Andrew Smith v Trivett Automotive Retail Pty Ltd T/A Subaru Essendon
[2018] FWC 3107
•31 MAY 2018
| [2018] FWC 3107 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Andrew Smith
v
Trivett Automotive Retail Pty Ltd T/A Subaru Essendon
(C2018/2415)
| COMMISSIONER PLATT | ADELAIDE, 31 MAY 2018 |
Application to deal with contraventions involving dismissal.
Summary
Mr Andrew Smith has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Trivett Automotive Retail Pty Ltd T/A Subaru Essendon (Trivett) on 16 April 2018 in contravention of the general protections provisions of the Act.
This application was lodged on 8 May 2018.
Mr Smith’s application identified that it was made beyond the 21 days from the date of dismissal and did not provide an explanation.
Trivett filed a Form F8A Employer Response on 24 May 2018 which indicated that the dismissal occurred on 16 April 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue.
On 17 May 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a Hearing by telephone conference on 28 May 2018. 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 who were directed to provide an outline of argument of their respective positions by 24 May 2018.
Submissions
Mr Smith provided written submissions which are relevantly summarised as follows:
· On 16 April 2018 Mr Smith was advised that he would be dismissed and that the dismissal took effect on that day.
· Mr Smith identified that the application was submitted at 12:06am on 8 May 2018 – 6 minutes past the 21 day time limit.
· Mr Smith contended that he was working on his application during the period since his dismissal and missed the deadline through a relapse of his clinical depression.
· Mr Smith contended that his depression was exacerbated by his dismissal and resulted in him:
· Losing track of time;
· Becoming disorganised; and
· Having difficulty in retaining focus and getting out of bed on some days.
· Mr Smith provided a letter from Dr Maria Manoliadis, General Practitioner, dated 18 May 2018 which stated:
“Mr Andrew Smith has been suffering from significant depression for several years and is on medication for this. Prior to losing his job he has been fatigued and struggling with anxiety and has been medicated for his anxiety. Over the past few weeks since losing his job, he has become more unwell, his symptoms have become aggravated and he has difficulty concentrating and focusing on tasks and he had become more slow and fatigued in his actions. He therefore also struggles with time management.”
· Mr Smith provided a letter from Ms Michelle Thomson, Psychologist, dated 21 May 2018 which stated:
“Andrew Smith has been attending counselling with me for several years. Following his sudden dismissal from [Trivett] he became severely depressed. His symptoms include difficulty concentrating, poor short term memory and difficulty sleeping. His mental health issues had a major impact on his capacity to complete his application under Section 365.”
· Mr Smith relies on his medical condition to explain the delay.
· On 19 April 2018 Mr Smith contacted the Fair Work Ombudsman (FWO) to seek information about his dismissal and his entitlements.
· On 22 April 2018 he contacted JobWatch and was advised to lodge a general protections application.
· On 23 April 2018 Mr Smith downloaded some information about making a claim and started to complete a Form F8 application.
· Mr Smith continued drafting his application (somewhat inefficiently) until 7 May 2018 when he was contacted by a friend who asked him how the application was going. This reminded Mr Smith of the deadline and he realised he had to submit the application that day. Mr Smith redrafted the application and started to lodge the application online but was distracted by reading the concession fee application and lodged the application 6 minutes late.
· As to the substantive merits of this matter, Mr Smith believes he was discriminated against because of his physical and mental disabilities and was prevented from exercising a workplace right.
Whilst Mr Smith invited me to reject Trivett’s submissions on the basis that they were provided 33 minutes late, I have exercised my discretion to receive the submission.
· Trivett provided a written submission which contended that Mr Smith was dismissed on 16 April 2018.
· The application was lodged out of time.
· The circumstances relied upon by Mr Smith do not constitute “exceptional circumstances”.
· Trivett submitted that the report of Ms Thomson dated 21 May 2018 contends that his dismissal triggered a bout of severe depression, his dismissal was on 16 April so his bout of depression cannot explain why he was late lodging.
A Hearing was conducted by way of telephone conference on 28 May 2018. A sound file record of the telephone conference was kept. Mr Smith represented himself and Mr Paul Almond represented Trivett, permission being granted (unopposed by Mr Smith) pursuant to s.596(2) of the Act.
The parties reiterated their submissions.
Mr Smith provided additional information about the creation of the Microsoft Word document that contained his Form F8 application and his contact with the FWO and JobWatch.
Mr Smith submitted that his medical condition impacted his capacity to promptly complete his application and referred to having “dark days” where he could not think clearly and other days where he could function but felt somewhat agitated. Ms Smith made a number of attempts to fill out the Form F8 abandoning the previous versions.
During the Hearing, I invited Mr Smith to provide copies of the previous versions of the Form F8 application. Mr Smith did so and provided a raft of additional material. I have reviewed the previous versions of the Form F8 application completed by Mr Smith.
Trivett contended that the medical information supplied did not support the existence of “exceptional circumstances” as the reports were dated after the application was lodged.
Trivett replied to the additional material provided by Mr Smith on 29 May and contended that there was no action by Mr Smith to contest the dismissal and there was no evidence that Mr Smith suffered from time management issues that affected his ability to lodge the application on time.
Applicable Law
Section 366 of the Act relevantly states:
“Time for application
(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).
(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.”
I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] 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 every day 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.”
Consideration
I have considered all of the material submitted by the parties as summarised above.
This general protections application by Mr Smith was made 6 minutes outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.
Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
Mr Smith contends that his medical condition was such as to impair his capacity to complete his application in a timely fashion and resulted in it being minutes late.
Mr Smith submitted medical evidence which is consistent with the submissions he made at the Hearing as to the impact of his medical condition.
I note that Mr Smith’s medical practitioners had been treating him for some time prior to the dismissal and this does not appear to be a case where the applicant has seen a doctor for the first time who has then postulated the impact of his present state retrospectively. I reject Trivett’s submission that I should not accept the medical reports on the basis that they were obtained after the extension of time was sought.
The material submitted by Mr Smith is consistent with him “spinning his wheels” in terms of completing his application. This is consistent with Mr Smith’s medical evidence that he was not functioning well. Whilst it is common for employees to suffer shock and trauma as a result of dismissal from employment and this is not in itself an exceptional circumstance[2], the impact of the dismissal upon Mr Smith appears to have been more severe than shock and trauma, possibly as a result of his existing medical condition.
The delay in this matter is very short.
Trivett referred me to the appeal in the matter of BenjaminClarke v The Information Management Group Pty Ltd[3], an appeal from a decision of mine. The facts in this matter do not correlate at all to the facts in Clarke. Mr Clarke had a number of email exchanges with his employer post-dismissal which contradicted his assertion that he was unable to advocate his position. In addition, Mr Clarke did not present any medical evidence which explained how his medical condition impaired his capacity to lodge an application in a timely manner.
Trivett also referred me to the decision of Ballarat Truck Centre Pty Ltd v Melissa Kerr[4]. In that case the Full Bench considered that the applicant was able to contact JobWatch and WorkSafe post-dismissal, write to the owner of the Respondent, meet with a lawyer to complete a WorkCover claim form and provide a written summary of events, and had the support of a lawyer with respect to the s.365 application. Again the facts in this matter appear to be clearly distinguishable, whilst Mr Smith spoke to the FWO and JobWatch, he had no communications with Trivett, he did not prepare any correspondence other than the application and did not have the support of a lawyer.
I find that Mr Smith has explained all of the delay.
If there is a credible explanation for the entirety of the delay then this weighs more heavily in favour of a finding that there are exceptional circumstances - Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[5].
Any action taken by the person to dispute the dismissal
Mr Smith contacted the FWO and JobWatch in the week following the dismissal, no other action was taken other than the lodgement of the application.
Prejudice to the employer (including prejudice caused by the delay)
There is no submission that the granting of an extension of time represents prejudice to Trivett.
The merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
For the reasons I have set out above, I am satisfied that Mr Smith’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred for Conciliation. An Order[6] reflecting this decision will be issued.
COMMISSIONER
Appearances:
Mr A Smith the Applicant.
Mr P Almond on behalf of the Respondent.
Hearing details:
2018.
Adelaide:
28 May 2018.
<PR607611>
[1] [2011] FWAFB 975.
[2] Rose v BMD Constructions Pty Ltd[2011] FWA 673.
[3] [2017] FWCFB 3902 (‘Clarke’).
[4] [2011] FWAFB 5645.
[5] [2018] FWCFB 901.
[6] PR607612.
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