Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - application filed out of time - circumstances not exceptional - application dismissed

[1] This decision concerns an application by Ms Gail Miller for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Ms Miller was employed as a dentist by DPV Health Ltd (DPV Health). She was summarily dismissed following an investigation that concluded she had extracted the wrong tooth from a patient and then attempted to cover up the mistake by altering the medical records. Ms Miller denies these allegations and submits that her dismissal was unfair.

[2] DPV Health objects to Ms Miller's unfair dismissal application on a jurisdictional ground, namely that the application was not lodged within 21 days after the dismissal took effect, as required by s 394(2)(a) of the Act.

[3] The company's jurisdictional objection was heard before me on 14 June 2019. The parties were represented by counsel, with permission under s 596 of the Act. Ms Miller gave evidence, as did Mr Sachidanand Raju, the company's dental clinical director.

[4] The parties agree that Ms Miller was dismissed on 23 January 2019, and that her unfair dismissal application was filed on 14 February 2019. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 13 February 2019. Ms Miller's application was therefore lodged one day late. She asks the Commission to grant a further period for the application to be made.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. The test of 'exceptional circumstances' establishes a high hurdle for an applicant.[1] The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),[2] where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.[3] The decision in Nulty concerned the expression 'exceptional circumstances' in the context of s 365 of the Act however its reasoning is also applicable to section 394(3). The requirement of exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable if it is fair in all the circumstances to do so.

[6] Section 394(3) requires the Commission to take into account the following:

• (a) the reason for the delay;

• (b) whether the person first became aware of the dismissal after it had taken effect;

• (c) any action taken by the person to dispute the dismissal;

• (d) prejudice to the employer (including prejudice caused by the delay);

• (e) the merits of the application; and

• (f) fairness as between the person and other persons in a similar position.

[7] Ms Miller says that together, if not alone, the various circumstances of this case are exceptional and that the Commission should extend time by one day. The company says that there are no exceptional circumstances.

[8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable[4] or reasonable explanation.[5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd a Full Bench noted that the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[6]

[9] Ms Miller cited several reasons for the delay in lodging her application. First, she says that she was under financial strain following her dismissal, and that she was relying on the company's promise to pay her five weeks' wages in lieu of notice (despite having been summarily dismissed) in order to pay for legal advice in relation to her unfair dismissal application. This payment was not made until 18 February 2019, after the 21 day deadline. Ms Miller said that, as a result, she had to seek legal advice without being able to pay for it. However this did not prevent her from obtaining legal assistance from a Mr Leggatt, a lawyer who attended two meetings with her and the company prior to her dismissal. The evidence does not establish that she could not obtain legal advice because of incapacity to pay.

[10] Even if it were accepted that she could not afford, and therefore not obtain, formal legal advice, I do not consider that this affected her ability to file her application on time. There is copious information about unfair dismissal applications on the Commission's website. Many applicants prepare and file their own application. Applicants can also apply for pro bono advice from certain lawyers associated with the Commission's workplace advice service, either before or after lodging their applications. I do not consider that Ms Miller's financial situation constituted an acceptable reason for the delay.

[11] Secondly, Ms Miller says that she instructed Mr Leggatt to assist with her unfair dismissal application, and that he delayed the process by taking time to run a conflicts check.[7] In fact, Mr Leggatt was not instructed to act. Rather, as Ms Miller said in her witness statement, Mr Leggatt had told her on 14 January 2019 that it was 'likely' that he had a conflict of interest and would not be able to represent her.[8] Ms Miller's evidence about her dealings with Mr Leggatt thereafter was not very clear. She said in her oral evidence that Mr Leggatt 'was going to act for her if he did not have a conflict'. It is not clear to me whether Mr Leggatt said this to her, which would imply that he was going to run a conflicts check and get back to her, or whether it was just Ms Miller's hope or belief. However I am prepared to infer from her evidence that Ms Miller understood that Mr Leggatt might be able to act and that he would check whether there was a conflict.

[12] Ms Miller did not hear from Mr Leggatt. She prepared her unfair dismissal application herself. She said that, as the conflict of interest 'had not been confirmed', she sent it to Mr Leggatt to check. She did this at 1.32am on 12 February 2019, the day before the end of the 21 day period. Mr Leggatt replied to her email at 10.00pm on 13 February 2019, telling her that she should file the application urgently as it was due that evening. From submissions made by Ms Miller's counsel at the hearing, it appears that Mr Leggatt said in his email that he could not act for her and that she could not refer to him in the application as her representative. Ms Miller contends that, by the time Mr Leggatt replied to her on 13 February 2019, she had only two hours to file her application within the 21 day period.

[13] I do not accept that Mr Leggatt's role in this matter is an acceptable or reasonable explanation for Ms Miller's delay in lodging her application. Mr Leggatt was not engaged to act for Ms Miller. He told her on 14 January 2019 that it was 'likely' that he had a conflict. He did not confirm his inability to act until 13 February 2019, but Ms Miller did not seek to contact him until 12 February 2019. She tried to call him on 13 February 2019, the last day of the 21 day period. Mr Leggatt was not called as a witness, and his account of these issues is not known. Ms Miller's counsel confirmed at the hearing that she did not contend that there was any representative error on the part of Mr Leggatt.

[14] It was Ms Miller's choice to wait until the end of the 21 day period to file her application, in the hope that Mr Leggatt might be able to represent her. Ms Miller did not explain why she did not contact Mr Leggatt earlier. She did not explain why she did not approach another lawyer, one who did not have a 'likely' conflict. Moreover, it was Ms Miller's choice to seek to have her application reviewed by a lawyer. Unfair dismissal applications can be made without any assistance from a lawyer. Indeed Ms Miller had previously represented herself in an unfair dismissal proceeding before the Commission, in which failure to lodge within the 21 day period was raised as a jurisdictional objection.[9] Ms Miller could have tried to contact Mr Leggatt earlier, or contacted another lawyer, or dispensed with lawyers and simply filed the application herself within time.

[15] Ms Miller relied on a third reason for her delay in lodging the application. She said that late on the evening of 13 February 2019, she encountered technical difficulties in trying to lodge the application online. She made three attempts to upload her application and attachments through the Commission's website. She found the website difficult to understand and navigate; it kept timing out after twenty minutes; the system froze when she tried to upload a large attachment; and it froze at the payment stage. I note that there is no evidence of any fault or failure in the Commission's online platform at this time. Ms Miller also said that, when she eventually got through to the payment page on the Commission website, she realised that she had exceeded her credit card limits and had no way to pay the application fee. She said that it was not possible to ask for the fee to be waived when making the application online, but in fact this is not the case. The next day, having contacted the Commission, she was able both to lodge her application by email and have the filing fee waived. But she was one day late.

[16] I accept Ms Miller's evidence that she had difficulties trying to lodge her unfair dismissal application online. However the Commission's rules allow for applications to be filed in numerous ways, including by email (see rule 14). Information about modes of lodgement is available both on the Commission's website, and on the unfair dismissal application form itself. The 'online lodgement service' webpage states: 'use this service to lodge your initial application form', or alternatively, 'you can lodge it via email, post, fax or in person'. It says that applicants can visit the 'lodge an application page' for further information about lodgement. A link is given to a further webpage, which provides email addresses for lodgement of documents. Similar information appears on the application form.

[17] As to payment, the last page of the unfair dismissal application form advises applicants that they can pay the application fee by cash, cheque or credit card, and states that, where 'credit card' is ticked, the Registry will contact the applicant within three business days. The form also indicates the link to the waiver form and advises applicants to attach this to their application when lodging the form. Ms Miller could simply have completed the form and emailed it to the Commission. On 14 February 2019, Ms Miller lodged her application by email, and obtained a waiver of the application fee. In my view there is no good reason why she could not have done this within the 21 day period. None of the difficulties with online lodgement referred to above constitutes or contributes to an acceptable or reasonable explanation for the delay in filing the application.

[18] I accept Ms Miller's submission that she made 'several genuine attempts' to make the application before the expiry of the 21 day period. However her efforts to lodge the application online were made literally at the 'eleventh hour', post meridian. Prior to this, she had wanted a particular lawyer to check her application, whom she knew would likely have a conflict. She did not need to use a lawyer, let alone this particular lawyer. She could have lodged the document herself, as she eventually did. She could have represented herself in the matter, as she has done before in this Commission. There was no representative error. The online lodgement difficulties she encountered are not exceptional. And she could have lodged her application by email on time, at any time, rather than one day late. I reject Ms Miller's contention that there were reasons 'beyond her control' that caused her application to be lodged out of time.[10] This is not the case.

[19] I am not satisfied that Ms Miller has made out an acceptable or reasonable explanation for the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[20] Ms Miller acknowledges that she was notified of her dismissal on the same day that it took effect. The company agrees. As a consequence, Ms Miller had the full period of 21 days to lodge an unfair dismissal application. This is not a case where the person became aware of the dismissal after the date on which it took effect, and therefore did not have the full benefit of the 21 day period for lodging the application. This consideration therefore does not weigh in favour of an extension of time.

[21] The company says that the first it learnt of Ms Miller's challenge to her dismissal was when it was served with the unfair dismissal application. However, I note that in her response of 21 January 2019 to the company's 'show cause' letter, Ms Miller stated that she did not consider there to be any grounds for termination and that if dismissed she would defend her position in the Commission. In my view, this is sufficient to establish that Ms Miller took action to dispute her dismissal. This consideration weighs in favour of an extension of time.

[22] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. I do not consider the mere absence of prejudice as a factor that would point in favour of the grant of extension of time. It is a neutral factor. Some decisions of the Commission take a different view and see the absence of prejudice as telling in favour of an extension. But even adopting this approach, in this case at least, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[23] The Act requires me to take into account the merits of the application in considering whether to allow a further period for the application to be made. Ms Miller contends that she did not do what she was accused of. She says that she first saw that patient in question, who spoke little English, on 29 October 2018. The patient complained of severe toothache and wanted the tooth extracted urgently. The patient returned on 31 October 2018 with an Arabic interpreter. Ms Miller checked a radiograph and considered that the tooth in question, number 28, should be extracted by a specialist. She explained this to the interpreter. However, the patient said that she wanted another tooth, number 27, to be removed, and pointed to it. Ms Miller then removed that tooth. The original treatment records indicate extraction of tooth 28. Ms Miller says that she does not believe she made this entry, or if she did make it, it was a draft only.

[24] A week later, on 8 November 2019, the patient wrote a letter of complaint to the company, stating that Ms Miller had extracted the wrong tooth without her consent, and asking for compensation. Ms Miller says that she amended the treatment record on or around 7 or 8 November, to ensure that it was correct, and that she was not aware of the patient's complaint at the time she amended the record.

[25] Ms Miller says that the correct tooth was removed, in accordance with the patient's instruction and consent, that she did not falsify any treatment records or breach any of the company's policies or guidelines. She says that there was no valid reason for termination, because the accusations against her are not substantiated. She says that she was employed by the company for 20 years, is 62 years of age, and is a sole income earner with a dependent child. She has no private dental health experience, and will now find it difficult to obtain another role in the public sector. She says these matters show that she has a strong merits case, which favours an extension of time.

[26] The company contends that Ms Miller removed the wrong tooth and without the patient's consent. It submits that Ms Miller then altered the records of her consultation with that patient in an attempt to cover up her mistake. Mr Raju's evidence was that, some weeks after receiving the complaint, he checked the electronic clinical notes and saw that they had been accessed and altered by Ms Miller on 8 November 2019. Mr Raju does not accept Ms Miller's explanation for why she did this. The company says that it provided Ms Miller with its findings and asked her to show cause as to why she should not be dismissed. The company contends that there is a real prospect that the applicant's unfair dismissal application will be unsuccessful and that this tells against the granting of an extension of time.

[27] The merits of the application turn significantly on contested points of evidence that would need to be tested in cross-examination if an extension of time were granted and the matter were to proceed. Much would depend on findings of fact and assessments of witness credibility. It is not possible to make any firm or detailed assessment of the merits. However, my preliminary view is that Ms Miller's application is not without merit. She has at least an arguable case that her misconduct was not substantiated and that her dismissal was not for a valid reason and unfair. Equally however, the company has a reasonable prima facie defence to the claim, namely that the misconduct was established to the requisite standard of proof and that the dismissal was not unfair in all the circumstances. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[28] Applications to extend time generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Miller and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[29] The time limit that applies to the exercise of a person's right to bring an unfair dismissal application reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances. One of Ms Miller's contentions was that it would be unfair not to extend time. However this is not the test. Exceptional circumstances must be identified before the Commission can grant an extension of time. If the Commission is not satisfied that there are exceptional circumstances, it has no jurisdiction to extend time.

[30] Having regard to the matters I am required to take into account under s 394(3), I am not satisfied that there are exceptional circumstances. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[31] I decline to grant an extension of time under s 394(3). Accordingly, Ms Miller's application for an unfair dismissal remedy must be dismissed.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [14]

[2] [2011] FWAFB 975

[4] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, per Gostencnik DP at [9]

[5] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP, at [16]

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39]

[7] Applicant's outline of argument, paragraph 11

[8] Witness statement of Ms Miller, paragraph 6

[9] Miller v Djerriwarrh Health Service [2011] FWA 5787

[10] Applicant's submissions, paragraph 9

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