Victoria Robinson v Thompson Health Care Pty Ltd
[2023] FWC 2759
•23 OCTOBER 2023
| [2023] FWC 2759 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Victoria Robinson
v
Thompson Health Care Pty Ltd
(U2023/8932)
| COMMISSIONER CRAWFORD | SYDNEY, 23 OCTOBER 2023 |
Unfair dismissal application filed out of time – no exceptional circumstances – application dismissed
Background
Victoria Robinson (Ms Robinson) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Thompson Health Care Pty Ltd (Thompson Health Care).
Ms Robinson commenced employment with Thompson Health Care in December 2011 and was engaged in the role of Catering Assistant at its Tarragal facility prior to her resignation on 13 August 2023.
Ms Robinson’s Form F2 unfair dismissal application was filed on 16 September 2023. The Form F2 identified that Ms Robinson’s effective date of dismissal was 24 July 2023. The Form F2 indicated the application was not filed within 21 days of the dismissal taking effect and sought an extension of time for the filing of the application.
On 28 September 2023, Thompson Health Care filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Ms Robinson was not dismissed by Thompson Health Care. The Form F3 also identified that the application was not filed within 21 days of the dismissal and argued that an extension of time should not be granted. The Form F3 identified Ms Robinson’s dismissal date as 13 August 2023.
I issued directions for the filing of material in relation to whether an extension of time should be granted for the filing of Ms Robinson’s application on 28 September 2023. The directions were complied with by the parties. I listed a determinative conference/hearing concerning the extension of time issue for 18 October 2023 via video.
Ms Robinson represented herself at the determinative conference/hearing on 18 October 2023. I granted permission pursuant to s.596 of the FW Act for Thomson Health Care to be represented by Michael Ryan (Senior Employment Relations Advisor – Aged & Community Care Providers Association (ACCPA)) at the determinative conference/hearing on the basis I was satisfied granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. However, it does not appear Mr Ryan actually required permission, given he is an employee of an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009 and hence does not need permission in accordance with s.596(4)(b)(ii) of the FW Act.
At the commencement of the proceeding, I sought the views of the parties regarding whether a hearing should be conducted as required by s.399 of the FW Act. I indicated my initial view was that it was more appropriate to conduct a determinative conference given Ms Robinson was not represented. This was supported by the parties, and I decided to conduct the proceeding as a determinative conference.
Material filed
Ms Robinson
In addition to her Form F2 application, Ms Robinson relied on the following evidence in support of an extension of time being granted:
· An email from Ms Robinson to the Management of Thompson Health Care dated 24 August 2023. In the email, Ms Robinson raised several concerns about her treatment while employed by Thompson Health Care. I marked the email Exhibit A1.
· An email from Ms Robinson to the Commission explaining the reason for her delay in filing the application dated 23 September 2023. I marked the email Exhibit A2.
· An email from Ms Robinson to the Commission responding to Thompson Health Care’s Form F3 response dated 28 September 2023. The email also attached an email exchange between Ms Robinson and Selina Lie (HR Manager) dated 30 August 2023 and 1 September 2023. The email from Ms Lie to Ms Robinson dated 1 September 2023 includes the following:
“I have also followed up with Hillview House Director of Nursing Jennifer Bennett about the Home’s recruitment activity, there is currently no vacancy in Catering, Cleaning or Laundry.”
I marked these documents Exhibit A3.
· A submission/statement from Ms Robinson in response to submissions provided by Mr Ryan dated 12 October 2023. I marked this document Exhibit A4.
· A submission/statement from Ms Robinson in response to a statement from Kate Kumar (Director of Nursing) dated 12 October 2023. I marked this document Exhibit A5.
· A submission/statement from Ms Robinson in response to a statement from Ms Lie dated 12 October 2023. I marked this document Exhibit A6.
· An email from Jane Hogan (Practice Manager – Fourtree Lawyers) to Ms Robinson dated 7 September 2023. The email states: “Kevin spoke with you on Monday night regarding an unfair dismissal. Did you end up lodging the application with Fair Work?”. I marked this email Exhibit A7.
· A medical certificate from Dr Loren Besley dated 9 October 2023. The certificate states: “Ms Victoria Robinson presented to Erina Family Medicine on 31/07/2023 and 9/08/2023. These presentations were due to stress in relation to her workplace.” I marked the certificate Exhibit A8.
Ms Robinson was briefly cross-examined on her evidence and also provided oral closing submissions at the end of the determinative conference.
Thompson Health Care
In addition to its Form F3 response, Thompson Health Care relied on the following material in opposing the granting of an extension of time:
· Outline of submissions dated 6 October 2023.
· Statement from Ms Lie dated 4 October 2023. I marked the statement Exhibit R1. Ms Lie was cross-examined by Ms Robinson.
· Statement from Ms Kumar dated 5 October 2023. I marked the statement Exhibit R2. Ms Kumar was cross-examined by Ms Robinson.
· Ms Kumar also affirmed the accuracy of the following four documents that had been attached to the Respondent's Outline of Submissions:
·R1: Medical certificate from Dr Christine Weiermann dated 31 July 2023. The certificate states: “Ms Victoria Robinson was seen here with a medical condition and will be unfit for work from 31/07/2023 to 11/08/2023.”
·R2: Email from Ms Robinson to Ms Kumar dated 13 August 2023. The email states:
“Please accept this letter as formal notification of my intent to resign from my position as Catering Assistant with Thompson Health Care Tarragal.
I understand that my notice period is 2 weeks but due to the recent stress caused in the change of my position I would like to end my employment sooner. Therefore, I would like to request that you waive this notice period and relieve me of my duties immediately…”
·R3: Excerpt of Aged Care Employee Level 1 and 2 classification descriptions.
·R4: Email from Ms Robinson to the Commission dated 28 September 2023.
I marked these documents Exhibit R3 and Ms Robinson was invited to cross-examine Ms Kumar on these documents, along with her statement.
Mr Ryan also provided oral closing submissions on behalf of Thompson Health Care.
Extension of time
Section 394(2) of the FW Act provides that an unfair dismissal application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
Ms Robinson conceded at the beginning of the determinative conference on 18 October 2023 that her resignation took effect on 13 August 2023, and that the date of 24 July 2023 was erroneously identified as the dismissal date in her Form F2. I decided to exercise my discretion pursuant to s.586 of the FW Act to allow the Form F2 to be amended to specify a dismissal date of 13 August 2023.
Given the parties ultimately agreed Ms Robinson’s employment ended on 13 August 2023, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 3 September 2023. The application was filed on 16 September 2023 and was filed 13 days outside the 21-day period. As a result, Ms Robinson needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.
Was the application made within such further period as the Commission allows?
Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether Ms Robinson first became aware of the dismissal after it had taken effect; and
(c) any action taken by Ms Robinson 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 Ms Robinson and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
Consideration
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 3 September 2023. The delay is the period commencing immediately after that time until 16 September 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
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.[4]
Ms Robinson does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Ms Robinson has not provided any reason for any part of the delay.[5]
Ms Robinson provided the following explanations for the delay in filing her unfair dismissal application:
· From the date her resignation took effect on 13 August 2023 until 1 September 2023, Ms Robinson was hopeful of securing a role at Thompson Health Care’s Hillview facility. It was only when Ms Lie emailed Ms Robinson on Friday, 1 September 2023 that it became clear there was no future for Ms Robinson with Thompson Health Care.[6]
· Ms Robinson sought legal advice on Friday, 1 September 2023, after receiving Ms Lie’s email. However, she did not hear back from a lawyer until Monday, 4 September 2023.
· Ms Robinson spoke with a lawyer named Kevin, from Fourtree Lawyers, on Monday, 4 September 2023. Ms Robinson accepts she was advised of the 21-day filing period during this call. Ms Robinson also knew the 21-day period had ended the previous day, being 3 September 2023.
· Ms Robinson indicated it then took her until 16 September 2023 to seek further advice and to prepare her unfair dismissal application. Ms Robinson indicated she was emotional about what had occurred during this period.
I accept Ms Robinson was awaiting confirmation about whether a role at Thompson Health Care’s Hillview facility would come to fruition until 1 September 2023. Ms Lie’s email dated 1 September 2023 substantiates this. Ms Robinson then promptly sought legal advice and spoke with a lawyer on 4 September 2023. I consider this provides a marginally adequate explanation for the delay until 4 September 2023. In saying that, I also consider there is considerable force to Mr Ryan’s submission that there was no certainty that a different position would be offered and that it would have been prudent for Ms Robinson to file an application while she waited for confirmation, to protect her position.
I do not consider Ms Robinson has an adequate explanation for the delay between 4 September 2023 until 16 September 2023. Ms Robinson admitted she was advised by a lawyer that the 21-day period for filing an application had already lapsed on 4 September 2023. It should have been apparent to Ms Robinson, and I suspect the lawyer would have advised her, that she needed to act urgently if she wished to pursue an application at that point. Given there is no medical evidence that demonstrates Ms Robinson was suffering from a medical condition from 4 September 2023 until 16 September 2023, I do not consider her reference to being emotional and needing time to prepare the application is a sufficient explanation for the delay.
I have found that Ms Robinson has a marginally sufficient explanation for the delay in filing her unfair dismissal application until 4 September 2023, but there is not a sufficient explanation for the delay from 4 September 2023 until 16 September 2023. I consider this factor weighs against the granting of an extension of time.
Did Ms Robinson first become aware of the dismissal after it had taken effect?
Ms Robinson accepted she was aware her resignation would take effect from 13 August 2023. I consider this to be a neutral factor.
What action was taken by Ms Robinson to dispute the dismissal?
There is evidence that Ms Robinson sought employment at the Hillview facility after her resignation took effect on 13 August 2023. I consider this can be viewed as an action taken to dispute the dismissal. Ms Robinson also sought legal advice on 1 September 2023 and 4 September 2023. I consider this factor weighs marginally in favour of granting an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
Thompson Health Care may have suffered some minor prejudice because it would have assumed Ms Robinson would have filed an application within the 21-day period. Mr Ryan also referred to the time and cost for Thompson Health Care associated with opposing an extension of time and the potential for significantly greater time and cost if an extension is granted. However, Mr Ryan accepted the delay has had no operational or evidentiary impact on Thompson Health Care. I consider this to be a neutral factor.
What are the merits of the application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[7]
Although Ms Robinson did not provide any medical evidence to demonstrate she was suffering from stress after her resignation took effect on 13 August 2023, there is evidence she sought medical treatment for “stress in relation to her workplace” on 31 July 2023 and 9 August 2023.[8] I do not accept Mr Ryan’s submission that less weight should be placed on the report from Dr Besley because it was not provided contemporaneously. I accept Ms Robinson’s explanation that the report was not provided contemporaneously because it was not requested by Ms Robinson until around the time it was provided. That in itself says nothing about the accuracy of what Dr Besley has certified. I accept Dr Besley’s evidence.
Mr Ryan accepted during closing submissions that the evidence establishes Ms Robinson was being directed by Thompson Health Care to move back into a cleaning role, from a catering role, and that she was not agreeable to this change.
I consider Ms Robinson’s medical evidence and the direction from Thompson Health Care supports Ms Robinson’s argument that she was “forced” to resign and hence “dismissed” within the meaning of s.386 of the FW Act.
However, Thompson Health Care claims that the move back to a cleaning role was only temporary and was made for operational reasons because Ms Robinson was best placed to assist with the implementation phase of a new project. If that can be proven, it will likely weigh against a finding that Ms Robinson was “forced” to resign.
Ms Robinson also accepted that the move back to cleaning work would not result in a reduction to her hourly rate and that her primary objection to the change was the nature of the work, rather than the rate of pay or hours of work. Ms Robinson also accepted that Thompson Health Care was legally entitled to direct her to perform the cleaning work instead of catering work.
After weighing these factors, I consider the factual disputes between the parties are too significant at this stage to find that the merits of the application weigh in favour, or against, the granting of an extension of time. I consider the merits of the application to be a neutral factor.
Fairness as between Ms Robinson and other persons in a similar position
Neither party advanced a persuasive submission regarding the applicability of this factor. I consider this to be a neutral factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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.[9] 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.[10] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[11]
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
I consider the absence of a satisfactory explanation for the delay from 4 September 2023 until 16 September 2023 to be the most persuasive factor against granting an extension of time. Ms Robinson was put on notice of the 21-day period by a lawyer on 4 September 2023. Ms Robinson should have acted more promptly to file an application.
I do accept there may be merit to Ms Robinson’s complaints about her treatment and that she may be able to establish she was “forced” to resign as a result of Thompson Health Care’s conduct in directing her to resume cleaning duties. However, as referred to above, the threshold of “exceptional circumstances” is a “high hurdle”. I do not consider the hurdle has quite been cleared in this case.
Not being satisfied that there are exceptional circumstances, I decline to grant an extension and dismiss the application.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances:
Ms Robinson representing herself.
Mr Ryan for Thompson Health Care.
Determinative Conference details:
2023.
Video Using Microsoft Teams.
18 October.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Exhibit A3.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[8] Exhibit A8.
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
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