Susan Roberts v Ramsay Health Care Australia Pty Limited T/A Wollongong Private Hospital

[2023] FWC 462

[2023] FWC 462

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Susan Roberts
v

Ramsay Health Care Australia Pty Limited T/A Wollongong Private Hospital

(U2023/128)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 24 FEBRUARY 2023

Application for an unfair dismissal remedy – extension of time – discretionary considerations – no exceptional circumstances – application dismissed

1. On 5 January 2023 Susan Roberts (Ms Roberts or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to a termination of employment by Ramsay Health Care Australia Pty Limited t/as Wollongong Private Hospital (Wollongong Private or the employer) which took effect on 14 December 2022.

1. Wollongong Private filed a response on 19 January 2023.

1. Ms Roberts’ application was made twenty-two days after the alleged dismissal took effect, being one day beyond the twenty-one day statutory time-limit. For the application to proceed it requires an extension of time. Ms Roberts seeks that extension.

1. This decision deals with whether an extension should be granted.

1. I issued directions on 31 January 2023.

1. Materials were filed by Ms Roberts and Wollongong Private.

1. A brief hearing by video was held on 17 February 2023.

1. Ms Roberts was represented by the Australian Nursing and Midwifery Federation NSW – Nurses and Midwives Association (ANMF NSW Branch). Wollongong Private were internally represented.

1. Fifteen minutes prior to the hearing Ms Roberts’ representative sought an adjournment due to personal circumstances. At the hearing I provided the parties with options (adjourn to later that day to explore if Mr Roberts could secure a substitute union official to represent her; adjourn to a date to be fixed; or admit by consent the evidentiary statement of Ms Roberts and other materials filed with the right for supplementary submissions prior to determination on the papers).

1. By consent, the parties agreed to the latter option.

1. The evidentiary materials admitted by consent are:

By Ms Roberts

·   Statement of Susan Roberts;[1] and

·   Letter of termination.[2]

By Wollongong Private

·   Letter 10 September 2021 (Final Written Warning);[3]

·   Letter 2 December 2022 (Letter of Allegations);[4]

·   Letter 12 December 2022 (Investigation into Breach);[5]

·   Handwritten response Susan Roberts (undated);[6] and

·   Letter 14 December 2022 (Termination of Employment).[7]

1. Supplementary submissions were received from Ms Roberts and Wollongong Private.

1. I take this material into account noting that materials relating to pre-termination issues bear more directly on merit than the extension of time issue. I also note that in consenting to determination on the papers, the employer did not seek to cross examine Ms Roberts on her brief statement though made submissions and supplementary submissions on matters arising including weight[8] as did Ms Roberts.[9]

Facts

1. I make the following findings.

1. Ms Roberts worked for the employer in nursing capacities for thirty-four years prior to her dismissal.

1. After putting allegations to Ms Roberts alleging inappropriate workplace conduct and obtaining a response, at a meeting on 14 December 2022 (4.00pm) the employer dismissed Ms Roberts with one week’s notice paid in lieu.

1. Ms Roberts consulted her union (ANMF NSW Branch) on 5 January 2023.

1. On 5 January 2023 the ANMF immediately recognised that Ms Roberts was one day out of time to file an unfair dismissal application. Ms Roberts provided instructions to immediately proceed with a claim. The application was prepared and filed electronically at 3.05pm that day.

1. The employer filed a response on 19 January 2023.

Submissions

Ms Roberts

1. Ms Roberts seeks an extension of time. She says that the circumstances were exceptional.

1. In her application, she advances the following explanation for the delay:[10]

“The Applicant was unable to seek advice from the Australian Nursing and Midwifery Federation, NSW Branch (‘Federation’), within the 21 days, in part due to the Christmas / New Year period. The Applicant was completely unaware of the 21-day time limit for filing any such application and did not therefore understand the urgency of lodging her application until she received advice on 5 January 2023. As soon as the situation became known to the Applicant and Federation, this application was filed immediately on that day, being the 22nd from the date of dismissal.”

1. Ms Roberts expanded on this explanation in her statement to the hearing:[11]

“To Whom it May Concern;

I write to you in reply to your letter sent on the 13th of January regarding the late submission of my Unfair Dismissal Application (F2). I acknowledge that I submitted the form one day late, and I would like to apologise for this delay. I ask the Commission to please consider the unusual number of public holidays in the period, the emotional toll of being terminated quite suddenly before Christmas, and the fact that I was terminated at the end of the working day on the 14th of December.

There were four public holidays in the 21 days after I was sacked, as well as significant holidays on the weekends. I understand public holidays are not taken into account in counting the 21 calendar days after termination, but I ask the Commission to consider that the public holidays inhibited me from obtaining industrial advice, including the advice that my Unfair Dismissal Application must be lodged within 21 days. I regret that I was not made aware of the 21-day limit until it was too late.

Further, I ask that the Commission please consider that my last meeting with Wollongong Private Hospital was at 4:00 pm on the 14th of December 2022. This was to advise me of their decision to terminate me after nearly 35 years of service. After this I was distraught but had to go and clean my locker out and drive myself home. I left about 5:00 pm. As I was extremely upset with what had happened, so I didn't consider doing anything straight away. I would be very appreciative if the late time of the termination were to be considered in my application.

Sincerely yours,

Susan Roberts”

1. These explanations were further outlined in Ms Roberts supplementary submission. It contended that “the combination of circumstances set out above produced a situation with exceptional circumstances”.[12]

1. In particular, Ms Roberts submits that the explanations for the delay, together with the short period of delay, the absence of prejudice to the employer from a one day delay and what she describes as “strong prospects” on merit, collectively constitute exceptional circumstances.

Wollongong Private

1. Wollongong Private submit that none of the reasons advanced constitute exceptional circumstances individually or collectively.

1. The employer submits that Ms Roberts was not precluded by public holidays of the Christmas/New Year period from taking advice from her union or filing her application within time.

1. The employer submits that dismissal was not sudden in that Ms Roberts was on notice of a disciplinary investigation, had participated in that process and was aware that termination was under contemplation in light of the findings of the workplace investigation.

1. The employer submits that lack of awareness of the 21-day time limit for filing claims is not an acceptable explanation for the delay.

1. The employer submits that it would incur prejudice (time and expense) in having to respond to a late application if time were extended.

Consideration

1. Section 394(3) of the FW Act provides:

“394      Application for unfair dismissal remedy

…

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

1. Being one day out of time, Ms Roberts’ application can only proceed if she establishes that “exceptional circumstances” exist within the meaning of s 394(3).

1. An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[13]

1. The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[14] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[15]

1. I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

“[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.”[16]

1. The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[17]

1. I now consider each of the factors in s 394(3).

Reason for the delay (s 394(3)(a))

1. The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[18] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[19]

1. However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[20] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[21]

1. I now deal with each of the reasons advanced by Ms Roberts.

Public holidays

1. The Christmas/New Year season is accompanied by a number of public holidays. In New South Wales, five fell between the date Ms Roberts was dismissed and the filing of her application (Christmas Day, Christmas Day observance, Boxing Day, New Year’s Day and New Year’s Day observance).

1. The Christmas season is annual and relevant public holidays are known and predictable. Having regard to the known period of the year during which her dismissal occurred, I do not accept Ms Roberts submission that an unusual number of public holidays arose in the 21-day period following dismissal.

1. There is nothing out of the ordinary emerging from the evidence which explains how a known and predictable festive season could reasonably explain the delay. The explanation appears to be that Ms Roberts “assumed”[22] that in this period she could not obtain advice from the union or consult a medical practitioner to certify her emotional wellbeing. There was no reasonable basis to make these assumptions.

1. Public holidays do not preclude a dismissed employee such as Ms Roberts from searching online information to ascertain their rights. Applications to the Commission can be lodged electronically on public holidays.

1. Public holidays can however interrupt telephone contact or face-to-face meetings with persons or organisations from whom guidance, information or advice about unfair dismissal rights is sought. In this matter, I take into account that the ANMF NSW Branch office may have been closed and its officials unavailable on these public holidays as well as between Christmas Day and New Year’s Day, except for emergencies.

1. Nonetheless, at least thirteen days of the 21-day period following Ms Roberts dismissal were not interrupted by public holidays or the closure of the union office, including 3 and 4 January 2023 (the twentieth and twenty-first day after dismissal). Ms Roberts could have sought advice on any of these days but did not do so. Indeed, there is no evidence that Ms Roberts contacted the union about her dismissal until after the time period expired.

1. Neither the Christmas/New Year period nor related public holidays present a reasonable explanation for the delay.

Unaware of 21-day requirement

1. That Ms Roberts did not contact the ANMF NSW Branch until 5 January 2023 is consistent with her explanation that she was not aware of the 21-day requirement until she made that contact, and thus has no reason in the weeks prior to believe that a sense of urgency existed about exercising her post-dismissal rights.

1. Whilst this explains the delay it is not an acceptable reason for the delay in that it does not support a finding of exceptional circumstances. It is not unusual or uncommon that a dismissed employee may not be aware of a time limit for filing unfair dismissal applications in advance of being dismissed.

1. It is well established that the responsibility of a dismissed employee dissatisfied with having been dismissed is to move promptly to ascertain their legal rights and decide whether to exercise such rights. Ignorance of the law is no excuse.[23]

1. There is plenty of information available in plain-English terms on public and private sector web sites about post-dismissal rights that expressly reference the 21-day time limit. This includes Australian government web sites of the Fair Work Ombudsman as well as that of the Commission.

1. I take into account that Ms Roberts moved swiftly to have her application filed as soon as she became aware she was out of time. She consulted the ANMF NSW Branch on 5 January 2023, learned of the 21-day requirement at that time, and her application was filed that day. Her representative union moved swiftly to protect her interests as best it could.

1. This notwithstanding, the lack of awareness by Ms Roberts of the 21-day requirement until the day of filing is not an acceptable reason for the delay.

Late afternoon notice and shock

1. Ms Roberts submits that because she was not notified of her dismissal until late in the afternoon of 14 December 2022, she had no opportunity to exercise her rights that day particularly as the notification was late in the day, sudden and put her in shock and distress.

1. None of these considerations provide a reasonable explanation for the delay.

1. Notice of termination in the afternoon of a working day and within working hours is no more or less unusual than notice earlier in a working day. Further, the day a dismissal takes effect is not counted as the first of the twenty-one days. The day following is the first of those days. Ms Roberts was not denied a full twenty-one days after her dismissal took effect to file her claim. In any event, there is no evidence that Ms Roberts took steps in the days immediately following the late afternoon notification to advance her post-dismissal rights.

1. That a dismissed employee, even one of long standing such as Ms Roberts, may have been distressed or shocked by their dismissal is not of itself an unusual circumstance. It is well established that stress and anxiety from being dismissed or from personal circumstances that arise is not, without more, an acceptable reason for delay.[24] To the extent Ms Roberts made, as suggested, an assumption that no medical practice was open for 21-days post-dismissal to certify her emotional wellbeing lacks plausibility and is, in any event, not a reasonably made assumption.

1. Nor does it appear in this matter that the fact of dismissal came suddenly or unexpectedly. Ms Roberts was on notice of a disciplinary investigation, had participated in that process and was expressly on notice from the employer’s letter of 12 December 2022[25] that termination was under contemplation in light of the findings of the workplace investigation.

Conclusion on reasons for delay

1. Although the delay was unintended and Ms Roberts and her union moved quickly once it became apparent that she had missed the filing deadline, considered overall, the explanations for the delay neither individually nor collectively weigh in favour of a finding of exceptional circumstances.

Awareness of the dismissal taking effect (s 394(3)(b))

1. Until dismissed, Ms Roberts had had thirty-four years of service. Ms Roberts was aware of her employment ending on 14 December 2022 and of the reason why.

1. This is a neutral consideration.

Action taken to dispute dismissal (s 394(3)(c))

1. Ms Roberts did not take action to dispute the dismissal in advance of seeking the assistance of the ANMF NSW Branch. However, the employer was aware that Ms Roberts had a different view on aspects of the alleged conduct or its seriousness that gave rise to her dismissal.

1. This is a neutral consideration.

Prejudice to the employer (s 394(3)(d))

1. As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[26]

1. There is no material prejudice to Wollongong Private by having to defend a late claim.

1. A claim would have to be responded to, involving time and cost. However, that prejudice, whilst real, is not unique.

1. This notwithstanding, the absence of prejudice would not of itself be a reason to grant an extension.[27]

1. This is a neutral consideration.

Merits of the application (s 394(3)(e))

1. A hearing on merit would concern whether the misconduct allegations are established and, if established, whether the dismissal was for a valid reason or otherwise unfair (for example on the grounds of being a disproportionate response).

1. There appears to be some contested versions of relevant facts and issues of procedural fairness and proportionality given Ms Roberts’ lengthy service (including that only one week in lieu appears to have been paid to a long serving employee). Not having considered these matters, it is not possible to express even a provisional view on whether the case has merit.

1. This is a neutral consideration.

Fairness between persons in similar position (s 394(f))

1. It is not submitted that the application for an extension of time gives rise to issues of fairness between Ms Roberts and persons in similar positions.

1. This is not a relevant factor.

Conclusion

1. The period of delay being one day is short. This consideration weighs somewhat in favour of Ms Roberts as no prejudice to the employer arises.

1. However, the FW Act requires the circumstances to have been exceptional in order for an extension to be granted, even for a short delay.

1. Although the delay was unintended and Ms Roberts and her union moved quickly once it became apparent that she had missed the filing deadline, considered overall, the explanations for the delay neither individually nor collectively weigh in favour of a finding of exceptional circumstances.

1. All other factors other than the short period of delay are neutral.

1. I am unable to conclude that the circumstances giving rise to the late filing were exceptional. I am not satisfied that the circumstances were unusual, uncommon or out of the ordinary.

1. There being no exceptional circumstances, the time for lodgement cannot be extended.

1. As Ms Roberts application is out of time, it is unable to proceed. The application is dismissed. An order[28] to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

Ms E Esquenazi, on behalf of Ms S Roberts

Mr P Ryan, with Ms T Landers and Ms K Prideaux, of and on behalf of Ramsay Health Care Australia Pty Limited T/A Wollongong Private Hospital

Hearing details:

2023
Adelaide (by video)
17 February

[1] A1 (court book page 16)

[2] A2 (court book page 10)

[3] R1 (court book page 31)

[4] R2 (court book page 35)

[5] R3 (court book page 38)

[6] R4 (court book page 42)

[7] R5 (court book page 44)

[8] Submission 13 February 2023; Supplementary Submission by Respondent (by email), 21 February 2023

[9] Supplementary Submission by Applicant (by email), 20 February 2023

[10] F2 paragraph 1.6

[11] A1

[12] Supplementary Submission by Applicant paragraphs 3 -6, paragraph 7

[13] Smith v Canning Division of General Practice[2009] AIRC 959

[14] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

[15] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

[16] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

[17] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]

[18] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]

[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]

[20] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288

[21] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

[22] Supplementary Submission by Applicant paragraphs 3(a), (b) and (c)

[23] Nulty at [14]

[24] Casey v Guardian Community Early Learning Centres[2014] FWC 4002 at [16]

[25] R3

[26] Brisbane South Regional Health Authority v Taylor [1996] HCA 25

[27] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

[28] PR751149

Printed by authority of the Commonwealth Government Printer

<PR751148>