Anne Pilbrow v Qld Prison Health Services; WorkPac Pty Ltd T/A WorkPac Healthcare [2017] FWC 2288

1 Fair Work Act 2009 s.365—General protections Anne Pilbrow v Qld Prison Health Services; WorkPac Pty Ltd T/A WorkPac Healthcare (C2017/1258) DEPUTY PRESIDENT LAWRENCE SYDNEY, 26 APRIL 2017 Application to deal with contraventions involving dismissal. [1] On 8 March 2017 Ms Ann Pilbrow (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 Qld Prison Services. It is now agreed, however that the Applicant’s employer was a labour hire company, WorkPac Pty Ltd T/A WorkPac Healthcare (the Respondent). [2] The Applicant commenced employment with the Respondent on 10 May 2016 at the Brisbane Correctional Centre. She was a registered nurse who had worked with the Respondent at Brisbane and Wolston Correctional Centres. She worked for several other clients from December 2015. She says that she stopped getting work at the Brisbane centre in October 2016 and Wolston the following December, and finally resigned herself, on 16 February 2017. She does say, however, that both centres “terminated her”. Alleged Contravention [3] The Applicant submits that she was the subject of false accusations and harassment in relation to a number of incidents involving prisoners and other employees. Breaches of ss.340, 343, 344, 346, 348, 351, 352 and 358 are alleged. Respondent’s Submissions [4] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act. [5] The Respondent states that the Applicant was a casual nurse whose last assignment was on 12 December 2016. She was notified by telephone on that day that her assignment was finished. This was confirmed on 16 December. Relevant Legislation [6] Section 366 of the Act provides: [2017] FWC 2288 DECISION -- 1 of 5 -- [2017] FWC 2288 2 366 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 [7] 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) 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.” [8] 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] 197 IR 403). [9] 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: -- 2 of 5 -- [2017] FWC 2288 3 “[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 [10] On 9 March 2017, 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 30 March 2017. [11] The Applicant was self-represented. The Respondent was represented by Ms K. Steenstrup, Mr B. Nissen from Minter Ellison appeared for West Moreton Hospital and Health Service which is the entity which provides services to Brisbane Correctional Centre and Wolston Correctional Centre. I granted Mr Nissen permission to appear pursuant to s.596 of the Act. He was of assistance in clarifying the employment relationship and the facts of the dismissal. Matters to be taken into account pursuant to s.366(2) [12] 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 [13] The facts were made more difficult to ascertain because of the labour hire employment which was not understood by the Applicant. There was not proper communication to the -- 3 of 5 -- [2017] FWC 2288 4 Applicant by the Respondent at all times. It appears also that the initiative for the decision not to give the Applicant more shifts was the client, West Moreton Hospital and Health Service. [14] I am satisfied, however, on the basis of the Applicant’s statutory declaration of 26 March 2017 and the submissions at the hearing, that she was dismissed on 16 December 2016 when she was told by Ms Kayla Djerdj from the Respondent that there was no more work. This makes the application some 11 weeks late. [15] The Applicant’s submission in respect of the reason for the delay was essentially that she had not been dismissed and did not, in any event, know that she had been dismissed. I find that this was not the case. Accordingly, the reasons for the delay cited fall short of establishing exceptional circumstances. (b) Any action taken by the person to dispute the dismissal [16] The Applicant telephoned the Respondent a couple of times in December 2016. [17] However, I am not satisfied that this is a matter of significance in the circumstances of this case. (c) Prejudice to the employer (including prejudice caused by the delay) [18] I have treated this factor as neutral. The Respondent’s inadequate management practices are partially responsible for the confusion around the facts. (d) Merits of the application [19] The Applicant alleges that she was bullied and harassed. She further says that she was incorrectly accused in relation to professional issues. The General Protection claim is not clear on the material filed. [20] The Respondent says that she was dismissed because of her performance. She made a number of medication errors which convinced the client that she was not suitable to “work independently”. It seems to me likely that performance issues would be determined to be the operative reason 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. -- 4 of 5 -- [2017] FWC 2288 5 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 Anne Pilbrow. under s.365 of the Act is dismissed. DEPUTY PRESIDENT Appearances: A. Pilbrow, self-applicant. K. Steenstrup for the Respondent and B. Nissen , solicitor for West Moreton Hospital and Health Services. Hearing details: 2017 Telephone Hearing: March 30. Printed by authority of the Commonwealth Government Printer <Price code A, PR592205> -- 5 of 5 --