Byrnes v Department of Broadband, Communications and Digital Economy

[2012] FWA 7744

[2012] FWA 7744

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Timothy Byrnes
v
Department of Broadband, Communications and the Digital Economy
(C2012/4508)

COMMISSIONER DEEGAN CANBERRA, 7 SEPTEMBER 2012

Section 365 application, application lodged out of time, application for extension of time, no exceptional circumstances, application dismissed.

[1] This application was made under s.365 of the Fair Work Act 2009 (the Act) by Mr Timothy Byrnes alleging contraventions of Part 3-1 of Act by the Department of Broadband, Communications and the Digital Economy (the respondent) involving dismissal.

[2] The applicant commenced employment with the respondent on 5 March 2012 and his employment was terminated on 9 March 2012. He lodged an application under s365 of the Act on 11 July 2012. That application was lodged some 64 days after the expiry of the 60 day period allowed under s.366 (1) of the Act for lodgement of such applications and some 124 days after the termination took effect.

[3] Pursuant to s. 366 of the Act the tribunal may, in certain circumstances, allow additional time for the filing of an application made under s.365 of the Act. This decision concerns whether the applicant should be allowed additional time for filing.

[4] The considerations which must be taken into account when determining whether additional time should be allowed are set out at s.366(2) of the Act which provides:

(2) FWA may allow a further period if FWA 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.

The applicant’s case

[5] It was the applicant’s case that his employment had been terminated on the ground that he was a security risk, and on “reputational issues” 1. He claimed that at the time of his termination he had accepted this, although he was surprised2.

[6] The applicant claimed that he had spoken to some people about his dismissal and sought advice about any redress, including by visiting FWA in Canberra where he discovered that he could not claim unfair dismissal as he had been employed for less than a week. He attempted to contact a number of organisations in March, in the month following his dismissal, including the Australian Public Service Commission (APSC), Australia Security Intelligent Organisation (ASIO), the Department of Foreign Affairs and Trade (DFAT) and the FBI. He was either unable to make contact with the relevant individuals within these organisations or was alternatively advised that the person to whom he spoke was unable to assist him with his enquiry. In early April, he attempted to contact the CPSU by email and was informed that the CPSU was unable to offer him any advice. He was not a member of the organisation.

[7] An article was published in the Canberra Times about the applicant’s dismissal. After the article was published the applicant had had a breakdown and was hospitalised from 13 April until 25 May 2012. While in hospital the applicant was contacted by a journalist who indicated that it was his intention to submit a Freedom of Information (FOI) application to gain further information for a further article relating to the termination. According to the applicant it was not until further documents were provided as a result of the FOI request that he discovered that there “may be other issues in regards to my termination” 3. It was at this time that he thought about lodging an application for unlawful dismissal on the grounds that it was “not actually a conflict of interest”4.

[8] The applicant claimed that 1000 pages of documents were released under the FOI application and an article was published by the journalist on 26 July 2012. The applicant stated that it was about that time that further evidence concerning the termination came to light.

[9] Under cross-examination the applicant reiterated that he had been an in-patient in hospital from 13 April until 23 May 2012. He agreed that there had been a 34 day period between the termination of his employment and his admission to hospital. He agreed that he had had time to make inquiries about his situation before being admitted to hospital and noted that he had already mentioned some of the action that he had taken during that period.

[10] The applicant was asked about the article that had appeared in the Canberra Times on 25 March 2012. He conceded that the article contained quite a bit of detail about the termination of his employment. He had contacted the journalist and sent him a copy of the termination letter. The journalist got back to him after about two weeks and the applicant provided further information by email. The article appeared the following Sunday. It was the applicant’s evidence that he had had a number of discussions with the journalist who wrote the article published on 26 July, both before he was admitted to and while he was in hospital 5. He had also sent emails to the journalist while in hospital. He continued these discussions after he was released from hospital.

[11] The applicant confirmed a number of details contained in a letter written by his legal representative, including that he had contacted the Fair Work Information line about 10 March 2012. He stated that he had only inquired about an unfair dismissal claim as he was “working on a conflict of interest” 6. He claimed that he only realised that there could have been issues regarding his health when the FOI documents were provided7.

[12] The applicant also stated that the APSC, which he had contacted at the same time, had advised him that he had no cause of action.

[13] So far as his contact with ASIO, DFAT and the FBI was concerned the applicant claimed that he was working on the “conflict of interest security issue” 8 and that he was attempting to find out what advice the employer had been given about the security matter prior to the termination on that ground. He was also “concerned about information” that he had and didn’t want any more problems.

[14] It was put to the applicant that the letter written by his legal representative disclosed that he had contacted several law firms in April 2012. He agreed but stated that he was unable to remember any of the names and had only been making general enquiries. He had received general advice from one of the lawyers in Canberra and another one in Tamworth.

[15] The applicant claimed that it was ‘around’ 10 July 2012 that he first became aware that he was able to make a general protections claim. He stated that it was only after the FOI documents began to filter through that he became aware of his ability to make such a claim.

[16] It was put to the applicant that he was an investigative journalist, to which he replied “I can be” 9. When asked if he had searched the internet for options regarding action he could take against his employer the applicant responded that he did not. He stated that once the article was in the Canberra Times he stopped searching. When shown a screen drop of the FWA website dealing with dismissals the applicant recalled that he had seen that page. He agreed that had seen the information relating to general protections applications but “under extreme circumstances and information that had come to light... he had lodged a late application”10.

[17] According to the applicant, while he had not made the FOI application he had given his permission for the journalist to seek information involving him. He conceded that the journalist’s employer retained copyright over the FOI material and that the application had not been made on his behalf but with his permission.

[18] It was the applicant’s evidence that he had received the FOI documents about 30 June, as advised in his solicitor’s letter. He noted that there were about 1000 pages of documents and he had to research his legal position. He conceded, however, that the information contained in the s.365 application he made was “pretty scant in terms of detail” 11.

[19] The applicant was also questioned about “numerous contacts” he had made with employees of his former employer since he had lodged his application. He agreed that those persons could potentially be witnesses in the matter if it went to hearing. He conceded that while some of the emails he had sent may have been unpleasant they were not threatening.

[20] It was then put to the applicant that he had fallen ill on the day he commenced employment with the Department. He agreed and acknowledged that he had had the following day off work. On his return the next day (8 March) he had discussed with an HR representative about giving consent for the Department to have a doctor determine his fitness for work. The applicant conceded that apart from the exchange of emails with HR about consent nothing further was raised about his health prior to the termination.

[21] It was put to the applicant that the termination of his employment arose because, on his first day, he had disclosed to his manager some information which, at the time he was terminated, was termed a “conflict” by the employer. He agreed that the subject matter had been raised by him on his first day and had not been disclosed prior to his appointment. There was a full discussion with his manager about the disclosure after she raised the matter with him on the following Thursday. According to the applicant the matter he disclosed concerned sensitive information that had been provided to him by a human rights activist from the United States. He agreed that he had used the word “leak” in relation to the information.

[22] The applicant agreed that he had told his employer that he had been involved in discussions with SBS about running the story and had been involved in discussions about the story on a “freelance” basis. According to the applicant he would have been at risk had he not disclosed the information.

[23] When asked about his position at the Department the applicant stated that he was an APS 6 working in the media room and dealing with ministerial media issues as they arose. He agreed that it was a “trusted” position but denied that he would have been dealing with sensitive information. He noted that he was required to have only a “Protected” security clearance to perform his role.

[24] The applicant refused to accept that the Department may have considered that if the fact that the applicant was in possession of leaked information from a US department became publicly known the Department may have been embarrassed.

[25] It was conceded by the applicant that he had never been told that his termination was due to a presumed or actual disability. He agreed that his termination letter had stated as follows:

“Your contract is being terminated on the grounds that you failed to disclose information about your involvement in the receipt of suspected leaked US Department of Homeland Security information about Russia or Georgia. Your association with this matter raised serious reputational security issues and is inconsistent with your role you are engaged to undertake.”

[26] The applicant maintained that he believed he was terminated for reasons related to his health but that the conflict of interest was used as an excuse. It was then put to the applicant that he had not contacted the FBI, ASIO and DFAT because he believed he had been terminated for health reasons. The applicant gave no direct response.

[27] The applicant was then asked if he wished to put any other matters to support his claim for time to be extended for the filing of the application. In particular he was asked whether there were matters in the article printed on 26 July 2012 which were pertinent to the decision. The applicant stated that the matters contained in the first seven paragraphs on the second page of the article were relevant to the delay. He also noted that one of the reasons for the delay, other than his hospitalisation, was the length of time it took for the FOI documents to be provided.

[28] The applicant stated that his hospitalisation was a result of an emotional breakdown. He agreed that he had been able to make contact with the journalist whilst hospitalised. It was also his submission that he did not have the financial resources to make an FOI application. According to the applicant both he and his family were under a deal of pressure in the period following the termination particularly as he had been accused of being a threat to the country.

The respondent’s case

[29] It was submitted for the respondent that the applicant’s employment was terminated on 9 March after effectively four days of employment, of which the applicant was absent for one and a half days. The general protections claim was filed on 11 July.

[30] The respondent referred to a number of authorities in which the meaning of the term “exceptional circumstances” in s.366 of the Act was considered, the establishment of which is required for time to be extended. On the basis of these authorities the respondent argued that to be “exceptional” the circumstances must be out of the ordinary course, or unusual,” but that mere ignorance of the time limit was not an exceptional circumstance. It was put for the respondent that there were no exceptional circumstances in this matter and that the applicant had not discharged the onus to satisfy the tribunal that it should exercise the discretion to extend time.

[31] The respondent argued that:

• The applicant claimed one reason for the delay was his hospitalisation but his evidence was that his hospitalisation had not prevented him from communicating by email and telephone with the journalist;



• days had elapsed prior to the hospitalisation during which the applicant had pursued many lines of enquiry about his avenues for proceeding against the Department over his termination;



• A significant further period (50 days) elapsed after the applicant was released from hospital before the application was lodged.

[32] The respondent also relied on the decision in Baker v Salva Resources 12 for authority that the fact that an applicant may have undergone a period of hospitalisation will not always be a compelling reason for extending time for lodgement, particularly in circumstances where the applicant was not prevented from taking other action to pursue their claims during that period.

[33] It was submitted for the respondent that the fact that the applicant delayed his claim until the outcome of the FOI claim was known did not constitute an exceptional circumstance, particularly when the FOI application was not made by the applicant. Further the applicant had not explained the relevance of the FOI documents as those documents were not referred to in the applicant’s application form. Additionally there was a significant further delay between the applicant receiving those documents and lodging his application.

[34] It was put for the respondent that, until he lodged his s.365 application, the applicant had taken no action to contest his dismissal directly with his employer. In addition it was put that prejudice to the employer had been caused by the delay as one of the respondent’s witnesses is no longer an employee of the Department. It was also put that the conduct of the applicant in sending emails to various Departmental employees who were likely to be witnesses should the mater proceed, ought to be taken into account in determining whether the employer would suffer prejudice if the application were accepted out of time. It was noted that the conduct of the applicant in this regard commenced only after the application was filed.

[35] So far as the merits of the application were concerned the respondent argued that the applicant’s substantive case was hopeless. There was no evidence to support the applicant’s claim that his dismissal was related to any disability. The only reason ever given for the applicant’s termination was his disclosure of information which the Department viewed as sufficient reason for terminating his employment. That reason was clearly explained to the applicant at the time. It was clear from the applicant’s conduct subsequent to the termination of his employment that he accepted the reason given by the Department for the termination. It was for that reason that he contacted the FBI, ASIO and DFAT.

Consideration

(a) The reason for the delay

[36] The delay in filing in this matter is substantial. While some of the delay can be attributed to the applicant’s ill-health, and subsequent hospitalisation, that fact does not provide an acceptable reason for the extent of the delay. I am not convinced that the applicant was unable to pursue his claim while hospitalised when he was clearly able to continue communication with the journalist who had shown an interest in his story.

[37] I do not accept that the length of time that passed before the FOI documentation was made available is sufficient reason for the delay. The applicant tendered no evidence to show that the documentation made available under the FOI application had provided a basis for the claim that was unknown to him prior to sighting the documentation.

[38] The only evidence relied upon by the applicant which appeared to arise from the FOI documents were those paragraphs of the 26 July 2012 article referred to by the applicant. In this regard the conclusion reached by the reporter does not appear to support the applicant’s claim that his disability was the reason for the termination of his employment. This evidence also supports the respondent’s submission that the applicant was well aware, prior to his termination, that the Department had sought his consent to further investigate his medical condition and intended to take such action. This concern with the applicant’s fitness for work was, in the words of the reporter who wrote the 26 July article, “displaced by something quite different as she urgently emailed the department’s legal advisers to seek advice on the “possible termination” of his contract for “potential conflict of interest”. The author of that article had access to the totality of the FOI documents.

[39] If other evidence that suggested that the termination of the applicant’s employment was in any way related to his health was contained in the FOI documents, this evidence was not produced at the hearing.

(b) Any action taken by the person to dispute the dismissal

[40] The applicant did not dispute the respondent’s claim that he had taken no action to dispute the termination directly with his former employer until the s.365 application was lodged in mid-July. On the information known to the employer prior to the lodgement of the application the applicant did not suggest that he doubted the employer’s stated reason for the termination. The articles that were published supported the conclusion that the applicant accepted the employer’s given reason for the termination but challenged the validity of the need for the termination on the basis of that reason.

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

[41] I accept that some prejudice has been caused to the employer by the delay, in that one important witness has since left the employ of the Department. I am also prepared to accept that prejudice has been caused to the employer by the conduct of the applicant in sending unpleasant, if not abusive, emails to potential Departmental witnesses. I do not consider such prejudice, of itself, is sufficient reason to refuse to extend the time for filing.

(d) The merits of the application

[42] I make no finding as to the merits of the substantive application. I am unable to conclude that it is totally without merit on the material before me. This factor is of neutral weight.

(e) Fairness as between the person and other persons in a like position.

[43] Neither party suggested that this criterion had any application in the particular circumstances of this case.

Conclusion

[44] The applicant’s case seems to be that his hospitalisation and the fact that the FOI documents were not made available to him until 30 June together constitute exceptional circumstances such that the time for filing should be extended until 11 July 2012, more than 60 days after the original 60 day limit for filing had passed.

[45] I am prepared to accept that the hospitalisation provides some explanation for the delay but does not sufficiently account for the full delay such that is constitutes an exceptional circumstance. The applicant was hospitalised for only 40 of the 124 days between the termination of his employment and the lodgement of the application. In any event it appears that the applicant was capable of pursuing his concerns during that time as he continued to communicate with the journalist interested in his affairs.

[46] I accept that the FOI documents were not made available to the applicant until 30 June. The applicant relies on this delay as a further reason for the delay in filing. There is no evidence before me that the FOI documents disclosed anything pertinent to the termination of the applicant’s employment that was not known to the applicant at the time of the termination.

[47] I find nothing exceptional in the circumstances surrounding of this matter such that a further period should be allowed for filing the application.

[48] As the application was filed outside the 60 day time limit and I decline to allow any further period of time for filing, the application is dismissed.

COMMISSIONER

Appearances:

Applicant in person.

Ms S Ralph, from Norton Rose, on behalf of the Respondent.

Hearing details:

2012.

Canberra:

August, 8

 1   Transcript at PN21

 2   Ibid

 3   Ibid

 4   Ibid

 5   Transcript at PN56

 6   Transcript at PN66

 7   Transcript at PN67

 8   Transcript at PN70

 9   Transcript at PN95

 10   Transcript at PN113

 11   Transcript at PN130

 12   [2011] FWA 1289

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