Chad Porritt v Gold Leaf Tree Services
[2023] FWC 1954
•14 AUGUST 2023
| [2023] FWC 1954 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chad Porritt
v
Gold Leaf Tree Services
(U2023/5881)
| DEPUTY PRESIDENT DEAN | CANBERRA, 14 AUGUST 2023 |
Application for an unfair dismissal remedy – extension of time.
This decision concerns an application by Mr Chad Porritt (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.
The Applicant was employed by Gold Leaf Tree Services (Respondent) until his employment was terminated with effect on 29 March 2023. His unfair dismissal application was lodged on 29 June 2023.
Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The application in the present matter was filed some 71 days outside the 21 day period and can only proceed if the Commission grants a further period for the application to be made.
The matter was listed for hearing by telephone on 8 August 2023 to consider the extension of time issue. The Applicant appeared his own behalf and Mr James Macken of Macken & Company appeared with permission for the Respondent. Evidence was given by the Applicant and Mr James Macpherson (Managing Director).
Background
The background circumstances leading to the Applicant’s dismissal are largely uncontested and may be briefly stated as follows.
a.The Respondent is a small business providing tree management services in the Canberra Region.
b.The Applicant commenced employment with the Respondent in November 2019, initially on a casual basis and then from April 2020 as a permanent full time in the role of Senior Arborist.
c.On 8 October 2020 the Applicant sustained an injury to his shoulder.
d.The Applicant was certified medically unfit for work on 6 November 2020 following that injury and underwent a surgery on his shoulder in February 2021. His workers compensation claim was accepted and he did not work between 6 November 2020 and 25 April 2021.
e.At the end of April 2021 the Applicant was cleared to return to work on light duties while continuing to undertake rehabilitation which included weekly physiotherapy and hydrotherapy.
f.He performed light duties for about 12 hours over 3 days per week, mainly to prepare quotes and write reports.
g.In January 2022, the Applicant ceased work to have another surgical procedure on his shoulder. He returned to perform light duties in April 2022 and the hours had increased to 18 hours over 3 days per week.
h.The Applicant continued to suffer from pain and was subsequently examined by a neurosurgeon who concluded that his ongoing pain was caused by neural compression.
After undertaking further medical examinations between September 2022 and January 2023, the Applicant was informed by the Insurer that it would cease liability for his medical expenses, based on the medical report that his enduring nerve pain was considered unrelated to the work-related injury. The Insurer made an offer to settle and finalise the claim to which the Applicant had declined.
j.On 3 March 2023, the Applicant attended a meeting with Mr Macpherson and Mr Martin Jones (a Consultant of the Respondent) during which he was told that the continuation of his employment was untenable.
k.On 16 March 2023, the Applicant was provided with a letter of termination which reads:
“Termination of your employment
Since October 2020 when you sustained your shoulder injury, where you were declared fit for work, we have provided you with ‘light duties’. You gave us your best effort, but your ongoing pain has limited you to working in short bursts. We allowed for the limited productivity because we value you as an employee and expected the injury would eventually be resolved.
Almost two and a half years later, the insurer has deemed that the neck / nerve pain you have been experiencing is unrelated to the shoulder injury and is not accepting any liability. This means there is no timeline on a resolution or return to pre-injury duties.
As a result, and as discussed at Gold Leaf HQ on 3 March 2023, we are no longer able to provide suitable duties for you. Because of the challenges in finding you suitable duties, you have not been required to report to work since Tuesday 7 March 2023. Your final day of employment will be Wednesday 29 March 2023. You will not be required to perform any duties between now and then.
You will be required to return all company assets issued to you: this includes but is not limited to the company vehicle, fuel card, laptop, charger and iPhone. You are not required to return any uniform or PPE as these are unable to be re-issued.
I would like to thank you for your service and sincerely regret that your time at the company has had to end like this. I wish you all the best in the future.”
Since the dismissal, the Applicant had made a claim for underpayment with the Fair Work Ombudsman (FWO).
Extension of time
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[1] 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.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.
Consideration
Reason for the delay
The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[3]
The Applicant advanced the following reasons for the delay in lodging his application:
a.After being advised of the Respondent’s decision to end his employment at the meeting on 3 March 2023, he was shocked and upset. He attended his GP the following week and was diagnosed with acute psychological stress and depression. He was prescribed antidepressants and had since received treatment from a clinical psychologist.
b.He lives alone and has no family members residing in Canberra to help him.
c.Since his dismissal, the insurance company had withheld his payments for some weeks and he had been struggling financially.
d.He continued to suffer from acute phycological illness which meant that he could only focus on one thing at a time. He focused on his claim with the FWO because he needed the income. He also needed to deal with the insurance company in respect of his workers compensation claim.
e.The nerve pain associated with the neck injury also inhibited his ability to work on more than one thing at a time. In addition, he received medical advice that he should only write/type for periods of 15 minutes without a break.
f.Whilst suffering from physical and mental illness, he had to deal with multiple matters, including the FWO and Workers Compensation claims, with limited resources, support and income.
The Applicant submits that his circumstances set out above substantially impacted his ability to lodge the application on time.
The Respondent submits that there are no exceptional circumstances accounting for the 10-week delay in commencing these proceedings. It is submitted that the Applicant’s health issues, although undoubtedly distressing for him, do not in fact account for the delay. The Applicant was able during this period to engage with insurers, Workcover and the Fair Work Ombudsman about matters relating to his employment rights and income. He was also able to correspond with the Respondent during this period by email and text messages about various matters.
While I accept that the Applicant’s physical and mental health issues may have presented challenges for him, I am not satisfied that the evidence presented supports a finding that he was incapacitated to such an extent that he was unable to lodge his application until more than 3 months after he became aware of his dismissal. He was capable of lodging a claim with the FWO, dealing with his workers compensation claim and engaging in discussion and correspondence with the Respondent about his final payment. The Applicant by his own admission chose to prioritise those matters over making the unfair dismissal application.
Having considered all of the circumstances, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application. This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was first notified of his dismissal at a meeting on 3 March 2023 which was followed by a letter of termination provided to him on 16 March 2023. He was therefore afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute the dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I accept the delay is relatively lengthy. However, in the absence of any specific evidence as to what prejudice the Respondent may suffer, I consider this to be a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Respondent’s decision to dismiss the Applicant was based upon his incapacity to perform the inherent requirements of his substantive role. The Applicant contends that he is capable of performing light duties and that he has obtained medical report which suggests that he may recover after undergoing further surgery.
The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
C Porritt on his own behalf.
J Macken of Macken & Company for Gold Leaf Tree Services.
Hearing details:
2023.
By telephone:
August 8.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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