Andrew Hooley v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO

[2013] FWC 2124

[2013] FWC 2124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Andrew Hooley
v
Commonwealth Scientific and Industrial Research Organisation T/A CSIRO
(C2012/5784)

DEPUTY PRESIDENT ASBURY BRISBANE, 8 APRIL 2013

Application to deal with contraventions involving dismissal - extension of time.

BACKGROUND

[1] On 25 October 2012, Mr Andrew Lloyd Hooley made an application under s.365 of the Fair Work Act 2009 (the Act) for Fair Work Australia (now the Fair Work Commission) to deal with a general protections dispute involving dismissal. Mr Hooley states in the application that he was dismissed on 14 February 2011. The Respondent is the Commonwealth Scientific and Industrial Research Organisation (CSIRO).

[2] By virtue of s.366(1) of the Act (as it then provided) Mr Hooley’s application was required to be made within 60 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2). Accordingly, Mr Hooley’s application was required to be made by 14 April 2011, and was filed 18 months outside the required period. CSIRO contends that the application may only proceed if the Commission allows a further period of time for the application to be made. This decision concerns the question of whether Mr Hooley should be allowed a further period in which to make the application, on the grounds set out in s.366(2) of the Act.

DIRECTIONS AND FURTHER MATERIAL

[3] On 9 November 2012, Directions were issued by the Commission requiring the parties to file and serve outlines of submissions and statements of evidence in relation to whether the Commission should allow a further period for the application to be made. CSIRO indicated that it would not seek to cross-examine Mr Hooley in relation to his statement of evidence, unless Mr Hooley sought to cross-examine Ms Anthea Roberts, who provided a witness statement on behalf of CSIRO.

[4] In accordance with the Directions, Mr Hooley’s material was provided on 27 November 2012 and CSIRO’s material was provided on 18 December 2012. On 18 December 2012, Mr Hooley sent an email to my Associate, referring to the assertion in the submissions of CSIRO filed on 18 December 2012, to the effect that Mr Hooley had not provided medical evidence to support his claims. Mr Hooley advised that he had recently received a report from his treating psychiatrist, and asked whether he would be given an opportunity to provide that report to the Commission prior to a determination of the extension of time issue.

[5] Mr Hooley also asserted in the email that CSIRO’s claim that he had done nothing to contest the termination of his employment was not correct, and said that the termination of his employment was delayed by a period of 8 weeks as the result of Mr Hooley’s challenge to the legitimacy of the terminations resulting in a breach notice being served on CSIRO by the CSIRO Staff Association. Further, Mr Hooley disputed CSIRO’s assertion that it would be prejudiced by an extension of time, on the basis that witnesses had left its employment.

[6] Mr Hooley’s email was forwarded to the legal representative for CSIRO and a further Conference of the parties was held on 14 January 2013. Further Directions were made at that Conference requiring that Mr Hooley file the medical report referred to in his email of 18 December 2012, and a statement in relation to why the medical report had not been provided with his original material.

[7] Mr Hooley filed a further medical report from his treating psychiatrist. CSIRO objected to consideration of the further medical report on a number of grounds, which essentially related to the inconsistent evidence about when Mr Hooley received the report and his failure to provide it to the Commission at an earlier time. CSIRO also provided a witness statement from CSIRO’s Legal Counsel Mr Neil Ballment, in relation to the further medical report, and submissions in relation to the other matters raised by Mr Hooley in his email of 18 December 2012.

[8] In light of the fact that Mr Hooley is unrepresented, and that any disadvantage to CSIRO arising from his email of 18 December 2012 has been overcome by the opportunity to place further evidence and submissions before the Commission, I have taken all material filed by both parties into account in this Decision. Neither party sought to cross-examine persons from whom statements were provided. Accordingly, the matter is determined on the basis of the material filed.

LEGISLATION

[9] By virtue of s.366(2) of the Act, the Commission may allow a further period for an application under s.365 to be made, if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action 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 between the person and other persons in a like position.

[10] The discretion to extend time in s.366(2) is predicated on the Commission being satisfied that there are exceptional circumstances, taking into account the specified matters. In Nulty v Blue Star Group Pty Ltd 1 a Full Bench of the Commission noted that the expression “exceptional circumstances” has its ordinary meaning, and requires consideration of all the circumstances, going on to say:

“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”. 2

EVIDENCE AND SUBMISSIONS

Reasons for the delay in making the application

[11] In the material initially filed by Mr Hooley, it is asserted that there are factors both prior and subsequent to his dismissal, which had a significant bearing on the time frame in which the application was made. These factors are summarised in his statement as follows:

● Lack of clarity about his employment status as a result of suffering a workplace injury whilst employed by CSIRO;
● Mr Hooley being mislead by CSIRO in relation to the ongoing assistance which would be provided by CSIRO subsequent to his dismissal;
● Mr Hooley’s ongoing poor health;
● Prejudicial actions taken by CSIRO against Mr Hooley both prior to and after his dismissal; and
● Failure of CSIRO to admit to breaching the Fair Work Act 2009.

[12] Mr Hooley also stated that his health had been a significant factor in his ability to address the matter of the termination of his employment by CSIRO and had resulted in a significant extension in the length of time required to resolve the complaint than would otherwise be required.

[13] In relation to the first of these matters, Mr Hooley states that at the time his employment was terminated, he was undertaking a return to work program after suffering a workplace injury while in the employment of the Respondent, which resulted in him suffering a significant total impairment. Mr Hooley also contends that rehabilitation case management of his injury commenced in the second half of 2009, and that it was not managed because of systemic failures in CSIRO’s injury management policies. Mr Hooley said that he raised concerns about this with four senior employees of CSIRO, and despite this, discussion of his rehabilitation only resumed one week prior to the termination of his employment.

[14] Mr Hooley also gave evidence of a meeting held on 7 February 2011 where he raised concerns about his inability to secure alternative employment due to his injury and lack of rehabilitation. Mr Hooley also gave evidence about his attempts to continue these discussions after his employment was terminated, through ComCare and the Administrative Appeals Tribunal.

[15] Mr Hooley said that in the period following the termination of his employment, he was deemed unfit for work and was “proscribed” a period of recuperation by his treating psychiatrist. Upon being fit to commence a search for alternative employment, Mr Hooley obtained temporary employment at a level significantly below his pre-injury level, and was directed by his psychiatrist to avoid any activity that may exacerbate his condition, as the psychiatrist was concerned about Mr Hooley’s ability to successfully manage the additional burden of stress related to returning to employment. For these reasons, Mr Hooley contends that his health has been a significant factor in his ability to address the matter of the termination of his employment and has resulted in a significant extension in the length of time required to resolve the complaint.

[16] Mr Hooley further contends that CSIRO unnecessarily delayed the completion of the case review undertaken by ComCare by failing to provide information within the statutory period and by subsequently failing to respond to further requests for information until a compliance notice was issued. In addition, Mr Hooley maintains that CSIRO frustrated his attempts to resolve the matter informally and referred to a series of allegations made by him dating back to early 2008, said to be evidence of CSIRO’s history of failing to respond.

[17] Mr Hooley said that the claim by CSIRO it would be prejudiced because of cessation of employment of its witnesses was immaterial, as many, if not all of the witnesses upon which CSIRO may choose to rely had already left employment at the time of the termination of Mr Hooley’s employment. Mr Hooley also asserted that it was relevant to the delay in making his application, that CSIRO had breached industrial relations and workplace health and safety legislation. In particular, reference was made to an alleged breach of s.530 of the Fair Work Act 2009, said to be evidenced by a correction made by CSIRO to information provided to the Senate Estimates Economics Committee. According to Mr Hooley, it is relevant that these matters affected him, and that CSIRO only admitted to them on 17 October 2012, shortly before he filed his application.

[18] In relation to this matter, Mr Hooley appended a letter from the Executive Director of CSIRO to the Chair of the Senate Economics Legislation Committee dated 24 October 2012. With respect to redundancies in CSIRO the letter corrects a redundancy date with respect to an employee who lodged a whistleblower complaint and indicates that the incorrect date provided was actually the date on which the employee ceased to receive income maintenance payments, and appeared to be an error resulting from a misreading of CSIRO’s payroll system. The correction is that the date should have been 4 January 2011 and not 4 September 2011. The second matter relates to advice CSIRO provided to Centrelink about the proposed termination of 15 or more staff, provided by letter of 14 February 2011. The correction on 24 October 2012 appears to relate to the fact that two related processes, both resulting in terminations of employment, were referenced in one letter to Centrelink on the basis that they emanated from the same function with CSIRO.

[19] In his initial material in support of the extension of time, Mr Hooley provided a Report by a Consultant Psychiatrist, Mr Aleksandra Isailovic, who assessed him on 14 September 2012. Dr Isailovic reports that Mr Hooley said that problems in his employment with CSIRO started in July 2007 and that he was subject to workplace bullying in September 2007. Dr Isailovic further reports that Mr Hooley suffered depression and an exacerbation of obsessive-compulsive disorder (OCD). In her summary and assessment, Dr Isailovic states:

“Following successful treatment of his depression and alleviation of his OCD, Mr Hooley was assessed to be able to resume his pre-injury duties. He needed support to return to his pre-injury position. Mr Hooley felt that support was not given to him during the rehabilitation process and that he had no choice but to leave CSIRO (he refers to the event as ‘involuntary redundancy’).

[20] Dr Isailovic also refers to a report in September 2010 from a consultant psychiatrist Dr Slack, and concurs with Dr Slack’s assessment that Mr Hooley has a 10% total permanent impairment, and notes that despite this, Mr Hooley has kept a more demanding full-time position for 18 months without duties restriction, and is functioning well in other areas. Dr Isailovic concludes that at the time of the examination, Mr Hooley is fit to continue his pre-injury duties and that his current level of functioning is “pretty good”.

[21] In relation to Mr Hooley’s assertion that there was a lack of clarity about his employment status as a result of his workplace injury, CSIRO tendered an exchange of email correspondence between its Human Resources Department and Mr Hooley on 23 and 24 June in which Mr Hooley asks how the rehabilitation program he is undertaking as a result of a workplace injury, affects his potential redundancy and how the redundancy affects the rehabilitation program. The response to that email informs Mr Hooley that the redundancy and rehabilitation processes have no effect on each other. The response also states that if Mr Hooley is made redundant from CSIRO with a ComCare claim, any arrangements in relation to that claim will continue, and that if he secures another position with CSIRO then rehabilitation arrangements will continue.

[22] CSIRO also pointed to a range of exit documentation completed by Mr Hooley and communication to him as evidence that Mr Hooley was not in any confusion that his employment with CSIRO was ending on 14 February 2011. That documentation, appended to the witness statement of Ms Roberts, includes a letter to Mr Hooley dated 10 January 2011 giving formal notice of his redundancy and the termination of his employment effective 14 February 2011; an email dated 11 February 2011 informing Mr Hooley that CSIRO had not changed its position with respect to his redundancy and the rate at which his final payments would be made; and various documents signed by Mr Hooley on 14 February setting out his post-employment obligations and benefits upon termination. Ms Roberts also appended to her statement an email from Mr Hooley dated 9 March 2011, wherein Mr Hooley stated that he was “chasing up his cessation information” for Centrelink and other agencies.

[23] In relation to the claims made by Mr Hooley about the impact of his health on the failure to make his general protections application within the required time, CSIRO pointed to the lack of medical evidence of any direction from his treating psychiatrist to avoid activity which would exacerbate his condition or that he was unable to instruct solicitors to make the application within the required time, or to make the application himself.

[24] Ms Roberts also tendered a letter from Mr Hooley’s solicitors making certain claims prior to the termination of his employment, and seeking a settlement of those claims and seeking that Mr Hooley be treated in a certain way for the purposes of redundancy. The letter concludes by stating that “in order to resolve these complaints without legal action and, in light of [Mr Hooley’s] redundancy” Mr Hooley seeks payment of a number of amounts and the calculation of his redundancy pay on the basis of a higher level pertaining to a role previously held by Mr Hooley.

[25] This is said to indicate that Mr Hooley was well enough to instruct solicitors with respect to the circumstances immediately before the termination of his employment by CSIRO. It is also asserted that Mr Hooley has been well enough to correspond with CSIRO about a variety of complaints made by him regarding past events in his employment, and has worked as a full-time contracted project manager with the University of Queensland since June 2011. CSIRO maintains that Mr Hooley’s documented health problems do not provide an adequate reason to explain his failure to make his application within time, and cannot justify extending the time in which to make the application by more than 18 months.

[26] CSIRO also disputes Mr Hooley’s claims that it contributed to delays in the review of his case by ComCare, or that it engaged in conduct alleged by Mr Hooley such as misleading the Australian public or violated provisions of the Fair Work Act. In relation to these matters, CSIRO states that even if they had substance (which they do not) the allegations are irrelevant to the matter before the Commission and do not relate in any way to Mr Hooley’s failure to make his application within the time allowed.

[27] In further material filed by Mr Hooley following the Directions conference on 14 February 2013, Mr Hooley provided a statutory declaration, appending a medical report from Doctor Jon-Paul Khoo, and declared that he had received that report on 18 December 2012. The Report is dated 29 November 2012. In the report, Dr Khoo states that it has been prepared in relation to a ComCare claim and a pending Administrative Appeals Tribunal hearing in mid-December 2012.

[28] Dr Khoo states in the report that at the point Mr Hooley’s employment with CSIRO ceased, he had considered that Mr Hooley was fit to resume his pre-injury duties, and that there was no medical contraindication to Mr Hooley undertaking the full range of duties and for the full hours as required by his substantive position, although Mr Hooley was not rehabilitated back to his pre-injury level.

[29] Dr Khoo further states that Mr Hooley’s condition was worsened by his forced redundancy and other matters and that it was his medical recommendation that Mr Hooley required a period of time away from any working environment to consolidate his symptomatic improvement and for timeout and recovery purposes, and that it was reasonable that Mr Hooley have the period between 15 February and 31 March 2011, as leave on the basis of ill health. Doctor Khoo goes on to state that Mr Hooley currently remains fit to undertake full-time duties and hours in his professional capacity, although he has not been able to re-establish his pre-injury status.

[30] CSIRO contends that Mr Hooley was required to file material in relation to why the Commission should allow an extension of time in which to make his application and witness statements, by 28 November 2012. Mr Hooley addressed the matter of his health in the material he filed in response to those Directions and indicated his understanding that his health was a significant issue, by stating that he had been deemed unfit for work and proscribed a period of recuperation by Dr Khoo in the period following termination of his employment.

[31] CSIRO submitted that the application had not provided any statement by Dr Khoo, nor indicated that he had sought such a document or would provide it at a later date, despite Mr Hooley being in communication with Dr Khoo prior to 28 November 2012, regarding a medical report. CSIRO disputed the information contained in Mr Hooley’s statutory declaration that he did not receive the report from Dr Khoo until 18 December 2012, and provided evidence in the form of a witness statement from CSIRO’s legal counsel Mr Ballment, indicating that Mr Hooley advised the Australian Government Solicitor and the Brisbane Registry of the Administrative Appeals Tribunal on 31 November 2012, that he was waiting on specialist medical reports, and that Mr Hooley filed the report from Dr Khoo dated 29 November 2012 in the Administrative Appeals Tribunal on 10 December 2012.

[32] On this basis it was submitted that the Commission should not take into account the report from Dr Khoo, because Mr Hooley had not given any adequate reason why he did not provide the report within the required time for filing and serving it, or make any reference to the report. Further, it was submitted that Mr Hooley’s explanation that he did not have the report until 18 December 2012 is not consistent with him filing the report in the Brisbane Registry of the Administrative Appeals Tribunal on 10 December 2012.

[33] If the report was to be given consideration, CSIRO submitted that it should be noted that:

● At the time Mr Hooley’s employment with CSIRO ceased, Dr Khoo considered that Mr Hooley was fit to resume his employment, although Dr Khoo did not consider that Mr Hooley was fully rehabilitated back to his pre-injury level;
● The 6 week period that Dr Khoo believed was reasonable to be taken by Mr Hooley as “sick leave” ended by 31 March 2011, when Mr Hooley and Dr Khoo believed that it was reasonable for Mr Hooley to seek alternative employment;
● According to Dr Khoo, Mr Hooley has been very successful in returning to alternative employment; and
● Dr Khoo’s report does not provide evidence of any medical or other reason for Mr Hooley’s failure to make the application in the time allowed.

[34] CSIRO also submitted that it is reasonable to infer that if Mr Hooley was fit to seek alternative employment (and did so) from 31 March 2011, then he was also fit, at least from that date, to instruct solicitors to make an application on his behalf or to do so himself, within the required time period.

Action taken to dispute the dismissal

[35] In his initial material, Mr Hooley said that he had a meeting with Ms Roberts and other CSIRO representatives on 7 February 2011, where he raised concerns about his ability to secure alternative employment as a result of his injury and lack of workplace rehabilitation. According to Mr Hooley, Ms Roberts stated that she considered termination of his employment while undertaking a return to work program inappropriate, but had received advice that the termination would proceed. Mr Hooley also said that he was also told on 7 February 2011 that he would receive ongoing support and assistance in returning to employment.

[36] Mr Hooley said that after the termination of his employment, he corresponded with various representatives of CSIRO and ComCare, but that “dialogue” ceased after 26 April 2012. Mr Hooley also said that his attempts to resolve his issues with CSIRO were frustrated and delayed by CSIRO delaying or ignoring his correspondence. Mr Hooley provided a number of pieces of correspondence with CSIRO and responses, in relation to matters which appear to relate to his employment and his ComCare claim. Full details of the emails including dates and times upon which they were sent, were not provided, however, it appears that the details are as follows:

● Email of 15 June 2010 querying status of lost time/income claim in relation to ComCare and the impact on Mr Hooley’s rehabilitation program of his position becoming surplus to requirements;
● Email of 29 October 2010 from Mr Hooley to various persons in relation to a “redundancy options letter” where in Mr Hooley seeks that he be provided with an estimate of cessation payments and points out an error in relation to the date by which Mr Hooley was required to advise whether he wished to avail himself of a “fast track benefit”;
● Email of 29 October 2010 from an organiser with the CSIRO Staff Association referring to the fact that “Andrew” has been issued with a redundancy notice via email and stating that this is “shocking”;
● Email from Mr Roy dated 17 March 2012 responding to matters raised by Mr Hooley regarding employment with CSIRO and his ComCare claim;
● Email from Mr Hooley to Mr Roy dated 19 March 2012 disputing matters in Mr Roy’s email of 17 March;
● Response from Mr Roy dated 19 March 2012 in relation to the same matters;
● Email from Mr Hooley dated 28 March 2012 raising issues including a complaint about the investigation of his complaints of bullying and victimisation;
● Email from Mr Roy to Mr Hooley dated 26 April 2012, whereby Mr Roy advises that Mr Hooley’s allegations have been investigated or that he has not provided information to substantiate those allegations and advising that there is no value continuing the dialogue unless there are new substantive issues Mr Hooley wishes to raise;
● Response from Mr Hooley dated 26 April 2012 declaring that he is happy to forward notes of alleged conversations and that satisfying the burden of proof will not be too difficult.

[37] In response to these matters, CSIRO pointed to the fact that correspondence provided by Mr Hooley took place between 17 March 2012 and 26 April 2012, more than 12 months after Mr Hooley’s employment ceased. Further, CSIRO contends that no information has been provided by Mr Hooley in relation to his assertion that he was mislead in regards to assistance that CSIRO would provide to him subsequent to termination of his employment, and maintains that it was never suggested to Mr Hooley that such assistance would involve renewing employment with CSIRO subsequent to his termination. CSIRO also said that it had not failed to respond to correspondence from Mr Hooley and that in any event the matters set out in the correspondence provided by Mr Hooley are irrelevant to the matter before the Commission.

[38] In his email to the Commission dated 18 December 2012, Mr Hooley contended that the termination of his employment was delayed because of a dispute between CSIRO and the CSIRO Staff Association. CSIRO submits that while financial estimates were provided to Mr Hooley in line with the resolution of the dispute before the Commission, the dispute was in relation to requirements for providing such information to redundant employees and not in relation to the termination of Mr Hooley’s employment.

[39] CSIRO contends that at no stage has Mr Hooley taken any action to challenge the legitimacy of the decision to terminate his employment, until the application subject of the present proceedings was made on 25 October 2012, and an application to the Australian Human Rights Commission was made on 29 October 2012 in relation to alleged disability discrimination in employment. Further, CSIRO pointed to the fact that although Mr Hooley took legal advice at the time his position was identified as redundant and his legal representative sent a lengthy letter in relation to his claims for an enhanced redundancy payment, Mr Hooley took no action to dispute the termination of his employment until 20 months after the termination took effect.

Prejudice to the respondent

[40] Ms Roberts gave evidence of the prejudice that will be suffered by CSIRO in the event that time for Mr Hooley’s application to be made is extended. Ms Roberts said that CSIRO is disadvantaged by the passage of time, and detailed 7 witnesses who were involved in Mr Hooley’s complaints and the restructure of CSIRO leading to his redundancy, who had left employment. Five of the seven potential witnesses set out in Ms Roberts’ statement ceased employment before the termination of Mr Hooley’s employment. In his email of 18 December 2012, Mr Hooley submitted that the fact that these witnesses ceased employment before the date of the termination of his employment, meant there would be no difference in the cost to CSIRO in calling them as witnesses.

[41] CSIRO submits that this response ignores the manifest difficulties it will face in defending an application filed nearly two years after the dismissal, rather than defending such an application had it been made within the time allowed.

Merits of the application

[42] In his application under s.365 of the Act, Mr Hooley asserts that the alleged contravention of Part 3-1 of the Act is in relation to s.530. Mr Hooley also describes the alleged contravention as an unlawful termination of his employment, and goes on to assert that the termination was unreasonably harsh and amounts to an unfair dismissal. Further, Mr Hooley asserts a number of failures on the part of CSIRO in relation to his workplace injury, rehabilitation and the impact of these matters upon his employment.

[43] CSIRO asserts that on its face, the application is without merit. CSIRO also points to the fact that s.530 of the Act is not within Part 3-1 and is not relevant to a general protections application. CSIRO also asserts that the application refers to unfair dismissal and does not allege that CSIRO took adverse action against Mr Hooley, in breach of general protections. Further, CSIRO points to the fact that the letter written by the Applicant’s legal representative prior to the termination of his employment makes no suggestion that there was any reason for that termination other than redundancy.

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

[44] CSIRO submits that if an extension of time were to be granted in circumstances of an application that is 18 months out of time, unfairness would be created between the applicant and other persons in a like position, given the length of the delay and the failure of Mr Hooley to make a bona fide effort to make his application within the required time.

CONCLUSIONS

[45] Mr Hooley has effectively had two opportunities to provide evidence and submissions in relation to whether there are exceptional circumstances to justify the Commission exercising the discretion to allow an additional period for his application to be made. The Directions issued on 9 November 2012 set out s.366(2) and the requirements which Mr Hooley needed to satisfy, in order to be granted an extension of time in which to make his application. Mr Hooley was also given an opportunity to put in further submissions and material after he had seen the material filed by CSIRO.

[46] Despite these opportunities, and after considering all of the material relied on by Mr Hooley, I am unable to be satisfied that there are exceptional circumstances, taking into account the matters set out in s.366(2) of the Act. The reasons for the delay provided by Mr Hooley are not a basis for a finding that there are exceptional circumstances. I do not accept that there was any lack of clarity about Mr Hooley’s employment status as a result of him suffering a workplace injury. It is clear from the evidence that Mr Hooley’s employment was terminated as a result of redundancy, following a process by which his position was deemed to be surplus to requirements.

[47] That Mr Hooley knew, or should reasonably have known that this was the case, is apparent from the letter written by his legal representatives in relation to his redundancy, his own correspondence with CSIRO, and the exit documentation he completed prior to the termination of his employment. It is also the case that the email sent to Mr Hooley on 24 June 2010 about the relationship between redundancy processes and rehabilitation arrangements, made it clear that Mr Hooley could be made redundant notwithstanding that he had an existing ComCare claim, and any arrangements pursuant to that claim would continue regardless. I do not accept that there was any lack of clarity that could explain Mr Hooley’s failure to make his application within the required time.

[48] I do not accept that CSIRO mislead Mr Hooley in relation to ongoing assistance which would be provided to Mr Hooley subsequent to his dismissal. On the material before me, CSIRO made it clear to Mr Hooley, well before the termination of his employment, that his redundancy and the rehabilitation program in relation to his injury, were separate processes and would have no effect on each other. Further, the only issues raised by Mr Hooley in the period immediately before and after the termination of his employment, related to the rate at which his redundancy payments would be made, a request for information about estimated payments and a “fast track” benefit, and a request by Mr Hooley for cessation information to be provided to Centrelink.

[49] It is also the case that correspondence tendered by Mr Hooley whereby he contends that he attempted to resolve his issues with CSIRO relates to a period in 2012 - well outside the time in which Mr Hooley was required to make his application.

[50] I am also unable to be satisfied that Mr Hooley’s medical condition constituted exceptional circumstances such that it provided a reason for the delay. There is no medical evidence that Mr Hooley’s health was such that he was not capable of making an application under s.365 of the Act within the required time, or instructing his legal representatives to do so. To the contrary, there is evidence that prior to the termination of his employment, Mr Hooley was capable of instructing his legal representative to write a detailed letter to CSIRO in relation to the calculation of his redundancy pay and other matters related to his employment. Mr Hooley also makes reference to other proceedings he was taking in the Administrative Appeals Tribunal with respect to his ComCare claim.

[51] Mr Hooley was cleared to return to his pre-injury duties prior to the termination of his employment. It is also the case that Dr Khoo gave Mr Hooley a six week period of sick leave commencing the day after the termination of his employment took effect, and said that Mr Hooley was capable of seeking alternative employment on the expiration of that period. Dr Khoo also said in his report that both he and Mr Hooley felt that by 31 March 2011, it was reasonable that Mr Hooley seek alternative employment. Thus, two weeks before the expiration of the time in which Mr Hooley was required to make his application, he was - according to Dr Khoo and in his own view - fit to seek alternative employment. When the medical evidence provided by Mr Hooley is considered, there is no basis for a finding that Mr Hooley’s medical condition contributed to the delay in making his application. 3

[52] There is no evidence upon which I could be satisfied that CSIRO took prejudicial action against Mr Hooley either before or after his employment ended, much less that this was a reason for the delay in making his application. Further, there is no evidence that CSIRO admitted to breaching the Act or s.530 in particular. The letter relied on by Mr Hooley to establish this alleged breach, is no more than a correction to the record provided by CSIRO with respect to the date upon which the redundancy of one employee (obviously not Mr Hooley) was effected and clarification of the fact that a letter to Centrelink advising of redundancies on 14 February 2011 (the date on which Mr Hooley’s redundancy took effect) also included reference to redundancies from another related process.

[53] If these errors constituted a breach of s.530 (and it is far from clear that this is the case) I do not accept that this matter had any legitimate bearing on the delay in Mr Hooley making his general protections application. Section 530 of the Act is not contained in Chapter 3 Part 3-1 of the Act, and is not relevant to a general protections application under s.365. What Mr Hooley viewed as an admission of a breach of s.530 of the Act by CSIRO may have prompted him to make his application under s.365, but does not explain his failure to make that application within 60 days of the event that gave rise to the application - the termination of his employment.

[54] I am also of the view that from 14 February 2011 when the termination of his employment took effect, until his general protections application was made on 25 October 2012, Mr Hooley took no action to dispute the termination of his employment. Mr Hooley may have questioned the termination of his employment at the meeting of 7 February 2010. However, on 11 February 2010 he was informed by email that his redundancy would be going ahead. It is also clear from the responses in that email that at the meeting of 7 February 2010, Mr Hooley raised the issue of the classification level at which his redundancy payments would be made, and whether he could claim costs of obtaining a degree. Thereafter, Mr Hooley went through the exit process, signing all relevant documentation, without questioning the validity of his redundancy.

[55] It is also the case that any issues or concerns raised by Mr Hooley in the period immediately before or after his redundancy took effect, relate principally to the quantum and timing of his entitlements and not to the validity of the decision to make him redundant. To the extent that the letter from Mr Hooley’s legal representative dated 5 November 2010 raised questions about the manner in which Mr Hooley had been treated with respect to his workplace complaints, these matters were raised in the context of seeking enhanced redundancy payments for Mr Hooley rather than in the context of questioning the validity of the decision with respect to his redundancy.

[56] The exchange of emails relating to Mr Hooley’s ongoing complaints about his treatment while employed by CSIRO and thereafter, relate to 2012 and are well outside the time in which Mr Hooley’s general protections application should have been made. Further, Mr Hooley’s emails appear to continue to press his complaints of bullying and victimisation while in employment rather than disputing the termination of his employment. Indeed, in the email of 28 March 2012, Mr Hooley refers to himself as an “ex employee” and points out that just because staff have left CSIRO it does not mean that its obligations for their actions ceases.

[57] I accept the evidence and submissions of CSIRO in relation to prejudice should the extension of time be granted. It is not to the point that those staff left before Mr Hooley’s employment was terminated. The fact remains that Mr Hooley seeks to make an application significantly outside the time allowed under the Act, and the result will be that the difficulty which CSIRO would have faced had the application been made within the required time, or shortly thereafter, will be significantly increased by the time that has now elapsed and will elapse before Mr Hooley’s application can be heard and determined.

[58] I am also of the view that there are significant deficiencies in Mr Hooley’s application, so that it can be said that the application lacks merit. As the submission for CSIRO correctly points out, the contravention alleged by Mr Hooley in his application is a breach of s.530 of the Act. That section is not relevant to an alleged general protections dispute, and an alleged breach is not within the jurisdiction of the Commission. Further, Mr Hooley claims, that the alleged contravention is that the termination of his employment has been unreasonably harsh and amounts to unfair dismissal. In short, it is strongly arguable that Mr Hooley’s application is an unfair dismissal application in the guise of a general protections application such that its lack of merit militates against an extension of time being granted.

[59] In relation to fairness as between Mr Hooley and other persons in a similar position, it appears from the material filed by CSIRO that there were other employees made redundant at the same time as Mr Hooley. In my view it would be unfair to those persons to grant an extension of time to Mr Hooley to challenge a dismissal, which on the basis of Mr Hooley’s evidence, was a case of redundancy. Further, in the context of a statute requiring that an applicant seeking an extension of time demonstrate exceptional circumstances, it would be unfair to other persons whose applications have been dismissed because they could not establish the existence of such circumstances, if an extension was granted to Mr Hooley in the circumstances of this case.

[60] For the reasons set out above, the discretion under s.366(2) for the Commission to extend time for Mr Hooley to make a general protections application has not been enlivened. Accordingly, Mr Hooley’s application for the Commission to deal with a general protections dispute under s.365 of the Act must be dismissed, and an Order to that effect will issue with this Decison.

DEPUTY PRESIDENT

Final written submissions:

21 January 2013.

 1   [2011] FWAFB 975.

 2 Ibid at at [13].

 3   Kennedy v Department of Human Services [2012] FWA 10068.

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