Craig Kennerly v Firesafe Group T/A Firesafe United Group

[2015] FWC 1694

[2015] FWC 1694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Kennerly
v
Firesafe Group T/A Firesafe United Group
(U2015/184)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Craig Kennerly alleged that the termination of his employment by Firesafe Service and Maintenance Pty Ltd on 11 December 2014 was unfair.

[2] His unfair dismissal application lodged on 14 January 2015 was not made within 21 days of the date of the dismissal.

[3] At the hearing on 20 February 2015, I refused Firesafe permission to be represented by a lawyer. Firesafe had assumed that Mr Kennerly would be represented by his union. However, Mr Kennerly represented himself. It was submitted that permitting Firesafe to have legal representation would enable the matter to be dealt with more efficiently. However, I did not consider that an extension of time application raised any issues of any particular complexity.

[4] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Are there exceptional circumstances?

(a) the reason for the delay;

[5] In his application, Mr Kennerly said that the reason for the delay in lodging his application was due to the shut down period and his representative taking holidays over the Christmas period.

[6] In his submissions filed with the Commission, Mr Kennerly said that the delay was caused by ongoing negotiations with his employer which were conducted by his union representative Mr Bintley. He further submitted that Mr Coffey from the union’s national office was on annual leave from 19 December 2014 to 12 January 2015 and he was not available to assist the state officials. He further submitted that the State and National offices of the union were closed in this period.

[7] Mr Kennerly gave evidence that he instructed Mr Bintley to lodge an application for him on 13 December 2014. He said that his representative was unfamiliar with the process and needed to speak to an industrial officer in Melbourne. He said he thought the application had been lodged before Christmas. In answer to the question of when he provided the detailed information provided in answer to question 3.2 of the application form, he said it had been just before Christmas or just after New Year. Mr Kennerly said that he completed the form and sent it to the union who sent it back to him in early January 2015. He was not sure of the exact date.

[8] Mr Bintley, the State Secretary of the Plumbing Division of the CEPU, gave evidence that Mr Kennerly asked him to file an unfair dismissal application immediately after he had been dismissed. Mr Bintley said he got the paper work and sent it to the industrial officer in Melbourne who advised that he needed more information. Mr Bintley said he contacted Mr Kennerly for the additional information and sent the form back to Melbourne on 14 or 15 December 2014. He expected that the application would have been lodged. He gave evidence that he did not find out it had not been lodged until the national office reopened.

[9] It is clear that Mr Kennerly instructed his union to lodge his application form well before the 21 days had expired. It is surprising that an official of Mr Bintley’s standing was unaware of the procedures associated with unfair dismissal matters. It is also very surprising that an industrial officer having been instructed to lodge an unfair dismissal application for a member dismissed in early December 2014, would go on leave without ensuring the application had been lodged.

[10] However, whatever the fault of the representative, it is Mr Kennerly’s conduct that must be considered. I find he instructed his union to lodge his application. I further find that he could not have taken any steps between 19 December 2014 and 12 January 2015 to make enquiries of his union representatives as they were unavailable.

[11] I find in all the circumstances that Mr Kennerly’s representative’s failure to lodge his application in time, despite his instructions for it to be done, weighs in favour of granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[12] Mr Kennerly was aware of the dismissal when it occurred and he therefore had the full 21 days to lodge his application. This weighs against granting an extension of time.

(c) any action taken by the person to dispute the dismissal;

[13] Mr Kennerly disputed the reasons for the dismissal but did not take any other action to dispute the dismissal. This weighs against granting an extension of time.

(d) prejudice to the employer (including prejudice caused by the delay);

[14] Firesafe did not point to any prejudice apart from having to defend the unfair dismissal claim. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[15] Firesafe submitted that Mr Kennerly’s claim had no prospects of success.

[16] Mr Adrian Yeoman gave evidence about the reasons for the dismissal. Mr Kennerly had been injured at work and was participating in a rehabilitation program which involved him working at an external placement. Mr Yeoman said that Firesafe needed to make an assessment of whether Mr Kennerly could perform his role safely. Mr Yeoman advised Mr Kennerly that he would be assessed by an independent medical practitioner, Dr White.

[17] Ms Tanya Bryan also gave evidence about the events that lead to the termination of Mr Kennerly’s employment.

[18] Ms Bryan and Mr Yeoman both gave evidence that Mr Kennerly was aware that Firesafe was considering terminating his employment because he was not fit to do his job.

[19] Dr White had access to a medical report from Mr Erak, an Orthopaedic Surgeon, dated 3 October 2014, which stated that Mr Kennerly was ready to return to most of his normal duties but would struggle with stairwells (up to 25 flights of stairs). Dr Patel provided a workcover medical certificate dated 3 October 2014 which recommended restrictions, namely avoiding kneeling, and unrestricted stairs/steps. Dr Bowles, Mr Kennerly’s medical practitioner, on 7 August 2014 reported that he could return to full time work. Dr Bowles concluded that he was not considered suitable for “kneeling duties...repetitive use of stairs or being up ladders.” A full recovery was not anticipated.

[20] Dr White performed an assessment on 11 November 2014 and concluded that Mr Kennerly was not fit to return to his normal duties for the foreseeable future due to a significantly diminished functional capacity and increased risk of injury. His restrictions included heavy manual handling and repetitive squatting/kneeling/crouching.

[21] As a result, Firesafe decided to terminate Mr Kennerly’s employment because he could not perform his job as a Mechanical Tester and there was no suitable alternative employment.

[22] Mr Kennerly tendered a report from Mr Erak dated 30 January 2015 in which he disputed a number of Dr White’s findings and advised that he considered Mr Kennerly was fit for his pre-injury duties with no restrictions.

[23] There are clearly factual differences between the parties in relation to whether Mr Kennerly was fit to perform his work.

[24] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, I am unable to conclude that Mr Kennerly’s claim has no prospects of success. This weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[25] It was submitted that “the plethora of case authorities is overwhelming to show that discretion is not exercised to extend time for unfair dismissal applications in these types of circumstances. To exercise the discretion here would be unfair to other persons in a similar position.”

[26] I do not accept this submission. The cases relied upon to support this submission did not involve persons in a similar position to Mr Kennerly.

Conclusion

[27] I conclude that there are exceptional circumstances warranting the granting of an extension of time. There was no reason for Mr Kennerly to believe that his representative had failed to lodge his application. As the union office was shut until 12 January 2015, there was nothing he could do to follow up with his representative.

[28] His union had been remiss in its obligation to Mr Kennerly, but he should not be required to pay the price of its negligence.

[29] As I have found that there are exceptional circumstances, I will exercise my discretion and extend the time for Mr Kennerly to lodge his application until 14 January 2015.

DEPUTY PRESIDENT

Appearances:

C. Kennerly on his own behalf.

T. Bryan for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link.

20 February.

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