Aiden Pratt v Concrete Waterproofing Manufacturing Pty Ltd T/A Xypex Australia

[2017] FWC 316

[2017] FWC 316 [Note: An appeal pursuant to s.604 (C2017/620) was lodged against this decision - refer to Full Bench decision dated 15 March 2017 [[2017] FWCFB 1421] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Aiden Pratt
v
Concrete Waterproofing Manufacturing Pty Ltd T/A Xypex Australia
(U2016/11574)

DEPUTY PRESIDENT BARTEL ADELAIDE, 17 JANUARY 2017

Termination of Employment – extension of time to file unfair dismissal application..

[1] Mr Aiden Pratt (the applicant) seeks an extension of time within which to lodge his application for an unfair dismissal remedy.

[2] The relevant provisions of the Fair Work Act 2009 (the Act) are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC 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 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[3] The Commission exercises a discretionary jurisdiction in the determination of an extension of time application. That is, the Commission is required to positively find that exceptional circumstances exist, taking into account the matters set out in s.394(3)(a) - (f), inclusive, and to then determine whether to extend the time within which the application may be made. The discretion must be exercised judicially. The applicant bears the onus to establish that the extension should be granted.

[4] The relevant facts of this matter are that Concrete Waterproofing Manufacturing Pty Ltd T/A Xypex Australia (the employer or the respondent) dismissed the applicant on 10 June 2016 for alleged unsatisfactory performance. The applicant’s unfair dismissal application was filed on 20 September 2016, some 11 weeks after the expiry of the 21 day time limit. There is no challenge to the fact that the applicant was “dismissed” within the meaning of s.386 of the Act and that he is a person protected from unfair dismissal in accordance with s.382 of the Act.

The applicant’s case

[5] The applicant has submitted that there was a confluence of events which were in existence at the time of dismissal or occurred within and after the lodgement period that prevented him from filing his application; these being matters that were of a physical, emotional or psychological nature.

[6] The applicant referred to the death of his grandfather on 23 April 2016 and that he was grieving during the lodgement period and concerned for the welfare of his father. He also referred to the subsequent death of his grandmother on 12 July 2016 leading to further emotional stress.

[7] The applicant suffered a traumatic injury on 25 June 2016 requiring admission to hospital for emergency surgery. He provided a “Separation Summary” from the Royal Adelaide Hospital confirming his admission and surgery and identifying that he was discharged on 29 June 2016. The applicant claims that he was on pain medication for a period of four weeks post-operative, and that he was mentally and physically incapacitated during this period. He also referred to suffering stress and anxiety suffered as a result of his termination and subsequent interactions with a former colleague.

[8] The applicant provided a letter from Dr Matthew Stark of the Seaford Day and Night Clinic, dated 14 November 2016, in the following terms:

“[The applicant’s] delay of lodging this claim was multifactorial, including:

Severe football accident very shortly after termination of employment, resulting in the requirement for high dose analgesic medication for 4 weeks immediately following and ongoing extensive rehabilitation.

He has additionally resulted in psychological trauma as a result his employment and termination of employment resulting in anxiety and depression and a fear of intimidation and bullying and recriminations from his prior employer that have impacted on his ability to come forward and procede (sic) with the claim up until now.

He is currently on a mental health care plan and under close supervision by myself, his GP and has ongoing psychological input pending.

Given these factors, from a medical and psychological perspective, it seems he has a very reasonable justification for having not lodged this claim in the stipulated time frame.”

[9] The applicant asserts that he was unaware of his rights to pursue an unfair dismissal application. He consulted family and friends after the dismissal and researched the Unfair Dismissals Benchbook available on the Commission website, but acknowledges that these steps were taken after the 21 day time period.

[10] The applicant contends that he was intimidated and persuaded by a former colleague not to proceed with the application, when he contacted him on 11 August 2016 to discuss filing an unfair dismissal application. I understand that this colleague is the Business Development Partner with the respondent, Mark Hanley, who is also the applicant’s uncle.

[11] As to the merits of the application, the applicant claims that the respondent created the circumstances which impeded his ability to perform his duties, including through harassment, bullying and the withholding of information relevant to his position. A written warning received by the applicant shortly before dismissal was said to be unjustified. The applicant assured the Commission that he would be able to substantiate his claim of unfair dismissal.

[12] The applicant submitted that collectively the circumstances that he has cited constitute exceptional circumstances which justify granting the extension of time.

The respondent’s case

[13] The respondent submitted that the death of the applicant’s grandmother and grandfather are not relevant as the deaths occurred after the 21 day time period had elapsed or well in advance of the applicant’s dismissal, respectively. In relation to the death of the applicant’s grandfather, it was noted that the funeral was a month in advance of the dismissal and does not explain the applicant’s failure to file his application during the lodgement period.

[14] In relation to the letter from Dr Stark the respondent submitted that:

• It did not establish that the applicant was so incapacitated throughout the 21 day lodgement period such that he was unable to operate a telephone or computer to lodge his unfair dismissal application within time;



• It does not include any dates of treatment of the applicant; and



• It should be given limited weight as it has clearly been scripted to advance the applicant’s claim for an extension of time.

[15] In relation to the claim that the applicant was suffering anxiety and depression as a result of the circumstances in his employment and his dismissal, the respondent submitted that the applicant had pre-existing “mental ailments” and that it had granted time off to the applicant for medical treatment. The respondent also referred to the absence of a claim for workers compensation either before or after his dismissal. It was submitted that the Commission should infer that any stress and anxiety suffered by the applicant did not arise from his employment or dismissal.

[16] The applicant’s lack of knowledge as to the unfair dismissal requirements is not an acceptable reason for the delay and is not exceptional. The applicant’s submissions show that he was able to access relevant information, notwithstanding his submissions as to incapacity, and therefore could have pursued his application within lodgement period.

[17] The respondent disputes the applicant’s claims that he was subjected to unfair treatment in the last month of his employment, noting that the applicant has provided no evidence to support these submissions. The applicant was the subject of reasonable management action in response to his unsatisfactory performance.

[18] The applicant’s phone contact with Mark Hanley on 11 August 2016 was well outside the 21 day time limit and is not relevant. The content of the discussion is refuted in any event.

Consideration

[19] The correct approach of the Commission to an application for an extension of time has been discussed in a number of cases. The Commission is required to be satisfied that exceptional circumstances exist justifying the extension of the time frame for lodging the application, by making an overall judgement after taking into account the considerations in s.394(3) of the Act.

[20] Commissioner Whelan, in Parker v Department of Human Services, Southern Metropolitan Region,¹ discussed “exceptional circumstances” as follows:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision 2, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwell CJ (sic) in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”

The reason for the delay

[21] To the extent that any matters relied upon by the applicant concerned circumstances that came into existence after the 21 day time limit had expired, they cannot be relied upon as a reason that the application was not filed within the 21 day period, such as the death of the applicant’s grandmother on 12 July 2016.

[22] The applicant has not explained how the death of his grandfather on 23 April 2016 impeded his capacity to file an application some eight to nine weeks later.

[23] The applicant suffered an injury on 25 June 2016, being approximately two weeks into the lodgement period. He was discharged from hospital on 29 June 2016, being two days before the expiry of the lodgement period and was on high dose of analgesics for a period of four weeks.

[24] I note that the applicant has referred to various “documented side effects” he suffered from the high dose analgesics, including dizziness, light-headedness, confusion, vomiting, changes in mood and nervousness.³ I am unclear where the side effects suffered by the applicant are documented; this matter is not referred to in the letter from Dr Stark. However even if I were to accept that the applicant was incapacitated for the entirety of the four week period, there was a further seven weeks before the application was filed.

[25] I have some concern with the letter from Dr Stark in relation to the applicant’s psychological injuries. He stated that the applicant’s anxiety and depression and fear of intimidation and recrimination “… have impacted on his ability to come forward and procede (sic) with the claim up until now”. This was written on 14 November 2016; some two months after the applicant had filed his application and had participated in two telephone directions conferences in the Commission. I note that Dr Stark is not the applicant’s treating doctor.

[26] Ignorance of the unfair dismissal requirements is not an unusual circumstance. In some cases however it may be a matter of some weight in considering whether exceptional circumstances exist because of the particular attributes of the person or because of the particular factual context. This is not one of those cases.

[27] Taken together, the reasons advanced by the applicant for the delay indicate that he had a lot to cope with over a period of some months. I am satisfied, as a result of his period in hospital and discharge on heavy medication on 29 June 2016, that there is a reasonable explanation for not filing his application within the 21 day time period. I am not satisfied that the reasons advanced by him are a reasonable explanation for the failure to file the application for a period of some 11 weeks after the expiry of the 21 day period.

When the applicant became aware of the dismissal

[28] The applicant became aware of the dismissal on the date he was dismissed. This is a matter that weighs against the granting of the extension of time.

Action taken to dispute the dismissal

[29] Action taken by an employee to contest a dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.⁴ The applicant referred to phone conversations with Mr Hanley, and in particular, to a lengthy conversation on 11 August 2016 where he discussed a potential unfair dismissal application. This conversation is the subject of some dispute, but even if I accept the applicant’s account, the date on which it occurred undermines the weight that would otherwise attach to it. No details have been provided of the content of other conversations with Mr Hanley. This is not a matter in favour of the granting of an extension.

Prejudice to the employer

[30] The employer has not made any submissions as to prejudice suffered as a result of the applicant’s delay in filing his application. This matter weighs in favour of granting the extension.

The merits of the application

[31] The merits of the application are, unsurprisingly, contested. Having regard to the submissions of both parties I am unable to form a view as to the merits of the application because of the level of factual dispute. I cannot conclude that there is no reasonable prospect of success so I conclude that this factor is a neutral consideration.

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

[32] No submissions were made on this point and it is a neutral consideration.

[33] In Brisbane South Regional Health Authority v Taylor, the High Court discussed the reasons for the existence of limitation periods. Justice McHugh identified four rationales for the enactment of limitation periods, including, significantly, that the “quality of justice” deteriorates with the passage of time. Three further rationales were identified as follows:

• It is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed;



• People should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; and



• The public interest requires that disputes be settled as quickly as possible.

[34] His Honour continued:

“A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.” But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”5 (Case references deleted)

Conclusion

[35] I am not satisfied that the circumstances outlined by the applicant as the basis for granting an extension of time constitute exceptional circumstances. The applicant’s failure to dispute the dismissal until, on the best case scenario, 11 August 2016, despite being aware of the dismissal on 10 June 2016, is significant. The failure to file the application for a further five weeks is also significant. The applicant has not demonstrated the existence of exceptional circumstances, or that the interests of justice require that an extension of time be granted.

[36] Accordingly, the application for an unfair dismissal remedy is outside the statutory time limit and is dismissed. An order giving effect to this decision is attached.

DEPUTY PRESIDENT

Written submissions:

Applicant’s submissions, 4 November 2016

Applicant’s supporting evidence, 25 November 2016

Respondent’s Outline of Submissions – Extension of Time Application, 29 November 2016

Applicant’s Outline of Submissions – Extension of Time Application, 9 December 2016

1 [2009] FWA 1638, affirmed in Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery, [2010] FWA 1394.

 2   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

3 Email 25 November 2016.

4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

5 (1996) 186 CLR 541 at 551-553.

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