Adam Howard v Redcliffe Produce Agency Pty Ltd

[2016] FWC 143

[2016] FWC 143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Adam Howard
v
Redcliffe Produce Agency Pty Ltd
(C2015/2435)

DEPUTY PRESIDENT KOVACIC CANBERRA, 8 JANUARY 2016

Application to deal with contraventions involving dismissal - extension of time - exceptional circumstances warranting allowing a further period for the making of an application – period for making the application extended to 9 April 2015.

[1] Mr Adam Howard (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 9 April 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Redcliffe Produce Agency Pty Ltd (the Respondent) on 7 March 2015 in contravention of the general protections provisions in the Act.

[2] As the application had been lodged outside the 21 day statutory timeframe specified in s.366(1)(a) of the Act, the Commission issued Directions on 14 April 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. The Directions invited both parties to indicate if they wished to be heard on the extension of time issue and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. Neither party requested to be heard.

[3] For the reasons set out below I have concluded that there were exceptional circumstances warranting an extension of time and extend the timeframe for lodging the application to 9 April 2015.

Background

[4] The Respondent is a small business that specialises in providing grains and grain related produce for animals. Mr Howard commenced working for the Respondent in 2011. At the time of his dismissal, he was working three days per week.

[5] On the morning of 7 March 2015, a heated argument occurred between Mr Howard, and Mr Col McCartney, the owner of the Respondent, after Mr Howard presented late for work and Mr McCartney counselled him regarding this issue. During the course of the heated exchange Mr Howard was dismissed.

[6] In his application, Mr Howard contended that on 7 March 2015 he approached Mr McCartney to raise a number of concerns, including concerns about working conditions, his workload and pay and about being verbally insulted by Mr McCartney the previous day. According to Mr Howard this resulted in Mr McCarthy criticising his work, insulting him, pushing and punching him in the chest and ultimately dismissing him.

[7] In its Form F8A – Employer Response to General Protections Application, the Respondent alleged that Mr Howard’s punctuality had deteriorated in the time leading up to his dismissal and that he was regularly late for work, with Mr Howard at times arriving up to an hour after the commencement of his shift. This was problematic for the Respondent, particularly on Saturdays as this is one of the Respondent’s busiest days. According to the Respondent, on 7 March 2015 Mr Howard was about one hour late for work. When Mr McCartney counselled him about his lateness, Mr Howard become extremely agitated, angry and erratic and threatened, yelled at, and insulted Mr McCartney. As a result, Mr McCartney, who is 80 years old, and some of the female staff felt intimidated. Mr Howard was dismissed for serious misconduct with immediate effect.

[8] In subsequent developments, Mr Howard returned to the store later that day and asked Mr McCartney for a reference, which was agreed to. Mr Howard also demanded that the Respondent pay him six months’ pay which was refused. In the following week, Mr Howard again contacted the store on a number of occasions asking to speak to Mr McCartney and other staff.

[9] Mr Howard was hospitalised on 14 March 2015 and states in his application that he was detained under the Queensland Mental Health Act 2000. Mr Howards states in his application that he was subsequently diagnosed with Bipolar Affective Disorder.

[10] The Respondent in its Form F8A response stated that on 23 March 2015 Mr Howard again telephoned the store seeking to speak with one of the staff members but was told that he should contact Dr Robert McCartney, Mr McCartney’s son. Mr Howard subsequently lodged a bullying complaint with Workplace Health and Safety and in his application states that he completed that complaint on 24 and 25 March 2015 with the assistance of Ms Marie Pikula, a Senior Social Worker in the Mental Health Unit at the Prince Charles Hospital.

[11] As previously noted, Mr Howard’s general protections application was received by the Commission on 9 April 2015, twelve days outside the 21 day statutory timeframe specified in s.366(1)(a) of the Act. Mr Howard contends in his application that he was unlawfully dismissed in contravention of s.340 of the Act because he tried to exercise a workplace right which was not heard to his satisfaction.

The Relevant Legislation

[12] 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.”

Whether to allow a further period for the application to be made

[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] In his application, Mr Howard stated that the reason for the delay in lodging his application was that he had been hospitalised on 14 March 2015 and that being under the Mental Health Act he was incapable of making decisions.

[15] Mr Howard submitted that following his hospitalisation he spent a number of weeks in the psychiatric intensive care unit and during this time was heavily medicated and therefore unable to continue with legal action. Mr Howard produced a letter from Dr Tom Turvey, a Psychiatry Registrar at the Prince Charles Hospital, which confirmed that Mr Howard was an inpatient at the Hospital from 14 March until 20 April 2015 and that he “was unable to complete or sign any forms from mid March to mid April due to his not being mentally competent to do so. This is the main reason for the late submission of required forms for his legal cases that are awaiting.” Mr Howard also produced a letter from Ms Pikula which confirmed that he was an inpatient at the Hospital from 14 March 2015 and that “During this time, he was unable to provide the application to the Fair Work Commission because he was not free nor well enough to do so and had no access to the internet.”

[16] The Respondent submitted that Mr Howard failed to demonstrate any exceptional circumstances for the delay in filing the application, as he did not demonstrate an inability to make the application between the date of his dismissal and his hospitalisation, a period of seven days. The Respondent submitted that during this time he attended a police station, and was advised to contact the Fair Work Ombudsman, called a law firm and attended a meeting with a lawyer on 13 March 2015.

[17] While Mr Howard failed to lodge his application within the first seven days following his dismissal, there is no evidence to suggest that he did not have the intention of doing so had his medical issues not intervened. I note that in his written submission that Mr Howard contended that the meeting on 13 March 2015 was cut short as the lawyer stated that Mr Howard was too unwell and asked him to make another appointment. It is not disputed that Mr Howard was hospitalised from 14 March until 20 April 2015. However, the evidence that Mr Howard was totally incapacitated during this period is undermined by the fact that he telephoned the Respondent on 23 March 2015, prepared a bullying complaint on 24 and 25 March 2015 and submitted his general protections application on 9 April 2014.

[18] Despite these actions by Mr Howard while hospitalised, I am, on balance, satisfied that the material before the Commission, particularly the material relating to Mr Howard’s illness, supports a finding of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[19] While Mr Howard’s submissions did not directly address this criteria, it is evident from the material before the Commission that he took steps to dispute his dismissal in the days immediately following the termination. Those steps included attending the Respondent’s premises on 7 March 2015, participating in a telephone conversation with Dr McCartney on or around 13 March 2015 and consulting a lawyer on 13 March 2015.

[20] The Respondent contended that based on Mr Howard’s actions, in particular his demand that Mr McCartney pay him six months’ pay on the basis that he would then ‘take no more action,’ that a reasonable inference to draw was that Mr Howard was aware that he had legal processes available to him to dispute his termination. The Respondent further submitted that Mr Howard made it clear in both his verbal abuse of Mr McCartney and in his discussion with Dr McCartney that he was aware of his legal rights to take action against the Respondent arising from his dismissal.

[21] On the basis of the material before the Commission I am satisfied that Mr Howard took steps to dispute his dismissal immediately following his dismissal. This supports a finding of exceptional circumstances.

(c) Prejudice to the employer, including prejudice caused by the delay

[22] Mr Howard did not address this factor in his submissions.

[23] The Respondent contended that it will incur unreasonable costs in defending the application, including those associated with staff having to give evidence, which is particularly disruptive to a small business. While I can appreciate the practical impact of defending a claim, the time and resources involved in doing so do not necessarily equate to prejudice.

[24] As such, I consider this factor to be a neutral consideration.

(d) The merits of the application

[25] Mr Howard contends that he was dismissed for raising a concern about his workload, pay and conditions.

[26] The Respondent submitted that Mr Howard was dismissed for serious misconduct, and that he did not exercise a workplace prior to his dismissal.

[27] It is evident that there is a dispute between the parties as to what lead to the heated argument on 7 March 2015 and the nature of the exchange that transpired. In the absence of hearing the evidence in this regard, together with any evidence as to the extent to which Mr Howard’s illness may have been a contributing factor to his behaviour on 7 March 2015, I am unable to form a considered view as to the merits of the application.

[28] Accordingly, I consider this factor to be a neutral consideration.

(e) Fairness as between the person and other persons in a like position

[29] Mr Howard did not address this factor and the Respondent contended that it was not relevant in this matter.

[30] I therefore treat this as a neutral consideration.

Conclusion

[31] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 1(Nulty) in the following way:

“[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.”

[32] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Key considerations in reaching that conclusion were Mr Howard’s hospitalisation and the steps he took to prior to being hospitalised to dispute his dismissal.

[33] The timeframe for lodging the application is extended to 9 April 2015. The application will now be listed for a conference aimed at resolving the dispute. An order to that effect will be issued with this decision

 1   [2011] FWAFB 975

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