locate it.
[15] I then asked the Applicant how she accessed the Form F2 application given her evidence was that the Fair Work Ombudsman had emailed her, and the Applicant stated she downloaded it off the internet and was assisted by her husband to complete it and file it. The Applicant stated the Fair Work Ombudsmen told her she needed to go through “a process to get her job back”.
[16] In relation to what other steps were taken, the Applicant said she “filled out the forms and sent them off” but was waiting on her doctor to return from leave to obtain a medical certificate. I asked the Applicant why she needed to wait for her doctor to obtain a medical certificate and the Applicant said the Fair Work Ombudsman told her on 3 December that she needed to get a medical certificate to say she was fit for work and that it was better to get this from someone who knew her and had treated her.
[17] In relation to steps taken to dispute her dismissal, the Applicant said she did not take any steps to dispute the dismissal with her employer but that she contacted the Fair Work Ombudsman.
[18] The Applicant initially said that her husband was away from some time in December until early January 2021 and then later said that her Husband actually returned home before Christmas. Further, the Applicant stated her Husband was not home when she was notified of her dismissal on 20 November 2021. In response to a question as to why the Applicant had not filed her application at that time, the Applicant’s husband said that the Applicant did not say anything to him about the application until she told him she was waiting on a medical certificate and then had to file a form which needed to be downloaded off the internet.
[19] In relation to the date of her dismissal, the Applicant confirmed that she was dismissed at a meeting on 20 November 2021, which she was only asked to attend the day prior. In relation to the independent physiotherapist assessment relied on by the Respondent to dismiss her, the Applicant accepted she had received the report of that assessment, which stated that the Applicant had severe osteoarthritis of the left hip joint, and that her current work capacity would presently be below the inherent job demands for her current position. The report also referred to the impact on the Applicant’s work capacity of a lumbar condition suffered by the Applicant in addition to her the left hip arthritis. The Applicant’s husband read out the contents of the report at the hearing and a copy of the report was filed by the Applicant following the hearing. The report also states that, noting the Applicant’s arthritis, the Applicant would be at significantly increased risk of aggravating her hip and lumbar arthritis issues undertaking her present job duties, and that this risk would also arise from day-to-day activities.
[20] Following the hearing, the Respondent filed a copy of the Applicant’s final payslip which is dated 25 November 2020, showing the Applicant was paid out her accrued entitlements and was paid 120 hours in lieu of notice.
Consideration
[21] When all of the evidence provided by the Applicant is considered, I do not accept that the Applicant has provided a reasonable explanation for the delay in filing her application. The Applicant’s lack of computer literacy is not, of itself, an exceptional circumstance. If the Applicant was waiting for her husband to return home to assist her to file the Application, this occurred before Christmas and the delay thereafter was not explained. I do not accept that the fact the Applicant was waiting for medical certificates is relevant given that there was no requirement to obtain medical certificates before filing the application and the Applicant did not append them to her application in any event.
[22] The Applicant spoke to staff of the Fair Work Ombudsman on 3 December 2020, within the 21 day period from her dismissal, and was advised to submit “paperwork” which she received from the Fair Work Ombudsman and/or accessed by downloading the Form F2 application from the Commission’s website with the assistance of her husband. Even allowing for the Applicant needing assistance from her husband to make her application, there is no explanation for the delay between her husband returning home before Christmas and the application being filed on 12 January 2021. The Applicant provides no explanation for why she did not file an application as soon as her husband had assisted her to download it, other than that she was waiting for medical certificates to be submitted with her application.
[23] The medical certificates forwarded to the Commission by the Applicant after her application was filed, are dated 23 December 2020 and 4 January 2021. If the Applicant asserted she was awaiting the provision of these certificates she has provided no explanation why the application was not filed as soon as she received them, either on 23 December 2020 or at least on 4 January 2020. As previously stated, the application was not filed until 12 January 2021 and the medical certificates were not appended to it.
[24] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[25] The Applicant was aware of her dismissal by 25 November 2020 and stated in her application and at hearing that she knew she had been dismissed on 20 November 2020. Any confusion about the date the dismissal took effect has been applied in favour of the Applicant and given that this is not an explanation for the delay, this matter weighs against the grant of a further period.
Action taken to dispute the dismissal
[26] The Applicant took no action to dispute her dismissal, other than contacting the Fair Work Ombudsmen or filing an unfair dismissal application. This circumstance is at best, a neutral consideration.
Prejudice to the employer
[27] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[28] In the matter of Kornicki v Telstra-Network Technology Group6 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.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.”7
[29] After considering the material filed by the parties, it is clear that there are factual disputes between the parties about the Applicant’s capacity to carry out the inherent requirements of her position, and competing medical opinion, which can only be resolved at a hearing.
[30] Accordingly, I am of the view that the merits of the application are a neutral consideration.
Fairness as between the person and other persons in a similar position
[31] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration. I am also of the view that there are many applications where similar reasons are advanced in support of a further period being granted, and those reasons are found not to be exceptional. This is a neutral consideration in the present case.
Conclusion
[32] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
The Applicant on her own behalf.
Mr R Eganfor the Respondent.
Hearing details:
18 March.
By telephone:
2021.
Printed by authority of the Commonwealth Government Printer
<PR736202>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
2 Ibid
3 Long v Keolis Downer[2018] FWCFB 4109 at [40]
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
7 Ibid.
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