Benjamin Clarke v The Information Management Group Pty Ltd
[2017] FWC 3031
•2 JUNE 2017
| [2017] FWC 3031 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Benjamin Clarke
v
The Information Management Group Pty Ltd
(C2017/2315)
| COMMISSIONER PLATT | ADELAIDE, 2 JUNE 2017 |
Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances – application dismissed.
Mr Benjamin Clarke has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by The Information Management Group Pty Ltd (IMG) on 6 or 7 September 2016 in contravention of the general protections provisions of the Act.
This application was lodged on 29 April 2017.
Mr Clarke’s application explained the failure to lodge the application within 21 days from the dismissal as follows:
“During my employment with both LitSupport and TIMG, I was subjected to extreme working conditions which negatively impacted on my mental stability, most of these extreme working conditions are detailed in section 3.2 and section 3 (although all of the conditions which I was working under have not been provided since there is too many).
During the appointments on 6-7 September 2016 I was unable to discuss any of the matters as I was highly sedated, and suffered high anxiety on the days in question. I have been unable to discuss this matter with The Respondent, as it has been hard enough getting an accurate and correct copy of termination documents (including Employment Separation Certificate and payslips for Centrelink).
Due to the severity of the impact which the extreme working conditions has had on my mental health I have been unable to discuss many of the situations with anyone especially in a calm, constructive view (not stating that I am currently capable of doing so).
I have been under supervision for the treatment of my extreme exacerbation of mental illness for the last 8 months including, some counselling (sic) and mediation treatment which, as a side effect has made me less capable of proceeding with this claim and other general activities.
A letter from my Psychiatrist (who has been managing my treatment) can provide more details if required.
On 7 December 2016 Shabnam Purbozorgi stated that “there isn’t anything else any of us can help you with.” And “please feel free to seek legal advice for any further issues”. I have notified their legal representative (Stephen Booth) on 7 March 2017 and 29 April 2017 that I will be taking legal action against them and also that it would be delayed due to extreme exacerbation of prior mental health conditions caused by his clients actions.”
IMG filed a F8A Employer Response form on 10 May 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.
On 12 May 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 25 May 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 Clarke and IMG were directed to provide an outline of argument by no later than noon, Friday 19 May 2017.
Mr Clarke submitted a great deal of material with his F8 Application, much of which concerns the merits of his claim. The material relevant to the out of time issue is summarised 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.
IMG filed a submission which contended, in summary, that;
· 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.[1]
· 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.[2]
On 23 May 2017, Mr Clarke sought that the hearing be postponed on the basis that he was unable to visit Dr Stefanovski prior to the hearing and the provision of a letter by Dr Mellor. Dr Mellor’s letter stated that he saw Mr Clarke on 24 May 2017 and that “Due to underlying health symptoms we have agreed that it would be in his best interests to postpone this claim to a later date, if this option is available.” Dr Mellor’s letter did not elaborate on how Mr Clarke’s medical condition prevented him from participating in the hearing.
On 24 May 2017, Mr Clarke again sought that the hearing be postponed. Mr Clarke was advised that in order to consider this application the Commission required evidence from his Doctor which detailed how his medical condition prevented him from participating in the hearing.
On 25 May 2017, Mr Clarke provided a letter from Dr Mellor which stated Mr Clarke “is diagnosed with anxiety and depression. He states he feels mentally unfit to participate in processes with regard to his general protections claim. He requests a letter from me to support his request to postpone his claim.” I note that Dr Mellor reports the feelings of his patient and does provide any medical opinion concerning Mr Clarke’s capacity to participate in the proceeding.
I am mindful of the already lengthy delay in between the dismissal and the lodgement of this matter and the need to avoid any further unnecessary delay. Based on the material before me, I determined that the hearing would proceed.
A hearing was conducted by way of telephone conference on 25 May 2017. A sound file record of the telephone conference was kept. Mr Clarke represented himself and Mr Stephen Booth of Coleman Greig Lawyers was granted permission pursuant s.596(2)(a) of the Act to represent IMG. I note that Mr Clarke supported the request of IMG to be represented.
Mr Clarke’s position is that his medical condition prevented him from lodging his application until late April 2017.
At the telephone conference, IMG relied on the submissions filed and contended that there were no exceptional circumstances.
In order to mitigate against any adverse impacts of my refusal of Mr Clarke’s application to postpone the jurisdictional hearing, at the conclusion of submissions, I provided Mr Clarke a further 7 days to respond to the submissions by IMG, or provide further medical evidence, before I determined the matter.
On 25 May 2017, I issued further directions 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: [email protected]”
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.
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.
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.”
Mr Clarke was verbally informed that his employment would cease on 6 September 2016 which was confirmed in writing on the next day. He was paid in lieu of notice. Accordingly, I find that the dismissal occurred on 6 September 2016. This general protections application by Mr Clarke was made 214 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
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[3] 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.”
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.
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.
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.
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.
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.
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.
Mr Clarke needs to provide a credible explanation for the entire period of the delay,[4] but has not done so.
The 214 day delay in the lodgement of this claim is considerable, and I accept that presents prejudice to IMG.
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.
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 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[5] reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr Clarke, the Applicant.
Mr Booth of Coleman Greig Lawyers on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
May 25.
[1] [2011] FWAFB 5645
[2] (1996) 186 CLR 541, 556
[3] [2011] FWAFB 975
[4] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
[5] PR593443
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<Price code C, PR593442>
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