Wendy Campbell v Latrobe Regional Hospital

[2019] FWC 6393

[2019] FWC 6393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wendy Campbell
v
Latrobe Regional Hospital
(U2019/7480)

COMMISSIONER GREGORY MELBOURNE, 17 SEPTEMBER 2019

Application for an unfair dismissal remedy.

Introduction

[1] Ms Wendy Campbell was a long-standing employee of the Latrobe Regional Hospital (“LRH”). However, a range of performance and behaviour issues were raised with her in the latter part of 2017 and early in 2018, and she was subsequently placed on a performance improvement plan. She then took personal leave in April 2018 and did not return to the workplace prior to her employment being terminated on 14 June 2019. This occurred some time after she had attended an Independent Medical Examination.

[2] Ms Campbell subsequently instructed the Health Workers Union (Victoria) (“the HWU”) to file an unfair dismissal application on her behalf. However, after a series of communications with the HWU she was advised on 9 July 2019 that due to a failure of the Union’s internal processes her application had been lodged out of time. The Commission’s records indicate that it was actually lodged on 8 July, meaning it was filed 3 days after the 21-day time period. Ms Campbell now seeks an extension of time in which to make application.

[3] The hearing to deal with the extension of time application was conducted by telephone. Mr Cameron Granger from the HWU appeared on behalf of Ms Campbell. Mr Daniel Proietto from Lander & Rogers was given permission to appear on behalf of LRH under s.596(2)(b) as it would be unfair not to because it was otherwise unable to represent itself effectively. It is also noted that LRH had previously indicated that it did not intend to provide submissions or evidence in regard to the extension of time application, and Mr Proietto indicated at the commencement of the hearing that LRH neither opposed nor supported the application. However, Mr Proietto reserved LRH’s right to make submissions in regard to the merits of the application and he did subsequently make brief submissions about the relevance of this consideration.

The Issue to be Determined

[4] The Act provides that an unfair dismissal application is to be lodged within 21 days of the date of dismissal. However, s.394(3) provides the Commission with the discretion to extend time if it believes there are “exceptional circumstances” existing that warrant an exercise of this discretion taking into account each of the following considerations:

“(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.” 1

[5] The Commission is accordingly required to determine in all the circumstances of this matter whether exceptional circumstances exist to warrant an exercise of the discretion to extend the time available to Ms Campbell to pursue her unfair dismissal application.

The Evidence and Submissions

[6] It is not necessary to deal with the evidence and submissions provided by the parties in any detail at this point, given LRH has previously indicated that it did not intend to provide evidence or submissions in regard to the application for an extension of time. However, it is noted that an outline of submissions was provided on behalf of Ms Campbell and she also provided a witness statement dated 26 August 2019. Additional witness statements in support of the application were also provided by Mr Steve Mitchell, a Regional Lead Organiser with the HWU, and Ms Anne Murphy, an Organiser with the HWU. I have had regard to these materials in coming to a decision in this matter.

[7] It is also noted that Mr Proietto indicated in the submissions provided on behalf of LRH that it takes issue with the submissions and evidence relied upon by Ms Campbell in regard to s.394(3)(e), which deals with the merits of the application, and submits this should be viewed as a neutral consideration in dealing with her application for an extension of time.

Consideration

[8] In considering an application for an extension of time the Commission must have regard to each of the considerations set out in s.394(3) in determining whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which to make application. A number of decisions of this Tribunal and its predecessors have considered what is required to find that “exceptional circumstances” exist to justify an extension of time being granted. The decision of the Full Bench in Nulty v Blue Star Group (“Nulty”) 2 was handed down in the context of a general protections application, however, the principles have been held to be of broader application. The Full Bench relevantly stated at [13] and [14]:

“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.

Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 3

[9] The decision makes clear that “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.394(3) I must have regard to.

(a) the reason for the delay

[10] Ms Campbell indicated in her evidence that she received an email on 14 June 2019 from LRH attaching a letter advising that her employment had been terminated. On the same day she telephoned Ms Anne Murphy, an Organiser with the HWU who had already been assisting her, and instructed her to file an unfair dismissal application on her behalf. She sent a further email on the following day confirming these instructions. On 17 June she was contacted by Ms Murphy, who told her the file was being completed and an application would be lodged in the following week. On 20 June Ms Campbell again rang Ms Murphy to enquire about her application and was told it had been lodged. However, on 9 July she received an email from Mr Granger at the HWU advising that due to an internal breakdown of communication her application had been lodged out of time.

[11] Ms Campbell also indicated in her evidence that she had always intended to pursue an unfair dismissal application after being informed that she had been terminated, and after contacting the HWU had expected that an application complying with the relevant statutory requirements would be lodged on her behalf.

[12] Mr Mitchell indicated in his witness statement that the failure to lodge Ms Campbell’s unfair dismissal claim within the requisite 21-day time period was entirely due to miscommunication within the Union, and his failure to provide the required documentation to the HWU’s Industrial Department. Ms Murphy also confirmed in her witness statement that she was contacted by Ms Campbell on 14 June. She told her that she had been terminated from her employment at LRH and now wished to pursue an unfair dismissal application. Ms Murphy subsequently provided the required documentation to Mr Mitchell and understood from that point that an unfair dismissal application was to be lodged on behalf of Ms Campbell.

[13] I am satisfied, in response, that there is no real dispute about the reason for the delay. It was entirely due to a failure of the internal processes within the HWU, in circumstances where it had been provided with clear instructions to file an unfair dismissal application on behalf of Ms Campbell, and it had adequate time to do so. I am also satisfied that after providing the Union with instructions to pursue an application on her behalf Ms Campbell maintained an active interest in the progress of the application, and after making further contact with the Union was entitled to assume an application that complied with the requisite statutory requirements had been filed.

[14] A Full Bench of the Commission in Clark v Ringwood Private Hospital (“Clark”) 4 detailedwhat itdescribed as “general propositions” to be considered when representative error is relied upon to support an application for an extension of time. It concluded (references omitted):

“…the following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:

(1) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

…

(2) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

…

(3) 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 applicants efforts to ensure that the claim is lodged.

(4) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s.170CE(8).” 5

[15] The decision in Clark accordingly makes clear that representative error may be a sufficient reason to extend time in which to make application. It also makes clear that this will more likely apply in circumstances where the Applicant is blameless in terms of the reason for the delay. It also emphasises that an Applicant can be considered to be blameless in circumstances where they have given clear instruction to their representative, and the representative fails to carry out those instructions, despite the Applicant making ongoing efforts to ensure his/her instructions have been carried out.

[16] I am accordingly satisfied that the circumstances identified in Clark can be said to exist in the present matter and Ms Campbell was completely blameless for the fact her application was not lodged within time. As indicated, she gave instructions to the HWU to lodge an unfair dismissal application on her behalf on the same day that she was informed her employment had been terminated. She then maintained contact with the Union in order to be informed about the progress of her application. She was told in one of those exchanges that her application had been lodged within time, despite the fact that this was not actually the case. As indicated, all of the circumstances identified in the decision in Clark as lending support to an exercise of the discretion to extend time in which to make application would appear to exist in all the circumstances of this matter.

(b) whether the person first became aware of the dismissal after it had taken effect

[17] Ms Campbell became aware of her termination on the day it took effect, and immediately took action to dispute her dismissal by instructing the HWU, on the same day, to prepare and lodge an unfair dismissal application on her behalf.

(c) any action taken by the person to dispute the dismissal

[18] As indicated, Ms Campbell took action immediately to dispute her dismissal by instructing the HWU to lodge an unfair dismissal application on her behalf. She was then in ongoing contact with the Union about the progress of her application.

(d) prejudice to the employer (including prejudice caused by the delay)

[19] The delay in making application is relatively limited and as a consequence there will be limited prejudice to LRH if Ms Campbell is allowed to proceed with her unfair dismissal application. This is reinforced by the fact that LRH did not support or oppose her application for an extension of time.

(e) the merits of the application

[20] The Commission is not in a position at this time to form any view about the respective merits of Ms Campbell’s substantive unfair dismissal application, given the limited material now before it. It is also noted again that LRH indicated in its submissions that it intends to take issue with the evidence foreshadowed by Ms Campbell in this regard if her unfair dismissal application proceeds to a substantive hearing. It also indicated that it considers that any consideration of the merits of the application should be viewed as a neutral consideration for the purposes of the present proceedings.

[21] It is also noted that previous decisions have concluded that the Commission is not required in the context of an extension of time application to form a concluded view about the respective merits of the matter and, as indicated, the Commission is in no position to do so at this point, given the materials now before it.

(f) fairness as between the person and other persons in a similar position

[22] This consideration appears to be of limited relevance in all the circumstances of this matter.

Conclusion

[23] As indicated already I am satisfied that Ms Campbell was completely blameless in all the circumstances for her unfair dismissal application being received by the Commission after the expiry of the 21-day standard time limit, following her dismissal on 14 June. She immediately instructed the HWU to lodge an unfair dismissal application after being informed that her employment had been terminated, and then maintained an active interest in the progress of her application. She was subsequently told by a representative from the HWU that her application had been filed with the Commission, only to be informed at a later point in time that it had not actually been lodged within the standard 21-day time period. She could not reasonably have been required or expected to have done anything more to check or confirm whether her application was filed within the required time period, and the failure to lodge within time was instead entirely due to the HWU’s internal processes. In addition, the consequences of this failure are obviously potentially significant for Ms Campbell in that she could be denied the opportunity to take issue with the circumstances surrounding her dismissal. I am satisfied, in conclusion, that in combination these circumstances can be said to be “exceptional circumstances” and are sufficient to warrant an exercise of the Commission’s discretion to extend time to Ms Campbell to pursue her unfair dismissal application. I have had particular regard to the reasons for the delay in coming to this conclusion.

[24] As indicated, I am satisfied that it is appropriate for the Commission to exercise the discretion available to it under s.394(3) to grant Ms Campbell additional time in which to make her application. An order to this effect is issued in conjunction with this decision. The application will now be referred to the Commission’s Unfair Dismissal Case Management Team to enable it to be listed again in order to deal with Ms Campbell’s substantive unfair dismissal application.

COMMISSIONER

Appearances:

C Granger of the Health Workers Union for the Applicant.

D Proietto of Lander & Rogers for the Respondent.

Hearing details:

2019.

Melbourne (by telephone):

September 13.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth) s 394(3).

 2   [2011] FWAFB 975.

 3   Ibid at [13]-[14].

 4 (1997) 74 IR 413.

 5   Ibid at 418-420.