Construction, Forestry, Mining and Energy Union v Crossy's Crane Hire Pty Ltd (t/as Crossy's Crane Hire)

[2013] FWC 8866

[2013] FWC 8866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Construction, Forestry, Mining and Energy Union
v
Crossy's Crane Hire Pty Ltd T/A Crossy's Crane Hire
(C2013/492)

COMMISSIONER BOOTH BRISBANE, 13 NOVEMBER 2013

General protections involving dismissal - out of time.

[1] Mr Mark Turner, who is a member of the Applicant Union, was dismissed summarily on 22 December 2012 from his employment as a crane operator with the Respondent, Crossy’s Crane Hire Pty Ltd, during a telephone conversation with the Respondent’s principal officer, Mr Gary Cross.

[2] Mr Turner says that he was dismissed as a result of his having raised workplace health and safety issues the previous day with Mr Cross, and accordingly applied on 4 April 2013 for a general protections remedy.

[3] The Respondent says that Mr Turner was dismissed for misconduct unrelated to the workplace health and safety report, including abusive language during the telephone call, other conduct detrimental to the Respondent, and loss of trust and confidence in him as an employee.

[4] Mr Turner’s application was made well outside the 60 day time limit that applied at the relevant time. The 60 day limit expired on 20 February 2013, and accordingly the application was brought 43 days out of time.

[5] The Construction, Forestry, Mining and Energy Union (the Applicant) seeks additional time to bring the application. The Respondent resists the application. This decision is concerned solely with the question of whether further time should be allowed in accordance with s.366 of the Fair Work Act 2009 (the Act).

Evidence and Submissions

The Applicant and Mr Turner

[6] The Applicant’s case was supported by statements of Mr Turner and Mr John Schieber who is an organiser with the Applicant, and submissions made on behalf of the Applicant. An affidavit was also filed in a procedural context by Mr Alexander Cousner, an industrial officer with the Applicant.

[7] The Applicant’s assertions in its Form F8 is that:

● Mr Turner was alerted to the dilapidated state of the crane he was operating;

● further, he observed other personnel engaging in unsafe work practices;

● Mr Turner was abused by Mr Cross during the telephone conversation of 22 December;

● Mr Cross referred directly to Mr Turner’s workplace health and safety complaint;

● Mr Cross summarily dismissed Mr Turner during the telephone conversation.

[8] The Applicant submits that Mr Turner was uncertain as to the date of dismissal. Mr Turner in his affidavit says that Mr Cross told him there might be work for him after Christmas. Mr Cross denies this in his further affidavit, swearing that he did not again use the crane Mr Turner had been operating until the end of March 2013 and did not hire an operator until then.

Mr Turner’s medical condition

[9] Mr Turner’s evidence is that he attended on Dr Gadhvi from 1 February 2012. Dr Gadhvi’s certificate dated 6 May 2013, exhibited to Mr Turner’s affidavit, reveals diagnosis of depression, anxiety, agoraphobia and insomnia. Dr Gadhvi treated Mr Turner with Xanax and Zoloft and reported that when Mr Turner presented on 1 February 2013, he was “very confused and low, unable to think clearly and make timely rational decisions”.

[10] The Applicant’s submissions dated 23 October 2013 state at paragraph 17 that Mr Turner is also confronted with “a pending diagnosis of multiple sclerosis” although there is no medical evidence adduced, and no further details, such as when the pending diagnosis was revealed to him. Mr Turner does not mention this pending diagnosis in his affidavit dated 26 October 2013 in which he adverts to his other illness and exhibits the doctor’s letter. Mr Cousner’s affidavit of 1 August 2013 alludes to Mr Turner having a serious medical condition preventing him from participating properly in these proceedings, but that he would return to capacity within 1-2 months. The Respondent’s solicitor said in an email to my Chambers on 22 July 2013 “We understand from Mr Cousner that Mr Turner has recently been diagnosed with multiple sclerosis”.

The Respondent

[11] The Respondent’s submissions were supported by affidavits of Mr Cross, and Messrs Smith (another director of the Respondent), Kotzur (the Respondent’s operations manager), Dempsey and Sizer (both persons who had dealings with Mr Turner).

[12] The Applicant argues that the affidavits of Messrs Dempsey, Sizer and Smith are irrelevant and should be given no weight. In the context of this jurisdictional point, I agree and accordingly place no weight on those affidavits.

[13] The Respondent’s evidence and submissions are that:

● Mr Cross responded immediately to Mr Turner’s complaint and attended personally at the workplace;

● the other personnel were employed by another entity, the operator of the Trinity Bay;

● Mr Cross spoke directly with the Master of the vessel about the issue;

● the crane in question was not defective and was in near-new condition;

● a Certificate of Registration Plant dated 30 January 2013 showed the crane was fit for use at that date (copy attached to the Respondent’s Form 8A);

● Mr Turner had a history of poor relations with the Respondent’s officers and customers;

● Mr Turner was abusive to Mr Cross during the telephone conversation of 22 December;

● Mr Turner was summarily dismissed by Mr Cross during that telephone conversation as a result of misconduct constituted by the abusive language, inappropriate conduct towards clients and other employees, and a breakdown of trust and confidence in him.

[14] The Respondent exhibited a request from Mr Turner’s superannuation fund for employment details in order for the fund to progress a “TPD” claim by Mr Turner. The letter is dated 7 August 2013 and refers to an earlier request of 26 June 2013. No further detail is provided by either party.

[15] Mr Kotzur swears that Mr Turner contacted him three times during January to complain about Mr Cross, offering to return to work immediately, and to advise that he had applied for work with Century Cranes. The Applicant in submissions adopts Mr Kotzur’s evidence that Mr Turner called him three times and relies on that evidence in support of Mr Turner’s taking action to dispute his dismissal.

[16] Mr Cross’ affidavit suggests that Mr Turner was actively seeking alternative employment immediately following his dismissal, although there is no evidence from either party.

[17] Mr Cross’s further affidavit details a conversation he had with Mr Schieber and Mr Kotzur on 27 February 2013 in which it was said by Mr Schieber that Mr Turner had “got an RTA. He’s gone and got training.” No evidence was adduced by either party as to the training, when it was undertaken, and what it entailed. I place no weight on this uncontested evidence for this jurisdictional issue.

[18] During the conversation of 27 February Mr Schieber advocated on Mr Turner’s behalf.

Consideration

[19] The Fair Work Commission’s (the Commission) discretion to extend time arises only if it is satisfied that there are exceptional circumstances taking into account factors stated in s.366(2)(a)-(e). I deal with each in turn.

(a) Reasons for the delay

[20] The Applicant submits that Mr Turner was in no position to give timely instructions to lodge an application due to his depressive state:

This depressive state coupled with the loss of his job before Christmas 2012 meant that Mr Turner was in no position to give instructions or engage in dispute settling procedures under the Fair Work Act.

[21] The Applicant drew my attention to the decision of Deputy President Sams in Micallef v Garfield Child Care Pty Ltd 1(Micallef). In that case, the applicant experienced a medical emergency relating to her pregnancy and was hospitalised. She later filed some 3 days out of time. Deputy President Sams said that a serious medical emergency constituted exceptional circumstances. However Deputy President Sams refused to grant additional time, finding the medical emergency did not sufficiently explain the delay.

[22] There is no evidence before me of a medical emergency of the character in Micallef. The reasons argued are Mr Turner’s depressive state, and the evidence is of depressive illness being treated by a medical practitioner.

[23] I am also conscious of the Applicant’s submissions about Mr Turner’s pending diagnosis of multiple sclerosis. The date when multiple sclerosis was identified is not clear. However, the prime consideration is that Mr Turner had serious medical issues from at least 1 February 2013, but he was able to agitate his case during January and through the Applicant, in late February.

[24] The Respondent drew attention to the well known case of Nulty v Blue Star Group Pty Ltd 2 (Nulty) and to Custo v Norstar Recycling Pty Ltd3. In the latter case, the Commission held that depression and anxiety on Mr Custo’s part (coupled with other factors) were not exceptional circumstances. I note other decisions such as Muir McMeeken v Action Industrial Catering Pty Ltd4, Rose v BMD Constructions Pty Ltd5 and Ballarat Truck Centre Pty Ltd v Kerr6 establish clearly that depression is not of itself exceptional in the Nulty sense. By analogy other on-going medical conditions may fall into the same category.

[25] It is relevant that after being dismissed, Mr Turner agitated his case with Mr Kotzur in January, and through the Applicant’s organiser on 27 February. He also apparently actively sought alternate employment. I place no weight on uncontested and untested evidence such as the training to attain an “RTA” or apparent dealings with his superannuation fund.

[26] On balance, I conclude that Mr Turner was capable of progressing his application in a timely way. On his own evidence and the Applicant’s submissions, he was able to agitate his case with Mr Kotzur and then instruct the Applicant, despite his illness. I am not satisfied that his illness constitutes sufficient reasons for the lengthy delay nor that it establishes exceptional circumstances.

(b) Action taken to dispute the dismissal

[27] The Applicant points to Mr Kotzur’s evidence as supportive of Mr Turner disputing his dismissal. I am satisfied that he did in fact take steps to dispute the dismissal in its immediate aftermath. There is no particular evidence of other disputation over the 103 days until the application was lodged. This factor is neutral.

(c) Prejudice to the employer

[28] The Respondent does not argue prejudice, and none is discernible on the materials.

(d) Merits of the application

[29] The Applicant’s case for general protections relies on the assertion that Mr Turner was dismissed for exercising a workplace right, specifically, making a workplace health and safety complaint. There is little doubt that dismissal for such a reason would found a claim for general protections.

[30] The Respondent contends it dismissed Mr Turner for misconduct unrelated to the complaint.

[31] The version of events which is correct is answerable only in hearing the substantive matter. It cannot be said on the material before me that the Applicant’s case is bound to fail, unarguable or devoid of merit, even if formidable evidentiary hurdles would need to be overcome. This factor is neutral.

(e) Fairness as between the person on other in like position

[32] Neither party argues fairness, and this factor is neutral.

Conclusion

[33] The Applicant seeking an extension of time in a matter bears the onus of satisfying the Commission that there are exceptional circumstances before the discretion in s.366 is enlivened.

[34] I have found that Mr Turner’s illness does not constitute exceptional circumstances for the purposes of the section. Other factors are neutral.

[35] Accordingly exceptional circumstances are not established and no extension of time can be given. The application has been filed out of the time allowed by the Act and is dismissed.

COMMISSIONER

 1   [2013] FWC 5447

 2 (2011) 203 IR 1

 3   [2012] FWA 8278

 4   [2012] FWAFB 5933

 5   [2011] FWA 673

 6   [2011] FWAFB 5645

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