Brian Turner v Metropolitan Fire and Emergency Services Board

[2016] FWC 8036

[2016] FWC 8036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Brian Turner
v
Metropolitan Fire and Emergency Services Board
(C2016/6157)

DEPUTY PRESIDENT DEAN SYDNEY, 30 NOVEMBER 2016

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

[1] Mr Brian Turner (the Applicant) commenced employment with the Metropolitan Fire and Emergency Services Board (MFB) in 1985. His employment ended on 9 July 2016 in circumstances which are disputed between the parties.

[2] The Applicant alleges that he was forced to provide a letter of resignation, in that he was ‘unwittingly coerced, misled or unduly influenced’ into signing it 1, and says that he was not aware that he had resigned until 13 July 2016.

[3] On 29 July 2016, the United Firefighters Union (the Union) filed an unfair dismissal application (s.394) on behalf of the Applicant. That application was discontinued on 11 October 2016.

[4] On 13 October 2016, the Applicant filed an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by MFB was in contravention of the general protections provisions of the Act.

[5] The Respondent denies the allegations and contends that the Applicant resigned voluntarily.

[6] During the hearing, the parties agreed that the employment relationship ended on 9 July 2016, not 13 July 2016 being the date the Applicant asserted he found out about his purported resignation. The application was lodged some 75 days outside the 21 day time period prescribed by s.366 of the Act and cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[7] The matter was listed for hearing by telephone on 11 November 2016 with respect to the extension of time issue. Both parties were granted permission to be legally represented. The Applicant was represented by Ms B Mazzarella of McDonald Murholme and the Respondent by Ms K Muddagouni of Norton Rose Fulbright Australia.

[8] The Applicant gave oral evidence and Mr David Bruce (Deputy Chief Officer) and Ms Carla Reid (Payroll Administrative Officer) tendered a witness statement and gave oral evidence. Both parties submitted written outlines of argument in accordance with the Commission’s directions.

Background

[9] The Applicant commenced employment with MFB in July 1985 as a Fire Fighter. He progressed through the ranks, and in 2004 attained the rank of Commander which he held until the cessation of his employment.

[10] The Applicant suffered three brain aneurysms between 2010 and 2013 which resulted in him taking extensive periods of leave.

[11] An undated handwritten letter (the Letter), signed by the Applicant, was accepted by the Respondent as his resignation. It says, in part:

“I WILL BE FINISHING ON THE 9TH OF JULY AND WILL SIGN OFF BY USE OF A DOCUMENT THAT I WILL GIVE TO YOU IN PAYROLE [SIC]. I WILL BE TAKING YOU (THE MFB) TO COURT AND START IT SOON AFTER I WILL NEED TO INFORM THE FOLLOWING PEOPLE TO ATTEND COURT. …”

[12] The parties are in dispute as to the date the Letter was submitted. The Applicant says that he was forced to sign the Letter on 8 July 2016 when he attended MFB’s Payroll office in an attempt to submit a leave extension form.

[13] In contrast, MFB contends that the Applicant hand delivered the Letter when he attended the Payroll office on 27 June 2016. MFB says the Letter was provided along with a medical certificate which certified him as sick until 9 July 2016. A letter dated 30 June 2016 signed by Mr P Rau (a Chief Officer of MFB) was sent to the Applicant acknowledging receipt of the Letter and confirming the Applicant’s resignation. That letter which is attached to the Employer’s Response form F8A, is in the following terms:

“Dear Brian

Resignation

I refer to the letter that you hand delivered to the MFB on 27 June 2016.

I confirm that, as set out in this letter, you have resigned from the MFB, and that you intend your resignation to be effective on 9 July 2016.

The MFB accepts your resignation on this basis.

Accordingly all monies owing to you (if any) will be calculated and paid into your bank account within 14 days of your resignation date.

An advice sheet outlining details of your entitlements will be forwarded to you, for your records, by MFB Payroll Department. If you require any further information regarding your entitlements, please contact the Payroll Department on [number omitted].

Brian, I take this opportunity to thank you for your long and dedicated period of service. I wish you all the best for the future and for the transition to the next phase of your life.

Peter Rau
Chief Officer”

[14] On 29 July 2016 the Union filed an unfair dismissal application on behalf of the Applicant. A conciliation conference was conducted by telephone on 16 August 2016 but was unsuccessful in resolving the matter. The unfair dismissal application was then listed for hearing on 12-14 October 2016 to deal with MFB’s jurisdictional objection (no dismissal) and arbitration.

[15] On or about 13 September 2016 the Union ceased to represent the Applicant and the Applicant sought an adjournment for 6 months to seek alternative legal representation. The hearing was later rescheduled for 14-16 November 2016.

[16] On 11 October 2016, McDonald Murholme, the Applicant’s current representative, filed a notice to discontinue the unfair dismissal application. On 13 October 2016, McDonald Murholme filed the general protections application which is the subject of these proceedings.

The Evidence

The Applicant

[17] The evidence of the Applicant in support of this application was minimal. The following exchange took place between the Commission and the Applicant’s legal representative part way through what was a comprehensive opening submission 2:

DEPUTY PRESIDENT: Before you go on, are you intending to call any evidence?

MS MAZZARELLA:  No.  I am not intending to call any evidence.  I am only seeking to go through our submissions and our submissions in reply to the respondent and also responding to the two cases that have been put forward.

DEPUTY PRESIDENT:  Well, Ms Mazzarella, this is a hearing.  On what basis am I meant to make decision in the absence of any evidence?

MS MAZZARELLA:  Which evidence, Deputy President, are you seeking me to seek this morning.

DEPUTY PRESIDENT:  Evidence as to why I should extend time, in terms of the criteria that I need to take account of.  Effectively what you are telling me is that there's no evidence as to the reason for the delay.  There's no evidence as to any actions taken by the applicant to dispute the dismissal.  There is no evidence about the merits.  Is that what you are telling me?

MS MAZZARELLA:  No, I am not telling you that.  I will be going through that myself.

DEPUTY PRESIDENT:  You can't give evidence, can you?  Were you involved?

MS MAZZARELLA:  No, I was not involved.  I wasn't aware that I would be questioning the applicant this morning.

DEPUTY PRESIDENT:  Well, it's a hearing.

MS MAZZARELLA:  My understanding is that the applicant would be examined by the respondent's representative, but not by myself.  But I can do that, if that's what is required.

DEPUTY PRESIDENT:  Well, how you present your case is a matter for you, but in the absence of evidence, let me say now you are not going to get very far with your extension.

MS MAZZARELLA:  Okay.  That's fine.  I am happy to question the applicant, if that's what is required.

DEPUTY PRESIDENT:  Well, you need to put on some evidence.  So as I said, it's a matter for you about how you run your case.  You're a lawyer.  I'm not going to tell you how to run your case, but let me say in the absence of any evidence, you will not succeed.

MS MAZZARELLA:  Okay.  That's fine.  Perhaps if I could finish my opening and then I will ask questions of the applicant.

[18] Despite this exchange, the evidence that was given by the Applicant was minimal, and did not deal with a large number of the matters that were the subject of the Applicant’s submissions.

[19] The Applicant gave evidence about the circumstances leading up to his writing of the Letter. He said that he attended the office of Eastern Hills Fire Station on 8 July 2016, and attempted to submit a medical certificate. He said he was told by Ms Reid that he was no longer an employee of MFB, to which he replied ‘that’s strange, because I haven’t been received yet of any notifications’ 3. The Applicant said that he was told by Ms Reid that the only way he could submit his leave form was if he signed the Letter. He alleges that Ms Reid told him to write the first paragraph of the Letter, and he added the remainder of the contents of the Letter.

[20] The Applicant conceded that he wrote the Letter but said that he was ‘forced to write it’. He denied that the letter was written on 27 June 2016. He said that he did not receive the letter of 30 June from MFB accepting his resignation until after 9 July 2016.

[21] The Applicant said that when he realised that he had been terminated, he protested. This occurred when Mr Bruce called him to advise that he wanted to arrange to give the Applicant an honorary award for MBF retirees.

[22] The Applicant gave evidence that he commenced unfair dismissal proceedings because that was what the Union told him to do 4, and he was aware of the 21 day time limit5.

[23] In cross-examination, the Applicant confirmed that he sought advice after his resignation from the Union 6. He also confirmed that he participated in the preparation and conduct of the unfair dismissal proceedings, including preparing a witness statement, appearing at a conference with the Commission, having discussions with the Unions, writing letters and the like7.

[24] When asked about the Letter, the Applicant said he was forced to write the first two lines of the letter only.

[25] The Applicant was asked about correspondence with the Commission after the Union ceased to act for him on or around 13 September 2016. He said he had written to the Commission on 16 September 2016 to seek to defer his hearing for six months while he found alternative representation. He wrote to the Commission again on 3 October 2016 in which he indicated that he had spoken to a lawyer, and wrote again on 6 October to seek another four week extension to file his material 8.

[26] There was no evidence of the Applicant’s alleged mental impairment.

Ms Reid

[27] Ms Reid submitted a witness statement and gave oral evidence. Ms Reid is a Payroll Administrative Officer with MFB and is responsible for administrative support for the Human Resources department of MFB which includes reception duties, input of leave, assisting with general enquiries and filing.

[28] In her witness statement, Ms Reid said that the Applicant attended the Payroll office on 27 June 2016 and asked to see Ms Vinten, a payroll specialist in the team. After being told that Ms Vinten was busy at the time, the Applicant said to her words to the effect: ‘I’ve been promised an ACFO position, now they are not giving it to me so I’ve resigned.’ She did not respond to that statement as she did not know what he was referring to. The Applicant then said that he wanted to write a note to Ms Vinten and asked her for a piece of paper and a pen. She was about a metre away from the Applicant and did not see what he wrote. The Applicant later gave him the piece of paper and left. She did not read what was written on the piece of paper as the Applicant had said that it was a note for Ms Vinten. She was later asked by Ms Vinten to leave it on another Payroll Team Leader’s desk.

[29] She further said that the Applicant again attended the Payroll office on 8 July 2016 and asked to speak to Ms Vinten. She told the Applicant that Ms Vinten was not available. The Applicant then said words to the effect: ‘I know I’ve resigned, so can you see that this leave is put through?’ and ‘If you can’t put the leave through can you give me something in writing?’ Either she or Ms D Mulcahy (Remuneration and Benefits Manager) who was present in the office at the time, said to the Applicant words to the effect of ‘I’ll see what I can do.’ The Applicant then gave her the medical certificate which she passed to Ms Mulcahy. The Applicant then left the Payroll office.

[30] Ms Reid denied that she had pressured the Applicant in any way to provide a letter of resignation. She said she had not at any time induced, asked or directed the Applicant to resign.

[31] Attached to Ms Reid’s statement are a copy of the Applicant’s statement and copies of her two statements, both filed previously in relation to the Applicant’s unfair dismissal application. She was not cross-examined on the content of these documents.

[32] Ms Reid was only asked four questions in cross-examination, which went to whether the Applicant had sought to provide a medical certificate on 8 July (which she had already given evidence of), and if Ms Reid had told the Applicant to write anything in relation to the Letter. Her reply was consistent with the evidence she had previously given.

[33] Her evidence that the Applicant attended the workplace on 27 June 2016 was not challenged in cross-examination.

Mr Bruce

[34] Mr Bruce submitted a witness statement and gave oral evidence. Mr Bruce has been employed with MFB for 31 years and is currently a Deputy Chief Officer. In this role he is the regional director of MFB’s services covering all the stations in the South East Metropolitan District.

[35] In his witness statement, Mr Bruce said that he had been informed on 27 June 2016 that the Applicant had provided a resignation letter to a Payroll Team Leader. He was aware that a letter was sent to the Applicant a few days later to confirm the Applicant’s resignation as the Application told him that he had received the letter.

[36] Mr Bruce denied he attended Applicant’s home unannounced on 13 July 2016. He said he telephoned the Applicant on 6 July 2016 to let him know that he was trying to organise a ‘Belt Axe’ and ‘Key Plaque’ for him on his retirement.

[37] Mr Bruce said that during the telephone conversation the Applicant asked him for a copy of his resignation letter because he had written it out on the day he resigned and did not have a copy of it. The Applicant said to him that he was not sure what he had said in his resignation letter because he did not have a copy. Mr Bruce told the Applicant that he would organise a copy of the letter for him.

[38] In his evidence, Mr Bruce stated that he had joined the MFB as a recruit in the same batch as the Applicant around 31 years ago, and he considered the Applicant to be a close work colleague and a friend.

[39] In cross-examination it was put to Mr Bruce that the Applicant was shocked and/or confused that MFB were seeking to organise a Belt Axe and Key Plaque because he was unaware that he had resigned. Mr Bruce denied that the Applicant seemed to be shocked or confused, saying that he had known the Applicant for 31 years and this conversation was no different to other conversations they had had in the past.

[40] Mr Bruce also confirmed that he had sighted the Letter on the day the Applicant submitted it to the payroll officer, being 27 June 2016.

The Submissions

The Applicant

[41] The Applicant’s written submissions, filed before the hearing, stated that that the reasons for the delay were three fold 9:

a. he had previously lodged another application being an unfair dismissal application within 21 days of his dismissal taking effect;

b. he was suffering from, and continues to suffer from, a mental impairment when he elected to lodge an unfair dismissal application; and

c. he later received legal advice to the effect that he should discontinue his unfair dismissal application and lodge a general protections application in its place.

[42] In his outline of argument, the Applicant stated that he promptly and successfully lodged an unfair dismissal application within the 21 day time limit and did so without legal advice and while suffering from a mental impairment. He subsequently sought legal advice and on 11 October 2016 discontinued the application. The Applicant submits that his ‘lack of legal knowledge, initial lack of legal advice and impaired mental state were the contributing factors in what was ultimately the “exceptional circumstance” in their own right for the purposes of section 366 of the Act.’

[43] It was also submitted that MFB would not suffer any prejudice as the Applicant already had an unfair dismissal application on foot and had thereby put MFB on notice of the Applicant’s intention to dispute the dismissal.

[44] The Applicant further submitted that the merits of his general protection application were significant. The Applicant claims that MFB had taken adverse action against him due to his temporary absence because of illness. He was also terminated because he exercised his workplace rights. Such workplace rights include the complaint he made in relation to the alleged denial of his agreed promotion and the extensive period of leave that he took due to his health condition.

The MFB

[45] MFB submitted that the reasons for the delay provided by the Applicant were not credible, and the reasons that the Applicant relied on in relation to his mental impairment were not substantiated by any evidence. The Applicant had not established that there were any exceptional circumstances and the delay is significant.

[46] MFB submitted that it would suffer prejudice if the extension of time is granted as MFB has already been put to significant costs and efforts in defending the Applicant’s unfair dismissal application. It says that there was a period of two months in which the parties were filing material in the Commission and engaging in conferences and the Applicant raised no concern about having a mental impairment and therefore not being able to pursue the correct application. MFB says that it should not be put to the costs in defending yet another application simply because the Applicant’s chosen course was bound to fail and he has decided to pursue another course now.

[47] It was argued that the Applicant was represented by the Union for almost the entire time period from his resignation until the lodgement of his general protections claim.

[48] MFB submitted that the application does not have merit on the basis that the Applicant was not dismissed from his employment. The Applicant resigned by providing a handwritten resignation letter on 27 June 2016 which confirmed he would be finishing employment with MFB on 9 July 2016.

Consideration

[49] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.

[50] Section 366 of the Act provides:

366 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.

[51] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 10 where the Full Bench said:

“[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.”

[52] I now deal with each of the provisions of s.366(2) of the Act.

Reason for the delay

[53] In considering whether the reason for the delay amounts to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay. 11 The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances12. In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example13:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[54] The Applicant’s explanations for the delay include his mental impairment and the filing of an incorrect unfair dismissal application which was filed within time.

[55] The Applicant contended that his mental impairment was a factor warranting an extension of time. However, no medical evidence was adduced to support that contention. I agree with the submissions of the Respondent that it is not open for the Commission to find that the Applicant was incapacitated by a mental impairment during the period of the delay.

[56] In addition, the evidence supports the Respondent’s submissions that the Applicant was clearly capable of taking a number of steps to progress his unfair dismissal application, which were set out above.

[57] The Applicant’s unfair dismissal application was filed by the Union on his behalf and he continued to receive assistance from the Union until on or about 13 September 2016.

[58] I do not accept the Applicant’s submission that he had obtained misinformed industrial advice 14 which led him to mistakenly lodge an unfair dismissal application. There was no evidence of any misinformation provided by the Union. There was no reason given or evidence adduced to support the assertion that the unfair dismissal application was an incorrect or invalid application. The Applicant was a person protected from unfair dismissal and there is no explanation from the Applicant as to why his unfair dismissal application could not proceed. The Applicant took the option to discontinue the unfair dismissal application about two and a half months after it was lodged to file a general protections application. Such option does not amount to any representative error, at least on the Union’s part.

[59] I accept the Respondent’s submissions that the delay is not a result of the wrong jurisdiction or incorrect application 15, but that the Applicant has acted on advice from his current lawyers to withdraw his unfair dismissal claim and commence a general protections claim instead.

[60] Overall, the evidence does not support a finding that there is a credible reason for the whole period of the delay.

[61] For the reasons set out above, I am not satisfied that the reasons for the delay advanced by the Applicant constitute exceptional circumstances.

Any action taken by the person to dispute the dismissal

[62] It was not in dispute that the Applicant lodged an unfair dismissal application within the statutory time limit.

[63] This weighs in favour of a finding of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[64] I accept that the Respondent’s submission that it will suffer some prejudice by the delay. It has already been put to the time and costs associated with defending the Applicant’s unfair dismissal claim.

[65] This weighs against a finding of exceptional circumstances.

The merits of the application

[66] For the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’ 16

[67] There are a number of factual disputes which are strongly contested between the parties, including whether the Applicant’s resignation was voluntary.

[68] I am not able to make a final determination of the merits, and therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[69] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 17 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’18

[70] MFB’s submissions in this regard were that the Applicant resigned voluntarily and gave two weeks’ notice in writing of his resignation, he was represented by the Union and was able to obtain advice from the Union, he was provided with extensions by the Commission in his unfair dismissal proceedings, and despite having representation, his general protections application was three months’ out of time.

[71] The submissions on behalf of the Applicant were that a person in a like position was one who had mistakenly filed an unfair dismissal application owing to a mental impairment and initial lack of legal knowledge and legal advice.

[72] I am not satisfied that the criteria of fairness as between the Applicant and other persons in a similar position weighs strongly in favour of either party, and I therefore find it to be a neutral consideration.

Conclusion

[73] I have considered the cases cited by both parties in support of their arguments. However, each case turns on its own facts.

[74] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[75] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

B Mazzarella for Brian Turner.

K Muddagouni for Metropolitan Fire and Emergency Services Board.

Hearing details:

2016.

Sydney and Melbourne (by telephone):

November 11.

 1   Transcript PN28.

 2   Transcript PN32-45.

 3   Transcript PN75.

 4   Transcript PN87-88.

 5   Transcript PN91.

 6   Transcript PN99.

 7   Transcript PN103-108.

 8   Transcript PN118-129.

 9   See Applicant’s outline of argument.

 10   [2011] FWAFB 975.

 11   [2010] FWAFB 7251.

 12   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 13   [2016] FWCFB 349 at [31].

 14   Transcript PN48.

 15   Transcript PN243.

 16   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 17   [2015] FWC 8885.

 18 Ibid at [29].

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