Dean Carter v Kentz PL T/A Kentz PL

[2017] FWC 1144

[2017] FWC 1144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Carter
v
Kentz PL T/A Kentz PL
(U2016/14796)

COMMISSIONER PLATT ADELAIDE, 28 FEBRUARY 2017

Application for relief from unfair dismissal – extension of time – application dismissed.

[1] Mr Dean Carter has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Kentz Pty Ltd T/A Kentz Pty Ltd (Kentz) which took effect on 5 September 2016.

[2] The application was lodged on 12 December 2016.

[3] Mr Carter’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“I was on stress leave for 2 weeks and diagnosed with depression and put on anti depressants on 22 Aug 2016 and spent the next 2 months seeing a psychologist. I was having major anxiety and stress issues which manifested into anger issues in the months leading up to going on stress leave. At the time of being sacked, I sent an email questioning my dismissal. I was in no mental state to investigate challenging the decision due to my mental state. Due to the medication I am now taking I am now able to process the fact I was unfairly dismissed.”

[4] On 8 February 2017, my Associate corresponded with Mr Carter and Kentz and advised that the extension of time issue would be considered at a telephone conference on 22 February 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, was provided to the parties. Mr Carter was directed to provide a statement concerning the extension of time and any documents to be relied upon by 16 February 2017. Kentz was invited to file any material in reply by 20 February 2017.

[5] Kentz filed an F3 Employer’s Response on 22 December 2016 and raised a jurisdictional objection on the basis that the application was lodged out of time and the dismissal was a genuine redundancy. This decision deals only with the out of time issue.

[6] Mr Carter provided a written submission summarised as follows:

• He worked at Barrow Island and was evacuated from that location on 17 August 2016 due to his medical condition. This was supported by material which indicated that Mr Carter accessed support via the Kentz Employee Assistance Program between 19 August 2016 and 7 October 2016 which included consultations with two psychologists.



• He has been diagnosed with depression and was placed on a mental health plan.



• His medication changes his personality by dulling his emotions and lowering his anger and anxiety.



• His condition was attributed to his poor financial position, disputes with a credit reporting agency (VEDA), and the breakup of his family unit.



• It is only since the antidepressant medication and counselling sessions have taken effect that he was able to make this claim. Mr Carter provided details of his medications.



• Mr Carter supplied two medical certificates, the first dated 22 August 2016 which stated that he was suffering from stress and would be unfit for work between 22 August and 28 August 2016, the second dated 5 September 2016 which stated he had a medical condition and was unfit for work from 6 September to 12 September 2016.



• Mr Carter supplied a tax invoice which suggested he under took Myotherapy (remedial massage) on 26 August 2016.



• Mr Carter supplied emails written to himself about how he felt on 2 September 2016, on 4 February 2017 and 10 February 2017.

[7] Kentz provided a written submission summarised as follows:

• Kentz opposes the extension of time to lodge the claim.



• Mr Carter was employed as an electrician and was involved in the instrumentation, construction and commissioning of the Gorgon Project at Barrow Island.



• Progressive completion of the major components and the number of personnel has been achieved and the number of personnel required continues to reduce.



• Kentz commenced demobilisation of its employees in May 2016 with 2179 roles, out of 3500, being demobilised as at 14 October 2016.



• Consultation in respect of the demobilisation process commenced on 27 May 2016.



• Mr Carter was advised of his demobilisation on 6 September 2016.



• On 12 December 2016, Mr Carter lodged this application.



• Mr Carter’s position that he was unable to lodge a claim for the entire 21 day period after his dismissal is not supported by any medical evidence.



• The application was lodged 76 days after the time limit expired.



• The applicant took no action to contest his dismissal.



• No ‘exceptional circumstances’ exist.

[8] A hearing was conducted by way of telephone conference on 22 February 2017. A sound file record of the telephone conference was kept.

[9] At the telephone conference, Mr Carter expanded on the material filed and advised that at the time of his dismissal he was suffering from stress and anxiety as a result of a dispute with VEDA concerning his credit worthiness. Mr Carter contended that after his employment was terminated he was unable to deal with his dismissal or his credit dispute until he recovered in December 2016 when he lodged his claim.

[10] At the telephone conference Mr Twomey on behalf of Kentz contended that there were no exceptional circumstances and reiterated the written submissions.

[11] At the conclusion of the hearing, Mr Carter asked for time to submit additional medical information. The Commission allowed Mr Carter until 12:00pm Friday 24 February 2017. On that date he sought a further extension and was advised that any further material needed to be submitted by 12:00pm on Monday 27 February 2017. Mr Carter was advised that the material needed to relate to his medical condition and how that condition prevented him from lodging his application by telephone, online or by post.

[12] Mr Carter supplied a large amount of material, much of it concerning his credit worthiness dispute with VEDA. One of the documents supplied by Mr Carter was a photograph of Mr Carter’s Gmail account which indicated that he exchanged a number of emails with VEDA and some finance institutions in October and November 2016 concerning his dispute and attempts to have his credit record corrected.

[13] In terms of medical information, Mr Carter submitted a letter signed by Dr Manohar dated 24 February 2017 which stated that he had attended to Mr Carter on 22 August 2016, 12 September 2016 and 26 October 2016 at which time Mr Carter was described as stable. The letter advised that Dr Hong had seen Mr Carter on 20 August 2016, and Dr Fong had extended Mr Carter’s medical certificate on 28 August 2016. Mr Carter also provided consultation notes of his three EAP psychological consultations in August/September 2016. Other than the reference to Mr Carter being stable, the additional medical information provided does not advance his position that he was unable to lodge an unfair dismissal application until December 2016. In fact, his email communications with VEDA on 10 and 20 October 2016 and 2, 3 11, 16 and 23 November 2016 is a contradiction of this contention.

[14] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[15] Mr Carter’s unfair dismissal application was made 77 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[16] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, 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.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances 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. 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” 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.”

[17] Mr Carter contends that he was unable to lodge an unfair dismissal application because of his medical condition which prevented him from confronting the issues at hand.

[18] The supporting medical evidence consists of medical certificates which cover the period 22 August to 28 August 2016 (pre-dismissal) and 6 September to 12 September 2016 (the period immediately post dismissal). There is no medical evidence as to Mr Carter’s capacity to lodge a claim after 12 September 2016. I note that Mr Carter continued to access medical support until 26 October 2016. Other than the reference to Mr Carter being stable, the additional medical information provided does not advance his position that he was unable to lodge an unfair dismissal application until December 2016.

[19] Putting Mr Carter’s case at its highest, I accept that he was suffering from stress and anxiety to the point that he was unfit for work until 12 September 2016.

[20] There is no medical evidence about Mr Carter’s condition for the period from 26 October (at which time he was described by his doctor as being stable) until 12 December 2016. Mr Carter’s email communications with VEDA on 10 and 20 October 2016 and 2, 3, 11, 16 and 23 November 2016 indicates that he was in a position to contest his dismissal prior to 12 December 2016.

[21] There is no evidence as to why Mr Carter could not lodge his application by telephone, online, in person or by post from 26 October 2016 and as such Mr Carter has not provided a credible explanation for the entire period of the delay. 2

[22] Kentz submits that the granting of an extension of time represents prejudice, as many of the witnesses who would have been called have now also been demobilised, the delay is considerable, and I consider this as a matter which weighs against the respondent.

[23] Consideration of fairness relative to other persons in similar positions does not support an extension of time.

[24] In terms of the merits of the application, based on the information before me, it appears that Kentz was in a redundancy process, however, there is a dispute as to the order in which employees were selected for demobilisation. Accordingly, I have regarded the merits as a neutral factor.

Conclusion

[25] For the reasons I have set out above, I am not satisfied that Mr Carter’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Carter, on his own behalf.

Mr Twomey, on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

February 22.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 3   PR590558

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<Price code C, PR590557>