Christopher Hepburn v Costas Mitre 10
[2012] FWA 3069
•18 APRIL 2012
[2012] FWA 3069 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Christopher Hepburn
v
Costas Mitre 10
(C2012/2889)
COMMISSIONER JONES | MELBOURNE, 18 APRIL 2012 |
General Protections - Extension of Time.
Introduction
[1] On 29 February 2012, Mr Christopher Hepburn (the Applicant) applied under s.365 of the Fair Work Act 2009 (the Act) alleging contravention of the General Protections provisions of the Act, contained in Chapter 3, Part 3 – 1 involving dismissal of his employment.
[2] In its preliminary material (Form F8A), Costa’s Mitre 10 (the Respondent), raised a jurisdictional objection to the matter proceeding to conciliation. This objection was that the application under s.365 of the Act was not lodged within the standard statutory time of 60 days as required in subsection 366(1)(a) of the Act.
[3] The matter was listed for a jurisdictional hearing on 10 April 2012. The Applicant was self represented and gave sworn evidence. Mr Jospeh D’Abaco of Counsel represented the Respondent and Mr Stuart Wainman, General Manager, Costa’s Mitre 10 was called as a witness for the Respondent.
Statutory Framework
[4] S.366 of the Act provides:
366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(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.
Issue to be determined
[5] In the application for Fair Work Australia (FWA) to Deal with a General Protections Dispute (Form F8), completed by the Applicant, no dismissal date was recorded. In his sworn evidence the Applicant stated that he was dismissed on 25 July 2011. 1 As the Applicant lodged an application on 29 February 2012, the application was made 7 months and 4 days after the dismissal took effect. Thus, the application was 159 days out of time.
[6] As the Applicant has requested that I exercise my powers under s.366(2) of the Act, I must determine whether I am satisfied that there are exceptional circumstances, taking into account the matters specified in that subsection, which warrant a further period being granted to the Respondent to make his application.
Reason for Delay
[7] The Applicant stated that, in the period after his dismissal, he was confused. He initially went through a solicitor, Maurice Blackburn Cashman, who gave him some options which included Fair Work Australia and the Victorian WorkCover Authoirty. 2 He decided to pursue his case through the WorkCover Authority, which he did. There was a meeting held with a mediator from the “Australian Accidents Commission” in November 2011. He was told a month down the track that there was no resolution.3 He was then told to go through Fair Work Australia. The Applicant stated that, "I guess I was a bit complacent in that" because he was confused.4 In cross-examination, the Applicant stated that he was advised by the mediator in November 2011 that he was not able to assist the Applicant.5 After the mediation the Applicant spoke to his solicitor who suggested he go through Fair Work Australia. This was about December 2011.6
[8] The Respondent submitted that the Applicant's reasons for delay were confused. The Respondent characterised the Applicant’s evidence on this point as follows:
Mr Hepburn gave evidence that shortly following the termination of his employment he consulted with solicitors, Maurice Blackburn. That was in early August, in his evidence. He also testified that he was providing with a number of various options, which he could pursue in relation to the termination of his employment, including making an application to this Tribunal.
It could have been an unfair dismissal application, or it could have been a general protections application, we don't know. But Mr Hepburn's evidence, as I apprehended it, was that after he was provided with a variety of options by his solicitors what he chose to do was to raise issues in relation to his workers compensation. And he dealt with the Victorian Workcover Authority and other matters in relation to his compensation.
And, in my submission, you're entitled to draw the inference that what Mr Hepburn was concerned about at the time was the continued preservation of the workers compensation payments which he had been receiving for some period of time prior to the termination of his employment. 7
[9] The Respondent further stated that, to the extent that the Applicant asserted he was confused, there was good authority that ignorance of the law did not constitute an exceptional circumstance and that confusion about the applicable law does not constitute a reasonable explanation for the delay. 8
[10] I find that there was no reasonable explanation for the delay by the Applicant in making his application under s.365 of the Act for the following reasons:
- The Applicant was advised shortly after his dismissal on 25 July 2011 by his lawyers of his options in relation to matters arising out of his employment with the Applicant, including action under the Act in relation to his dismissal;
- the Applicant was advised in or around December 2011 that he should take his dispute in relation to his dismissal through Fair Work Australia;
- The Applicant’s primary reason for delay in making an application under the Act, after having been given advice by his legal representative, was the fact that he was confused. This explanation is not credible given the legal advice given to Applicant and his access to legal advice at the time;
- No other cogent reason was provided for the delay by the Applicant in making an application under the General Protections provisions of the Act.
Action to Dispute the Dismissal
[11] The Applicant stated that the action he took to dispute the dismissal was to go to his solicitor and leave it in their hands. 9 He stated that he did not contact Mr Wainman after the dismissal,10 and did not instruct Maurice Blackman Cashman to file an application on his behalf under the Act.11 The Applicant’s explanation as to the action he took to dispute his dismissal was as follows:
“Well, there was more than one advice - advisory things I could do given, like I have said, there are a number of options what to go through rather than go straight to Fair Work Australia initially. That was all that was left as an option. I wasn't aware of - I may have - going through the confusion of other factors I - I daresay I left it as a last option - Fair Work Australia”. 12
[12] The Applicant agreed in cross examination that he chose to proceed to the Victorian WorkCover Authority first in relation to his dispute about the reduction by the insurer of his workers compensation payments. 13
[13] The Respondent submitted that no action was taken by the Applicant to directly dispute the dismissal with the Applicant. 14
[14] On the evidence, I find that, although the Applicant undertook steps to dispute matters relating to his workers compensation payments, he took no action to dispute his dismissal prior to making his application under s.365 of the Act.
Prejudice to the Employer
[15] The Respondent submitted that prejudice would be suffered by the employer as one of the principal witnesses, who would be called by the Applicant, is now out of the jurisdiction. 15 The evidence of Mr Wainman was that the witness in question, Mr Brad Todd, "resigned from his employment with Costa's in October 2011, to return home to New Zealand".16 I am satisfied, as a consequence of the Applicant’s delay; the Respondent would suffer prejudice in maintaining its defence.
[16] I am satisfied that this is a factor I should give some weight to in determining whether there are exceptional circumstances within the meaning of s.366(2)(c) of the Act.
Merits of the Application
[17] In the letter of termination, dated 25 July 2011 and signed by Mr Wainman, the reason given for terminating the Applicant’s employment was:
“It was reported to me earlier today that on Friday 22nd of July, you asked a fellow employee to run over your foot with his forklift, to which the employee replied “No way”.
Your response to me, “that it was only said in fun” is not accepted, and can only be treated as a serious misconduct in the work place.
For anyone in the work force to request a fellow employee to cause personal harm to them is unacceptable at Costa’s Mitre 10, regardless of that persons age or position within the company, and the same action by any one now or in the future will result in instant dismissal.”
[18] In his evidence, the Applicant alleges that he was subject to bullying and harassment from three employees of the Respondent, that this conduct was engaged in by two of the employees because the Applicant was on light duties under a return to work process following a workplace injury. The Applicant stated that the Respondent dismissed him because of the bullying and harassment. 17 The allegations of bullying and harassment can be summarised, as follows:
- When the Applicant returned to work, after his workplace injury, he was given duties such as painting the toilets; 18
- When the Applicant returned to work, after his workplace injury, he was bullied and harassed by his supervisor Mr Eric Jenkins. Mr Jenkins told the Applicant:
“That he'd spoken to all the other employees and he's told them the same thing, "Not to talk to Chris, not to go near him, he is a ghost, basically, he comes and goes and you don't see him, you don't talk to him". 19
- The payroll officer, called Jackie, who was also responsible for returns to work after injuries, harassed and bullied the Applicant asking him around once every two weeks why he hadn't returned to normal duties. The Applicant referred to an incident when he was working at the Gatehouse and Jackie accused him of being a liar and stated that he should be at work full-time. He stated that she swore at him and Mr Wainman had to separate the both of them and told Jackie to return to her office; 20
- He was harassed by an employee called Brad Todd who came into the warehouse with his forklift. The Applicant was stacking pieces of wood he had cut at the back of the warehouse. He stated Mr Todd came very close to where the Applicant was standing, around less than a foot away. Mr Todd was reversing a forklift blowing hot air on the Applicant and performing doughnuts on his forklift in front of the Applicant. 21
[19] The Applicant stated in cross examination that:
- He did not report the bullying and harassment by Mr Jenkins or Jackie to Mr Wainman. 22
- He told Mr Jenkins that he thought the duties he had been given were not in accordance with this medical certificates but Mr Jenkins ignored this. He did not take the matter further and raise his concerns with Mr Wainman; 23
- He told Mr Wainman on 25 July 2011, the day he was dismissed, about the harassment by Mr Todd; 24
[20] Mr Wainman gave the following evidence in summary:
- He was not aware that the Applicant had been given painting the toilets as part of his modified duties. He was aware that the Applicant had been given duties of working at the security gate and cutting timber; 25
- The Applicant did not complain to him about bullying and harassment by other employees or his supervisor. The first time he was made aware of these allegations was at the hearing; 26
- He was aware of an incident between the Applicant and Jackie. He was near the Gatehouse where the Applicant was working and heard screaming by both parties. This was around four weeks prior to the Applicant's dismissal. He questioned both parties and ascertained that they were both accusing each other of being abusive and lying. He asked Jackie to leave and counselled her regarding her behaviour; 27
- The incident between the Applicant and Jackie played no role whatsoever in his decision to terminate the Applicant's employment; 28
- The Applicant did not raise his allegation of harassment by Mr Todd with him at the meeting on 25 July 2011; 29
- The fact that the Applicant had suffered a workplace injury and was on modified duties played no part in the decision to terminate his employment. 30
[21] The Respondentsubmitted that the Applicant’s case was put on the basis of the unfairness of the decision to dismiss the Applicant rather than matters relevant to the General Protection provisions of the Act. The Respondent submitted that, so far as is relevant, the Applicant‘s case was that he was victimised because of his workers compensation claim. The Respondent conceded that, if the Respondent’s reasons for terminating the Applicant’s employment included his workplace injury or the fact he was on workers compensation payments or on modified duties, this would constitute a breach of the General Protection provisions of the Act. The Respondent submitted, however, that this conclusion was not available on the evidence. The Applicant had not raised the allegation of bullying and harassment with Mr Wainman, either before the date of his dismissal or on the date of his dismissal. Mr Wainman had approached the incident between the Applicant and Jackie fairly. Mr Wainman had denied that neither the Applicant’s circumstances relating to his workplace injury, or the incident involving Jackie had played any role in his decision to terminate the Applicant’s employment.
[22] It is not appropriate to embark upon a fact-finding exercise in relation to the merits of a dismissal in proceedings such as these. I have considered the evidence and submissions of both parties regarding the circumstances leading to the dismissal of the Applicant in the context of the General Protection provisions of the Act. I am not satisfied that the Applicant has a strong case nor am I satisfied that the Applicant's case is without merit and that he has no possibility of success. At most, I find in relation to the merits of the application that it is a neutral factor in determining whether an extension of time should be granted to the Applicant to make the application.
Fairness between Persons in like Positions
[23] As there was no material before me in relation to this factor, I am satisfied that this is a neutral factor considering whether to exercise my discretion under s.366(2)(e) of the Act.
Exceptional circumstances
[24] The exercise of the discretion under s.366 of the Act, to allow a further period for Mr Hepburn to make an application under s.365 of the Act, requires that FWA must be satisfied, on the evidence and material before it, that there are exceptional circumstances taking into account the matters dealt with above.
[25] The meaning of ‘exceptional circumstances’ was considered in detail by a Full Bench in Nulty v Blue Star Group Pty Ltd 31. The Full Bench noted consideration of this phrase by the courts as follows:
“[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 4, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[26] The Full Bench then stated:
“[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 32
[27] In considering the application under s.366(2) of the Act, I have applied the exposition of the meaning of “exceptional circumstances” contained in the extracts from authorities set out in the decision of the Full Bench in Nulty v Blue Star Group Pty Ltd 33. That is, I have adopted the approach that exceptional circumstances requires that there be a combination of factors which together produce a situation which is out of the ordinary, unusual, special or uncommon.
[28] Having regard to all circumstances of this matter, I am not satisfied that the circumstances can be said to be out of the ordinary, unusual, special or uncommon.
Conclusion
[29] Having considered all of the material before and in particular those matters set out in s.366(2) of the Act, I find that there are no exceptional circumstances in this case such that an extension of time for filing the application should be granted.
[30] Consequently, the application for an extension of time is dismissed. An order giving effect to my decision will be issued today.
COMMISSIONER
Appearances:
Mr Christopher Hepburn - Applicant
Mr Joseph D’Abaco - Counsel for the Respondent
Mr Stuart Wainman - Respondent
Hearing details:
Tuesday, 10 April 2012
1 transcript 10 April 2012 at paragraph [79]
2 transcript 10 April 2012 at paragraph [91]
3 transcript 10 April 2012 at paragraph [51]
4 transcript 10 April 2012 at paragraph [52]
5 Transcript 10 April 2012 at paragraph [ 131]
6 transcript 10 April 2012 at paragraphs [143-144]
7 transcript 10 April 2012 at paragraphs [423-425]
8 transcript 10 April 2012 at paragraphs [431-432]
9 transcript 10 April 2012 at paragraph [81]
10 transcript 10 April 2012 at paragraph [82]
11 transcript 10 April 2012 at paragraph [100]
12 transcript 10 April 2012 at paragraph [109]
13 transcript 10 April 2012 at paragraphs [111, 116-122]
14 transcript 10 April 2012 at paragraph [438]
15 transcript 10 April 2012 at paragraphh [441]
16 Witness statement off Mr Stuart Wainman dated 4 April 2012 at paragraph [9]
17 transcript 10 April 2012 at paragraphs [61-63]
18 Ibid
19 transcript 10 April 2012 at paragraph [62]
20 Ibid
21 transcript 10 April 2012 at paragraph [63]
22 transcript 10 April 2012 at paragraph [164]
23 transcript 10 April 2012 at paragraphs [169-174, 262-263]
24 transcript 10 April 2012 at paragraph [188]
25 transcript 10 April 2012 at paragraphs [227-228]
26 transcript 10 April 2012 at paragraphs [232-234
27 transcript 10 April 2012 at paragraphs [239-247]
28 transcript 10 April 2012 at paragraph [248]
29 transcript 10 April 2012 at paragraph [254]
30 transcript 10 April 2012 at paragraph [386]
31 [2011] FWAFB 975
32 [2011] FWAFB 975
33 [2011] FWAFB 975
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