Reeve v Ramsay Health Care Limited

[2011] FWA 5349

[2011] FWA 5349

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Raylene Reeve
v
Ramsay Health Care Limited
(C2011/5048)

COMMISSIONER WILLIAMS PERTH, 18 AUGUST 2011

Extension of time for lodging application.

[1] Ms Reeve (the Applicant) has made an application under s. 365 of the Fair Work Act 2009 (the Act) alleging a contravention, involving dismissal, of the General Protections contained in Part 3 - 1 of the Act. The Respondent is her past employer Ramsey Health Care Limited (Ramsey).

[2] The Applicant was dismissed from her employment on 24 March 2011. The dismissal took effect that day. The application was lodged on 8 July 2011.

[3] The Act prescribes time limits for making such application as follows

366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.

[4] The application was not made within the 60 days of the dismissal taking effect. This decision deals with whether or not a further period should be allowed for the Applicant to make the application.

[5] I turn to consider the particular factors specified in s. 366(2) of the Act.

S.366(2)(a)

The reasons for delay

[6] The Applicant says there were a number of reasons for the delay in making her application. These were, that the Applicant was preoccupied with preparing and representing herself in other legal proceedings, stress as a result of extreme financial hardship, the exacerbation of her medical condition 'tachycardia' and her depression following the death of her grandmother. As the Applicant did not have the financial resources to see a lawyer she was fully occupied for the first 30 days following her dismissal making enquiries with the Respondent and various Government agencies including an Infoline, the Commission of Health and Disability, the Auditor General and the Minister for Health in an attempt to get advice on what action she could take to dispute her dismissal.

[7] The Applicant submits that she was told that she did not have a remedy as she had been on probation, and she was never advised that she could make a General Protections Dispute Application.

[8] On 24 April 2011, approximately 30 days into the statutory 60 day time limit, the Applicant's grandmother, with whom the Applicant was extremely close, died unexpectedly. It is submitted that the Applicant was consumed with the passing of her grandmother for at least the next 30 days of the statutory 60 day time limit (approximately 24 April 2011 to 23 May 2011).

[9] During this period the Applicant says she was extremely depressed and sleeping irregular hours.

[10] The Applicant was receiving disconnection notices, letters of demand and notices of intention to commence legal action because her dismissal had resulted in her being unable to pay bills including her mortgage, credit card, gas, water, school fees, medical bills and legal fees for the upcoming Family Court proceedings all whilst supporting her two young children.

[11] In addition for a period of approximately four weeks the Applicant was consumed with preparing for a trial in the Family Court of Western Australia because she was unable to pay for legal representation. The other party, the Applicant's husband had legal representation.

[12] The Applicant was extremely stressed and anxious throughout the period leading up to the trial as the Proceedings concerned both property matters and matters of a sensitive nature regarding her children.

[13] The week following the trial the Applicant spoke to a journalist as a result of an article published in a newspaper and that journalist recommended that the Applicant meet with a lawyer.

[14] At that point the Applicant was able to seek legal advice pro bono and was then advised of her right to make a General Protections Dispute Application at a meeting with a lawyer on 5 July 2010. This application was filed promptly thereafter.

Consideration of the reasons for delay

[15] The relevant dates for consideration of the extension of time application are 24 March 2011 being the date the dismissal took effect, 23 May 2011 being the last day the application could have been made within the 60 day time limit and 8 July 2011 being the date this application was made.

[16] The application was made 106 days after the dismissal took effect and 46 days after the last day for lodging within time.

[17] Considering the reasons for the delay as explained by the Applicant, firstly the fact that the Applicant did not have the financial resources to seek advice or assistance from a lawyer and so spent time making enquiries with various agencies and other sources as to what action she could take to dispute her dismissal was not unusual for an employee whose employment has ended. These reasons are not an acceptable explanantion for the delay in making the application.

[18] As was noted by the Full Bench of Fair Work Australia in Dr Bing Du v University of Ballarat (C2011/3808) [2011] FWAFB 5225, at paragraph 31, when considering a similar provision in the Act regarding the extension of time for unfair dismissal applications, it is not unusual for employees who had been dismissed to not be aware of the law and to be unable to pay for advice for legal costs. Further as the Full Bench observed free advice is available from a number of sources, including the website of Fair Work Australia which details the grounds for unfair dismissal remedy applications and the grounds for general protections applications such as this. That information also explains the process for making such applications to Fair Work Australia. The information includes an explanation that the application fee can be waived in cases of serious financial hardship and how to apply for a waiver of the application fee. This option to seek a waiver of the fee is also explained on the Form F8 Application for FWA to deal with a General Protections Dispute.

[19] The Applicant says that she received some advice through her enquiry process to the effect that she did not have a remedy. No evidence has been provided by the Applicant as to whom advised her of this and what she had told them and what questions were asked by her prior to her being given this response. There is not sufficient evidence before me to conclude that the Applicant had been misled by anybody and even if this was the case that whomever this was, was a body whose advice she was entitled to rely upon such that these circumstances could amount to representative error.

[20] I accept from the evidence of the Applicant that she was experiencing a stressful situation as a result of her dire financial situation. Regrettably however this is also not an unusual situation in itself and when employees have lost their employment this unfortunately is even more common. In the Applicant's case her financial difficulties were in part due to other personal circumstances that pre-dated her dismissal however her difficult financial situation was not an acceptable reason for the delay.

[21] The Applicant also says that she was suffering an exacerbation of her medical condition tachycardia and this was also a cause of the delay in making the application. No evidence has been provided to demonstrate that the Applicant’s medical condition was so debilitating that she was rendered unable to make an application. In fact the evidence is to the contrary in that the Applicant was actively enquiring regarding her rights to a range of different bodies and was preparing for and participating in separate legal proceedings prior to making this application. This demonstrates that in reality her health was not so poor as to render her unable to make the application for most of the period between the dismissal and the making of the application.

[22] The Applicant’s evidence is that her grandmother died unexpectedly on 24 April 2011. The Applicant says that after this she was consumed with grief, was extremely depressed and was sleeping irregular hours.

[23] I accept that the death of a close relative as occurred here is an acceptable explanation for some part of the delay in making this application given that the bereavement occurred partway through the 60 day statutory time limit.

[24] It is submitted on behalf of the Applicant that for 30 days after her grandmother’s death on 24 April 2011 she was consumed with her passing and so was unable to make this application. 1 The Applicant did not provide any medical or other evidence to support the submission that this tragic event meant she was unable to make this application for this length of time. In fact the Applicant’s evidence on other matters was that in the week immediately after her grandmother’s death she rang The Honourable Kim Hames M.L.A. office seeking a meeting with him. She followed this request up with another phone call in early in May and then at the suggestion of his staff on 16 May 2011 she emailed his office explaining her situation and inviting him to call her on her mobile phone to arrange a meeting.2Considering this evidence that during this time the Applicant was capable of actively seeking to arrange this meeting I consider that this bereavement is an acceptable explanation for only a small period of the delay in the making of this application, a period much less than the 30 days submitted.

[25] The Applicant also points to Family Court proceedings she was involved in as a reason for the delay in making this application. The Family Court action commenced in February 2011 prior to her dismissal. Significantly the trial took place between 21 June and 24 June 2011. The Applicant was self represented for these proceedings. The Applicant explains this was a very stressful experience for her both by virtue of the subject matter of the Proceedings and her being self represented and that she was extremely busy prior to this trial preparing for those proceedings. It is submitted on behalf of the Applicant that she was consumed for approximately four weeks preparing for the trial.

[26] I do accept that taking part in the Family Court trial for the four days and being self represented meant she was, for this time, unable to make this application. The trial is an acceptable explanation for four days of the delay in making this application.

[27] During the period leading up to the trial the Applicant was not employed. Over those weeks the Applicant, if she was aware of her right to make this application, was not prevented from doing so rather she voluntarily elected to exclusively focus her time and energy on the upcoming Family Court trial. Consequently I do not accept that the Applicant was unable to make this application at any time in the four weeks preceding the Family Court trial. I also note that the trial dates in the Family Court were approximately one month after the last date on which this application could have been filed within time.

[28] After the Family Court trial two weeks passed before this application was made. During the first week the Applicant contacted a journalist whom referred her to Mr Hammond, her representative in this matter. Mr Hammond was first able to meet with her on 5 July 2011. These actions demonstrate that for this period the Applicant was capable of lodging this application but she did not. There is no acceptable explanation for this final period of the delay.

[29] The Applicant also referred to a number of other explanations for the delay that do not warrant separate consideration however those matters identified in her various affidavits have been considered by me.

[30] The death of the Applicant's grandmother and the Family Court proceedings are acceptable explanations only for some small part of the delay in making this application. The reasons given that explain the remainder of the delay are not acceptable explanations for delay in making this application.

S.366(2)(b)

[31] The Applicant did take action to dispute the dismissal by immediately raising the matter with the Chief Executive Officer of Ramsey. This action and other enquiries made by the Applicant are not of themselves however exceptional circumstances.

S.366(2)(c)

[32] There is no prejudice to the Respondent disclosed by the evidence other than the usual prejudice that accompanies any grant of an extension of time.

S.366(2)(d)

[33] The authorities make it clear that it is not appropriate to embark upon a fact finding exercise in relation to the merits of a dismissal for the purposes of determining an extension of time application such as this. Having considered the evidence of both parties regarding the circumstances leading up to the dismissal of the Applicant, the Applicant's case that her dismissal involved a contravention of the General Protections of the Act is not in my view a very strong case however it cannot be said that her case has no possibility of success. The merit of the application in this case is not an exceptional circumstance and is a neutral factor in determining the application to allow further time for making this application.

S.366(2)(e)

[34] This factor is not relevant in the present case.

Allowing a further period to make the application ?

[35] Section 366(2) of the Act says that only if Fair Work Australia is satisfied there are exceptional circumstances can the Tribunal’s discretion to allow a further period in which to make an out of time application be exercised. Even when exceptional circumstances have been found that discretion to allow or refuse an extension of time should be exercised having regard to all of the circumstances including in particular the matters set out in s. 366(2)(a) to (e). 3

[36] In this matter I do accept that the death of the Applicant's grandmother and the Applicant’s need to participate in the four day trial in the Family Court are each a circumstance that was out of the ordinary course, unusual, special or uncommon. These were exceptional circumstances. Given there are exceptional circumstances here the question is whether taking into account all of the circumstances and the matters in s. 366(2) I should allow a further period for this application to be made?

[37] The exceptional circumstances here, the death of the Applicant's grandmother and the Applicant’s need to appear in the four day trial in the Family Court, explained only a small part of the full period of the delay in making this application. There was no acceptable reason for the balance of the delay. Consequently these exceptional circumstances do not themselves warrant an extension of time being allowed. None of the other matters to be taken into account under s. 366(2) demonstrate exceptional circumstances. Further none of these other matters add any weight in favour of allowing further time in which to make this application.

[38] In this case whilst there were exceptional circumstances these had limited impact on the delay in making this application and so considering all of the circumstances it would not be fair and equitable for a further period for the making of this application to be allowed.

[39] Accordingly this application, which was made approximately 6 weeks after the 60 day time limit for making such applications had passed, will be dismissed.

COMMISSIONER

 1   Applicant’s written submission para 25.

 2   Reeve affidavit paras 54 - 57.

 3   Nulty v Blue Star Group Ltd[2011] FWAFB 975 para 15.

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