Wei Han v St Basil's Homes
[2020] FWC 3861
•22 JULY 2020
| [2020] FWC 3861 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Wei Han
v
St Basil’s Homes
(C2020/1747)
COMMISSIONER YILMAZ | MELBOURNE, 22 JULY 2020 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time granted.
[1] On 21 March 2020, Mrs Wei Han lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against St Basil’s Homes. Mrs Han commenced employment as a registered nurse on 11 August 2010 and her last day of work was on 23 January 2020.
[2] Mrs Han submits that she exercised her workplace rights by raising concerns about matters in the workplace culminating in a formal complaint in December 2019, but instead of those concerns being addressed, she was disciplined and ultimately dismissed.
[3] Mrs Han submits she complained to her General Manager on 1 and 15 December 2019 about being overworked on her shifts, lack of support from team members, favouritism and breaches of confidentiality. She submits her concerns were not addressed, instead she was called in to a meeting on 12 December 2019 and spoken to, and on 23 January 2020 her employment was terminated.
[4] Mrs Han submits that she lodged an unfair dismissal application within the 21-day timeframe, but it was discontinued after the conciliator advised her that she should have filed a general protections application. Mrs Han submits that she filed the general protections application without delay after the conciliation conference.
[5] The parties agreed to participate in a member assisted conciliation on my recommendation, however, due to failure to resolve, the matter proceeded to an extension of time hearing.
[6] I scheduled the extension of time hearing for 27 May 2020. At the hearing, Mrs Han was self-represented, and I granted legal representation for St Basil’s Homes.
[7] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 37 days after the 21-day statutory time limit.
Applicant’s submissions
[8] Mrs Han submits that in her almost 10 years of service with St Basil’s Homes she has never had any issues with co-workers, management or consumers (residents) or their families. This all changed, Mrs Han says, in the last months of her employment when individuals were appointed based on family or friendship connections. In her submissions, she lists individual co-workers that are either related or on friendly terms who failed to work with her as a team, failed to provide support when she required it, and engaged in behaviour which she describes as bullying towards her. Mrs Han lists among the incidents, a situation where she and a team leader provided support to a resident and despite having consulted with the doctor and the resident’s family, she was verbally criticised by one of the named individuals. Mrs Han submits she complained to her general manager about the “attack” on her. Mrs Han submits her complaint was not investigated and the lack of support and bullying continued. Mrs Han lodged a formal complaint in writing, a copy of that complaint was tendered in evidence.
[9] Mrs Han submits she joined the NSW Nurses and Midwives’ Association after her dismissal but was unable to get any assistance from them. Mrs Han raised a number of considerations that contributed to her lateness in filing the general protections application, namely:
• English not being her first language together with her emotionally anxious state left her confused;
• The highly stressed situation she found herself in when her complaint resulted in her termination of employment together with the threat of her losing her registered nurse status;
• The discontinuation of her unfair dismissal application on advice from the conciliator that she should have filed a general protection application;
• The struggle with dealing with her mental health; and
• Her tight and conflicting timelines to respond to the Nursing and Midwifery Council in response to a complaint filed by St Basil’s Homes.
[10] Mrs Han submits the behaviour towards her contravened her workplace rights in terms of:
• S.340 Protection of Workplace Rights
• S.343 Coercion of workplace rights
• S.344 undue influence or pressure, and
• S.351 discrimination was breached in relation to discrimination towards her.
Respondent’s submissions
[11] St Basil’s Homes submits that Mrs Han was advised of the decision to terminate her employment for serious misconduct in the face to face meeting on 23 January 2020. The letter dated 6 February 2020 confirming the termination of employment was issued to Mrs Han 2 weeks after the termination of employment.
[12] St Basil’s Homes tendered in evidence their unfair dismissal response and unfair dismissal related correspondence from the Commission, the letter of termination, correspondence between the parties concerning invitations to attend an outcomes meeting, Mrs Han’s report dated 22 January 2020, copies of payslips, Mrs Han’s contract of employment, her job description and copies of policies.
[13] St Basil’s Homes contends that Mrs Han had not demonstrated exceptional circumstances warranting the granting of an extension of time in relation to her general protections application.
Consideration
[14] General protections applications involving dismissal must be made within 21 days.
[15] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a) The reason for the delay; and
(b) Steps taken to dispute the termination; and
(c) Prejudice to the employer; and
(d) Merits of the application; and
(e) Fairness between the person and other persons in a like position
[16] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 1 where it was held that:
“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 regular occurrence, even though it can be a on 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.” 2
[17] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
[18] The general protections involving dismissal application was lodged with the Commission on 21 March 2020, 37 days late.
[19] Mrs Han provided the explanation that she filed the unfair dismissal application within the statutory time frame. The Commission’s records verify the submissions of St Basil’s Homes that the application was filed on the 20th day after termination of Mrs Han’s employment. The conciliation conference before a conciliator was scheduled for 12 March 2020 (29 days after filing). At that point in time, Mrs Han assumed she had filed the correct application before the Commission. Mrs Han was instructed at the conciliation conference that she should have filed a general protections application instead of an unfair dismissal. 3 It is unclear why this advice was given to Mrs Han, as the employer’s response to her unfair dismissal application4 confirms that Mrs Han raised questions concerning valid reason and procedural fairness. On the face of the employer’s response there does not appear to be any reason why the application could not have progressed as an unfair dismissal application.
[20] Mrs Han submits in her written materials 5 that she was very stressed, English is her second language, and that she did not understand the difference between the unfair dismissal and general protections applications at the time she filed her first application. Further, during the hearing Mrs Han disclosed the issues she had in respect of the hearing before the Nursing and Midwifery Council to preserve her registered nursing status, and her conduct during the hearing before me demonstrated that she was clearly emotionally distressed.6
[21] St Basil’s Homes disputes the reasons for the delay on the following grounds:
• Mrs Han did not provide any medical evidence concerning her medical condition;
• That she has sufficient English language skills to perform her role as a registered nurse;
• The Commission website contains fact sheets in English and “traditional Chinese”; and
• That it provided Mrs Han a week to consider its settlement offer at the conciliation conference. 7
[22] While the delay after the 21st day is to be considered, the period prior to the 21st day is relevant as to whether there are exceptional circumstances. 8 Mrs Han filed an unfair dismissal application within the required timeframe. No other application could be made while the unfair dismissal application was on foot. In any event, until the conciliation conference Mrs Han did not have any reasons to suspect her application was not correctly filed. Her unfair dismissal application was discontinued on 19 March 2020, and the general protections application was filed on 21 March 2020, two days later. In considering these facts, I am satisfied that Mrs Han filed the general protections application without significant delay.
[23] There must be a credible reason for the delay. 9 Having regard to her submissions and evidence, I am satisfied that Mrs Han demonstrated credible reasons regarding this consideration. I consider the reasons given for the delay weigh in her favour.
Steps taken to dispute the termination
[24] It is not in contention between the parties that Mrs Han disputed her termination of employment at the meeting and went to see the CEO after her termination of employment.
[25] This consideration weighs in Mrs Han’s favour.
Prejudice to the employer
[26] Mrs Han submits that granting an extension of time will not cause St Basil’s Homes disadvantage or unfairness.
[27] St Basil’s Homes submits that the delay adversely affects their ability to defend their position as recollection of events diminish with time, and especially because the applicant raises issues not subject to the unfair dismissal application. St Basil’s Homes raise the point that they already participated in a conciliation conference and are dealing with the COVID-19 pandemic. No evidence was submitted that St Basil’s Homes would be prejudiced by the granting of an extension of time.
[28] While I accept that an extension may be an inconvenience, the application is not a long delay and St Basil’s Homes dismissed Mrs Han for serious misconduct. Therefore, even with a short passage of time, one would expect that it would be capable of demonstrating a valid reason for the termination, that its decision was sound, defensible and well founded, and that the termination was proportionate to the alleged conduct. Further, it is not insignificant that St Basil’s Homes took steps to complain to the Nursing and Midwifery Council which has the capacity to review Mrs Han’s conduct in the context of a nurse’s professional conduct and their compliance with standards. In this instance, I do not consider that St Basil’s Homes is prejudiced as a result of being required to defend a general protections application.
[29] Consequently, I am not satisfied that St Basil’s Homes demonstrated prejudice, and in line with established precedent, even the mere absence of prejudice is an insufficient basis to grant an extension. This consideration does not weigh in St Basil’s Homes’ favour.
Merits of the application
[30] The parties dispute the circumstances leading to the termination of employment. Mrs Han tendered evidence of her complaints to St Basil’s Homes about incidences in the workplace where she states she was left overworked, without support and bullied. To make such a complaint is a workplace right. She then submits that instead of her complaints being investigated, she was subjected to discipline and dismissed, in addition to a formal complaint made against her to the Nursing and Midwifery Council.
[31] Mrs Han submits that her almost 10 years of service was unblemished and she only experienced difficulties in the last few months of her employment. The grounds of the sudden termination she disputes, and the effect of the termination and the complaint has jeopardised her wellbeing and her livelihood. She further submits St Basil’s Homes contravened her workplace rights and the protections afforded to her by the Act.
[32] However, St Basil’s Homes submit the actions of Mrs Han were so serious to warrant a summary termination without notice.
[33] St Basil’s Homes is an employer with approximately 600 employees, and Mrs Han’s employment was subject to an enterprise agreement. 10 Assessment of the material filed by St Basil’s Homes go to the issue of merit which is contested by Mrs Han. Further, while I accept these proceedings are not to test the merits of the application, on the face of the materials they do not support the position that the application is without merit. Without an exhaustive list, some of the materials relied by St Basil’s Homes which go to merit include:
• Mrs Han raises workload and this was not contested. A report 11 confirms acceptance that at times during shifts Mrs Han goes without a meal break, no action can be seen where St Basil’s addresses this aspect of her complaint, despite their obligations under their enterprise agreement;
• The individual that Mrs Han states had bullied her and made her feel unsafe is the person that complained about her and led to her dismissal. Mrs Han reported 2 incidents where she needed assistance with residents on 15 December 2019. In the first incident, the other nurse walks away instead of rendering assistance and in the second incident she is criticised for delaying treatment to a resident after Mrs Han consulted with the doctor and the resident’s next of kin. The letter does not stipulate how Mrs Han failed to provide the necessary care and what conduct amounted to serious misconduct;
• The letter of termination states that after considering Mrs Han’s responses (there was one meeting on 23 January 2020) and investigation including staff statements (no indication that any of this evidence relied on was given to Mrs Han to respond to) Mrs Han was terminated effective immediately from 23 January 2020. The undisputed fact was that Mrs Han was summarily terminated at the meeting, not after consideration of her responses or after her responses to the evidence which St Basil’s Homes relied on; and
• The invitations to the meeting held on 23 January 2020 were inconsistent, as they refer to it as the outcomes meeting, but also a fact-finding meeting. The invitation dated 13 January 2020 does not indicate that Mrs Han’s employment may be terminated at that meeting.
[34] The evidence tendered is contested and it cannot be concluded that there is no merit. While I cannot conclude there is no merit, I equally cannot conclude that Mrs Han has a strong, meritorious application. I have not tested the evidence and it is not my position to do so in an extension of time application. 12
[35] Having considered the submissions and evidence tendered, on the balance of probabilities, I nevertheless do consider that Mrs Han has established that “the substantive application was not without merit”. 13
Fairness between the person and other persons in a like position
[36] Mrs Han submits and provides examples where other employees in similar situations were not disciplined or terminated. These examples include where another nurse made an error in dispensing medication, where another employee instructed a student to dispense medication, where another nurse walked away instead of rendering assistance when Mrs Han was attempting to lift a resident off the floor, where the supervisor walked off to go to lunch when Mrs Han required assistance in attending to a resident in a serious condition and when the supervisor did not maintain confidential a complaint she made about Mrs Han in respect to an interaction with another staff member. Mrs Han submits, and tendered evidence that these situations led to her complaints which were not investigated but led to her being disciplined and subsequently her termination of employment.
[37] St Basil’s Homes did not adequately respond to this consideration.
[38] I find this consideration weighs in Ms Han’s favour.
Conclusion
[39] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
[40] On balance of all the considerations, the circumstances weigh in favour of Mrs Han. However, St Basil’s Homes agreed to participate in a member assisted conciliation on my recommendation and the parties were not able to reach agreement. One reason the parties were not able to reach agreement is because Mrs Han, while understandably quite aggrieved over her termination of employment, was so emotionally distressed that she could not express rationally what she sought in order to resolve the matter.
[41] Mrs Han has represented herself, and while a member of the union, it seems after her union were not in a position to assist her initially, she has not availed herself to any independent advice either through her union or elsewhere. In my opinion Mrs Han would benefit from independent advice and support to not only deal with her termination of employment. but also, to deal with the emotional consequences of her personal circumstances.
[42] It is on the balance of the considerations that I have decided to grant an extension of time, however, I have not made this decision lightly given Mrs Han’s obvious state when she appeared before me.
[43] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter will be referred to conciliation.
COMMISSIONER
Appearances:
W. Han for herself
D. Cole for the Respondent
Hearing details:
2020
Melbourne (by telephone)
27 May
Printed by authority of the Commonwealth Government Printer
<PR721214>
1 [2011] FWAFB 975.
2 Ibid at [13].
3 Applicant’s Form F8 - attachment to Q1.4, Applicant’s outline of argument Q1d and oral submissions.
4 Respondent’s form F3 and attachment to Respondent’s outline of argument.
5 Applicant’s Form F8 and Applicant’s outline of argument.
6 Oral submissions.
7 Respondent’s outline of argument at Q1f.
8 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
10 Respondent’s Form F3 - Response to unfair dismissal application at Q1.7 and Q1.1.
11 Respondent’s Outline of Argument - attachment E - Applicant’s statement dated 22 January 2020.
12 Miller v DPV Health Ltd[2019] FWC 3979.
13 Kornicki v Telstra- Network Technology Group Print (1997) 140 IR 1.
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