Rebecca McNabb v HCoA Operations (Australia) Pty Limited T/A Dudley Private Hospital

[2012] FWA 8773

[2012] FWA 8773

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Rebecca McNabb
v
HCoA Operations (Australia) Pty Limited T/A Dudley Private Hospital
(U2012/11321)

COMMISSIONER MCKENNA SYDNEY, 7 NOVEMBER 2012

Application for unfair dismissal remedy - out of time - application dismissed.

[1] Rebecca McNabb (“the applicant”) has lodged an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy. The applicant was formerly employed as a CSSD (sterilizing-related) attendant by HCoA Operations (Australia) Pty Limited trading as Dudley Private Hospital, which is part of the Ramsay group (“the respondent”). The termination of employment stemmed from a resignation letter tendered by the applicant on 8 May 2012. The applicant’s resignation letter contained a notice period which was waived by the respondent (with the respondent instead giving a payment in lieu to the applicant). As a result, the effective date of the termination of employment was 10 May 2012. The applicant contends the termination of her employment by resignation amounted to a constructive dismissal.

[2] On 10 July 2012, the applicant lodged this application. On 24 July 2012, the respondent lodged its response to the applicant’s application for an unfair dismissal remedy. Among other matters, the response disputed the applicant’s contention there had been a constructive dismissal. The respondent also objected to the application on the basis it was out of time. In view of the respondent’s objection, the conciliation by telephone that had been listed before a Fair Work Australia conciliator was vacated. The cancellation notice noted the respondent had indicated it wished to have the objection dealt with prior to conciliation.

[3] Fair Work Australia’s Unfair Dismissals Team issued standard directions in relation to an extension of time conference/hearing that was listed for 24 October 2012 in Orange, New South Wales. The parties duly lodged their materials pursuant to the directions. The respondent’s Sydney-based representative also made a written request to participate in the proceedings by telephone due to the exigencies associated with travel from Sydney to Orange.

[4] After the application was allocated to me, I listed the matter for a mention by telephone prior to the scheduled hearing. With the consent of the parties, the extension of time conference/hearing that was listed in Orange on 24 October 2012 was vacated. The parties agreed the matter could be dealt with on papers.

Applicant’s submissions

[5] A good measure of the applicant’s materials filed pursuant to the directions deal with matters preceding the termination of employment as to alleged workplace bullying and harassment.

[6] The applicant’s submissions noted she had submitted her resignation and later received a telephone call to advise the respondent did not require her to work the period of notice. A letter dated 9 May 2012 from the respondent also confirmed receipt of the resignation and noted that the respondent would pay-out the applicant in lieu of working the notice period. Notwithstanding the resignation, the respondent invited the applicant to attend a meeting on 28 May 2012 to be interviewed about the detail of the allegations. The meeting was to be attended by the respondent’s Chief Executive Officer, Trevor Matheson, and Keith Richardson, Employee Relations Manager, New South Wales and Victoria.

[7] The applicant and her support person attended the meeting on 28 May 2012. The applicant’s submissions indicate she was generally dissatisfied with the investigation and the conclusions subsequently reached by Mr Richardson.

[8] The applicant’s submissions indicated that after receiving Mr Richardson's letter she was “very displeased” with the response and then contacted Fair Work Australia. The applicant submitted that on 2 July 2012, she telephoned Fair Work Australia and was put on hold for 50 minutes. The applicant submitted she also sent two emails to Fair Work Australia but they were sent back. On 3 July 2012, the applicant spoke to a Fair Work Australia representative at 9.00am and was told to check her mail box for correspondence. The applicant received all relevant paperwork to lodge a claim on 5 July 2012, which she forwarded to Fair Work Australia by express post.

Respondent’s submissions

[9] The respondent’s submissions drew attention to the provisions of s.394(3) of the Act. As to those matters, the respondent submitted as follows. First, the respondent submitted there were no exceptional circumstances within the meaning of s.394(3) of the Act that would support the applicant’s application for a further period in which to make her application for unfair dismissal.

[10] Second, as to reason for the delay, the applicant tendered her resignation on 8 May 2012. By letter dated 9 May 2012, the respondent confirmed the applicant would not need to work the notice period and, therefore, the date of her termination of employment would be 10 May 2012. On 10 July 2012, some eight weeks after the termination of the applicant’s employment with the respondent, the applicant lodged an application for an unfair dismissal remedy. The respondent contended that, having reviewed the material provided in support of the applicant’s application, she has provided no reasons for a delay of over eight weeks in which to lodge her application for unfair dismissal.

[11] Third, the respondent’s submission noted the applicant’s submissions accepted that she tendered her resignation on 8 May 2012 and that on 10 May 2012 she received the respondent’s letter dated 9 May 2012. On this basis, there can be no doubt as to the date on which the applicant’s employment was terminated. Thus, she was aware of the dismissal.

[12] Fourth, there is nothing in the applicant’s materials to indicate the applicant took any action in support of her claim of alleged constructive dismissal.

[13] Fifth, as to prejudice, the respondent submitted that, given the period of time that has elapsed since the date of the applicant’s termination of employment, it would prejudice the respondent should an extension of time be granted.

[14] Sixth, as to merits, the applicant has stated she tendered her resignation on 8 May 2012 on the basis of alleged bullying, victimisation and harassment. Mr Richardson conducted an investigation into the applicant’s allegations and, by letter dated 2 July 2012, found the applicant’s complaints were without basis and, accordingly, no action would be taken with respect to them. This investigation was required under the respondent’s policies. The respondent contended there is no basis to assert that the applicant was constructively dismissed. Rather, the termination of her employment was due to her resignation.

[15] Seventh, the respondent submitted there was nothing applicable arising in the applicant’s case that would be relevant to fairness as between the applicant and other persons in a similar position

[16] The respondent submitted that in light of the foregoing matters, the applicant has failed to make out any exceptional circumstances, such that Fair Work Australia should grant an extension of time. Therefore, the application for an extension of time should be dismissed.

Consideration

[17] Section 394 of the Act relevantly provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[18] The applicant has not provided any reasons for the delay in making her application, such as could be considered to come within the meaning of exceptional circumstances. There was no material to support a conclusion there would have been anything that would have precluded the applicant from lodging her application within time. Rather, it seems the applicant determined to lodge an application for an unfair dismissal remedy as she was dissatisfied with the outcome of Mr Richardson’s investigation and conclusions. That investigation had to be undertaken pursuant to the respondent’s policies. The fact the investigation was scheduled to commence on 28 May 2012 and the time it took for Mr Richardson to write to the applicant as to his conclusions would not, however, have precluded the applicant from lodging an application for an unfair dismissal remedy in time.

[19] There is no dispute between the parties that the applicant was contemporaneously aware of the effective date of the termination of employment. There is nothing to support a conclusion the applicant took any action to dispute the (alleged constructive) dismissal prior to lodging the application on 10 July 2012, albeit she did participate in a meeting on 28 May 2012 that the respondent had arranged pursuant to its policies in connection with the alleged bullying etc. If there is prejudice to the respondent caused by the delay, it would seem, in the scheme of things, to be minor. The merits of the application are contested and essentially indeterminate on the basis of what was put before Fair Work Australia pursuant to the directions concerning an extension of time. Last, as the respondent submitted, there was nothing relevantly arising as to questions of fairness as between the applicant and other persons in a similar position in connection with an extension of time.

[20] I have not been satisfied as to the existence of exceptional circumstances such to allow a further period of time for the applicant’s application to be made.

[21] An order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

R McNabb, in person.

L Hepworth for HCoA Operations (Australia) Pty Limited trading as Dudley Private Hospital.

Hearing details:

2012.

Sydney:

15 October.

Telephone link and written submissions

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<Price code C, PR530147>