Buddy Detlef Nazar v Hydro-Electric Corporation
[2022] FWC 2273
•8 SEPTEMBER 2022
| [2022] FWC 2273 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Buddy Detlef Nazar
v
Hydro-Electric Corporation
(U2022/7941)
| DEPUTY PRESIDENT BELL | MELBOURNE, 8 SEPTEMBER 2022 |
Application for an unfair dismissal remedy - application filed out of time - circumstances not exceptional - application dismissed.
On 31 July 2022, Mr Buddy Nazar (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed by Hydro-Electric Corporation (Respondent) in November 2019. The employer listed in the initiating application was “Hydro Tasmania Retail Rty Ltd”. Having conferred with the parties, I am satisfied that the correct legal name of the Applicant’s former employer was Hydro-Electric Corporation and the file name has been amended accordingly.
By s.392(2) of the Act, the Commission may only make an order for remedy if the person has made an application under s394. Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect.
Based on the material before the Commission, the Applicant made his unfair dismissal application outside the 21-day timeframe. The Commission must therefore determine in the first instance if an extension of time should be granted for the making for the application.
There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and the Respondent and whether a conference or hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the Act).
The Applicant gave evidence on his own behalf, and filed a witness statement and various supporting documents. The Respondent called Ms Phillipa Ellis, who was the Manager People Partners for the Respondent.
When did the dismissal take effect?
There is no substantial dispute as to when the dismissal took effect. The Applicant’s witness statement described that the dismissal took effect in “November 2019”. The Respondent’s evidence states this date was 26 November 2019 and attaches a letter dated 25 November 2019 (which was described as being delivered on 26 November 2019). I am satisfied that the date of dismissal was 26 November 2019.
When was the application made?
It is not in dispute, and I so find, that the application was made on 31 July 2022.
The final day of the 21 day period was therefore 17 December 2019 and ended at midnight on that day.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 December 2019. The delay is the period commencing immediately after that time until 31 July 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2] In the present case, the delay is 957 days (i.e. slightly over 2 years and 7 months late).
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[4]
Before setting out the reasons for delay, it is necessary to provide some context for the dismissal.
The Applicant commenced employment with the Respondent in February 2016 before his employment was made permanent under a contract of employment dated 10 January 2018. The position he was employed in was as a Maintenance Assistant, which was a field position requiring him to attend multiple worksites in the North-west region of Tasmania.
On 25 May 2018, the Applicant suffered an injury, being a fractured left femur. The Applicant states the injury required surgery and hardware installation to rectify the fracture.
The Applicant was initially absent from work until around 30 July 2018, when he recommenced work subject to a return-to-work plan and was placed on modified and alternate duties, which were desk-based duties. At the time, he was also working reduced hours, which then increased to working full-time hours by September 2018 with restrictions. Subsequently, those hours were reduced again.
It is not necessary to set out the full chronology of events. It is sufficient to note that throughout the period, the Applicant was undertaking a significant level of pain management and that his injury was not resolved. By way of example, he says that further surgery was contemplated. It is also clear that the Respondent had formed the view that, despite the return-to-work program and other adjustments and support given, the Applicant would be unable to return to the inherent requirements of his role. I note that there were consultations with surgeons occurring throughout this period.
On 14 November 2019, the Respondent corresponded with the Applicant to the effect that the Respondent needed to make a decision as to whether or not the Applicant was able to perform the inherent requirements of his substantive role as a maintenance assistant. Various matters as to the history of the injury and return-to-work steps were noted and the letter foreshadowed that termination of the Applicant’s employment was being considered.
The Applicant responded to that correspondence. It is not necessary to recite the details of that response but two aspects relevant to the current application bear noting. The Applicant stated (emphasis added):
“Now please do not think of any of what I have to say as aggressive or being smart. But the reality of my position appears to be quite neutral in balance. I have sought industrial advice, consulted different external sources and all say that ceasing my employment on the current grounds leans heavily towards unfair dismissal.
I would hope HR have looked into the unlimited sick leave? Page 47 of the enterprise agreement for quick reference. But I have not only provided proof of incapacity, but I have been more than forth coming with attending medical reviews at Hydro’s requests, so I am covered under that.”
While the Respondent considered the various matters raised, it nonetheless decided to terminate his employment. It did so by a letter delivered on 26 November 2019 that set out the reasons for termination reflecting the history summarised above.
In the week following the termination of his employment, the Applicant unfortunately aggravated his injury. His evidence states that:
“I had to quickly change my focus from trying to return to work and dealing with the unfair dismissal, to trying to fight infection and potentially losing my right leg, as the pain medications I was on, were clashing with antibiotics and the other circumstances in my life at this point. It took almost 3 months of fighting infection and multiple medication changes to make the antibiotics work, but I managed to save the leg, but at a loss of my big toe on the right foot.”
It is clear that the Applicant’s injury was still some distance from being resolved. The Applicant describes yet further surgery occurring in 2021. It would appear he was on various forms of pain medication throughout and into 2022. The Applicant describes, and I accept, the impact to his mental health throughout the period since his injury.
The Applicant’s ‘Form F2’ filed to initiate his unfair dismissal claim indicates a separate claim for workers compensation entitlements was being pursued. His application states:
“My legal representation at the time was/still is focusing on the workers compensation battle at present. I won the workers comp case in Jan 2021, which was overturned 2 months ago in the supreme court and we have just put in an appeal to be heard in front of the full supreme court in the upcoming months.”
It is a matter of public record that, on 9 June 2022, Justice Geason of the Supreme Court of Tasmania delivered a decision in Hydro Electric Corporation v Nazar [2022] TASSC 37 (Supreme Court Proceeding). The published reasons record that his Honour’s decision was an appeal from the Workers Rehabilitation and Compensation Tribunal of Tasmania in N. v Hydro Electric Corporation [2021] TASWRCT 2 (Tribunal Proceeding). It is not necessary to set out the details of those disputes. It is sufficient to note that the dispute turned on whether or not the Applicant’s injury was occasioned in the course of his employment or not. What is of relevance, however, is that those two decisions indicate the following matters:
· The workers compensation claim was first commenced on 22 May 2019. As noted above, the claim was disputed.
· Final submissions in the Tribunal Proceeding were filed for the Applicant on 21 December 2020. The hearing of the matter was held on 21 December 2020.
· Judgment (in favour of the Applicant) was delivered on 22 January 2021.
· An appeal was made by the Respondent to the Supreme Court of Tasmania. The hearing for the Supreme Court Proceeding occurred on 23 July 2021.
· Throughout both proceedings, the Applicant was represented by solicitors and senior counsel.
I would make some further observations from what I infer about the fact of the above two proceedings, which is that the Applicant was required to – and did - provide instructions for various steps along the way. In his oral evidence, the Applicant says that in the lead up to his hearing in the Tribunal Proceeding, there were frequently matters arising that he would be dealing with his solicitors on. So much is unsurprising, and I anticipate the most intense period for the Applicant was at the beginning of those matters when proofs of evidence and witness statements were required to be prepared but the Applicant described various delays (caused, he said, by the Respondent) and a range of other matters that required attention.
In material filed by the Respondent, the Applicant wrote to the Respondent on 3 November 2021 by an email titled “touching base”. While it was a brief email, the Applicant stated he was still interested in re-employment. His email indicated he had had other discussions with “various HR representatives” as well but he wanted to “reach out to you and just reaffirm my case”. I would record here that the Applicant explained in submission – sincerely, I consider – that he still just wants to work and wants a job. His email on 3 November 2021 is reflective of that desire, in my view.
The Applicant describes that, in about February and March 2022, he made adjustments to some of his medications that brought “a bit more mental clarity and drive in my mental capacity.” He states that, as a result, “I had the ability to look harder and further into my ongoing workers comp case and the associated components of employment within Hydro Tasmania”. According to the Applicant:
“I then proceeded to question the legalities about my employment and the circumstances around my dismissal. My legal team put in a request for information regarding the enterprise agreement. Hydro responded that they would respond by the 22nd of July in regard to our employment queries. After that information was provided, I spoke with my legal team about pursuing unfair dismissal, but they wanted to concentrate on the workers comp case first, then potentially pursue the unfair dismissal. However, after knowing what I had learnt I knew we were well out of time for the application of unfair dismissal, which is why I have taken it upon myself to start the unfair dismissal process now and not leave it any longer as suggested.”
I note in the Applicant’s ‘Form F2’ application, he advances a reason as to why his dismissal was unfair based on his interpretation of the enterprise agreement that would have allowed him “unlimited” sick leave. His Form F2 describes it thus:
“Where it is unfair is Hydro’s Enterprise Agreement states (not directly), the grounds for unlimited sick leave. The sick leave has no date specified in the enterprise agreement, only that your leave must be covered by a Dr’s certificate and that Hydro can every 6 months send you to a practitioner to report on your condition.
Online you will find on Glassdoor reviews and other sites that a plus side of working at Hydro is “unlimited sick leave”.”
As part of the Applicant’s material in support of his application, he tendered a letter from a treating psychologist. Excluding the formalities, that letter states:
“I have been seeing Buddy since September 2021 under worker’s compensation. Buddy was dismissed from his job in November of 2019 and was apparently supposed to submit a claim of unfair dismissal within 21 days of that date while also having his worker’s compensation claim disputed.
At that time Buddy was and continues to experience significant issues that likely affect his ability to manage or respond in a timely manner to various correspondence.
As you are aware, Buddy is on significant medication to manage the pain related to his leg injury. [Omitted]. He has reported periods of being unaware of what he is doing.
Around the time of the dismissal Buddy’s leg swelled up and he eventually lost the toe. At this time his femur remained non-fused so was a significant focus for him.
Buddy reported he [omitted] … and other stresses associated that left him with diminished capacity to manage aspects of daily living and likely more complex correspondence.
[Omitted].
In essence, I think these circumstances are exceptional and warrant consideration outside of the given 21 day time period.”
I have marked as ‘Omitted’ above aspects of that letter which I consider are sufficiently private that they ought not be included in my reasons, although I have had regard to them.
The Applicant advances various reasons for his delay in commencing his application for an unfair dismissal remedy. They include his ongoing physical injuries, the ongoing pain, the medications he has been taking as a result and their side-effects, his mental health (I note the psychologist letter above), memory difficulties and, it appears, his workers compensation cases.
While I accept that the Applicant’s physical and mental circumstances have presented real challenges for him, the evidence does not satisfy me that they were to such an extent that they materially contributed to the delay that occurred. The letter from the supporting psychologist identifies matters that “likely affect” the Applicant’s ability to manage or respond in a timely manner to various correspondence but it falls a long way short of explaining delays of over two and a half years’ of available opportunity to file an application.
My findings are that the primary reason for the Applicant’s delay in commencing his application for an unfair dismissal remedy is because he has prioritised the pursuit of his workers compensation claims. To my mind, this is tolerably clear from the chronology of events set out above. While there may have been particular points in time where the Applicant was materially delayed or impacted due to his injuries and associated difficulties, those matters do not explain the delay.
For example, I also consider it relevant that, during this period of delay, the Applicant was involved in significant legal proceedings for the workers compensation claims. While I recognise that a number of those matters appear to have devolved primarily to questions of law, particularly following the Tribunal Proceedings, it remains the case that the Applicant was required to provide important instructions even after that stage. I consider the involvement in these proceedings demonstrates he was able to commence a claim for unfair dismissal had that been the priority at the time.
I also consider it relevant that the Applicant’s application for an unfair dismissal remedy was prepared and filed by him. It relies on matters – the contention about unlimited sick leave - that his own correspondence had raised before he was dismissed in late 2019. I consider that these matters further demonstrate that the Applicant in fact turned his mind to commencing an unfair dismissal claim at that time but he did not subsequently do so because his workers compensation claims were being prioritised. He was also fit enough to be corresponding in November 2021 to advance his re-employment case in some form.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[5]
There was no evidence before me, and I so find, that the Applicant did not take any substantive actions to dispute their dismissal prior to making the application on 31 July 2022. The Applicant’s material indicates he made some “request for information regarding the enterprise agreement” that arguably relate to his unfair dismissal considerations shortly before that date.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent stated that in addition to the “usual” prejudice that flows from such a long delay, the Respondent faces additional prejudice from an extension being granted in this case. That is, the Respondent says:
(a) The Applicant remains unfit for work, thus the only available remedy in FWC is
compensation; and
(b) The Applicant has been, until 9 June 2022, receiving worker’s compensation
payments.
The Respondent says it is prejudiced in that it would be exposed to the potential of needing to pay additional compensation to the Applicant if the extension of time is granted.
While lengthy delays are certainly capable of causing prejudice (particularly if witnesses move on or become unavailable), no material before me leads to me to be satisfied that the Respondent would suffer any particular prejudice beyond the “potential” of having to pay additional compensation.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[6] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
Notwithstanding those qualifications, the dismissal was based upon the Respondent’s contention that the Applicant was unable perform an inherent requirement of his substantive role due to injury. I note from the evidence before me from the Applicant, it appears that he has been unable to perform his original role to its full extent since his injury to date. In light of the Applicant’s own evidence about his ongoing injury, the Respondent’s position would appear to have significant force. As I understand the Applicant’s claim, he would seek to answer that difficultly by reference to an assertion that he has, in substance, an entitlement to unlimited sick leave and that this entitlement (which was acknowledged by the Respondent in that there is not a cap on sick leave for the Respondent’s employees) would have precluded the Respondent from taking any steps to terminate the Applicant’s employment. At a high level, I consider that the Applicant’s claim would have challenges because, even on the premise that there is no cap on sick leave, it does not follow that an employee would be entitled to indefinite leave without the Respondent being able to take steps to have the employee assessed (and potentially for the employment to be terminated if the employee was unable to perform the inherent requirements of the role). On that assessment, this would indicate that the merits of the application is a factor in the Respondent’s favour. However, as these matters were substantially undeveloped, I am prepared to treat this as a neutral factor.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.[8]
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[9]
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[10]
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[11]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[12]
The delay in the present case is extensive - exceeding two and a half years. The reasons for delay are in large part due to the Applicant’s pursuit of his workers compensation claims. The Applicant’s evidence indicates a sustained period of genuine personal hardship. However, I am not satisfied that evidence rises to such a level to properly explain such a delay or, indeed, any specific parts of it other than at a very general level.
Moreover, I am satisfied that the Applicant was in a position to have pursued all the claims listed in his current application at the time of his dismissal, if he elected to do so. He was substantially aware of the core matters that he now relies upon for his unfair dismissal claim prior to his dismissal. He was in a position to have commenced his claim far earlier, had he chosen to do so.
The Applicant has taken limited – and belated - steps to challenge his dismissal. It is not a factor that I consider assists him.
The merits of the Applicant’s claims appear to contain significant challenges based on the (albeit limited) information before me but it is not necessary for me to form a concluded view about that factor and I treat it neutrally. I am not aware of any factor raising considerations of fairness between the Applicant and other persons in a similar position.
While I acknowledge the genuine challenges and difficulties that Mr Nazar has faced since he was injured (and is still facing), as well as Mr Nazar’s genuine wish to be working again, when having regard to all of the matters listed at s.394(3) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[13] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
B Nazar on his own behalf
J Mullavey of Page Seager Lawyers for the Respondent
Determinative conference details:
2022.
Melbourne (by video link via Microsoft Teams):
August 29.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[10] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[11] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[13] PR745202
Printed by authority of the Commonwealth Government Printer
<PR745201>
0