Spring, Sylvia v ACT Government as represented by the Community Services Directorate
[2015] FWC 3629
•3 JUNE 2015
| [2015] FWC 3629 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Spring, Sylvia
v
ACT Government as represented by the Community Services Directorate
(C2014/8423)
DEPUTY PRESIDENT KOVACIC | MELBOURNE, 3 JUNE 2015 |
Application to deal with contraventions involving dismissal.
[1] Ms Sylvia Spring (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 23 December 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by the ACT Government as represented by the Community Services Directorate (the Directorate) in contravention of the general protections provisions in the Act. As the application had been lodged either eight days or one day (depending on what date is relied upon as the termination date) outside the statutory timeframe for lodgement, the Commission issued Directions on 31 December 2014 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.
[2] The directions invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the directions. Two witness statements were provided by Ms Spring on her own behalf and Mr Greg Corben, Senior Manager of the Bimberi Youth Justice Centre (Bimberi), provided a witness statement on behalf of the Directorate. Neither party asked to be heard on the matter.
[3] For the reasons set out below, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application will be dismissed.
Background
[4] Ms Spring commenced employment with the Directorate on 16 October 2014. Ms Spring was engaged in the position of Youth Worker as a staff member of Bimberi. As part of the recruitment process, Ms Spring was advised that she would be required to undergo psychometric testing as well as a pre-employment medical/fitness test. The psychometric test was completed prior to her interview for the position, and following the interview, Ms Spring was offered a contract of employment for the position. The contract of employment included a requirement that Ms Spring undertake a compulsory eight week full time training program prior to commencing duties as a youth worker at Bimberi. Ms Spring commenced her training on 16 October 2014.
[5] The Directorate scheduled, and Ms Spring attended, a medical/fitness test with Dr Catherine Kelahar on 19 November 2014. While Dr Kelahar’s report, a copy of which was provided to the Commission, found that Ms Spring appeared to possess the physical competencies for the job, it concluded that Ms Spring was not medically capable of performing the duties of a Youth Worker. The report identified one area for further assessment and another area where further assessment should be considered. It does not appear that those further assessments were undertaken.
[6] On the morning of 24 November Ms Spring was asked to attend a meeting with Mr Corban and Ms Brendas (the Deputy Senior Manager of Bimberi). The meeting took place later that day. At that meeting, Ms Spring was advised that as a consequence of the report provided by Dr Kelahar, her employment was being terminated and she would not be completing the rest of the training program.
[7] On the evening of 25 November 2014, Ms Spring was admitted to the Intensive Care Unit (ICU) of Calvary Hospital. Ms Spring remained in the ICU for a period of one week before being transferred to a ward in the hospital, where she was treated as an inpatient until 8 January 2015. Ms Spring was certified as unfit to return to work until the end of February 2015.
[8] On 1 December 2014, while in hospital Ms Spring contacted Mr Cameron Hardy, an organiser with the Construction, Forestry, Mining and Energy Union (CFMEU), who sent an email to Ms Brendas on 8 December 2014. While Mr Hardy and Ms Spring subsequently exchanged a number of emails, Ms Spring deposed that on or about mid-December Mr Hardy advised her that he was not in a position to assist her to prepare her application as he was too busy. In an email to Mr Hardy on 11 December 2014 Ms Spring states “I am currently awaiting further correspondence in this matter from another source.” 1
[9] Ms Spring also contacted Legal Aid and two solicitors from Legal Aid visited her while she was still in hospital in mid-December. On 17 December 2015 Ms Spring signed a consent form allowing Legal Aid to pass on her information to the Women’s Legal Centre (WLC). The WLC prepared an application on Ms Spring’s behalf that was lodged with the Commission on 23 December 2014.
The Date of Dismissal
[10] The Directorate submits that Ms Spring was employed as a temporary casual employee under the Public Sector Management Act 1994, the Public Sector Management Standards 2006 and the Community Services Directorate Enterprise Agreement 2011-2013 2 (the Agreement) while it was submitted on Ms Spring’s behalf that she was employed as a temporary employee. The practical effect of this goes to the period of notice of termination attaching to the relevant form of employment with a consequential impact on the date of termination. Ms Spring submitted that as a temporary employee she would be entitled to one week’s notice of termination which would have made her termination date 1 December 2014. Conversely, the Directorate submits that as a casual employee Ms Spring’s termination took effect on 24 November 2014, the date she was advised of her termination.
[11] As to Ms Spring’s employment contract 3, it states among other things that:
"1. The Territory offers ... to temporarily employ the employee on a casual basis, and the employee accepts that employment, on the conditions specified in this contract.
...
5. The employee’s employment will cease at the end of each period of employment.
...
7. The Territory can terminate the contract at any time before the end of the period specified in the Schedule [sic 16/10/15]...
8. If the Territory terminates the contract before the end of the period in the Schedule, the employee is not entitled to notice of [sic or] pay in lieu of notice...” (Underlining added)
[12] This material supports a finding that Ms Spring’s termination took effect on 24 November 2014.
The Relevant Legislation
[13] Section 366 of the Act provides:
“366 Time for application
366(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
366(2) The FWC may allow a further period if the FWC 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.”
Whether to allow a further period for the application to be made
[14] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.
(a) The reason for the delay
[15] The reason identified by Ms Spring for the delay in lodging her application was that she was hospitalised and incapable of making an application within the statutory timeframe. Ms Spring provided a medical certificate from a Registrar at the hospital that stated that Ms Spring was an ICU patient and then an inpatient at the hospital for the period 26 November 2014 to 8 January 2015.
[16] Ms Spring submitted that during her time in the ICU she was unable to take action to dispute her dismissal. It was further submitted that during her hospitalisation Ms Spring remained confused and distressed but in the period early to mid-December 2014 sought assistance from both a union and Legal Aid. Neither the union nor Legal Aid was able to assist Ms Spring with her application, though Legal Aid referred the matter to the WLC after the close of business on 19 December 2014. Ms Spring submitted that the WLC was unable to contact her until 22 December, and after this initial contact, an application was lodged by the WLC on Ms Spring’s behalf the following day.
[17] The Directorate accepted that during the course of Ms Spring’s stay in the ICU it could not be contended that it was reasonable that to expect Ms Spring to contact her legal advisors, though it was evident that from at least 1 December 2014 Ms Spring was in contact with the CFMEU. The Directorate noted that there was no evidence that had been provided that indicated the extent of Ms Spring’s incapacity after she was transferred to the ward in the hospital. The Directorate contends that Ms Spring was actively pursuing her rights and was aware of the timeframe attached to those rights from at least 11 December 2014, had access to email and telephone during her time on the ward, and evidenced a willingness to commence legal action from 10 December. Ms Spring remained in hospital until 8 January 2015, though she instructed the WLC to lodge an application on 23 December. The Directorate submitted in those circumstances there appears to be no reason why Ms Spring could not have provided instructions to her lawyer from 1 December 2014.
[18] It is not disputed that Ms Spring was not capable of seeking advice and lodging her application while undergoing treatment in the ICU. However, the material before the Commission indicates that from the time of her transfer from the ICU to another hospital ward Ms Spring did seek advice.
[19] First, she raised the matter with Mr Hardy of the CFMEU on 1 December 2014. Mr Hardy contacted Mr Corben and Ms Brendas on 8 December 2014. Ms Brendas responded to Mr Hardy the following day, with Mr Hardy forwarding her response to Ms Spring late on the afternoon of 10 December 2014. Ms Spring further emailed on Mr Hardy on 11 December 2014 in which she referred to the 21 day statutory timeframe for lodging an application, indicated that she was awaiting further correspondence from another unspecified source and stated that “I do not have the mental ability and thought processes in place to function at me best.” 4 I note that no medical evidence was provided to support that statement.
[20] Second, she pursued the matter with Legal Aid from mid-December 2014, with Legal Aid meeting with Ms Spring in hospital on 17 December 2014. If the termination date relied upon is 24 November 2014, it is noteworthy that this meeting occurred two days outside the 21 day statutory timeframe. Legal Aid subsequently referred the matter to the WLC on 19 December 2014, though Ms Spring attests that she signed a consent form on 17 December 2014. No reason is provided for the delay. Ms Spring submits that the WLC did not succeed in contacting her until 22 December 2014, despite attempting to do so, with the application lodged the following day.
[21] Drawing on the above supports the following findings:
- that from 1 December 2014, and despite her hospitalisation, Ms Spring was seeking advice regarding her termination;
- that while there were lags in those from who she sought advice and assistance following up on her behalf and/or contacting her, Ms Spring did not take steps to follow up and clarify progress with them;
- that from at least 11 December 2014 Ms Spring was aware of the 21 day statutory timeframe;
- that as at 11 December 2014 Ms Spring was awaiting advice from another source; and
- that while Ms Spring’s hospitalisation complicated the making of an application, it did not prevent her from finalising her application.
[22] On balance, these factors do not support a finding that there were exceptional circumstances in this case.
(b) Any action taken by the person to dispute the dismissal
[23] Ms Spring submits that as soon as her health began to improve she took steps to dispute the dismissal by contacting Mr Hardy and Legal Aid. Ms Spring was referred to the WLC on 19 December 2014 and her application was lodged shortly thereafter.
[24] The Directorate acknowledged that Ms Spring took steps to dispute her dismissal by contacting Mr Hardy, though questioned why Ms Spring did not instruct a lawyer from at least 1 December 2014.
[25] I am satisfied that Ms Spring took steps to dispute her dismissal from when her health began to improve, which was one week after she became aware of her dismissal. I therefore consider this factor a neutral consideration.
(d) Prejudice to the employer (including prejudice caused by the delay)
[26] Ms Spring contended that there would be no apparent prejudice to the employer if time were extended.
[27] The Directorate did not contend that it had suffered or would suffer prejudice as a result of the delay, though it noted that the mere absence of prejudice to the employer is not a sufficient basis to grant an extension of time: Brodie-Hanns v MTV Publishing Ltd 5.
[28] I consider the issue of prejudice to be a neutral consideration.
(e) The merits of the application
[29] Ms Spring contends that she has strong prospects of success if she pursues a general protections court application, as she was dismissed on discriminatory grounds despite there being no medical evidence to support an argument that she could not cope with the inherent requirements of the position.
[30] The Directorate concedes that it terminated Ms Spring’s employment for a prohibited reason, though noted that s.351(2) provides that s.351 does not apply to action taken because of the inherent requirements of the particular position concerned. The Directorate contends that the medical evidence before the Directorate was that Ms Spring could not perform the inherent requirements of the role and therefore the merits of her application are not strong.
[31] The material before the Commission indicates that:
- the position was advertised on the basis that applicants would be required to undergo a medical/fitness test 6;
- Ms Spring was aware that she would not be employed were she to not pass the medical test 7;
- Ms Spring was assessed by Dr Kelahar as appearing to possess the physical competencies for the job but as not being medically capable of performing the duties of a Youth Worker, with Dr Kelahar identifying one area for further assessment and another area where further assessment should be considered; and
- those further assessments do not appear to have occurred - no submissions were made as to the reasons for this.
[32] These factors suggest that Ms Spring’s application is not without merit.
(f) Fairness as between the person and other persons in a like position
[33] Ms Spring submitted that there are no circumstances relevant to this consideration.
[34] The Directorate accepted that where an employee is too ill to give instructions to their solicitor may constitute exceptional circumstances. However, the Directorate indicated that the usual course of action in such circumstances is for medical evidence to be provided indicating the extent to which a person’s capacity to do so has been detrimentally impacted, highlighting that no such medical evidence had been provided by Ms Spring. The Directorate relied on the Full Bench decision in Ballarat Truck Centre Pty Ltd v Melissa Kerr 8 (Kerr) to support that view.
[35] On balance, I consider this factor to be a neutral consideration.
Conclusion
[36] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 9(Nulty) in the following way:
“[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.
[37] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not, on balance, satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).
[38]Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.
DEPUTY PRESIDENT
1 Statement of Sylvia Spring at Annexure H
2 AE890816
3 Statement of Sylvia Spring at Annexure C
4 Ibid at Annexure H
5 (1995) 67 IR 298 at 299
6 Statement of Greg Corben at Annexure C
7 Statement of Sylvia Spring at paragraph 55
8 [2011] FWAFB 5645
9 [2011] FWAFB 975
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