Thuy Tran v Healius Pathology Pty Ltd T/A Dorevitch Pathology
[2023] FWC 2091
•22 AUGUST 2023
| [2023] FWC 2091[Note: An appeal pursuant to s.604 (C2023/5385) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thuy Tran
v
Healius Pathology Pty Ltd T/A Dorevitch Pathology
(U2023/6577)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 22 AUGUST 2023 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
This decision concerns an application made by Ms Thuy Tran (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant who was employed by Healius Pathology Pty Ltd T/A Dorevitch Pathology (the Respondent) alleges she was dismissed on 26 June 2023. The unfair dismissal application was lodged by the Applicant on 19 July 2023.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2). As the dismissal took effect on 26 June 2023 the period of 21 days ended at midnight on 17 July 2023. The application was therefore filed 2 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act.
The application for an extension of time to file the unfair dismissal application was set down for determinative conference/hearing on 21 August 2023 in advance of which both parties filed material in accordance with directions issued. The Applicant who was called to give evidence was represented at the determinative conference by Mr K Osei of Kofi Osei & Associates Barristers and Solicitors who was granted permission to appear pursuant to s 596(2) of the Act. Ms K Mullally, People and Culture Manager, appeared for the Respondent.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
The background facts may be shortly stated. The Applicant commenced employment with the Respondent in February 2001. At the time of her dismissal the Applicant was employed as a Medical Scientist on a salary under the relevant enterprise agreement of $77,439.44. The Applicant was injured in a car accident in January 2019 and while able to return to work on modified duties between October 2019 and April 2020, did not attend work after April 2020. On 8 December 2022[3] the Respondent wrote to the Applicant requesting that she make contact, stating she had been absent since October 2021 without contacting the employer. Claiming not to have received any response to the 8 December 2022 letter, the Respondent proceeded to terminate the Applicant’s employment on the stated ground of abandonment of employment, by emailing a letter of termination to her on 26 June 2023[4] (Letter of Termination).
As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 July 2023. The delay is the period commencing immediately after that time until 19 July 2023, although circumstances arising prior to that day may be relevant to the reason for the delay.[5]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[7].
The Applicant states that her application was filed two days late because of representative error. She states that following her dismissal on 26 June 2023[8] she contacted her union representative Angus Middleton at the Medical Scientists Association of Victoria (MSAV) by email at 10.33am on 28 June 2023 in which she wrote as follows;
“Dear Angus
After extensive discussions with my family (except my daughter who is currently studying Year 12) friends and former colleagues, i would like to take Dorevitch to Fair Work Australia for Unfair Dismissal……………..
……….Therefore I would like my case to be heard by Fair Work Australia. I want to send a loud message to them to stop their ridiculous actions, /harassment /humiliation, now. Financially I may not gain much but Mentally I would be relieved to get this off my chest and move on. I would resign with dignity. not being sacked with false allegations/harassment/humiliation.
Thank You for your Support during my difficult times with Dorevitch and hope my problems would be resolved soon.”[9]
At 11.34am on 28 June 2023, she sent a further email to Mr Middleton in the following terms;
“Dear Angus
I forgot 1 more thing. I also would like to demand a formal written apology from Dorevitch for the false allegations, harassment I received from Dorevitch and its Representatives. This would send a strong message to them do not bully the other people lijke that. Between you and me I would resign after this saga ends.”[10]
During cross-examination, the Applicant confirmed that her first email to Mr Middleton on 28 June 2023 constituted in her mind an instruction to Mr Middleton to prepare and file and unfair dismissal application. No evidence was adduced that indicated that the Applicant had been asked or in fact provided to Mr Middleton the information necessary to file an application. Nor did she sign an unfair dismissal application form and provide it to Mr Middleton.
The Applicant then sent a text message to Mr Middleton on 5 July 2023 at 12.22pm asking him how he had gone with Dorevitch to which he responded at 12.32pm that he would call her back. When she did not receive a call back from Mr Middleton the Applicant sent a further email on 11 July 2023 to Mr Middleton in the following terms;
“Hi Angus,
How dud you go with Dorevitch? My friends, My colleagues, my family, my psychologist are wondering what is going on with me? I have been waiting for your phone call regarding to Dorevitch’s response so I could update my circumstances to them!”[11]
The Applicant was questioned on the 5 July 2023 text and 11 July 2023 email to Mr Middleton and was specifically asked whether her inquiry to Mr Middleton was in relation to communication she understood he was pursuing with the Respondent. She initially responded that her inquiry was merely about the status of her unfair dismissal application to the Commission but later accepted that she had asked Mr Middleton in an email on 28 June 2023 to pursue an apology from the Respondent.
According to phone records supplied by the Applicant, Mr Middleton called the Applicant back on 11 July at 10.02am and they had a lengthy conversation lasting some 39 minutes.[12] When questioned during cross-examination on this conversation, the Applicant gave evidence that her TAC claim for the injuries she sustained in the 2019 car accident was discussed with Mr Middleton during the telephone call. She was unable to detail the specific points discussed regarding her unfair dismissal application. The Applicant was specifically asked whether Mr Middleton had told her during that telephone call that the union would not be filing an unfair dismissal application to which she responded he had not. She was then asked why there had been no further communication between herself and Mr Middleton after that date but could offer no explanation other than to state Mr Middleton then wrote to her lawyer regarding her TAC claim. She states she then became aware on or about 17 July 2023 that the union had not filed an application on her behalf.
Turning to the Applicant’s contention that representative error explained the late filing of her unfair dismissal application, the first thing to be said is that no evidence was led from the representative Mr Angus Middleton of the MSAV who is said by the Applicant to have failed to file her application in accordance with her instructions. The lack of evidence from Mr Middleton as to the nature of instructions received from the Applicant and any advice given to her regarding an unfair dismissal application does not assist the Applicant.
As to the ‘instructions’ given to Mr Middleton by the Applicant, I accept that the first email sent by her to Mr Middleton at 10.33am on 28 June makes plain her wish for an application to be made to the Commission. While not explicitly stated, the language “I would like my case to be heard by Fair Work Australia” indicates her intention clearly enough in my view. Her second email that day however introduces an additional matter she wanted dealt with by Mr Middleton, that being a demand for a “formal apology” from the Respondent.
It is in the context of the above-referred second email on 28 June 2023 that the follow-up 5 July 2023 text may be viewed. In that text the Applicant asks Mr Middleton how he went with Dorevitch, not whether he had filed her unfair dismissal application. The Applicant stated during cross-examination that her use of language in the 5 July 2023 text was inaccurate and that the text was directed to getting an update from Mr Middleton on the status of her unfair dismissal application. She did however concede in cross-examination that she had previously asked Mr Middleton to pursue an apology from the Respondent and that she would consider resignation.
I found the Applicant’s explanation of the purpose of the 5 July 2023 text unconvincing and regard it as more likely given her earlier demand for an apology from the Respondent that she was seeking an update from Mr Middleton on discussions between himself and the Respondent. My view is reinforced by her email to Mr Middleton on 11 July 2023 when she again asks for an update on the Respondent’s response. At no stage did she ask by text or email whether her unfair dismissal application had been filed.
Turning to the lengthy phone call between the Applicant and Mr Middleton on 11 July 2023, the Applicant was unable to provide details of the call beyond referring to her TAC claim having been discussed. She resisted the proposition put to her that Mr Middleton may have advised her during the call that the union would not be filing an unfair dismissal application on her behalf. Tellingly, there was no evidence of further communication between the Applicant and Mr Middleton after 11 July 2023. Nor was there evidence of any information being sought by or provided to Mr Middleton to enable preparation of an unfair dismissal application on the Applicant’s behalf.
Having regard to the above, beyond the initial 28 June 2023 email from the Applicant to Mr Middleton, there is a lack of evidence that the Applicant actively pursued Mr Middleton over the filing of an unfair dismissal application. Rather, the evidence of her 5 July text message and 11 July email indicate that the Applicant was pursuing Mr Middleton over the status of discussions/engagement with the Respondent rather than an unfair dismissal application. Moreover, the inability of the Applicant to provide details of her discussion with Mr Middleton on 11 July 2023, the absence of any further follow-up with him after that date and the lack of any correspondence confirming the request for or provision of information for an unfair dismissal application, further support a finding that the Applicant’s priority had been her TAC claim and her demand for an apology from the Respondent.
In all the above circumstances I am not persuaded that representative error explains the delay in the filing of an unfair dismissal application. This weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find that the Applicant first became aware of her dismissal when she received an email from the Laboratory Manager, Chanh Le, on 26 June 2023 to which was attached a Letter of Termination which stated that the dismissal took immediate effect. While the letter was dated 23 June 2023, it is well established that a termination of employment does not take effect until the employee is notified of the dismissal[13], which in the present matter occurred on 26 June 2023. In these circumstances I am satisfied that the Applicant had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
After receipt of the Letter of Termination, the Applicant sent an email in reply to Ms Chanh disputing the allegation stated in the letter, that being she had abandoned her employment. Beyond that email, the Applicant took no other action to contest her dismissal after it took effect on 26 June 2023, other than lodging an unfair dismissal application. These circumstances do not however weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The application was filed two days outside of the 21-day period. It is not in dispute, and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The Applicant contends that while she had been off work since April 2020 recovering from injuries sustained in a motor vehicle accident in January 2019, she had not abandoned her employment. Further and contrary to assertions of the Respondent in the Letter of Termination[14], the Applicant states that she had not failed to contact or respond to her employer following correspondence sent to her on 8 December 2022[15]. She refers to correspondence subsequently sent by her to the MSAV on 8 December 2022 requesting its assistance in preparing a response to the 8 December 2022 letter from the Respondent[16]. She also states that in the period from 8 December – 27 December 2022 she was overseas having major dental surgery[17]. The Applicant also states that the Respondent failed to properly support her return to work by declining to offer her alternate duties from October 2021, nor did it seek updated medical information regarding her capacity to return to work prior to her dismissal.
The Respondent submits that it made attempts to return the Applicant to work in October 2021, but the Applicant was unable to fulfil the inherent requirements of her role and pointed to her email to Mr Middleton on 13 December 2022[18] in which she concedes that she was unable to return to work full-time as a Scientist. It also submits that the Respondent kept the Applicant’s role open for her for an extended period and that she failed to respond to correspondence dated 8 December 2022 requesting that she contact the employer. In the absence of communication from the Applicant, the Respondent proceeded to terminate her employment based on her having abandoned her employment. The Respondent also notes that the Applicant failed to provide any medical advice in relation to her prognosis, her anticipated return to work or capacity to carry out the inherent requirements of her role. The Applicant received five weeks’ pay in lieu of notice on termination of her employment.
It is evident to me that the merits of the Application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
K Osei for the Applicant.
K Mullally for the Respondent.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
August 21.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Exhibit A14, Letter to Applicant, titled ‘Please Connect’, dated 8 December 2022
[4] Exhibit A1, Letter of termination, titled ‘Abandonment of Employment, dated 23 June 2023
[5] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[7] Ibid at [40].
[8] Exhibit A1
[9] Exhibit A3, Email and text exchange with Angus Middleton, dated 28 June - 17 July 2023
[10] Ibid
[11] Ibid
[12] Ibid
[13] Ayub v NSW Trains[2016] FWCFB 5500
[14] Exhibit A1
[15] Exhibit A12, Letter to Applicant, titled ‘Please Connect’, dated 8 December 2023
[16] Exhibit A14, Email exchange with MSAV, dated 8 & 13 December 2022
[17] Exhibit R15, Orthodontic Hospital report, dated 23 December 2022
[18] Exhibit A14
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