Theurer v Healthscope [2015] FWC 743 (30 January 2015) [2015] FWC 743 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Dannielle Theurer v Healthscope T/A Cotham Private Hospital (U2014/14816) DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 JANUARY 2015 Application for relief from unfair dismissal. [1] Ms Dannielle Theurer alleged that the termination of her employment by Healthscope trading as Cotham Private Hospital was unfair. [2] Ms Theurer’s employment with Healthscope ended on 27 July 2012. The unfair dismissal application was therefore not made within 14 days of the date of the dismissal. 1 [3] Ms Theurer lodged an unfair dismissal application at the time of her dismissal. That matter was resolved and Ms Theurer and Healthscope signed a deed of release and Ms Theurer filed a notice of discontinuance. [4] Healthscope applied to have the current claim dismissed as it had been made frivolously and vexatiously and had no reasonable prospects of success. [5] Both the application for an extension of time and the application to dismiss were heard together. The Extension of Time [6] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must have regard to the following criteria. The reason for the delay [7] Ms Theurer alleged that she had been bullied at work and that she was bullied into agreeing to settle her unfair dismissal claim. Ms Theurer said she had been a victim of abuse and like other victims of abuse she did not take action. [8] Ms Theurer relied on this to explain why she did not lodge her current claim for over two years from her dismissal. [9] Ms Theurer advised that in the intervening period she had retrained and obtained alternative employment as a teacher. She also said that she ran a successful business. [10] Even accepting that Ms Theurer had been a victim of bullying, and this cannot be determined at this time, it does not explain why she was not able to take action to lodge this claim until October 2014. Ms Theurer had an obligation to explain the entire period of the delay. [11] That she was able to lodge her original claim does not support a finding that the bullying prevented her from lodging this claim. At that time of her original claim, the events Ms Theurer complained of, were much closer in time than they were subsequently. [12] Ms Theurer provided no explanation as to what happened in the intervening period that prevented her from lodging her claim. For example she did not say that there had been a decline in her mental or physical health that prevented her from making the application. [13] Ms Theurer did not provide any medical or other evidence to support any claim that she was psychologically incapable of making her claim earlier. This weighs against the granting of an extension of time. Whether the person first became aware of the dismissal after it had taken effect [14] It was not disputed that Ms Theurer knew of her dismissal when it took effect. She therefore had the full 14 days to lodge her application. This weighs against the granting of an extension of time. Any action taken by the person to dispute the dismissal [15] Ms Theurer lodged an unfair dismissal claim at the time and then settled this claim. I consider this a neutral criterion. Prejudice to the employer (including prejudice caused by the delay) [16] Healthscope said it would be prejudiced if an extension of time were granted. It submitted that some of the witnesses were no longer employees of Healthscope. As well Healthscope had previously responded to and dealt with this claim. Ms Theurer did not respond to these submissions. I accept these submissions and they weigh against the granting of an extension of time. The merits of the application [17] Healthscope submitted that Ms Theurer’s claim had no reasonable prospects of success as Ms Theurer signed a deed of settlement and the terms of the settlement were complied with and Ms Theurer received the benefit of that settlement. Through the deed Ms Theurer released Healthscope from all claims arising from the termination of her employment. [18] In Australia Postal Corporation v Gorman, 2 Besanko J held that the existence of a binding settlement or “ accord and satisfaction ” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. 3 [19] His Honour stated: “There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3 - 2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success. 4 [20] Ms Theurer submitted that she was bullied into signing the deed. On the current state of the evidence, even if what was alleged to have been said to her was said, it does not amount to coercion or duress. In any event it is clear from the emails exchanged between the parties prior to the deed being signed that Ms Theurer was anxious to have the settlement completed as she was chasing up Healthscope to provide the documents for her to sign. 5 There was nothing in that correspondence that suggests that Ms Theurer was anything other than a consenting party. Ms Theurer did not challenge the submissions made by Healthscope in relation to the emails. [21] On the material currently before me I would conclude that Ms Theurer voluntarily signed the deed. However the evidence has not been tested, so I am not able to conclude that Ms Theurer’s claim would be bound to fail. [22] In relation to the merits of Ms Theurer’s unfair dismissal claim I accept that Ms Theurer is aggrieved about what occurred to her and which she submitted is a widespread problem in nursing. I accept her submission that bullying can have an insidious impact on victims. However, I am unable to make any conclusion about the facts that led to her dismissal as the evidence in this matter has not been tested and as such I can make no assessment of the merits of the claim. This criterion is neutral. Fairness as between the person and other persons in a similar position [23] No submissions were made in relation to this criterion. Conclusion [24] I do not consider that there are exceptional circumstances which warrant the granting of an extension of time. None of the criteria weighed in favour of granting an extension of time. As such Ms Theurer’s application for an unfair dismissal remedy is dismissed. Accordingly there is no need to address Healthscope’s application that the matter be dismissed. DEPUTY PRESIDENT Appearances : Ms Dannielle Theurer representing herself. Ms Hilary Sutton and Ms Cheryl West representing Cotham Private Hospital Hearing details: 2015. Melbourne: 29January. 1 The time limit for lodging applications was varied to 21 days for dismissals which occurred after 1 January 2014. 2 [2011] FCA 975 3 Ibid at [31] 4 Ibid at [33] 5 Exhibit R1 Printed by authority of the Commonwealth Government Printer <Price code A, PR560578>