Wendy Oldham v Australian Home Care Services Pty Ltd

[2016] FWC 2384

[2016] FWC 2384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wendy Oldham
v
Australian Home Care Services Pty Ltd
(U2015/13851)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 14 APRIL 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Ms Wendy Oldham (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 27 October 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Australian Home Care Services Pty Ltd (the Respondent) on 3 September 2015 was unfair.

[2] On 28 October 2015 the Fair Work Commission (the Commission) wrote to Ms Oldham indicating that her application appeared to have been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was received thirty-three days outside the 21 day statutory timeframe.

[3] The Commission subsequently issued Directions on 10 November 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[4] The extension of time issue was listed for hearing on 17 December 2015. However Ms Oldham did not attend the hearing. The Commission subsequently wrote to Ms Oldham on 18 December 2015 advising that the Commission would now determine her application on the papers.

[5] On 23 December 2015, Mr Patrick Ryan, a Human Resources Business Partner with the Respondent, emailed Ms Oldham stating, among other things, that:

“Should you decide to withdraw the matter (that is a matter for you) we will not pursue a costs application which is now being considered as a result of your non-attendance at the listed matter last week and the way have you have conducted yourself in relation to this application.

Any payments withheld from your final entitlements are lawful based on your written consent to withhold the annual leave entitlements from your final pay. Thanks”

[6] In subsequent developments, Ms Oldham advised the Commission on 29 March 2016 that she would like to proceed with her application.

[7] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Ms Oldham’s application cannot proceed and will be dismissed.

Background

[8] Ms Oldham commenced employment with the Respondent on 10 July 2011 as a cleaner. In June 2012 Ms Oldham injured her back at work and subsequently submitted a workers’ compensation claim which was accepted by the Respondent’s insurer, QBE.

[9] On 18 August 2015, the Respondent wrote to Ms Oldham regarding what it described as a serious issue “in relation to your absence from work and payments that you continue to accept (in error) from our organisation.” Specifically, the letter stated, among other things, that:

“In correspondence dated 25th November 2014, you were advised by QBE Workers Compensation that your entitlement to weekly compensation payments would cease from 25th April 2015. You subsequently requested review of that decision at the Accident Compensation Conciliation Service and, on 17th June 2015, you attended a Conciliation Conference where it was confirmed that a Genuine Dispute existed and, as such, the decision to cease weekly payments remained in effect.

Since the cessation of your to [sic] weekly compensation payments, you have continued to receive $366.00 per week in error from Australian Home Care, for a period of 14 weeks to 31st July 2015. This has resulted in an overpayment of $5124.00.

Subsequently, the above series of events calls into question your alleged inappropriate conduct in accepting these payments from Australian Home Care without notifying us that an error may have occurred with wages paid to you.

In particular, we wish to discuss with you the following allegations:

• That you have continued to receive $366.00 per week in error from Australian Home Care, for a period of 14 weeks to 31st July 2015 without notification to your Manager or anyone else from the organisation;



• That you knowingly and wilfully accepted these payments during this period in error from Australian Home Care services.” (Emphasis as per original)

[10] Ms Oldham was invited to attend a meeting on 20 August 2015 to respond to the above allegations and to demonstrate why the Respondent should continue with her employment.

[11] On 19 August 2015, Ms Oldham’s legal representative wrote to the Respondent stating, among other things, that Ms Oldham acknowledged that the payments were made in error and disputing that she knowingly and wilfully accepted payments which she knew to be made in error. The letter further indicated as follows:

“Our client instructs that she is happy to repay the money, however, is not in a financial position to do so at this time. Ms Oldham instructs that she has a number of entitlements outstanding, including annual leave. Accordingly, we are instructed to offer that Nationwide access these entitlements to offset any money owed.

In the event that our client’s entitlements do not cover the entirety of this money, we are instructed to offer repayment at the rate of $40.00 per fortnight.”

[12] The abovementioned meeting was rescheduled at Ms Oldham’s request and occurred on 28 August 2015, with Ms Oldham accompanied by her support person, Mr Peter Harries. A further meeting occurred on 3 September 2015 at which Ms Oldham was dismissed. Mr Harries also attended that meeting as Ms Oldham’s support person.

[13] Also on 3 September 2015, Ms Oldham signed a Repayment Plan with the Respondent. The Repayment Plan, which was witnessed by Mr Harries, provided, inter alia, as follows:

“After discussions with Australian Home Care (AHC) it has been agreed that you will repay the amount totalled above through instalments via each pay cycle (fortnightly), until the total debt has been repaid in full.

• $40.00 per fortnight:



• First deduction will be made on 10 September 2015:



• A summary document will be attached to each payslip detailing payments made to date, along with outstanding amount owed.

…

However, if you leave AHC before this debt is repaid; we wish to deduct any outstanding monies from your final pay from any statutory entitlements (e.g. leave) owing. …”

[14] On 7 September 2015, the Respondent wrote to Mrs Oldham confirming the termination of her employment with effect from 3 September 2015.

[15] As previously noted, Ms Oldham’s application was received by the Commission on 27 October 2015, thirty-three days outside the 21 day statutory timeframe.

The Relevant Legislation

[16] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(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).

394(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[17] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[18] Ms Oldham contended that after seeking legal advice on 18 September 2015 she submitted her application online to the Commission on 19 September 2015. Ms Oldham further contended that after not hearing anything for some time she contacted the Commission when she was advised that there was no record of her application having been received. Ms Oldham also submitted that she was asked to resend a copy of her application which she did.

[19] The Respondent submitted that Ms Oldham had not provided a credible reason to explain why the application was delayed.

[20] As noted by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 1, an employee needs to provide a credible reason for the whole of the period that the application was delayed. Based on the material before the Commission, I am not satisfied that Ms Oldham has done so, particularly as there is not material before the Commission to support Ms Oldham’s contentions.

[21] This does not point to the existence of exceptional circumstances.

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

[22] It was not disputed that Ms Oldham was aware that her employment ceased on 3 September 2015.

[23] I therefore consider this factor to be a neutral consideration.

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

[24] It was not disputed that Ms Oldham did not take any action to dispute her dismissal prior to lodging her unfair dismissal application.

[25] This does not point to the existence of exceptional circumstances.

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

[26] Ms Oldham submitted that she did not consider that the lateness of her application had caused the Respondent any disadvantage or unfairness.

[27] The Respondent submitted that it was prejudiced as a result of the lengthy delay, adding that as a not-for-profit organisation operating in the Community and Aged Care Industry it had limited resources to manage and respond to a case like this should it proceed. While I note the Respondent’s submission in this regard, this of itself does not constitute prejudice in the sense that the Respondent would be disadvantaged in defending the application as a result of the delay in lodging the application.

[28] Against that background, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[29] Ms Oldham submitted that her dismissal was unfair for a number of reasons, including that:

• the Respondent had told QBE that she had been made redundant on 22 August 2014;



• she kept providing her Certificates of Capacity but never received any advice from either the Respondent or QBE that her 130 weeks was up;



• the issue of serious misconduct had not been previously raised with her; and



• it was not fair that the Respondent was holding back her annual leave to pay back the overpayment which occurred as a result of the Respondent’s error.

[30] The Respondent submitted that the matter is not highly meritorious, adding that the application lacks substance and had been made without reasonable cause. The Respondent further submitted that Ms Oldham was afforded procedural fairness at all times and that at no time did she object to attending the meetings on medical grounds.

[31] The correspondence between the Respondent and Ms Oldham’s legal representative outlined in some detail above clearly indicates that the Respondent raised its concerns regarding Ms Oldham’s conduct with her and that the Repayment Plan finalised on 3 September 2015 was initially proposed by Ms Oldham’s legal representative on her behalf. In those circumstances and based on the material before the Commission, the merits of Ms Oldham’s application appear poor.

[32] This does not point to the existence of exceptional circumstances.

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

[33] Neither party directly addressed this factor in their submissions.

[34] I therefore consider this factor to be a neutral consideration.

Conclusion

[35] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Nulty in the following way:

“[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.”

[36] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[37] Accordingly, Ms Oldham’s application will be dismissed. An order to that effect will be issued in conjunction with this decision.

 1 (2010) 197 IR 403 at 408-409

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