Allan Bartlett v Construction Industry Training Centre T/A Citc

[2017] FWC 622

[2017] FWC 622

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Allan Bartlett
v
Construction Industry Training Centre T/A CITC
(U2016/12787)

COMMISSIONER PLATT ADELAIDE, 31 JANUARY 2017

Application for relief from unfair dismissal – extension of time not granted – application dismissed.

[1] Mr Allan Bartlett lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with the Construction Industry Training Centre T/A CITC (CITC).

[2] Mr Bartlett resigned upon notice on 9 September 2016. Whilst the communication did not specify the notice period, Mr Bartlett contended he had intended a period of 2 weeks’ notice. On 13 September 2016, CITC accepted the resignation and waived its rights to notice. Mr Bartlett’s employment ceased on 13 September 2016 at the earliest and or 22 September 2016 at the latest. Mr Bartlett lodged his application on 20 October 2016.

[3] Mr Bartlett’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“I have a formal complaint in with SAFEWORK SA, and Employers Mutual as well as the Fair Work Commission. I believed those was the same things but was instructed that they are not. I was seeing a Doctor for depression and this was honestly the most important thing for me to get past [sic].”

[4] On 15 December 2016, my Associate corresponded with Mr Bartlett and CITC and advised that the extension of time issue would be considered at a telephone conference on 30 January 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Bartlett was directed to provide a statement concerning the extension of time and any documents to be relied upon by 20 January 2017. CITC was invited to file any material in reply by 25 January 2017.

[5] CITC filed an F3 Employer’s Response on 28 October 2016 and raised the jurisdictional objection on the basis that the application was lodged out of time, and that Mr Bartlett had not been dismissed. This decision only deals with the extension of time issue.
[6] Mr Bartlett provided a written submission summarised as follows:

• He continued to be subject to workplace bullying post dismissal.



• His Workers’ Compensation claim had been accepted.



• He lodged formal complaints with SafeWork SA and the Ombudsman concerning workplace bullying and harassment.



• He found the lodgement of the Workers Compensation claim to be stressful.



• During this time he was suffering from a mental illness and was not in the right mind.



• The process is massive and it is easy to get confused with all the agency claims that can be lodged.



• He felt that he was forced to resign and thus the dismissal was a constructive dismissal at the initiative of the employer.

[7] CITC F3 Employer’s Response opposed the extension of time application. CITC also filed the following documents;

• Copy of a SafeWork SA complaint dated 10 August 2016;



• Statement of Martin O’Malley, Chair of CITC;



• Letter of Resignation sent by email by Mr Bartlett on 9 September 2016;



• Email from Mr Bartlett to CITC dated 13 September 2016 seeking inter alia a formal response to the resignation;



• Letter from CITC to Mr Bartlett dated 13 September 2016 accepting resignation and waiving the notice period;



• Lengthy email from Mr Bartlett to Mr O’Malley and the Independent Education Union of Australia (IEU) raising pay issues dated 13 September 2016;



• Email dated 8 October 2016 from Mr Bartlett to CITC regarding payment of bills;



• Copy of various social media posts by Mr Bartlett relating to his business interests;



• Medical report by Associate Professor Sahoo dated 27 October 2016; and



• Medical report by Dr Saluja dated 7 December 2016.

[8] A hearing was conducted by way of telephone conference on 30 January 2017. Mr Bartlett attended and Mr Ats (who is legally qualified) attended in his capacity as an Officer of CITC with Mr O’Malley and Mr Fitzgerald. I found that as a result of s.596(4)(b) of the Act, Mr Ats was not required to seek a grant of permission to represent CITC. A sound file record of the telephone conference was kept.

[9] At the telephone conference Mr Bartlett expanded on the material filed and advised;

• He intended to give 2 weeks’ notice with his resignation email.



• On 13 September 2016, he sent emails to CITC, and separately to Mr O’Malley (CTIC Board Member) and IEU referring to his resignation.



• The email sent to Mr O’Malley and the IEU was three pages in length.



• He had pursued his bullying and harassment claims against CITC with SafeWork SA on 10 August 2016. In that claim he advised he had sought advice from the Union, Fair Work Commission and legal advice.



• He operated two businesses, FACT, which provided first aid training, and a second which conducted SCUBA diving rescue courses. In September/October 2016 he continued to operate these businesses and provided training services.



• He disputed Associate Professor Sahoo’s psychiatric evaluation of him dated 27 October 2016 which advised that as at 7 October 2016 Mr Bartlett was coping well, did not report problems with sleep or appetite, had grossly normal cognitive functions, appropriate insight and judgement, and was suffering from an adjustment disorder which is currently in remission.

[10] After receiving advice from another, he felt that he was forced to resign and thus the dismissal was a constructive dismissal at the initiative of the employer.

[11] At the telephone conference Mr Ats, on behalf of CITC, contended that there were no exceptional circumstances on the basis that;

• Mr Bartlett’s employment ceased on 13 September 2016 or at the latest on 22 September 2016 and thus the application was made out of time.



• Mr Bartlett’s medical condition as evidenced by Associate Professor Sahoo’s report, and his ability to send the email to Mr O’Malley and the IEU on 13 September 2016 and his capacity to deliver first aid and SCUBA safety training in September/October was not such as to prevent him from lodging a claim.



• Mr Bartlett’s account of his medical condition was contradicted by the medical reports of Associate Professor Sahoo and Dr Bhatti, and it is common for employees to suffer shock/trauma from a dismissal.



• The merits (in that the dismissal was properly characterised as a resignation) weigh heavily in favour of CITC.



• Fairness to others was a factor in favour of CITC.



• Mr Bartlett took no action to contest the dismissal other than the lodgement of the late claim, all of the action taken related to a bullying and/or harassment claim which was made pre-dismissal.

[12] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

....

(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.”

[13] Mr Bartlett’s unfair dismissal application was made at best 7 days after the 21 day time limit, and at worst 16 days after of the 21 day time limit. Regardless of the date used, the application was lodged out of time and therefore, can only be pursued if this time limit is extended.

[14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltdⁱ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘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.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

[15] Mr Bartlett contends that he was unable to lodge his unfair dismissal application because of his medical condition, and that he pursued his claim with a number of agencies before lodging his unfair dismissal claim. Mr Bartlett did not file any supporting medical evidence. The only medical information was submitted by CITC. The findings in Associate Professor Sahoo’s medical report is inconsistent with Mr Bartlett’s position. I prefer the findings in the medical report, which does not support Mr Bartlett’s contention of his inability to function at a level to submit an unfair dismissal application.

[16] In addition, CITC provided material, which is not disputed by Mr Bartlett, that he both before and subsequent to the dismissal, operated and promoted businesses that provided first aid training and SCUBA safety training. The capacity to conduct complicated, or serious (to use Mr Bartlett’s words), training is at odds with his reported inability to lodge an unfair dismissal claim.

[17] Finally, Mr Bartlett was able to communicate with Mr O’Malley, CITC CEO, in a lengthy email on 13 September 2016, this is again at odds with his submission that he was unable to lodge an unfair dismissal claim.

[18] Mr Bartlett also contends that he pursued his unfair dismissal claim with a number of agencies including SafeWork SA, the Ombudsman and the Workers Compensation Authority. However, all of these claims relate to Mr Bartlett’s concerns of bully and/or harassment.

[19] The applicant needs to provide a credible explanation for the entire period of the delay and has not done so. ii

[20] There is no submission that the granting of an extension of time represents prejudice to CITC.

[21] In terms of the merits of the application, there is no dispute that Mr Bartlett resigned by email, and followed up confirmation of that position, and then separately confirmed his decision to Mr O’Malley and the IEU. Mr Bartlett submits that he was forced to resign as a result of the bullying and harassment, however I note there is no evidence before me that Mr Bartlett suggested that his resignation was other than voluntary to the agencies he contacted.

[22] Whilst I accept that Mr Bartlett may have been stressed at the time, based on the information before me (noting that it has not been tested) there is little to suggest that the resignation would be regarded as a constructive dismissal. Accordingly, I have regarded the merits as a factor which weighs against the extension of time issue.

[23] Consideration of fairness relative to other persons in similar positions does not support an extension of time.

Conclusion

[24] For the reasons I have set out above, I am not satisfied that Mr Bartlett’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order iii reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Bartlett, on his own behalf.

Mr Ats, CITC Board Member with Mr O’Malley and Mr Fitzgerald on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

January 30.

<Price code C, PR589817>

i [2011] FWAFB 975

 ii   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 iii   PR589818