Vera Oswald v Western District Health Services
[2021] FWC 6305
•10 NOVEMBER 2021
| [2021] FWC 6305 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vera Oswald
v
Western District Health Services
(U2021/9125)
COMMISSIONER WILSON | MELBOURNE, 10 NOVEMBER 2021 |
Application for an unfair dismissal remedy; application made outside the time prescribed under s.394; exceptional circumstance; time within which to make an application under s.394 extended
[1] This decision concerns whether an extension of time should be granted to Ms Vera Oswald (the Applicant) for the making by her of an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the FW Act) against her former employer, Western District Health Services (the Respondent).
[2] The Applicant’s employment with the Respondent was terminated with effect from Friday, 17 September 2021. The unfair dismissal application was lodged in the Fair Work Commission (the Commission) on Monday, 11 October 2021.
[3] Section 394(2) of the FW 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 Commission allows pursuant to s.394(3). The Applicant contends her application is not out of time since the Act should be construed in such a way as to mean she had until midnight on Monday, 11 October 2021 to make her application. I do not favour this construction and find instead that the period of 21 days ended at midnight on Friday, 8 October 2021. The application was therefore filed 3 days outside the 21-day period.
[4] Consistent with the Commission’s usual practice when a question arises of whether an application was made within the allowed time-period the matter was referred to me for hearing and determination.
[5] The questions of whether the application was made within time and if not whether an extension of time may be permitted was listed for hearing on 5 November 2021. Ms Oswald was represented by Mr Cameron Granger, from the Health Workers Union (HWU), and Mr Rick Catanzariti, solicitor, from DLA Piper, represented the Respondent. Witness statements were received from Ms Oswald and two others on her behalf, Ms Gillian Kennedy, an HWU Organiser, and Mr Steve Mitchell, an HWU Lead Organiser. Ms Sally-Anne Byrne, Western District Health Services’ Acting Nurse Unit Manager, provided a witness statement on behalf of the Respondent. The witness statements were admitted without objection and neither person was required for oral evidence.
[6] The first matter to be determined is whether the application is out of time, since that matter is contested by Ms Oswald’s representative. I find that it is, and that her application would require an extension of time for it to continue. Having made that finding, I have considered whether there may be an extension of time for the filing of her application and am satisfied that this is permissible, with there being exceptional circumstances for doing so.
BACKGROUND
[7] Ms Oswald was employed by the Western District Health Service as a Personal Care Worker for over 9 years. On 23 August 2021 complaints were made to Ms Byrne, the Acting Nurse Unit Manager, about Ms Oswald’s conduct which in turn led to allegations of serious misconduct being made directly to Ms Oswald on 30 August 2021. She was stood down on the same day and directed to respond to the allegations, which she did. After two meetings between Ms Oswald and the Respondent on the subject of the allegations, Ms Oswald’s employment was terminated on Friday, 17 September 2021 with the termination taking effect on the same day.
[8] On the same day Ms Oswald contacted Ms Kennedy from the HWU and instructed her to lodge an unfair dismissal application. On 20 September 2021 Ms Kennedy contacted her team leader, Mr Mitchell, who agreed the matter was worth pursuing. Relevant documents were provided by Ms Oswald to the HWU on 29 September 2021 and passed through to Mr Granger on 1 October 2021.
[9] The unfair dismissal application itself was made on 11 October 2021. Ms Oswald did not question the HWU about progress with her application until 22 October 2021 after she had received correspondence from the Commission advising her the application was out of time.
IS THE APPLICATION MADE WITHIN TIME?
[10] Ms Oswald was dismissed with effect from Friday, 17 September 2021 and her application for unfair dismissal was lodged in the Commission at 16:54 hours on Monday, 8 October 2021.
[11] Mr Granger contends that the application was made within time for two reasons; first, that the time period commences on the day after the dismissal occurred (that is, Saturday, 18 September 2021) and that it then concludes on the day after the 21st day, counted from 18 September 2021. Whereas the Respondent advances that the 21-day period is inclusive of the final day, the HWU disagrees with that proposition and instead submits the final day should not be included in the calculation of the 21 days. Mr Granger submits that the FW Act, the Fair Work Regulations 2009 and the Acts Interpretation Act 1901 are each silent on the matter of whether the 21-day time period is inclusive of the final day or not. Further, the construction that the final day should not be included in the calculation of the 21 days is the construction required by the Acts Interpretation Act 1901 (Cth) and is the construction followed by the Commission in other cases. 1
[12] The FW Acttime period for the making of applications is set out in s.394(2), which provides so far as is relevant;
“(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).”
[13] Critically, the time-period provided for in the FW Act is for an action which starts after a specified event. The specified event, of course, is when “the dismissal took effect” and the action is the making of the unfair dismissal application, which must be “within 21 days” after the specified event. Demonstrably, that is a period of time which is expressed “to continue until a specified day”. 2 The specified day is the 21st day after the dismissal took effect.
[14] The Acts Interpretation Act provides that in such a case the period of time “includes that day”. 3
[15] The cases to which Mr Granger referred do not support a contrary finding;
• Stedman v Transdev NSW Pty Ltd T/A Transdev Buses[2015] FWCFB 1877, per Harrison SDP, Lawrence DP, Cambridge C. This decision involved an appeal in which the Full Bench corrected the date of dismissal to 10 May 2014, which meant the final day for filing would have been 31 May 2014 except for the fact that such day was a Saturday, meaning the final day for filing was extended to the next working day, being Monday, 2 June 2014. Because the application was filed on that day, it was made within time. See [15], [20].
• Lee Trott v Hardwick Way T/A West City Marine and Tackle[2013] FWC 6792, per Wilson C. In this matter the applicant had been dismissed on 24 January 2013, however he made his application on 12 March 2013. The decision records the final day for a lodgement to be made within time was 14 February 2013; that date is the 21st day counted from the day after the dismissal took effect. See [35].
• Mr Anwarul Syed v Jones' Cleaning and Property Services[2020] FWC 4610, per Cirkovic C. This matter concerns a termination of the applicant which took effect from 2 July 2020, with the application being made on 10 August 2020. The decision records the final day for a lodgement to be made within time was 23 July 2020; that date is the 21st day counted from the day after the dismissal took effect. See [2], [3].
• Fouad Ramadan v WSI Logistics[2021] FWC 2984, per Boyce DP. In this matter the Applicant was dismissed on 25 January 2021 and lodged his application on 16 April 2021. The decision records the final day for a lodgement to be made within time was 15 February 2021; that date is the 21st day counted from the day after the dismissal took effect. See [3].
• Yogita Sharpe v BVAQ Pty Ltd[2021] FWC 3161, per Cirkovic C. In this matter the applicant had been dismissed on 12 April 2021 and made an unfair dismissal application on 4 May 2021. The decision notes the 21-day period ended on 3 May 2021; that date is the 21st day counted from the day after the dismissal took effect. See [15].
[16] Mr Granger for the Applicant submitted, correctly, that the period of time commences the day following the day the dismissal took effect, and incorrectly, that the period of time ends on the day following the 21st day after the dismissal took effect.
[17] Ms Oswald’s dismissal took effect on Friday, 17 September 2021. The day following, Saturday, 18 September 2021, was the first day for the purposes of the period of time prescribed in s.394(2)(a) and the 21st day in that sequence was Friday, 8 October 2021. There is no basis for the proposition that the period of time should be extended beyond that day. Friday, 8 October 2021 was not a weekend, a national public holiday, nor a day on which the Commission was closed for some other reason.
[18] The application was made late and is out of time.
CONSIDERATION OF EXTENSION OF TIME
[19] With Ms Oswald’s application being lodged on Monday, 11 October 2021 it is three days out of time, and may only continue if the time period for lodgement is extended.
[20] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account six criteria;
(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.
[21] In brief, “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. 4 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.5
[22] 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.
[23] Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of “exceptional circumstances” in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” 6
[24] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 7
[25] In considering whether an extension of time should be granted to Ms Oswald, I am required to consider all of the criteria in s.394(3), which I now do.
Reason for the delay
[26] The FW Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. 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. 8
[27] Demonstrably the explanation for Ms Oswald’s late application is the error made by the HWU’s Mr Granger. He thought incorrectly, and maintained all the way through these proceedings, that the time period ended the day after the count of 21 days starting the day after Ms Oswald’s dismissal took effect. He maintained that, since that day was a Saturday, he had until Monday, 11 October 2021 to lodge a within-time application. There is no other explanation; he was in error.
[28] Mr Catanzariti, for Western District Health Services, argues that I should not attribute the lateness of the application to Mr Granger’s error, since it has not been explicitly argued or accepted by the HWU that it was in error and that the HWU’s single case is that the application was not made out of time. While I understand the argument put by the Respondent and to a degree have sympathy with what is said, it would be entirely counterfactual to do so, as well as conferring a harsh injustice on Ms Oswald. The uncontradicted evidence is that Ms Oswald left her application in the hands of the HWU and trusted them to file the application within time. While I can never understand why anyone would leave an application to the last day on which it can be made, with the risks of failure too great, such is not to the point. Ms Oswald instructed her representative; they accepted her instructions and then acted on them; albeit eventually late and in accordance with a wrong construction of the FW Act.
[29] The Respondent also argues I should draw an adverse inference for the failure of the Applicant to provide a statement of evidence to the Commission from Mr Granger; “Given a statement of evidence was not filed on behalf of Mr Granger, his reasons for waiting until the final day are unclear. It should be inferred that the Applicant’s failure to call Mr Granger – a significant witness, indicates that the missing evidence would not have assisted the Applicant.” 9 I decline to do so; while the rule in Jones v Dunkel10 can have application, the rule provides that an inference may be drawn in certain circumstances not that such an inference must be drawn; and;
“2. The rule permits an inference that the untendered evidence would not have helped the party who failed to tender it and entitles the Commission to more readily draw any inference fairly drawn from the other evidence. But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in evidence, or to convert conjecture and suspicion into inference.” 11 (underlining added)
[30] In this case I am uncertain where an adverse inference would lead; there is no basis in the uncontested evidence before me that would suggest that had Mr Granger given evidence some entirely different set of findings would have been made. Instead, it is more probable that had he given evidence it would merely have cemented the fundamental nature of the error he made.
[31] While the late lodgement of an application due to representative error may be grounds for an extension of time, the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay. 12
[32] The Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency explained that: 13
“The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.”
[33] There is an acceptable explanation for the delay in filing in Ms Oswald’s case, which is the HWU’s representative error. The evidence submitted by the Applicant demonstrates that she took reasonable steps to instruct her union representatives within the 21-day timeframe for the filing of an unfair dismissal application. While they accepted the instructions and acted upon them to a degree, they proceeded on an erroneous construction of the FW Act. Had they taken care to establish and understand the Commission’s settled construction of the Act the application would not have been out of time.
[34] As a result, consideration of this criterion weighs in favour of a conclusion there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[35] Ms Oswald was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days in which to lodge the unfair dismissal application. Accordingly, this is a neutral consideration in my decision.
Action taken to dispute the dismissal
[36] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 14
[37] The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time” 15 (underlining added).
[38] There is no evidence that Ms Oswald disputed her termination other than by making this application. Consideration of this criterion therefore weighs against the Applicant.
Prejudice to the employer
[39] I cannot identify any prejudice that would accrue to Western District Health Services if an extension of time were to be granted and the Respondent does not contend any. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. This too is a neutral consideration in my decision.
Merits of the application
[40] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
[41] At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters. 16 Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or, alternatively, whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.17
[42] The Respondent argues that Ms Oswald’s application lacks merit since it held a valid reason for her dismissal, attributable to serious misconduct, with her being afforded procedural fairness at each stage of its consideration of her dismissal. It notes her dismissal followed findings which include “that she aggressively and inappropriately physically handled an elderly resident on more than one occasion”. 18 Ms Oswald did not make any submissions about the merits of her case, although it is noted her originating application contends the allegations against her were unfounded “based on a mixture of hearsay incidents, unverified examples, and the opinions of nursing staff who themselves failed to address the unwanted and disruptive behaviour of a resident known to be difficult in the residential setting”.19
[43] Noting the contest between the parties on the matter of the merits of Ms Oswald’s application, I find this criterion is a neutral consideration in my decision regarding an extension of time.
Fairness as between the person and other persons in a similar position
[44] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 20 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.21 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues.22 This too, is a neutral consideration in my decision regarding an extension of time.
Conclusion
[45] The explanation for Ms Oswald’s application being late is that she was let down by her representative, the Health Workers’ Union. I am satisfied that such is an acceptable explanation and that it would be an injustice to Ms Oswald not to accept this as an acceptable explanation. Consideration of the criterion in s.394(3)(c), whether Ms Oswald took any action after her dismissal to dispute it, weighs against her. Consideration of the other criteria show each is a neutral factor. While the absence of a dispute about her dismissal is not in Ms Oswald’s favour, its weight is not great, and insufficient to disbalance the explanation of representative error.
[46] I have referred above to not understanding why representatives leave the making of their member of client’s application until the last minute. This case is a sad and salutary tale of the dangers of doing so. The inefficiency of doing so is amply demonstrated by this case; the HWU and Western District Health Services have each had to divert their resources to extension of time proceedings and the Commission has had to convene and prepare this decision. All of this is highly wasteful and could have been avoided if the HWU adopted a business rule of making the application promptly and within time with days to spare.
[47] Nonetheless, having considered each of the factors set out in s. 394(3), I am satisfied that there are exceptional circumstances warranting Ms Oswald being granted an extension of time to lodge her application and I shall exercise my discretion to grant her an extension of time to lodge this application until 11 October 2021.
[48] The Application will now be programmed by me for a hearing on the merits, and Directions for that purpose will be issued shortly.
COMMISSIONER
Appearances:
Mr Cameron Granger, on behalf of the Applicant
Mr Rick Catanzariti, on behalf of the Respondent
Hearing details:
2021.
Melbourne (by Microsoft Teams):
November 5.
Printed by authority of the Commonwealth Government Printer
<PR735633>
1 Hearing Recording Time Stamp, 11:40-13:12.
2 Acts Interpretation Act 1901, s.36(1).
3 Ibid.
4 Nulty v Blue Star Group (2011) 203 IR 1, [13] (‘Nulty’).
5 Ibid.
6 Nulty, [13] – [14].
7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
8 Ibid, [39].
9 Exhibit R1, Respondent’s Outline of Submissions, [22]; Hearing Book, p.27.
10 (1959) 101 CLR 298.
11 Tamayo v Alsco Linen Service Pty Ltd Print P1859(AIRCFB, Ross VP, Drake DP and Cargill C, 4 November 1997); cited with approval in Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited [2018] FWCFB 3989, [102].
12 McConnell v A & PM Fornataro(t/a Tony’s Plumbing Service) (2011) 202 IR 59, [35] citing Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1, 6 (‘Davidson’).
13 Davidson, 6.
14 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299] – [300].
15 Ibid.
16 Kyvelos v Champion Socks Pty Limited, Print T2421 (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].
17 Haining v Deputy President Drake (1998) 87 FCR 248, [250].
18 Exhibit R1, [33]; Hearing Book, p.29.
19 Form F2, Unfair Dismissal Application Form, item 3.2.9; Hearing Book, p.5.
20 Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP, 15 April 2010) [24] ‒ [29].
21 Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
22 Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].
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