Wendy McLochlan v Catholic Healthcare Limited

[2020] FWC 2918

[2020] FWC 2918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Wendy McLochlan
v
Catholic Healthcare Limited
(C2020/1324)

DEPUTY PRESIDENT YOUNG MELBOURNE, 3 JUNE 2020

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Ms McLochlan under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] It is uncontested that Ms McLochlan’s employment with the Respondent ended on 7 January 2020. Her application was lodged on 4 March 2020. The period of 21 days ended at midnight on 28 January 2020 and the application was therefore lodged 36 days out of time. Ms McLochlan seeks that the Commission allow a further period of time for the application to be made. The Respondent opposes the grant of an extension of time.

[3] On 2 April 2020, I issued directions for the parties to file materials and listed the matter for hearing at 9.00 am on 28 May 2020. Materials were filed by the parties in accordance with those directions.

[4] On 28 May 2020 I conducted the proceeding by way of determinative conference by telephone. At the determinative conference Ms McLochlan appeared on her own behalf. Mr Simon Higgins, General Manager Human Resources, appeared on behalf of the Respondent.

Background

[5] Ms McLochlan commenced employment with the Respondent on 30 September 2019 1 as a Residential Manager at the Respondent’s aged care home, Maranatha Lodge in Batehaven (Home).2

[6] On 6 January 2020, Ms McLochlan’s sister provided a medical certificate to the Respondent for Ms McLochlan for the period of 6 January to 13 January 2020 inclusive. 3

[7] On 7 January 2020, Ms McLochlan telephoned her Regional Manager, Ms Melinda White 4 (Telephone Conversation). The content of the Telephone Conversation is disputed. Ms McLochlan says that during the Telephone Conversation she said words to the effect of “…well maybe I’m not the right person for the job and maybe I should resign?”5 The Respondent says that during the Telephone Conversation, Ms White had a conversation with Ms McLochlan about the reasonable expectations of a Residential Manager, following which Ms McLochlan stated that if these were the reasonable expectations of the Respondent then she was not the right fit, and verbally resigned.6 I address this matter further below.

[8] On the evening of 7 January 2020, Ms White wrote to Ms McLochlan by email confirming Ms McLochlan’s resignation (7 January Email). 7 The Email states:

“Following receipt of your verbal resignation on 7th January 2020, I write to advise that on behalf of Catholic Healthcare I accept your resignation from the position of Residential Manager effective immediately and I ask that you to please confirm this in writing.

I would like to thank you for your service and wish you best of luck in all your future endeavors (sic).” 8

[9] Ms McLochlan did not respond to the Email. 9

[10] On 10 January 2020 Ms McLochlan was provided with a Statement of Service and a Separation Certificate. 10

Consideration

[11] The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant. 11

[12] The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd, 12 where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.13

[13] Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

Reason for the delay

[14] The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable 14 or a reasonable explanation.15 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd16 the Full Bench noted that the absence of an 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 the circumstances must be considered.17 The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.18

[15] In her materials Ms McLochlan says that the reasons for the delay in lodgement were manifold.

[16] Ms McLochlan submits that she suffered trauma as a result of experiencing first-hand the bushfire emergency/disaster on the South Coast of New South Wales which continued around her until mid-February (Bushfires). She says that the experience was overwhelming both for herself and her community. Ms McLochlan submits that during this time, road access was badly impacted and ongoing power and phone outages were being experienced. She says that at this time, she was concerned about her immediate safety and ongoing basic welfare. 19

[17] Ms McLochlan says that the Bushfires caused her “enormous emotional distress” and she believes that she went into a state of shock after the “catastrophic fire” of 31 December 2019. She submits that this was followed by a “significant downward spiral” in her mental health and that she thinks she lost track of extended periods of time. 20 Ms McLochlan says that her General Practitioner diagnosed her with a major depressive episode and an acute stress reaction.21

[18] In addition to the stress caused by the Bushfires, Ms McLochlan says that subsequent to the cessation of her employment, she found a breast lump and needed to travel to have this scanned. A breast ultrasound was requested on 16 January 2020 and conducted and reported on 20 January 2020. 22 No abnormality was detected on the ultrasound.23 She further says that her husband was due for a follow up scan after having bladder cancer removed which required interstate travel. Ms McLochlan submits that his was an “extremely anxious period of uncertainty”.24 Ms McLochlan filed an appointment confirmation for her husband to attend a day procedure on 22 January 2020 for a flexible cystoscopy.

[19] Ms McLochlan further submits that a reason for the delay is that she contacted the Australian Nursing and Midwifery Federation (ANMF) on 8 January 2020 seeking advice about her legal options and whether she could get their assistance. Ms McLochlan says that the ANMF then contacted her saying that they would contact the Respondent’s Human Resources Department. Ms McLochlan says that the ANMF did not contact Ms McLochlan again until 28 January 2020 when they advised her that they could not assist as she was still in her probationary period and therefore nothing could be done. 25 Ms McLochlan says that the ANMF did not advise her about any potential general protections claim.26

[20] At the determinative conference Ms McLochlan said that until 3 March 2020 she was unaware of her rights to make a general protections application.

[21] It is indisputable that the Bushfires were a significant and traumatic event. I accept that Ms McLochlan, and no doubt many others, suffered emotional distress as a consequence of the Bushfires. In support of this, Ms McLochlan filed a Mental Health Treatment Plan prepared by Dr Angela Bennett (Plan). The Plan contains a provisional diagnosis of “major depressive episode and acute stress reaction” and provides for referral of Ms McLochlan to a psychologist. I also accept that in the two weeks following the cessation of her employment, Ms McLochlan and her husband both had medical matters to attend to and that this would have been, as submitted, a period of anxiety. However, although the circumstances following the cessation of employment must be considered, the period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired, in this case 28 January 2020, and ending on the day on which the application is ultimately made, being 4 March 2020. All of the above matters predate the date by which Ms McLochlan was required to lodge her application. The medical appointments were day appointments and the evidence before the Commission is that it was reported on 20 January 2020 that no abnormality was found on the ultrasound. Any anxiety from this therefore was alleviated many days before the expiry of the time for lodgement. There is no evidence before the Commission regarding Mr McLochlan’s medical appointment results. I note, though, that this appointment had been scheduled since 10 December 2019. These matters cannot therefore provide an explanation for the delay in lodgement.

[22] I accept that the fire of 31 December 2019 was a terrifying event and that the subsequent days would also have been most stressful and difficult. However, these events occurred prior to Ms McLochlan’s cessation of employment on 7 January 2020. Of themselves, they therefore cannot provide an explanation for the delay. I accept, though, that Ms McLochlan continued to suffer distress in the aftermath of the 31 December 2019 fire and in the context of the Bushfires more generally. In that context, I note that the Plan is dated 16 January 2020 and therefore also pre-dates by 11 days the date by which Ms McLochlan was required to lodge her application. The Plan provides a provisional diagnosis only. There is no medical evidence before the Commission that Dr Bennett’s provisional diagnosis was confirmed at any time, that Ms McLochlan’s distress continued beyond 28 January 2020 or that her distress was such that she was incapacitated to such an extent that she could not lodge her application in time. Further, there is also no medical evidence before the Commission that Ms McLochlan was in shock or that her distress was such that she lost track of extended periods of time. Ms McLochlan was able to seek and obtain advice from the ANMF during this period and on 27 January 2020, being the second last day on which Ms McLochlan could have filed her general protections application in time, was able to write a three page letter to Mr David Maher, the Managing Director of the Respondent, to share with him her experiences regarding the Bushfires and the cessation of her employment. If Ms McLochlan had sufficient capacity to seek advice from the ANMF as to her cessation of employment and compose lengthy correspondence to Mr Maher, it is difficult to see how she did not have sufficient capacity to lodge the application in time.

[23] As to the submission that Ms McLochlan was unaware of her right to make a general protections claim until 3 March 2020, it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement. 27 Finally, as to Ms McLochlan’s contention that she was not advised of her ability to make a general protections claim by the ANMF, there is no probative evidence before the Commission as to precisely what advice was sought by Ms McLochlan and what advice was given by the ANMF. In those circumstances, I am not satisfied that this provides an acceptable explanation for the delay.

[24] Accordingly, whilst I accept that there were a number of challenging circumstances in Ms McLochlan’s life at the end of 2019 and the commencement of this year, in my opinion, they do not provide an acceptable or reasonable explanation for the delay in lodgement, noting that the period of the delay is the period from 28 January 2020 to 4 March 2020. This weighs against the granting of an extension of time.

Action taken by the person to dispute the dismissal

[25] Ms McLochlan concedes that she did not respond to Ms White’s 7 January Email. 28 Ms McLochlan however submits that after speaking to the ANMF on 8 and 9 January 2020, she received a call from Ms Jill Paull of the Respondent confirming her resignation. Ms McLochlan says that at this point, she advised Ms Paull that she had not resigned.29 Ms McLochlan also says that she disputed her dismissal via a letter to Mr Maher on 27 January 2020.30 Relevantly, the letter states “I advised Jill that I hadn’t resigned but she said that I was still working within my probationary period, that I did not show compassion during a crisis and my verbal resignation was being accepted in this instance. This has left me to believe that my employment was being terminated without discussion.” The letter also states “I’m not asking for anything David. The reason I’ve written to you is to make you aware of the behaviours of some of CHL’s senior management.”31

[26] The Respondent submits that Ms McLochlan did not take any steps to dispute the dismissal. 32

[27] Ms McLochlan did not provide any response to Ms White’s 7 January Email. Ms Paull was not called by the Respondent to give evidence at the determinative conference as to the content of her conversation with Ms McLochlan. In the absence of that evidence, I am prepared to accept that Ms McLochlan disputed her dismissal in the telephone call with Ms Paull. Further, for present purposes, I am also prepared to accept that Ms McLochlan disputes her dismissal in her letter to Mr Maher. This weighs in favour of the grant of an extension of time.

Prejudice to the employer

[28] In its material the Respondent submits that it has suffered prejudice due to the investment of time and resources in dealing with the application which could have otherwise been utilised in “other operational matters during a time of great disruption and need in the Aged Care sector.” However, the Respondent acknowledges that it has obligations to respond to matters of industrial dispute. 33 At the determinative conference, however, the Respondent conceded that it suffered no particular prejudice.

[29] Ms McLochlan submits that she does not believe that the Respondent has been disadvantaged in any way by the delay in filing of the application. 34

[30] I cannot identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[31] An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[32] In her materials, Ms McLochlan alleges that adverse action was taken against her in breach of section 352 of the Act. 35 Section 352 provides that an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. However, at the determinative conference she said her claim was that she was terminated while on sick leave and that her understanding is that such action is precluded under Part 3-1 of the Act.

[33] The Respondent denies that it dismissed Ms McLochlan and says that she resigned following performance issues being raised with her, against the background of the “difficult circumstances” arising from the Bushfires. It therefore says that section 352 is not engaged.

[34] Ms McLochlan submits that on 6 January 2020, she spoke to Ms White and requested leave due to mental exhaustion and distress as a result of working through the Bushfires. She says that she was informed by Ms White that a decision had been made that she would continue to attend work to be the “face of recovery”. Ms McLochlan says that she initially agreed to this, however later in the day realised that due to being overwhelmed and exhausted, she was not able to continue working in the short term. Ms McLochlan then says she visited a doctor and received a medical certificate for the period of 1 to 13 January 2020 inclusive which was provided by her sister to Ms White later on 6 January 2020. 36

[35] The Respondent submits that on 4 January 2020, Ms White invited Ms McLochlan to rest at home for the rest of the weekend and assured Ms McLochlan that she would manage the Home for the remainder of the weekend until Ms McLochlan returned on Monday, 6 January 2020. 37 The Respondent submits that on 6 January 2020, Ms McLochlan attended the Home to wash clothes and advised Ms White that she had some errands to attend to and enquired as to whether she was required to attend work that day. The Respondent submits that Ms White then informed Ms McLochlan that she was required to be at the Home and it was important that, as the leader of the Home, Ms McLochlan be present to fulfil her regular duties as Residential Manager.38 The Respondent submits that in this conversation, Ms White also provided feedback to Ms McLochlan regarding her interactions with an upset employee and asked Ms McLochlan to be on site at the Home between 9am and 5pm Monday to Friday in accordance with her regular working hours.39

[36] The Respondent denies that Ms McLochlan advised that she required time off, or that Ms White told Ms McLochlan that she needed to be the “face of recovery.” 40 The Respondent also denies that Ms McLochlan indicated that she was requesting leave due to mental exhaustion and distress. Instead, the Respondent submits, Ms McLochlan requested to come back to the Home in the afternoon of 6 January 2020 as she still had washing and shopping to do and needed to charge her equipment.41

[37] The Respondent does not dispute that a medical certificate for Ms McLochlan for the period of 6 - 13 January 2020 was provided to Ms White by Ms McLochlan’s sister. However, at the determinative conference the Respondent’s evidence was that the certificate is silent as to Ms McLochlan’s asserted medical condition. Ms McLochlan did not appear to contest this.

[38] Ms McLochlan submits that on 7 January 2020, she telephoned Ms White to “clarify some issues” raised in their conversation on 6 January 2020. Ms McLochlan says that on this telephone call, Ms White pressured her to attend work, advising that it was a requirement of her role and advising that another manager at a different local facility was continuing to work through the Bushfires without a break and suggested that Ms McLochlan should do the same. Ms McLochlan says that she then said words to the effect of “……maybe I’m not the right person for the role and maybe I should resign?” Later that afternoon, Ms White emailed her confirming the acceptance of her resignation and requesting a written resignation. 42

[39] The Respondent disputes the content of the call on 7 January and says that Ms White reiterated that she had asked Ms McLochlan to rest on Saturday and Sunday and return to work on Monday. The Respondent submits that Ms White was seeking to understand the reasons for Ms McLochlan’s application for leave. It submits that a conversation about the reasonable expectations of a Residential Manager ensued. Following this, the Respondent submits that Ms McLochlan said to Ms White that if these were the expectations of the Respondent, then she was not the right fit. The Respondent submits that Ms McLochlan then verbally resigned and advised that she would have her equipment returned. The Respondent says that Ms White accepted the resignation and told her that her notice period would be paid out. It says that Ms White thanked Ms McLochlan for her service. 43 At the determinative conference is was uncontested that in this conversation Ms McLochlan requested payment of her outstanding relocation allowance and was requested to return the Respondent’s property in her possession. Ms McLochlan’s evidence was that her sister returned the Respondent’s property the next day.

[40] Ms McLochlan submits that on 9 January 2020 she received a call from the Respondent’s Human Resources Department confirming that her employment was terminated, which was followed by a termination payment, a Centrelink Employment Separation Certificate and a Statement of Service on 10 January 2020. 44 At the determinative conference Ms McLochlan said that she had only recently moved to Bateman’s Bay from Victoria, her family’s plan was for her to work, she had purchased a house which needed work and her income was required to undertake work on the house. She says there was therefore no reason for her to resign.

[41] As to the merits of the application, firstly, at the determinative conference Ms McLochlan said that she does not necessarily say she was dismissed because she was temporarily absent. She says her claim is that she was dismissed while on sick leave. On this basis, Ms McLochlan’s claim under section 352 appears to have proceeded on a misunderstanding of the provision’s operation. However, Ms McLochlan is unrepresented and it may be that with legal representation she would be better able to articulate and formulate her claim. Secondly, section 352 is only engaged if there is a dismissal. Whether Ms McLochlan was dismissed is contested. Given the interlocutory nature of these proceedings, and on the material currently available to the Commission, it is not possible to form a concluded view as to whether Ms McLochlan was dismissed and, if so, whether that dismissal was in breach of section 352. The evidence of Ms McLochlan and the Respondent would need to be fully tested under oath. In these circumstances, I am prepared to consider the merits of Ms McLochlan’s application to be a neutral consideration.

Fairness as between the person and another person in a like position

[42] Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.⁴⁵ Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.⁴⁶ The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Ms McLochlan and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[43] The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[44] Having regard to all of the factors which I am required to take into account under section 366(2), whilst not in any way seeking to indicate that the Bushfires were not a terrifying and significant event for those communities affected, I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Ms McLochlan’s application.

[45] Accordingly, I decline to grant an extension of time under section 366(2). Ms McLochlan’s application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

W McLochlan on her own behalf

S Higgins for the Respondent

Hearing details:

2020.
Melbourne (by telephone):
May 28.

Final written submissions:

Applicant, 20 April 2020

Respondent, 14 May 2020

Printed by authority of the Commonwealth Government Printer

<PR719908>

 1   Exhibit A1, q.1.1; Exhibit R1, q.5.1

 2   Exhibit R1, q.5.1

 3   Exhibit A1, q.3.1 at [2]; Exhibit R1, q.5.1 at [6]

 4   Exhibit A1, q.3.1 at [3]; Exhibit R1, q.5.1 at [7]

 5   Exhibit A1, q.3.1 at [3]

 6   Exhibit R1, q.5.1 at [8-10]

 7   Exhibit A1, q.3.1 at [4]; Exhibit R1, q.1b

 8   Exhibit A3

 9   Exhibit A1, q.3.1 at [4]

 10   Ibid at [6]

 11   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

 12   [2011] FWAFB 975

 13   At [13]

 14   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 15   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

 16   [2018] FWCFB 901

 17   Ibid at [39]

 18   See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

 19   Exhibit A1, q.1.4 at [1]

 20   Exhibit A2, q.1d

 21   Ibid

 22   Exhibit A5

 23   Ibid

 24   Exhibit A2, q.1d

 25   Exhibit A1, q.1.4 at [2]

 26   Exhibit A2, q.1d

 27   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

 28   Exhibit A2, q.1e

 29   Ibid

 30   Ibid

 31   Exhibit R3

 32   Exhibit R2, q.1e

 33   Ibid, q.1g

 34   Exhibit A2, q.1f

 35   Exhibit A1, q.3.2

 36   Ibid, q.3.1 at [2]; Exhibit A2, q.1h

 37   Exhibit R1, q.5.1 at [3]

 38   Ibid at [5]

 39   Ibid

 40   Ibid at [5-6]

 41   Ibid at [5]

 42   Exhibit A2, q.1h; Exhibit A3

 43   Exhibit R1, q.5.1 at [7-11]

 44   Exhibit A1, q.3.3

45 Wilson v Woolworths [2010] WA 2480 at [24-29]

46 Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]