Note: An appeal pursuant to s.604 (C2012/4073) was lodged against this decision - refer to Full Bench decision dated 12 September 2012 [[2012] FWAFB 5933] for result of appeal.
[2012] FWA 4035 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Donna Muir McMeeken
v
Action Industrial Catering Pty Ltd
(U2011/12587)
COMMISSIONER WILLIAMS |
PERTH, 15 MAY 2012 |
Termination of employment - extension of time.
[1] This matter involves an application made by Ms Donna Muir McMeeken (the Applicant) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Action Industrial Catering Pty Ltd (the Respondent).
[2] The application was the subject of a conference before a Fair Work Australia Conciliator however the matter was not resolved.
[3] The Applicant was dismissed on 25 August 2011. The application was lodged on 14 October 2011.
[4] The application has been lodged more than 14 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.
[5] Section 394 (3) allows Fair Work Australia to allow a further period for an application such as this to be made only if Fair Work Australia is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 below.
“s. 394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:
(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.”
[6] The Applicant has provide a statutory declaration in support of her application to extend the time for making the substantive application and submissions have been provided by the parties regarding allowing a further period for this application to be made.
Are there are exceptional circumstances?
The reason for the delay
[7] The Applicant’s evidence is that she worked at a remote location in Western Australia. In June 2011 she suffered an injury at work and whilst she remained at work from that point onwards she was in considerable pain at times and sought medical treatment during her time off site.
[8] The Applicant was born in New Zealand but came to Australia at an early age and was raised by a woman who she referred to as her “Aussie mum”, Mrs Mac.
[9] In mid-2011 Mrs Mac’s health deteriorated. The Applicant was advised on 9 August 2011 that Mrs Mac was gravely unwell and likely to die shortly.
[10] The Applicant requested leave which was approved and she returned to Perth with the intention of then travelling to visit Mrs Mac. Mrs Mac died on the weekend of the 13th and 14th of August 2011.
[11] The Applicant returned to site on 14 August 2011 to complete her rostered swing which would have ended on 18 August 2011.
[12] Mrs Mac’s funeral was held on 19 August 2011.
[13] The Applicant was due to return to site on 26 August 2011 however she was directed to attend a meeting with the Respondent’s staff on 25 August 2011 and during that meeting was dismissed by the Respondent.
[14] The Applicant’s evidence is that the death of Mrs Mac, the ongoing pain from her injury and the termination of employment affected her health to the extent that she became severely depressed and not capable of dealing with her affairs.
[15] Her evidence was that immediately following her termination she sought advice from WorkCover and was given a list of agencies that might be able to assist. A copy of an email from WorkCover to the Applicant dated Monday, 29 August 2011 listing different contact points for her to resolve issues with her employer was provided to the Tribunal. One of these was the Fair Work Ombudsman (FWO).
[16] The Applicant then contacted FWO and was advised that if she had a claim it would need to be filed under the general protections provisions and that there was a time period of 60 days to file the claim.
[17] The Applicant’s evidence is that subsequent to her ringing the FWO her health deteriorated to the point where on 23 September 2011 she was referred for psychiatric assessment. The Applicant was then hospitalised on 24 September 2011 and the state had charge of her affairs until her release on 30 September 2011.
[18] The Applicant’s evidence is that on 12 October 2011 the person handling her workers compensation claim referred her to Mr Trainer, who represents her in this application. She met Mr Trainer the following day and at that meeting became aware of the 14 day time limitation for filing unfair dismissal claims and she instructed Mr Trainer to prepare this application which she signed on 14 October 2011 the same day it was lodged.
[19] The Applicant also provided a number of medical certificates. Also included with her evidence was a chain of emails communicating with the Respondent beginning on 31 August 2011 which in part involved the Applicant questioning the lack of details in her termination letter.
[20] Further detail regarding the Applicant’s hospitalisation in September 2011 was provided.
[21] The Applicant also included a letter from her doctor dated 18 January 2012 which explains the history of her injury in June 2011 and that in his view the termination of her employment caused her to become anxious and distressed and so the Applicant was not fit to work and was provided with certificates by him to this effect.
[22] The doctor says:
“Donna has had a turbulent time since she suffered her injuries on 9 June 2011. The turbulence has been physical, psychological and emotional and made it extremely difficult for Donna to attend to day to day matters that she would normally have been able to do. The turbulence continues to this day. She still has pain and difficulties as a result of the work injuries.”
[23] In considering the Applicant’s explanation for the late lodgement of this application the period that is most critical is that between the date of the Applicant’s dismissal, 25 August 2011 and 14 days thereafter this being 8 September 2011. To comply with the statutory timeframe it is during these 14 days that the application should have been made.
[24] The Applicant argues that the death of Mrs Mac, the ongoing pain from her injuries and her termination affected her health so severely that she was unable to make the application during this time. The statement of her doctor, that ever since her injuries on 9 June 2011 it has been extremely difficult for her to attend to day to day matters, supports her submission.
[25] Certainly I have no difficulty accepting that these issues posed significant difficulties for the Applicant during this period. The question however is has the Applicant discharged the onus of satisfying the Tribunal that during this 14 day period and thereafter she was simply not able to make the application?
[26] The Applicant’s evidence is that after her dismissal and before 29 August 2011 she was able to contact WorkCover and sought advice from them regarding her situation. Upon receipt of an email from WorkCover dated 29 August 2011 she did follow that advice and spoke to the FWO regarding her situation and received and clearly understood advice from them regarding the opportunity of her making a general protections application. The Applicant does not specify on what date she contacted the FWO however this was some time before 23 September 2011.
[27] Also during the 14 days after her dismissal she replied to emails from the Respondent requesting that she pick up boxes of her personal gear. Her response was that she would pick those up the same day or perhaps the next day and in her email she went on to query the lack of detail in her termination letter.
[28] Also during this period the Applicant’s doctor provided a medical certificate to Centrelink dated 29 August 2011 listing all her medical conditions that would impact on her capacity to work or study as being “multiple soft tissue injuries” and which went on to list all functional symptoms of this condition as being “... has painful right shoulder, neck and low back” .
[29] The evidence is that during the two weeks after her dismissal the Applicant was quite capable of making enquiries about her rights and did so through WorkCover. The Applicant was quite capable of following that advice and did so by making further enquiries through the FWO in all probability shortly after 29 August 2011. During this period the Applicant was also capable of interacting with her employer by email and raising queries with them. Her doctor’s assessment of her health problems at this time was these were limited to shoulder, neck and back pain only.
[30] Considering this evidence and the evidence that the Applicant’s health and well-being later declined to the point on 24 September 2011 where she was admitted to hospital for six days it is my conclusion that during the first 14 days after her dismissal the Applicant was not prevented by ill-health or other reasons from making an application to Fair Work Australia.
[31] I do accept that for some period prior to 24 September 2011 through to shortly after 30 September 2011 the Applicant’s ill-health did prevent her from making this application.
[32] The Applicant’s evidence however is that having left hospital on 30 September 2011 she recommenced her efforts to get advice on her rights in respect of her termination and contacted the person handling her workers compensation claim who then referred her on to Mr Trainer on 12 October 2011.
[33] This evidence of course does not explain why it was a further two weeks after leaving hospital before this application was made. If she was able to deal with her workers compensation maters she was capable of making this application.
[34] If in fact the Applicant was simply unaware that she was able to make an application seeking a remedy for unfair dismissal until such time as she met with Mr Trainer that would not be an acceptable reason for the delay in making the application. Applicants’ making an application out of time because they were not aware of their legal rights is not an explanation that would amount to exceptional circumstances.
[35] Considering then the reasons for all of the delay in making this application I do not accept that there is an acceptable reason why the application was not made within the first 14 days after the Applicant’s dismissal. I do not accept that the Applicant’s hospitalisation and the decline in her health immediately prior to this is an acceptable explanation for approximately two weeks of the total delay. I do accept however that there is an acceptable explanation for the delay between early October 2011 and 14 October 2011 when the application was actually made.
[36] In conclusion then the Applicant has satisfied me that there is an acceptable explanation for only approximately two weeks of the five week delay in making this application.
[37] Finally it is submitted on behalf of the Applicant that the advice from the FWO was not correct. I note however the Applicant’s evidence was simply that the FWO advised that if she had a claim it would need to be filed under the general protections and that there was a time period of 60 days to file the claim. No evidence has been provided to the Tribunal as to what questions the Applicant asked of the FWO nor what information she provided to them before receiving this advice. There is not sufficient evidence before me to form any view as to the correctness or otherwise of the advice from the FWO.
Any action taken by the person to dispute the dismissal
[38] The only action taken by the Applicant in this regard was querying why her letter of termination was not more detailed as to the reasons for her dismissal.
Prejudice to the employer (including prejudice caused by the delay)
[39] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.
The merits of the application
[40] It is well understood that in considering an application to extend time the Tribunal is not to embark upon a detailed consideration of the facts and law that might relate to the substantive application.
[41] The Respondent’s explanation is that the Applicant had on a number of occasions not complied with her obligations in terms of completing journey management plans and this was viewed as a safety breach of some significance that warranted termination.
[42] The Applicant for her part contends she was denied procedural fairness in the issuing of warnings and that there was no substantive basis for those warnings and further that she was denied procedural fairness leading up to her termination and that there was no substance to the allegations made against her.
[43] In this instance the issue of merit is neutral in determining whether or not there should be an extension of time granted to make the substantive application.
Fairness as between the person and other persons in a similar position
[44] This factor is not relevant in this case.
Conclusion
[45] The onus is on the Applicant to persuade Fair Work Australia that a further period should be allowed for her to make this application beyond the statutory time limit of 14 days.
[46] I have considered the information provided and the submissions by both parties on the relevant factors. Whilst I agree there is an acceptable explanation for some of the delay in making this application there is no such acceptable explanation for the majority of the period of delay. Significantly there is no acceptable explanation as to why the Applicant did not make this application within 14 days of her dismissal. The serious personal difficulties the Applicant experienced for a period of some weeks did prevent her from making the application but these largely developed after this 14 day time period had lapsed.
[47] The Applicant has not satisfied me that the circumstances she found herself in either individually or collectively amounted to exceptional circumstances that would warrant the Tribunal allowing an extension of time for her to make this application.
[48] Consequently I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before Fair Work Australia and is dismissed.
[49] An order to that effect will issue in conjunction with this decision.
COMMISSIONER
Decision Summary
TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – application lodged 35 days late – applicant suffered work related injuries and emotional stress followed by short period in hospital –during first 14 days after dismissal illness did not prevent applicant from making application – not satisfied that circumstances individually or collectively amount to exceptional circumstances – application dismissed. | ||||
McMeeken v Action Industrial Catering P/L | ||||
U2011/12587 |
||||
Williams C |
Perth |
15 May 2012 | ||
Citation: McMeeken v Action Industrial Catering P/L [2012] FWA 4035 (15 May 2012) | ||||
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