Hudspith v Medicalone Pty Ltd [2016] FWC 2086 (4 April 2016) [2016] FWC 2086 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Lydia Hudspith v Medical One Services Pty Ltd T/A Medicalone (C2015/7563) DEPUTY PRESIDENT LAWRENCE SYDNEY, 4 APRIL 2016 Application to deal with contraventions involving dismissal. [1] On 11 December 2015 Ms Lydia Hudspith (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Medical One Services Pty Ltd T/A Medicalone (the Respondent). [2] The Applicant commenced employment with the Respondent in July 2015. She was a nurse in the Respondent’s medical centre in Moorabbin, Victoria. She was dismissed on 19 November 2015 and the dismissal took effect on that day. [3] The application therefore was lodged one day out of time. Alleged Contravention [4] The Applicant submits that she was dismissed because she sought to exercise a workplace right to complain about bullying and harassment. She further says that she was dismissed because of her medical condition and because she had been on sick leave. Breaches of ss.340 , 351 and 352 are alleged. Respondent’s Submissions [5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act. [6] The Respondent states that the Applicant was dismissed because of a number of issues relating to her performance, conduct and attendance during her probation period. Relevant Legislation [7] Section 366 of the Act provides: 366 Time for application 366(1) An application under section 365 must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (2). 366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account: (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.” Approach of the Commission [8] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59 ; Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 ; (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty: “[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.” [9] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251 ; [2010] 197 IR 403). [10] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application: “[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states: ‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’ [30] This extract must be read in its entirety. The decision goes on to state: ‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’ [31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.” Commission Proceedings [11] On 20 January 2016, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 8 March 2016. [12] The Applicant was self-represented. The Respondent was represented by Mr B. Tallboys, solicitor. Mr Tallboys was granted permission to appear pursuant to s.596. I note that the Respondent sent an email to the Commission on 1 February 2016 advising that it did not oppose the extension of time. Prior to the hearing, in its written submission, it changed its position to oppose the existence of exceptional circumstances. Matters to be taken into account pursuant to s.366(2) [13] 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.366(2) above. I will deal with each of those matters separately. (a) The reason for the delay [14] The Applicant relies on her medical condition and some confusion about the time limit on filing. [15] The Applicant was hospitalised before the dismissal, but not after it occurred. She was able to attend a number of medical appointments. The medical evidence does not disclose that the applicant was prevented by her medical condition from filing in time. [16] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances. (b) Any action taken by the person to dispute the dismissal [17] There is no evidence of the Applicant taking action to dispute the dismissal. (c) Prejudice to the employer (including prejudice caused by the delay) [18] I consider this matter to be neutral in this case. (d) Merits of the application [19] The Applicant alleges that she was dismissed because she complained about the “bullying” conduct of her manager Ms Bretman. She also says that the dismissal took place as punishment for her illness. [20] The Respondent denies that any bullying conduct took place. It asserts that Ms Bretman was appropriately managing the Applicant during her probation period. It detailed a number of issues with the Applicant’s attitude and conduct. It appears to me likely that the Respondent would be able to show that these were the operative reasons for the dismissal. [21] I do not consider that the merits of the application give weight to the existence of exceptional circumstances. (e) Fairness as between the person and other persons in a like position [22] This factor was not addressed and has not been taken into account. Conclusion and Order [23] Having considered all of the factors set out in s.366(2), I am not 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 application is dismissed. Order Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Lydia Hudspith under s.365 of the Act is dismissed. DEPUTY PRESIDENT Appearances : L Hudspith , Applicant. B. Tallboys , solicitor with A. McKenzie and A. Walsh . Hearing details: 2016 Telephone Hearing: March 8. Printed by authority of the Commonwealth Government Printer <Price code A, PR578654>