Sarah Boyd v Mercy Aged and Community Care Ltd T/A Mercy Health

[2021] FWC 1889

[2021] FWC 1889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sarah Boyd
v
Mercy Aged and Community Care Ltd T/A Mercy Health
(C2020/6612)

COMMISSIONER YILMAZ MELBOURNE, 8 APRIL 2021

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time denied.

[1] Ms Boyd was initially employed by Southern Cross Care Victoria in 2015. Ms Boyd commenced on maternity leave on 5 August 2018 and took an extended approved period of two years of leave, the business transitioned to Mercy Aged and Community Care Ltd (Mercy). Ms Boyd was employed as a part-time personal trainer and worked with the physiotherapist to create resident’s personalised exercise plans and conduct group classes for residents and staff.

[2] Ms Boyd was due to return to work from maternity leave in August 2020 and in April 2020, she contacted Mercy to introduce herself to the Service Manager. It was at this time that she became aware that her position as personal trainer was likely to be made redundant.

[3] Ms Boyd understood her termination of employment was effective from 6 August 2020 and believed her application was lodged within the 21-day statutory timeframe.

[4] I scheduled the extension of time hearing for 15 January 2021. At the hearing, Ms Boyd was represented by Mr Bob Eagle of Eagle Partners. On 4 November 2019 I received a notice from Ms Boyd that Alan McDonald of McDonald Murholme ceased to act as her legal adviser, and I received a new notice of legal representation from Mr Bob Eagle.

[5] Mercy sought leave to be legally represented by Gilchrist Connell.

[6] I granted leave for both parties to be legally represented to enable the matter to be dealt with more efficiently taking into account complexity due to the contested factual matters, the fact that neither party was in a position to represent itself effectively and taking into account fairness between the parties.

[7] Witness statements were received from:

•  Sarah Boyd, Applicant.

•  Jessica Antolovich, Human Resources Business Partner of the Respondent

[8] Section 366(1) of the Fair Work Act 2009 (Cth) (the Act) requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

Applicant’s submissions

[9] Prior to Ms Boyd’s return to work in August 2020 from maternity leave, she made contact in April to introduce herself to the Service Manager and to discuss arrangements for her return to work. It was at this time that Ms Boyd was informed that Mercy was not interested in continuing her training programs and would likely no longer require her services. Ms Boyd submits that she was informed that it was illegal to terminate her services while she was on maternity leave. 1

[10] Ms Boyd submits that in a subsequent telephone conference with representatives from Mercy on 7 July 2020, she was informed that her role of personal trainer would be made redundant due to a restructure, that the Lifestyle staff and physiotherapist would absorb her duties, and that it would explore redeployment opportunities until 14 July 2020. A letter of redundancy and a change impact statement was received following the meeting on 7 July 2020.

[11] At a telephone conference on 14 July 2020, the redundancy was discussed and options for redeployment were not identified.

[12] On 21 July 2020 Ms Boyd received a letter confirming her redundancy and she stated that her employment ended on 6 August 2020. 2 However, on the day of the hearing Ms Boyd confirmed that she understood her termination of employment occurred on 5 August 2020, consistent with her outline of submissions.3

[13] At the time of filing the application, Ms Boyd had understood her application was made within the 21-day statutory time frame. 4

[14] Ms Boyd submits that Mercy took adverse action against her in contravention of:

•  S.340 - Protection of Workplace Rights (her right to take maternity leave, an extended period of leave and to return to work); and

•  S.351 - Discrimination was breached in relation to pregnancy and family or carer’s responsibility.

Respondent’s submissions

[15] Mercy submits there are no exceptional circumstances for an extension of time for the filing of the application. It submits in the alternative, if the Commission finds exceptional circumstances, that it should not exercise its discretion to grant an extension of time.

[16] Mercy referred to the authorities of Nulty, 5 Lombaro6 and Christopher Ott v TNT.7

[17] Ms Jessica Antolovich’s witness statement states that Mercy acquired the Southern Cross Community Care (Vic) (SCCCV) site on or about July 2018. Ms Boyd proceeded on maternity leave on 3 August 2018, and during her period of leave she opted to extend her period of leave to 2 years. This period consisted of a combination of paid and unpaid leave. The statement further states that Mercy operated a different business model to SCCCV and it did not employ personal trainers. In 2020, Mercy conducted a review of its business including the SCCCV site and determined that it would not employ personal trainers.

[18] Mercy further submits that Ms Boyd’s reference to her termination of employment on 6 August 2020 is incorrect, with the correct date being 5 August 2020. 8 Attached to the Ms Antolovich’s witness statement, was the letter dated 21 July 2020 confirming the date of redundancy in both the letter and the calculation notice9 and on the final payment slip.10

Consideration

[19] In relation to the matter of the final day of employment I accept the letter of redundancy dated 21 July 2020 and the final pay slip as evidence of the final day of employment being 5 August 2020. It is not contentious between the parties that the letter dated 21 July 2020 was the notification of termination of employment and the date is clear in the document. The application was filed on 27 August 2020, consequently, the application was one day late.

[20] General protections applications involving dismissal must be made within 21 days.

[21] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[22] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 11 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 12

[23] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[24] The general protections involving dismissal application was lodged with the Commission on 27 August 2020, 1 day late.

[25] Ms Boyd submits that she called “Fair Work” and was told they could not provide her with legal advice and that she required a lawyer. She then engaged Alan McDonald of McDonald Murholme to provide advice and file her application. 13 She states that she was informed that her application could be made at any time up until 27 August 2020.

[26] McDonald Murholme filed the application 1 day late, the relevant material concerning the termination of employment was sent by Ms Boyd to them and on 21 August 2020 she corrected the first version of the Form F8 and attachment. Further correspondence from McDonald Murholme to Ms Boyd was sent on 25 August 2020 to check over the documents before filing with the Commission. Ms Boyd could not confirm whether she replied by phone or email authorising its filing. However, she stated while giving evidence that it was most probably on the same day.

[27] Ms Boyd tendered in evidence an email from McDonald Murholme dated 27 August 2020 at 4:43 pm in response to a telephone call from Ms Boyd that stated, “we will be sending you a confirmation letter shortly confirming that the application has been filed.” 14

[28] It is plain from the evidence that McDonald Murholme was aware of the date of termination of employment well before the 21-day deadline. For no apparent reason, McDonald Murholme erred in calculating the 21-day timeframe and maintained the wrong date despite ultimately correcting the termination of employment date on the form F8 filed in the Commission. This constitutes an obvious representative error.

[29] Mercy submit that Ms Boyd was aware of her dismissal date, and if she had not known she should have known. It submits the reason of solely relying on her former solicitor for the delay is not a credible reason, and she is not blameless for the delay. Mercy referred to the material filed by Ms Boyd which shows her corrections to the Form F8 and attachment, dated 21 August 2020, and note that Ms Boyd’s corrections do not correct the date of termination in the document titled “Client Statement”.

[30] Ms Boyd, while under cross examination stated that the lateness is fully attributable to McDonald Murholme as she sent them all the material that she had, including the date of termination. She states that they informed her of the due date for filing the application was 27 August 2020, that she did not calculate the 21 days herself and further she states that the blame sits with them “as that is what she paid them to do, it was their job, it was not her fault and it was out of her control.” 15

[31] Ms Boyd relies on the failure of McDonald Murholme to file her application on time as the reason for the delay and does not accept any responsibility herself. The concern with her evidence relates to her statement that “Fair Work” advised her that she needed to get a lawyer and that “Fair Work” could not give her any legal advice. To contact “Fair Work” Ms Boyd stated that she phoned the number off the screen. If Ms Boyd searched the Commission’s website for the telephone number, she would have noted that it contains important information for employees that had been terminated. Whether she accessed the information for unfair dismissals, or followed the link “Termination of employment”, the website reinforces the 21-day limit for filing of applications unfair dismissal applications and for general protections’ applications involving dismissal, and in addition, the website confirms that legal representation is unnecessary. Had Ms Boyd contacted the Commission, she would not have been advised to obtain a lawyer to assist her, however, she would have, in all likelihood, been advised that the Commission cannot give legal advice had she sought legal advice in regard to her termination of employment.

[32] Mr Eagle, Ms Boyd’s new representative, submits that the material sent from McDonald Murholme reinforces the due date as being 27 August 2020, and while this is correct, there remains a responsibility on the applicant.

[33] While the delay was caused by McDonald Murholme miscalculating the due date, which is inexcusable, there nevertheless remains a question as to whether any blame for the delay can be apportioned to Ms Boyd.

[34] Ms Boyd gave evidence that she was upset by the decision and could not recall any discussion regarding the date of termination of employment. Understandably it is probable that the discussions would have been difficult for Ms Boyd and perhaps she may have missed important elements of the discussion including confirmation of the date of termination. However, she stated that she had read the letters from Mercy and those letters are clear that the termination would be effective from 5 August 2020. 16 These letters were forwarded to McDonald Murholme by Ms Boyd and after the initial shock of the termination of employment. It remains unexplained why she made any assumption that the date of termination was 6 August 2020 despite the clear evidence.

[35] It is not reasonable for Ms Boyd to divest all responsibility to her legal representative. By her own admission Ms Boyd stated that she was paying McDonald Murholme to do the job, that it was out of her hands and it was not her fault. While it is an obvious error on the part of the representative, Ms Boyd cannot divest herself of all responsibility. It was in her interests to instruct correctly and to check that the facts were correct, she did not do so. Further it is untrue that she had no control, she had the capacity to control the outcome by correcting her representative. Ms Boyd therefore is not blameless for the delay.

[36] The conduct of the applicant is central to the consideration whether the representative error is an acceptable explanation for the delay. 17 Had Ms Boyd taken steps to ensure the accuracy of her application details and calculated the 21 days herself without blindly relying on her representative, Ms Boyd would have been blameless.

[37] Therefore, I cannot find this consideration to weigh in Ms Boyd’s favour.

Steps taken to dispute the termination

[38] Ms Boyd submits that she disputed the decision to terminate her employment and she says that the decision during the height of the COVID-19 pandemic while all gymnasiums were closed, meant that she had virtually no opportunity for employment elsewhere.

[39] Mercy state that Ms Boyd did not dispute her dismissal until she filed her application.

[40] I accept that Ms Boyd was upset by the decision to make her position redundant immediately upon completing her period of maternity leave. Ms Boyd states that she challenged the termination during her discussions with Mercy. Mercy contest that Ms Boyd took steps to dispute the termination of employment until she lodged the application. On this consideration I could not find on a balance of probability that one position is stronger, therefore I find this consideration to be neutral.

Prejudice to the employer

[41] Ms Boyd submits that granting an extension of time will not cause Mercy any disadvantage or unfairness.

[42] Mercy accepts it has not suffered any prejudice by the delay.

[43] I do accept that there is no prejudice, therefore this consideration is neutral.

Merits of the application

[44] Ms Boyd submits that her position was not filled during her two-year period of absence on maternity leave and when she was due to return to work, Victoria was in the height of the COVID-19 pandemic and Mercy used the “altered conditions caused by the COVID-19 pandemic as an excuse to terminate her employment”. She submits that Mercy advised her in April 2020 that she would be dismissed on completion of her maternity leave due to a restructure and the uniqueness of her position contributed to the decision. Ms Boyd submits that “rather than utilise the uniqueness of her position to benefit” Mercy, instead it used the reason of uniqueness for her termination of employment. Ms Boyd further submits that Mercy made no attempt to find a replacement position for her. 18

[45] The reasons for dismissal prepared by McDonald Murholme state that the facts and circumstances confirm that Ms Boyd had a workplace right to take maternity leave and return to her position. It states that Mercy cannot discharge the reverse onus of proof that Ms Boyd’s exercise of workplace rights, pregnancy and/or family responsibilities were not reasons for the adverse action. It then proceeds to question the validity of absorbing the duties, stating it is for Mercy neither practically nor commercially feasible.

[46] Ms Antolovich gave evidence that Mercy acquired Southern Cross Community Care (Vic) in or about July 2018. This date appears to have coincided with the period of annual leave taken by Ms Boyd before proceeding on maternity leave. Mercy gave evidence that it initially maintained the business model of its predecessor, but in 2020 it conducted a review of its operations and determined that its business model does not employ personal trainers. 19

[47] Ms Boyd commenced a period of paid and unpaid maternity leave on 3 August 2018. Ms Boyd extended her period of absence twice and was due to return to work on 6 August 2020. 20 Mercy gave evidence that it commenced a period of consultation between 7 July and 14 July 2020 and ultimately determined the position would be made redundant. As no suitable alternative employment was identified, Ms Boyd was given notice on 21 July 2020, and was paid her entitlements on termination of employment.

[48] This matter concerns Ms Boyd’s contention that the redundancy was not a genuine redundancy, but rather that Mercy used the COVID-19 pandemic as a reason to terminate her employment. The submissions in the application prepared by McDonald Murholme assert that the adverse action being the termination of employment was due to Ms Boyd exercising a workplace right by taking maternity leave and/or discrimination on the basis of pregnancy and family/carer responsibility. None of these submissions were advanced on the day of the hearing by Ms Boyd or her new representative. Rather, the evidence from Ms Boyd more closely resembled arguments for an unfair dismissal application. The application, nor the hearing shed any light why a general protections application was pursued instead of an unfair dismissal application. Ms Boyd’s argument appeared to rest on valid reason and process instead of breaches of the general protection provisions. In respect to the alleged contraventions of the general protection provisions, there appeared to be a poor link between the provisions relied on and the termination of employment during the hearing.

[49] While merit is a consideration, contested evidence is not to be tested in an extension of time application, and where an application appears to be highly meritorious, it is relevant to the discretion of the decision maker. 21 Based on the evidence and submissions, I find that this application is not strong on merit. However, I am mindful of the lack of preparation of Ms Boyd’s case, therefore I find at best, that this consideration is neutral.

Fairness between the person and other persons in a like position

[50] Ms Boyd stated that she was unaware of any other people in a like position relevant for this consideration. Mercy submit it would be unfair to grant an extension based on persons in a similar position. It further relies on the decision of McHugh J in Brisbane South Regional Health Authority v Taylor 22 to reinforce that discretion requires the Applicant has the positive burden of establishing an extension is required.

[51] Neither party provided any evidence of any person in a like position where fairness is a consideration, therefore I find this consideration neutral.

Conclusion

[52] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. The bar is high for an extension of time and having considered each of the factors set out in s.366(2) on balance I do not find there to be exceptional circumstances warranting an extension of time. Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Mr B. Eagle for the Applicant

Mr J. Zyngier for the Respondent

Hearing details:

2021

Melbourne (by telephone)

15 January

Printed by authority of the Commonwealth Government Printer

<PR728432>

 1 Form F8 attached reasons for dismissal at [14].

 2 Form F8 at Q 1.3 and attached reasons for dismissal at [21].

 3   Applicant’s outline of submissions at Q1c.

 4   Form F8 at Q 1.4.

 5   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.

 6   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288.

 7   Christopher Ott v TNT Australia Pty Ltd t/a TNT Australia Pty Ltd[2019] FWC 4701.

 8   Respondent’s outline of submissions at [4.3].

 9   Witness statement of Ms Jessica Antolovich and attachment JA-3.

 10   Ibid attachment JA-4.

 11   [2011] FWAFB 975.

 12 Ibid at [13].

 13   Transcript recording at 0:16:29 – 0:18:50.

 14   Applicant’s outline of submissions attachment email.

 15   Transcript recording at 0:22:26 - 0:31:15.

 16   Exhibit R1, Attachment JA-2 letter of 7 July 2020 including the change impact statement and redundancy calculation,

JA-3 letter of 21 July 2020 with attached document detailing termination of employment payment.

 17   Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 [35].

 18   Applicant’s outline of submissions at Q1 e, 1g and 1h.

 19   Exhibit R1 at [3] and [4].

 20 Exhibit R1 at [6].

 21   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 and Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 22 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 at [14].