Tardi Brown v Brightwater Care Group
[2022] FWC 205
•1 FEBRUARY 2022
| [2022] FWC 205 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tardi Brown
v
Brightwater Care Group
(U2021/11592)
| COMMISSIONER WILLIAMS | PERTH, 1 FEBRUARY 2022 |
Termination of employment - jurisdiction - extension of time.
Miss Tardi Brown (Miss Brown or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Respondent is Brightwater Care Group (the Respondent).
Miss Brown’s application says she was notified of her dismissal on 29 October 2021. The termination of employment letter attached to her application is dated 29 October 2021 and states at the bottom of page 2 that the termination will take effect that day. The application however says that Ms Brown’s dismissal took effect on 8 November 2021.
This application was made on 13 December 2021.
Whether the termination took effect on 29 October 2021 or 8 November 2021 the application has been made more than 21 days after the dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
Consequently, on 7 January 2022 the Commission’s staff wrote to the parties explaining the requirements of section 394 of the Act and inviting the Applicant to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.
The email from the Commission stated as follows,
“For example, if you rely on a medical condition as the reason for your delay, you should supply a medical certificate or report which specifically explains why your medical condition prevented you from making your application within time.”
On 12 January 2022 the Applicant emailed a letter explaining the reasons for the delay in putting through her application.
The Respondent objects to the Applicant being granted an extension of time and has provided submissions in support of their position.
This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The Applicant’s reason for the delay
The Applicant explains that during the process of the dismissal she was going through depression and anxiety throughout October and November 2021 due to the unfair process of dismissal. She says that during this time she was seeing a psychologist and using the Brightwater Access Well-Being Service. At this time she says her mental capabilities were incapacitated after she received the final letter of dismissal. She also points out that she was prescribed medication by her doctor and has been on medication during the months leading up to the time she lodged her application.
The Applicant has not provided a medical certificate or report which explains how her medical condition prevented her from making her application within 21 days.
A Full Bench of the Commission in Australian Postal Corporation v Zhang[1], with respect to medical evidence provided to the Commission considering whether or not there were exceptional circumstances warranting an extension of time to make an application, held at [22] as follows:
“In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
Consequently, I am not satisfied that on the evidence before me that there were exceptional circumstances nor that the Applicant’s mental health was an acceptable reason for the delay.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant was made aware of her dismissal at the same time, or perhaps before, it took effect.
Action taken to dispute dismissal
The Applicant did not take other action to dispute her dismissal.
Prejudice to the employer (including prejudice caused by the delay)
It is not apparent there is any prejudice to the Respondent caused by the delay.
The merits of the application
The Respondent in its reply explains the Applicant was dismissed for failing to ensure that documentation was completed in line with its Client Record Documentation Standard policy.
These allegations were discussed with the Applicant at a number of meetings. She was assisted by her Union representative at the first of these meetings on 22 September 2021. She also attended a show cause meeting supported by her husband on 21 October 2021.
The Respondent also provided a detailed history of prior disciplinary issues concerning the Applicant from 2013 through to April 2021 which had resulted in the Applicant receiving a number of written warnings including final warnings.
The application filed says the Applicant believes her dismissal was unfair for a number of reasons including not having access to iCare to fill in client progress notes and because another staff member could fill in the client progress notes on some shifts which she worked. She had told a team leader that she did not have access to iCare and he emailed IT to fix the issue but this was never done.
She says she was accused by the coordinator of failing to enter progress notes for clients on her shift which is not required because the enrolled nurses instructed her to look after their clients on the floor while they did the documentation. This has not been an issue in the past since she’s been working for the Respondent.
Self-evidently there is a fundamental disagreement between Miss Brown and the Respondent as to what has occurred in this instance and what her role and responsibility was. Consequently, it would only be after a full hearing of the matter that the Commission would be in a position to make an informed assessment of the merits of this application
In these circumstances the Commission views the merits of the application as a neutral factor in determining whether exceptional circumstances warrant an extension of time to make this application.
Fairness as between the person and other persons in a similar position
There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to file this application. Taking into account all of the factors I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the Applicant to make this application.
This application has been made out of time and so must now be dismissed. An order [PR737930] to that effect will now be issued.
Final written submissions:
Applicant, 12 January 2022.
Respondent, 12 January 2022.
[1] [2015] FWCFB 5285.
Printed by authority of the Commonwealth Government Printer
<PR737929>
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