Benjamin Clarke v The Information Management Group Pty Ltd
[2017] FWCFB 3902
•5 SEPTEMBER 2017
| [2017] FWCFB 3902 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
The Information Management Group Pty Ltd
(C2017/3341)
VICE PRESIDENT HATCHER |
|
Permission to appeal against decision [2017] FWC 3031 of Commissioner Platt at Adelaide on 2 June 2017 in matter number C2017/2315.
Introduction
[1] Mr Benjamin Clarke has applied for permission to appeal and appealed a decision (Decision) 1 and order2 of Commissioner Platt issued on 2 June 2017 in which the Commissioner declined, under s.366 of the Fair Work Act 2009 (FW Act) to grant Mr Clarke an extension of time to file a general protections dismissal application under s.365 of the FW Act. At the hearing of the appeal before us, Mr Clarke represented himself. Permission was granted, under s.596 of the FW Act, for the respondent, The Information Management Group Pty Ltd (TIMG) to be represented by Mr Dominic Russell, solicitor.
[2] Mr Clarke filed his general protections dismissal application in the Commission on 29 April 2017. In that application he identified the date of the dismissal the subject of the application as being either the 6 or 7 September 2016. The Commissioner found that the dismissal occurred on 6 September 2016, the application was filed 214 days after the 21-day time period, and it was therefore necessary for Mr Clarke to obtain an extension of time under s.366(2) in order to make his application.
[3] Section 366(2) sets out the circumstances in which the Commission may grant an extension of time as follows:
(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.”
[4] Mr Clarke commenced employment with TIMG, which was then LitSupport Pty Ltd on 28 March 2011. In December 2014, TIMG bought LitSupport and on 7 July 2015 Mr Clarke signed his contract of employment with TIMG. In a letter dated 6 September 2016, which was provided to Mr Clarke on 7 September 2016, TIMG stated that the reason for Mr Clarke’s dismissal was as follows: “as a result of rate pressure from clients and a slow-down of sales the position of Bureau Operator is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.”
[5] Following the termination of his employment, Mr Clarke sent various emails to TIMG staff members regarding the calculation and payment of his entitlements, and the correctness of the information being provided to Centrelink. An email which he sent on 9 September 2016 read as follows (formal parts omitted):
“Not sure who to talk to about this stuff, could you either pass my email on to someone who can help or an you advise me of the below?
During yesterdays discussions, it was said that I would be paid up until yesterday, however I only received $605.80 which does not add up to my wages as per my previous employment agreement. The pays had been approved by the TIMG guy who I was talking to, it was also him that confirmed that I would still be getting paid during this pay period. I have expenses which I am needing to allocate money for today which I am unable to do, so I will have to call everyone up to advise them that I am unable to do so. Can you please advise me ASAP when I will be getting the full amount?
Yesterday I also requested the following items these will be needed within the next week, can I please have written confirmation? Payslips from 8th July 16 onwards and a Written reference
I will also need the following items within the next week, a employment separation certificate for centrelink and also a signed copy of my performance review from July this year (I have tried to get a copy of this many times but nobody has bothered to give it to me, you have an obligation to provide this)
Please can you let me know ASAP”
[6] A second email was sent by Mr Clarke on the 11 September to another TIMG staff member (formal parts omitted):
“I have noticed a few more irregularities, can you please have these fixed and have all
documents re-issued (digitally)so I may review all documents, then can you please provide me a physical copy of everything.
Need I remind you, these are all legal documents, and as such you have a legal obligation to provide me with correct and accurate information contained in them. Please note - especially for the Employment Separation Certificate, where "giving false or misleading information is a serious offence" as signed and agreed upon by Raja Yalamoanchi. Any false or misleading information will be advised to Centrelink, Raja will be put in a position where he/she is in a legal situation where the errors were pointed out to a "senior manager" of TIMG.
I believe, considering the fact that there have had to be many revisions to these documents that the following section of the TIMG policies would be appropriate to share.
Performance of Duties
You are required to perform your duties in a professional and competent manner and you are to perform all lawful duties as directed. Failure to do so will result in appropriate disciplinary action.
I do not believe the competency of staff which has been preparing these documents has been that of an appropriate level. The level of record keeping at LitSupport/TIMG has been really embarressing for LitSupport and TIMG. I have a few different versions of my written reference, and a few copies of my employment separation certificate, Now please keep in mind that if I take all these versions of the employment seperation certificate in to Centrelink and tell them "im not sure which is correct, I will have to look through them all" they will be required to contact you to verify all the details to see which one is correct and factual.
I have previously discussed with Val that these documents are not required by me until this week, giving you time to do an accurate job in finalising my documents. I mentioned to her that the fact I had been underpaid through my wages was a higher priority, this is still the case.
As mentioned I found a few more irregularities in documents, please have these fixed and emailed to me once you believe they are correct. Once they are received I will review all documents again and check every figure, every letter, every single bit”
The Decision
[7] In the Decision, the Commissioner summarised Mr Clarke’s submissions as follows:
“ During his employment with IMG, Mr Clarke contended he was subject to conditions which negatively impacted on his mental health.
- In the period after his dismissal, he attempted to recover from the damage caused by IMG but it was not completely possible to do so.
- Since 3 June 2016, he had been undergoing treatment for mental health issues. This involved counselling and medication.
- Mr Clarke submits ‘he has spent the last 9 months on sedatives, trying to survive each moment one at a time’.
- Mr Clarke submitted what appears to be a series of heavily redacted text messages.
- Mr Clarke submitted a range of medical certificates which stated he was suffering from a personal illness and was unfit for work, which related to the period before the dismissal.
- Mr Clarke submitted a certificate from Dr Stefanovski dated 30 August 2016 which stated Mr Clarke was unfit for work from 5-9 September 2016.
- Mr Clarke submitted a letter from Mr David Lock, Case Manager, Joondalup Community Mental Health, which stated that Mr Clarke was an active patient from June 2016 to 30 September 2016 and that he provided case management. It states that “During this period he was unable to proceed with the harassment claim within the given 21 day period.” No statement was received from Mr Lock in respect of this period nor was he available for cross-examination.
- Mr Clarke also submitted a letter of Dr Jasna Stefanovski, Consultant Psychiatrist, dated 27 April 2017 which stated that Mr Clarke had been treated at Joondalup Community Mental Health from June 2016 to September 2016 for depression and anxiety, and that he was referred in January 2017 and had since been treated following mood deterioration from December 2016. No statement was received from Dr Stefanovski and nor was she available for cross-examination.” 3
[8] The Commissioner also summarised TIMG’s submissions which contended that (footnotes omitted):
“ Mr Clarke did not contest the dismissal.
- Mr Clarke corresponded extensively with IMG (and/or its legal representative) by email on a number of occasions in the period 8 September 2016 to 29 April 2017.
- Mr Clarke represented in January 2017 that he was legally represented.
- Mr Clarke’s engagement with IMG was evidence that he was capable of submitting a general protections claim.
- No exceptional circumstances exist in this matter, and it is analogous to the position in Ballarat Truck Centre Pty Ltd v Kerr.
- IMG provided copies of the emails exchanged post dismissal.
- The dismissal was by way of redundancy and the merits should weight against Mr Clarke.
- The extensive delay gives rise to prejudice to IMG, as per Brisbane South Regional Health Authority v Taylor.” 4
[9] The Commissioner conducted a telephone hearing in relation to Mr Clarke’s application for an extension of time on 25 May 2017. After that hearing, the Commissioner afforded Mr Clarke a further opportunity to provide evidence to support his application for an extension by issuing a direction in the following terms:
“[1] Mr Clarke’s application for an extension of time to lodge his general protections application was the subject of a hearing via telephone on 25 May 2017.
[2] The matter has been adjourned until 2.00pm (ACST) on 2 June 2017 (via telephone). A Notice of Listing to this effect is attached.
[3] In order to allow the applicant a further opportunity to put all relevant material before the Commission, the Fair Work Commission directs the applicant to file in the Commission and serve on the other side by 4.00pm on 31 May 2017 any medical evidence in relation to his incapacity to lodge the application within the 21 day statutory time limit that he wishes to be taken into account.
[4] If the applicant files a witness statement, the witness must be available to attend the hearing via telephone at 2.00pm (ACST) 2 June 2017. The respondent will be afforded the opportunity to cross-examine any witness and/or further submissions.
[5] Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned. Any enquiries in relation to these directions should be addressed to my office on tel: 08 8193 5512 or email:
[10] The Commissioner summarised the evidence received in response to this direction as follows:
“[17] On 30 May 2017, Mr Clarke provided three Centrelink Medical Certificates. The first dated 24 November 2016 was issued by Dr Mellor and stated that Mr Clarke was unfit for work or study between 18 August 2016 and 24 February 2017 as a result of a temporary condition of severe anxiety. The second certificate was dated 27 February 2017 and was issued by Dr Westhoff and stated that Mr Clarke suffered from ‘poor mood’ and was unfit for work or study between 27 February 2017 and 19 March 2017. The third certificate was issued by Dr Stefanovski dated 11 April 2017 which stated that Mr Clarke was suffering from low mood, lack of motivation and anxiety and was not fit to work or study from 11 April 2017 to 11 July 2017.
[18] The certificates provided no information as to how these conditions would have prevented Mr Clarke from submitting a general protections application and furthermore no supporting statements were provided from the authors. Accordingly, the hearing listed on 2 June 2017, which was called for the purpose of allowing cross-examination of the evidence concerning Mr Clarke’s capacity, was cancelled.”
[11] In his Decision, in relation to s.366(2)(a)-(e) of the FW Act, the Commissioner concluded (footnotes omitted):
“[22] Whilst Mr Clarke submitted a letter from Mr David Lock, Case Manager from the Joondalup Community Mental Health, which contends that Mr Clarke ‘was unable to proceed with the harassment claim within the given 21 day period’, Mr Lock did not attend the hearing to give evidence or be cross-examined and I am not aware of the basis for Mr Lock’s opinion or if he is qualified to make such a determination. In any event, it does not address any delay post 30 September 2016.
[23] A review of the emails exchanged between Mr Clarke and IMG post dismissal concerning the calculation and payment of his entitlements, and the accuracy of the information provided to Centrelink lead me to believe that at that time Mr Clarke was capable of advocating his position and thus lodging a general protections claim.
[24] None of Mr Clarke’s communications at this time suggested he had been subject to conduct which would form the basis of a general protections claim.
[25] Despite the granting of an adjournment to do so, Mr Clarke has not presented any medical evidence which explains how his medical condition(s) prevented the lodgement of his application in a timely manner.
[26] In my view, Mr Clarke’s medical condition in the period immediately after the dismissal was not such that he could not have submitted a general protections claim, this is evidenced by a review of his email communications.
[27] Even if I am mistaken about that period, Mr Clarke has not adequately explained the reasons for the delay in the balance of the period until 29 April 2017. The fact that a number of medical practitioners have issued Centrelink Medical Certificates is not evidence that Mr Clarke was unable to lodge a general protections application or attend the hearing on 2 June 2017.
[28] Mr Clarke needs to provide a credible explanation for the entire period of the delay,4 but has not done so.
[29] The 214 day delay in the lodgement of this claim is considerable, and I accept that presents prejudice to IMG.
[30] In terms of the merits of the application, it appears that IMG contend the employment ceased by way of genuine redundancy and Mr Clarke believes it was as a result of his medical condition. There is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
[31] Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
[32] For the reasons I have set out above, I am not satisfied that Mr Clarke’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 reflecting this decision will be issued.”
Appeal grounds and submissions
[12] In his Notice of Appeal the appellant contended that the Commissioner:
- made significant errors of fact;
- gave Mr Clarke unclear instructions which was the basis for his significant errors of fact;
- gave Mr Clarke unrealistic evidentiary requirements following the telephone conference; and
- wrongly used Ballarat Truck Centre Pty Ltd v Kerr 5 as an analogous case.
[13] In the Notice of Appeal the appellant further contended that it was in the public interest for the Commission to grant permission to appeal because:
“The Commission did not provide adequate instructions or clear clarification of instructions. Clear and precise instructions are required to ensure that all parties comply with the specifications required of them, with and to ensure fairness and .
Commissioner Platt provided unrealistic time frames for detailed medical reports, which were required.
He required information, which I had been stated to me that the Commissioner had no legal right of requesting. This is important to the public to ensure the Commission complies with Medical Practice laws and to provide parties with sufficient time for parties to arrange the documents required.
Commissioner Platt never provided any chance to challenge or cross examine the evidence provided by Mr. Booth labelled as “Annexure A”, this evidence was accepted and labelled as “competent and rational” “on the face of it”. Commissioner Platt, used the evidence to make his view on my “medical condition in the period immediately after the Dismissal”. This is important to the public to ensure a fair hearing of evidence.
Commissioner Platt has made assumptions as to my belief in why my employment was terminated; He had made this assumption on things other than facts or statements. The Commissioner has also made assumptions on any prejudice towards the Respondent. This is important to the public to ensure a fair understanding of the facts and to ensure a prejudice is not placed on the other parties.
Commissioner Platt has made large amounts of factual errors regarding my claim, resulting in his decision, which should be re-assed to ensure competency in the commission’s processes. This is important to the public to ensure the commission is fair for all parties.”
Consideration
[14] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair Work Commission’s (Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 6 There is no right to appeal and an appeal may only be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400). (2) A person may appeal the decision by applying to the FWC.
[15] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 7 The public interest is not satisfied simply by the identification of error8, or a preference for a different result.9 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 10
[16] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused. 11 It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.12 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.13
[17] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. 14 A decision as to whether to extend time under s.366(2) involves the exercise of a discretion.15
[18] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 16
[19] The application by Mr Clarke was filed out of time by a significant amount. It was necessary for the applicant to demonstrate to the Commissioner the exceptional circumstances that justified the delay in filing the application so late. The case authorities establish that where an applicant attempts to demonstrate “exceptional circumstances” by reason of the delay being occasioned by medical incapacity, it will usually be necessary for the applicant to adduce evidence showing a medical incapacity to prepare and file the application over the whole period since the dismissal. 17 It is clear, as the Commissioner found, that Mr Clarke did not provide evidence of that nature. Centrelink medical certificates indicating an incapacity to work are not demonstrative of an incapacity to file a general protections application under s.365 of the FW Act, and the Commissioner was correct to so find.
[20] Furthermore, there is evidence referred to in the Decision and which we have set out above of detailed written communications from Mr Clarke to his former employer in the period immediately after the dismissal. This is demonstrative of an ample capacity to prepare and file an application of the type which was ultimately filed within the prescribed 21-day period. Mr Clarke’s contention that there were “instructions” imposed on him as to the medical evidence that he was required to produce is misconceived. It was up to Mr Clarke to demonstrate the “exceptional circumstances” attending his failure to file his general protections application within time. That Mr Clarke was provided, as a litigant in person, with some degree of guidance as to the type of evidence needed to sustain his case cannot amount to an arguable contention of appealable error on the part of the Commissioner. We consider rather that this is demonstrative of the extent of the opportunity which Mr Clarke was afforded to advance his case for an extension of time.
[21] Mr Clarke’s notice of appeal does not identify any arguable contention of appealable error in the Decision. The Commissioner determined that the stringent test of “exceptional circumstances” was not met, and we consider that no other conclusion was reasonably available. The Decision was not unreasonable, did not manifest any injustice, and was not counter-intuitive. Nor does the Decision raise any issue of broader application or general importance.
[22] We are not satisfied that the grant of permission to appeal would be in the public interest. Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
B. Clarke on his own behalf.
D. Russell solicitor for The Information Management Group Pty Ltd.
Hearing details:
2017.
Sydney:
7 August.
1 [2017] FWC 3031
2 PR593443
3 Decision at [6]
4 Decision at [7]
5 [2011] FWAFB 5645
6 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
7 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
9 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
10 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
11 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
12 Wan v AIRC (2001) 116 FCR 481 at [30]
13 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
14 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
15 Halls v McCardle and Ors [2014] FCCA 316
16 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
17 Khoury v Rockdale Family Medical Centre[2016] FWCFB 3566; Harris v Westpac Banking Corporation t/a Westpac [2016] FWCFB 4894; Miller v Allianz Insurance Australia t/a Allianz [2016] 5472
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