Tracy Paterson-Gray v Ladywood Clinic

[2015] FWC 6630

[2015] FWC 6630

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tracy Paterson-Gray
v
Ladywood Clinic
(U2015/11494)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 30 SEPTEMBER 2015

Application for relief from unfair dismissal - extension of time granted.

[1] Mrs Paterson-Gray has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment with Ladywood Clinic T/A Ladywood Medical Centre Pty Ltd (the Ladywood Clinic). At a telephone conference convened on 30 September 2015 I advised the parties to this matter that I was satisfied that the time for lodgement of Mrs Paterson-Gray’s unfair dismissal application should be extended and that, the application would be the subject of further consideration to determine if the Small Business Fair Dismissal Code was complied with in these circumstances. These reasons reflect the background and reasons for that decision.

[2] On 1 September 2015 the Australian Nursing and Midwifery Federation (ANMF) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), on behalf of its member, Mrs Paterson-Gray in relation to the termination of her employment with the Ladywood Clinic.

[3] That application advised that Mrs Paterson-Gray’s dismissal took effect on 10 August 2015 and further, that the application was made within time.

[4] On 2 September 2015 my Associate corresponded with both Mrs Paterson-Gray and the Ladywood Clinic and advised that the extension of time issue would be considered through a telephone conference on 30 September 2015. Substantial information about the extension of time issue was provided to the parties. Mrs Paterson-Gray was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 17 September 2015. The provision of this documentation was later extended to 23 September 2015.

[5] The Employer’s Response to the application indicated that the Ladywood Clinic opposed the extension of time and also asserted that it was a small business and that the termination of Mrs Paterson-Gray’s employment was consistent with the Small Business Fair Dismissal Code.

[6] On 23 September 2015, the ANMF, on behalf of Mrs Paterson-Gray provided an explanation for the time of lodgement through a written submission and an Applicant Statement. Mrs Paterson-Gray provided advice relative to the late lodgement of her application in the following terms:

“….

4. On 12 August 2015 I communicated with ANMF and was allocated Industrial Officer Sorna Nachiappan (SN) as my representative. I spoke to her on the telephone and later shared email exchange(s) with her.

5. I instructed her:

a. Meeting 10 August 2015 where I was verbally told of the dismissal;
b. No letter of termination was given;
c. I was without a job and felt that the dismissal was against natural justice and procedural fairness as I did not have any support person at the meeting nor told a reason for termination prior to the meeting. I also felt that I should not have been summarily dismissed;
d. I was advised of my industrial option(s). I elected to pursue an unfair dismissal application;

6. My ANMF representative SN had tele and email communications with Ms Kristy Morataya, Practice Manager of the Respondent Ladywood Clinic. Please refer to email 25 August 2015 – Attachment A:

a. SN requested a letter of termination and was told that it was posted on 17 August 2015 to me. I am yet to receive the letter of termination. SN requested a letter of termination to be emailed to her (email no 2).
b. SN and I have not received the requested AHPRA complaint (email no 4).
c. Respondent was advised verbally and via email re intention to file an UFD application by 31 August 2015 (email no 8). They were aware that the application would be lodged unless the matter settled by prior discussions. The employer’s interest is not prejudiced by the one day delay in filing.

7. I am a nurse and am not aware of the legal and industrial requirements. I had instructed SN to go ahead with UFD application on 13 August 2015. I relied on my representative to file the UFD application as per the formal requirements. I was not aware of any 21 day time frame to lodge the application.

8. SN filed the UFD application on 1 Sept 2015 and I was emailed a copy of the application.

9. On the 2 Sept 2015 FWC issued a listing notice to hear the application out of time. My representative contacted me and apologetically advised that due to ANMF internal systems issues – the application was lodged a day late. The delay in lodgment was outside my control as I had instructed the ANMF to lodge the application on 13 August 2015 – well within the time frame. The ANMF representative was not aware of the delay until the listing received by FWC – as such the UFD form did not have a request for out of time extension approval;

10. The UFD application was lodged a day later than the legislated time frame due to my representative error. The termination is flawed on the basis of process and merits. Respondent was well aware of my intention to lodge the UFD application and has had discussion to this effect with SN within the 21 day time frame – on 25 August 2015. My representative has had communications via email and phone to Respondent Counsel and I understand that Counsel is advised of representational error being reason for the lodgment out of time and merits of the UFD application.

11. The Respondent interest is not jeopardized in any manner by allowing this extension of time. My interest should not be prejudiced due to representation error – especially as I believe my UFD application has merits and the delay is not an error or omission on my part.

12. I seek that the application out of time (delay of one day) be approved and the matter be listed for a UFD conciliation.”

[7] Mrs Paterson-Gray participated in this conference but was represented by Ms Nachiappan of the ANMF. Mr Zyngier, of counsel, sought permission to represent the Ladywood Clinic. That permission was granted, as I was persuaded that because of the representative error issue associated with the application, the matter may assume some complexity, and because Ms Nachiappan is a practising lawyer, a grant of permission pursuant to s.596(2) (a) and (c) was appropriate. Ms Morataya from the Ladywood Clinic also participated in the conference. I note that a sound file record of this telephone conference was kept.

[8] I have considered the extension of time issue on the material before me including further submissions made by the Ladywood Clinic on 28 September 2015.

[9] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[10] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(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.”

[11] I have concluded that the termination of Mrs Paterson-Gray’s employment took effect on 10 August 2015. Accordingly, I am satisfied that the application was made one day outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[12] The long standing approach 2 of the Commission is that representative error may represent an acceptable reason for the delay and, in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant. I am satisfied that Mrs Paterson-Gray took prompt action to initiate this application and that the delay was due to a failing within the ANMF. Whilst that delay is properly characterised as representative error I note that representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant.³ Consequently, the actions taken by Mrs Paterson-Gray are central to the question of whether there is an acceptable reason for the delay. Mrs Paterson-Gray’s advice was that, whilst she was, prior to the lodgement of the application, unaware of the 21 day time limit, she gave Ms Nachiappan explicit instructions to lodge the application on 13 August 2015. Ms Nachiappan advised that Ms Patterson-Gray conferred with her on the progress of her application at various times. An email of 25 August 2015 attached to the application, from Ms Nachiappan to the Ladywood Clinic, confirms the ANMF intention to lodge an application by 31 August 2015. Given that a financial settlement was being proposed, any lack of follow-up over that short period in question by Mrs Paterson-Gray’s is understandable.

[13] I am satisfied that Ms Paterson-Gray was assured that the matter would be addressed in accordance with her request. Mrs Paterson-Gray was entitled to rely on Ms Nachiappan and the ANMF. The facts of this matter favour an extension of time in these circumstances.

[14] I have noted that the correspondence of 25 August 2015 from the ANMF to the Ladywood Clinic confirms that actions, other than the lodgement of this application, had been initiated relative to termination of Mrs Paterson-Gray’s employment.

[15] I do not consider that the granting of an extension of time would prejudice the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.

[16] In terms of the merits of the application, there is no dispute that the Ladywood Clinic business is a small business and that the Small Business Fair Dismissal Code has application. I note that the parties dispute the extent to which the termination of Mrs Paterson-Gray’s employment was consistent with that Code. I have expressed concern that, whilst I have not reached any conclusion in this matter, if the Ladywood Clinic establishes that it had reasonable grounds upon which to conclude that Mrs Patterson-Gray signed forms inappropriately and also forged doctor’s signatures, and met any procedural obligations associated with the termination of employment process, the requirements of the Small Business Fair Dismissal Code may well be met. This may be a matter that Mrs Patterson-Gray should take advice on. Any conclusion I reach in this respect will depend on the evidence that is provided to me.

[17] Considerations of fairness relative to persons in similar circumstances to Mrs Paterson-Gray support an extension of time.

Conclusion

[18] For the reasons I have set out above, I am satisfied that Mrs Paterson-Gray’s circumstances support an extension of time. I regard those circumstances as exceptional for the purposes of s.394(3). In this respect, a representative error which occurred within the ANMF office, represent a circumstance which should be regarded as an exceptional circumstance. The request for an extension of time is granted and, accordingly, the application will be relisted for consideration of the Ladywood Clinic objection that the application cannot proceed further because of the Small Business Fair Dismissal Code. A Notice of Listing to this effect, and an Order (PR572291) reflecting this decision will be issued.

Appearances (by telephone):

S Nachiappan for the Applicant.

J Zyngier of counselfor the Respondent.

Hearing (Conferenc) details:

2015.

Adelaide:

September 30.

1 [2011] FWAFB 975

 2   amongst other matters, Clark v Ringwood Private Hospital (1997) 74 IR 413

3 see for example Clark v Ringwood Private Hospital Print S5279 and Comcare v O’Hearn [1993] 119 ALR 85

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<Price code C, PR572290>