Dennis Obel v Central Desert Regional Council

[2020] FWC 4740

[2020] FWC 4740

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Dennis Obel
v
Central Desert Regional Council
(C2020/3745)

COMMISSIONER YILMAZ MELBOURNE, 3 SEPTEMBER 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time denied.

[1] On 20 May 2020 at 7:43am ACST, Mr Dennis Obel lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against the Central Desert Regional Council (CDRC). Mr Obel was engaged as a CDP Activity Supervisor in the Willowra community; he commenced employment in October 2018 and his employment was terminated on 28 April 2020.

[2] Mr Obel submits his employer terminated his employment because he breached the organisation’s Code of Conduct and policies when he failed to report a series of incidences. He also submits his termination of employment, access to a vehicle and change in his position constitute adverse action in contravention of s.340 workplace rights and s.351 discrimination based on disability. The contravention of workplace rights concerns his complaints and/or enquiries concerning threats by the Respondent to issue a warning, unpaid wages, change to his job without consultation, complaints against him, access to a motor vehicle and 4WD training, work health and safety issues and alleged discrimination. 1

[3] CDRC submit that Mr Obel was dismissed after receiving a first and final written warning followed by a show cause process relating to his failure to follow lawful and reasonable directions.

[4] CDRC opposes the general protections applications, submits the termination of employment is not in contravention of the general protections’ provisions of the Act and further objects to the extension of time.

[5] Both parties were self-represented.

[6] I scheduled the extension of time hearing for 9 July 2020 and as Mr Obel failed to comply with directions within the timeframe by filing further materials after the due date, a further hearing date was scheduled for 16 July 2020.

[7] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 1 day after the 21-day statutory time limit.

Applicant’s submissions

[8] Mr Obel submits he lived in Council housing from October 2018 in Lajamanu then moved to Willowra Community from 17 July 2019 and continued to live in Council housing until his termination of employment. Mr Obel’s contract of employment provides access to Council subsidised accommodation.

[9] On 8 November 2019, Mr Obel received a first and final warning in relation to a breach of the Central Desert Regional Council Code of Conduct and Work Health and safety Policy. This warning specifically concerned Mr Obel reporting to his supervisor that he was subject to an act of client aggression, and his supervisor instructing him to complete an incident report. Again, on 4 November 2019, Mr Obel reported a further incident to a co-worker which allegedly was so serious he closed the Willowra CDP office and again did not provide an incident report despite being requested to do so. The warning also refers to two prior incidences where Mr Obel failed to file incident reports, with one incident relating to an injury sustained by his direct report. The letter confirms that failure to comply will result in further disciplinary action which may include termination of employment. 2

[10] On 16 April 2020, Mr Obel received a show cause letter concerning an allegation that he wilfully, deliberately and repeatedly failed to follow lawful direction which is a breach of Council policy and Code of Conduct. This letter relates to advice that his supervisor temporarily redeployed Mr Obel due to the COVID-19 pandemic. Mr Obel subsequently sought clarification from human resources which confirmed that normal duties had ceased temporarily and therefore other meaningful duties were assigned. In that conversation it was also communicated to Mr Obel that he may opt to take leave or apply for leave without pay. Mr Obel took a period of leave then failed to attend for duties as assigned on 9 April 2020 at 8.00am. Mr Obel then advised human resources on 15 April 2020 that the duties were causing him discomfort and took it upon himself to seek alternative duties at Willowra aged care. Despite instructions to report to the Manager of the Works Team, Mr Obel advised the Manager he would not be attending for duties and instead will work in aged care. Mr Obel was given until 22 April 2020 by the Respondent to respond to the show cause letter.

[11] On 27 April 2020, Mr Obel responded to the show cause letter.

[12] On 28 April, Mr Obel received a letter of termination, effective immediately, due to his failure to follow lawful directions.

[13] Mr Obel submits the disciplinary process was flawed, the directions were not lawful, and during his employment he suffered injuries consequently, the behaviour towards him contravened his workplace rights in terms of:

•  S.340 Protection of Workplace Rights, and

•  S.351 discrimination was breached in relation to his disability.

Respondent’s submissions

[14] CDRC tendered its Code of Conduct which states that employees must comply with any lawful and reasonable direction given by someone within Council who has the authority to give that direction. 3 It is submitted that Mr Obel had a supervisory position and was familiar with its policies and Code, despite this, he had not followed lawful directions which led to his termination of employment.

[15] CDRC submits Mr Obel was reminded of his obligations a number of times and added that his previous warning concerned failure to follow directions to file incident reports.

[16] CDRC submit that Mr Obel did not follow process to report incidences of alleged injuries sustained by him. Further, a worker’s compensation claim lodged by Mr Obel was rejected by the insurer. In relation to other allegations of adverse action, CDRC disputes these.

[17] CDRC contends that Mr Obel had not demonstrated exceptional circumstances warranting the granting of an extension of time in relation to his general protections’ application, that the allegations are baseless and submit the matter should be dismissed.

Consideration

[18] General protections applications involving dismissal must be made within 21 days.

[19] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[20] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 4 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 5

[21] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[22] The general protections involving dismissal application was lodged with the Commission on 20 May 2020, 1 day late.

[23] Mr Obel suggested his application was filed on time given the time difference in the Northern Territory, or alternatively, if it was late, the lateness in time is insignificant.

[24] Mr Obel submits the reason for the delay is because he was abruptly dismissed which required effort to pack up his belongings, find alternative accommodation, settle the requirements associated with Council accommodation and due to the remoteness of the location, internet and mobile telephone connectivity was unreliable.

[25] Mr Obel submits he had difficulty finding accommodation in Alice Springs and commenced on his application on 19 May 2020. He further submits that as he was filing the application immediately before the deadline “the system returned an error”. Mr Obel also refers to a separate external legal matter that put pressure on him. 6

[26] CDRC disputes Mr Obel’s reasons for the delay on the following grounds:

•  At the time of the termination of employment Mr Obel was given 2 weeks in lieu of notice, and a period of two weeks to vacate his accommodation. It also submits that at the termination meeting, Mr Obel was informed that further time to vacate accommodation can be accommodated should he request it. It does acknowledge that should Mr Obel have requested an extension, the rent which is normally subsidised at $25 per week would have increased.

•  The house in which Mr Obel resided had fully subsidised internet.

•  Council regularly employs staff to remote aboriginal communities and standard accommodation terms apply. These terms are clearly explained to staff prior to commencement as part of their contract of employment.

•  Other remote Councils in the Northern Territory charge higher rents and do not allow extensions to vacate premises. Mr Obel was experienced in remote living and was engaged from 8 October 2018 to 30 June 2019 in Lajamanu before commencing on 1 July 2019 in Willowra.

•  Mr Obel provided no evidence of technical failure in filing the application. 7

[27] Mr Obel submits the termination was abrupt and immediate. This is not an accurate description, Mr Obel had been warned previously concerning failure to follow directions and he replied to a show cause letter on 27 April 2020. His response showed no remorse, instead he challenged all allegations and facts and noted his mitigating circumstances as his personal debts. To suggest a termination of employment was sudden or unexpected is inaccurate. Further while the termination of employment took effect immediately, he had two weeks before he was required to vacate his accommodation.

[28] Mr Obel submits his vacating of premises could be characterised as a “mini project”, his explanation does not align with the evidence that the accommodation is fully furnished and that he had vacated premises and settled in within a day when he transferred between the two remote communities in 2019. I do not accept that Mr Obel had no time to work on his application at that time.

[29] Mr Obel’s submissions concerning the unreliability of internet access and lack of access can be characterised in two periods. Firstly, Mr Obel had access to internet and phone services for the two weeks while still in Willowra. Secondly, Mr Obel had access to internet services when he returned to Alice Springs. He had organised accommodation before returning to Alice Springs and he submits for the period of 14 - 15 May 2020 he stayed at the Mercure Hotel. Mr Obel makes reference to driving 420 kilometres to pick up keys from a friend to gain access to his friend’s unit, and I accept it is reasonable that he did not have access to the internet on 15 May 2020. However, I do not accept the explanations as reasonable for the period Mr Obel relies on to explain his delay.

[30] Mr Obel submits he experienced a technical error when filing his application on 19 May 2020. He does not provide any evidence of this error message being received. Mr Obel bears the onus to demonstrate a credible explanation for the delay.

[31] Further I observe that Mr Obel admits to taking his first steps in filing his application on the deadline. Evidence in this matter concerning Mr Obel’s failure to comply with deadlines includes his responding to the show cause letter (5 days late) and complying with the Commission’s directions (two days late) and then submitting further unapproved materials after the deadline (19 days late). Mr Obel provided no credible explanations nor regret for failure to comply with any of the abovementioned deadlines.

[32] In extension of time matters while the delay after the 21^st day is to be considered, the period prior to the 21^st day is relevant as to whether there are exceptional circumstances. 8 While the application is late by a day, Mr Obel relies on the period of 21 days from termination of employment to explain his delay. Consequently, I have taken into consideration his explanations.

[33] There must be a credible reason for the delay. 9 Having regard to Mr Obel’s submissions and evidence, I am not satisfied that he demonstrated credible reasons regarding this consideration. I consider the reasons given for the delay do not weigh in his favour.

Steps taken to dispute the termination

[34] Mr Obel submits he questioned or argued against his dismissal after he became aware of it. In this regard he refers to emails he allegedly sent to his employer on 22 and 28 April 2020 advising that he would pursue legal action. Relying on this alleged correspondence, which was not tendered, Mr Obel submits CDRC were aware he would lodge an application. 10

[35] In response, CDRC state that Mr Obel did not take steps to dispute the dismissal with them but acknowledge Mr Obel’s communication of April relating to the show cause letter which was provided when he was still an employee. Further in relation to this point Mr Obel stated:

[29“…It argues the termination of my employment occurred on 28 April 2020 while the letter was written on 22 April 2020.

[30] This statement is correct but the argument is flawed. I personally understood final dismissal as a culmination of several events orchestrated by the Employer post-injury from November 2019.

[31] it was predictable and only a matter of time the Employer would terminate my employment.” 11

[36] Mr Obel tendered in his attachments to his outline of argument emails sent to Ward Keller on 7 May 2020 and the ASU on 17 – 21 April 2020, although these relate to his response to the show cause letter rather than advice or steps to challenge the termination of employment decision.

[37] Not only do these submissions confirm that no action was taken by Mr Obel to challenge his termination of employment when he became aware of it until he filed this application, it is also inconsistent with his submissions concerning delay where he states the dismissal was abrupt and immediate, causing significant inconvenience to meet the statutory timeframe.

[38] No action, other than filing an application under the Act goes against the granting of an extension 12.

[39] This consideration does not weigh in Mr Obel’s favour.

Prejudice to the employer

[40] Mr Obel submits that granting an extension of time will not cause CDRC disadvantage or unfairness.

[41] CDRC submit that the lateness has caused ‘disadvantage in terms of significant administrative burden, meaning an increase in time and resources to respond to it, resulting in significant financial cost incurred by Council’. 13 Further, CDRC submit the reasons relied by Mr Obel are personal in nature and Council should not have to bear the consequences of his personal decisions.

[42] While I accept that an extension may be an inconvenience, the application is not a long delay. The onus is on the Respondent to demonstrate prejudice, however, I note the submissions of the parties concerning each of the considerations I am required to take into account, including reasons for the delay and merit. I consider in this matter that while prejudice has not been satisfactorily demonstrated, disadvantage is evident.

[43] Consequently, while I am not satisfied that CDRC demonstrated prejudice, and in line with established precedent, even the mere absence of prejudice is an insufficient basis to grant an extension. Therefore, I consider this to be a neutral factor.

Merits of the application

[44] The parties dispute the circumstances leading to the termination of employment.

[45] Mr Obel submits that he was not dismissed for failure to follow lawful and reasonable directions, but rather because:

•  he was injured on 4 November 2019, and CDRC did not take responsibility for further risk of injury, instead he received a warning sometime later

•  he made workplace complaints in or around September or October where a co-worker threatened he would be warned

•  in or around September 2019 to 6 March 2020 he raised complaints regarding workplace violence, his quarterly review, official vehicle use and workplace discrimination

•  he complained about his first and final warning letter

•  on or around 9 April he complained about change to his contract of employment without his agreement, he also states this diminished the status of his role and eliminated his direct reports

•  on or about 15 April 2020 he complained regarding his health and safety

•  as he did not file a work health and safety application “contrary to his promises he would” the employer took advantage of the expiry of the 90-day timeframe

•  his vehicle was given away to another work colleague, and

•  as he complained about discrimination he had his training cancelled. 14

[46] However, CDRC submits:

•  The injury sustained on 4 November 2019 relates to a workers’ compensation claim, where the employer reported to the insurer the results of its own investigations where Mr Obel provided conflicting reports including that the injury was self-inflicted. The insurer subsequently independently investigated Mr Obel’s claim and rejected liability.

•  Despite the rejection of the workers compensation claim, Mr Obel’s duties were restricted consistent with medical advice until he was medically cleared to resume his full duties.

•  CDRC submit Mr Obel never made complaints using the formal complaint system consistent with Council policy. CDRC describe Mr Obel’s “complaints” as his responses to disciplinary procedure or inquiries. CDRC provided a sample of email correspondence regarding use of vehicle and 4WD training. This correspondence shows that Mr Obel did not comply with the restricted duties per his medical advice and the 4WD training was not provided legitimately as Mr Obel was not cleared to drive a motor vehicle.

•  Mr Obel’s complaints regarding motor vehicles and failure to submit a work health and safety report are examples of his failure to follow Council policy.

•  CDRC disputes that Mr Obel at any point either during employment or post, a complaint of discrimination.

[47] In relation to Mr Obel’s submission that his contract of employment was amended without his agreement and therefore is a repudiation 15, this is not a matter tested in these proceedings. Requiring that CDRC admit to liability is a separate matter to a contravention of general protections and therefore I have given no weight to those submissions.

[48] However, Mr Obel also challenges that directions to perform duties during the COVID-19 restrictions are unlawful and unreasonable and his challenge and refusal to perform those duties is a ground for his argument of contravention of general protections is not properly articulated. Presumably, Mr Obel is suggesting refusal to perform those duties is his workplace right as he states the duties place him in harms way. There was no evidence that any of the duties required of Mr Obel were in breach of health and safety laws or placed him at imminent risk. His refusal to perform redeployment duties or pick and choose what he wanted to do was not his decision to make. CDRC provided submissions concerning the impact of COVID-19 and the steps taken by the CEO to redeploy staff to keep them usefully employed rather than being stood down. Mr Obel did not suffer injury as his salary and all other terms and conditions remained. I observe that Mr Obel contends he did not disobey lawful directions, yet Mr Obel’s work history, relied on by CDRC for the termination of his employment, included the requirement to report for duty with the Council Service Delivery Centre at 8.00 am, yet he turned up at 9.15am because he chose to look at his emails and have his breakfast during paid work time, failed complete workplace injury incident reports and drove a vehicle when medically restricted from doing so.

[49] While the evidence tendered is contested, it is not tested at an extension of time hearing, nevertheless I cannot conclude that on balance that Mr Obel demonstrated a meritorious application. The evidence of the existence of policies, emails and correspondence provided weighs in favour of the submission that Mr Obel failed to comply with reasonable and lawful management directions.

[50] In relation to merit I do not find in Mr Obel’s favour.

Fairness between the person and other persons in a like position

[51] Mr Obel submits there are no people he can compare with and that this consideration is irrelevant. 16

[52] CDRC submit that procedural fairness afforded to Mr Obel was greater than what is afforded to any other employee.

[53] Neither party addressed this consideration adequately in respect to the circumstances of this case. Consequently, I find this consideration neutral.

Conclusion

[54] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar.

[55] On balance of all the considerations, the circumstances do not weigh in favour of Mr Obel.

[56] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Mr D. Obel for himself

Ms I. McCreevy for the Respondent

Hearing details:

2020
Melbourne (by telephone)
9 July and 16 July

Final written submissions:

Applicant – filed 6 July 2020

Respondent – filed 10 July 2020

Printed by authority of the Commonwealth Government Printer

<PR722511>

 1   Applicant’s form F8 at Q 3.3.

 2   Applicant’s outline of argument attachment letter of 8 November 2019, and attachment to the Respondent’s outline of argument.

 3   Respondent’s outline of argument attachment 2 - Code of Conduct.

 4   [2011] FWAFB 975.

 5 Ibid at [13].

 6   Applicant’s outline of argument at Q1d and applicant’s legal submissions [15-20].

 7   Respondent’s outline of argument at Q1f.

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

 9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 10   Applicant’s outline of argument at Q1e.

 11   Applicant’s legal submissions [29-31].

 12 Brodie-Hanns v MTV Publishing Limited [1995] 67 IR 298.

 13   Respondent’s outline of argument at Q1g.

 14   Applicant’s outline of argument at Q1h and applicant’s legal submissions [56-90].

 15   Applicant’s legal submissions [74-78].

 16   Applicant’s outline of argument at Q1i.