1
Fair Work Act 2009
s.394—Unfair dismissal
Gail Miller
v
DPV Health Ltd
(U2019/1548)
DEPUTY PRESIDENT COLMAN MELBOURNE, 4 JULY 2019
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
1 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [14]
[2019] FWC 3979 [Note: An appeal pursuant to s.604 (C2019/4559) was
lodged against this decision.]
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 3979
2
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.
Reason for the delay
[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 acceptable4 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
2 [2011] FWAFB 975
3 Ibid at [13]
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]
[2019] FWC 3979
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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.
7 Applicant’s outline of argument, paragraph 11
8 Witness statement of Ms Miller, paragraph 6
[2019] FWC 3979
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[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
9 Miller v Djerriwarrh Health Service [2011] FWA 5787
[2019] FWC 3979
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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.
Action taken to dispute the dismissal
[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.
Prejudice to the employer
[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.
Merits of the application
[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
10 Applicant’s submissions, paragraph 9
[2019] FWC 3979
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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.
[2019] FWC 3979
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Conclusion
[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.
DEPUTY PRESIDENT
Appearances:
C Power for Ms Miller
J Tracey of counsel for DPV Health Limited
Hearing details:
2019
Melbourne
June 14
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