Ebbott v FMSA

[2010] FWA 2177

[2010] FWA 2177

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Greg Ebbott
v
FMSA
(U2009/11473)

COMMISSIONER CRIBB MELBOURNE, 17 MARCH 2010

Termination of employment – jurisdiction - extension of time.

[1] This decision arises from an application by Mr Greg Ebbott (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by FMSA (the respondent). The dismissal took effect on 14 July 2009. The application was lodged with Fair Work Australia (FWA) on 21 August 2009 which is outside the statutory time limit for such an application.

[2] The application was the subject of a conciliation conference but the matter did not settle.

[3] The respondent objects to the extension of time being granted. A hearing was held on 2 October 2009. The applicant represented himself, appearing via videolink to Perth. The respondent was in Melbourne and was represented by Mr M McKenney, of counsel. The applicant gave oral evidence as did Mr R Botterill, Construction Manager and a Director of the respondent.

THE EVIDENCE

The Applicant

[4] The applicant, during cross examination, indicated that he did not have personal knowledge of work continuing on in relation to the neighbourhood renewal programme at Wendouree, Ballarat after 30 June 2009 except what he had been told in his discussion with construction managers. 1 He said that he had last visited the site in early July 2009 when he went to say goodbye to everybody.2 Mr Ebbott stated that his last working day with the respondent was late June and that he had been on sick leave during the two week notice period as he did not wish to go into the workplace where he had been bullied by the Director.3

RESPONDENT

Mr Botterill

[5] It was confirmed by Mr Botterill that he was the Director in charge of the Department of Human Services (DHS) Neighbourhood Renewal Programme in Wendouree, Ballarat. He stated that the applicant had been employed in relation to the programme in an administration role.

[6] Mr Botterill said that he had been advised, verbally, in January or February 2009 by DHS that the project would cease on 30 June 2009. 4 It was explained that the original project had been for three years but they had been able to extend it for a number of years. Written advice from the Office of Housing was tendered.5 The advice confirmed that the Wendouree West neighbourhood renewal project was completed on 30 June 2009 with no further funding to be provided.6 Further, the email said that the Delacombe neighbourhood renewal project was currently on hold with a feasibility study to make recommendations for future works. No further work would be undertaken until after the report’s recommendations had been approved.7 It was Mr Botterill’s evidence that the applicant had worked on both projects but that he had not done a lot of work on Delacombe because funding had stopped quite early.8

[7] It was recounted by Mr Botterill that the Wendouree project had ceased on 30 June 2009 except for some cleaning up. Mr Botterill explained that there were “little bits of invoices” and retention money to pay. 9 It was stated that payment of retention money involved an inspection of the work six months after the project had been completed. He confirmed that there had been a few problems with the work over the last three months. It was said that they were mainly due to work that the applicant did or did not do correctly. This had required a person to deal with them, probably half a day twice a week.10

[8] With respect to any indications given to the applicant that the work would cease, Mr Botterill said that he had told the applicant on two occasions that work was finishing in Wendouree and Delacombe on 30 June 2009 and that, if he could not run the job in Sebastopol, there would be no work for him from 30 June 2009. 11

SUBMISSIONS

Applicant

[9] The applicant submitted that there were a number of reasons for his application being late. The first was that he was distressed about being bullied and subsequently terminated and without a job. The second reason concerned his girlfriend of two years becoming pregnant. It was stated that they found this out in late May 2009 and that she had had a high risk pregnancy – a threatened miscarriage in June 2009 with bed rest until the end of July 2009 requiring the applicant to look after her and, late August / September 2009, cervical surgery followed by bed rest with the applicant again looking after her. Mr Ebbott expressed great concern about his girlfriend’s and the baby’s well being. 12 It was also explained that the third reason related to the passing away of his grandmother (aged 100) with whom he was very close, on 25 July 2009. He said that he had had to help his father organize the funeral.

[10] Mr Ebbott stated that this period of his life had not been the best and that he was distressed and devastated – being dismissed, looking after his girlfriend and his grandmother dying. He said that his whole life had been changed around and that he had had to move back to Perth. 13 Mr Ebbott gave evidence that he had not wanted to make the application but felt that it was unreasonable and unfair for the respondent to get away with bullying someone as they had him.14 Further, he said that he had been working on the DSE Sebastopol project and that Mr Botterill had unfairly bullied him out of it – “He had no right to do what he [did]”.15

[11] With respect to disputing his dismissal, the applicant indicated that, because he had been bullied, as soon as he was given his two weeks’ notice, he did not want to be at the respondent any more. 16

[12] It was stated that he had been given no verbal warnings. He recounted that there was talk about the projects finishing and that the company was going to re-tender for projects for the next financial year. Mr Ebbott said that the DHS work might not have been continuing but that the company just had to tender for the DSE Sebastopol project which he had been working on. He recalled that he was still being trained at the time eg an OHS training course a few months previously. 17

[13] The applicant outlined that there were five directors of the company and that he had been employed by the senior director, Mr Martin. He said that, as soon as Mr Botterill decided he wanted to be part of the project that he (the applicant) was working on, Mr Botterill had ignored him for two weeks and then given him two weeks notice. Mr Ebbott stated that Mr Botterill had had no right to sack him as he was not involved, operationally, in his work. It was said that he had reported to Mr Martin. 18

[14] In terms of the 20 day estimating training course at the Master Builders Association, it was recalled by the applicant that it had been approved by Mr Martin on the basis that he could attend as long as he caught up on his work in his own time (the course was two days a week). Mr Ebbott said that he had written to Mr Martin complaining about Mr Botterill’s bullying behaviour towards him. It was recounted that Mr Martin’s response had been that Mr Botterill was stressed and to forget about it. The applicant said that he felt that, as soon as he wrote the letter, there was going to be trouble. He stated that Mr Botterill had threatened him a few times and had told him not to go to Mr Martin or anyone else with complaints about him. In addition, Mr Ebbott explained that Mr Botterill had been “plain rude” in meetings on the Sebastopol project and had blamed him for problems that were not his. 19

[15] It was the applicant’s belief that Mr Botterill “… bullied me, it’s that simple, bullied me at a very difficult time in my life”. 20 Further, the applicant held the view that Mr Botterill had not liked him from the very beginning and said that, as soon as Mr Botterill got the chance to work with him “… that’s when this vendetta started against me and it’s just totally unfair. It’s wrecked my career. I’ve had to come back to Perth. I feel like I can’t work in the industry in Melbourne…”21

[16] The applicant stated that he had had no complaints from any of the other directors, including Mr Martin, who was in charge of the projects he was working on. 22

Respondent

[17] Mr McKenney, on behalf of the respondent, noted the change in the legislative requirements from 21 days to 14 days with respect to the requirement for the lodgement of unfair dismissal applications. It was said that the application was made 24 days out of time – almost double the new prescribed time limit. 23

[18] Further it was stated that another change was that there now had to be exceptional circumstances for the granting of an extension of time. The meaning of “exceptional circumstances” was submitted to be “quite unique or extraordinary or unusual”. 24

[19] It was submitted by the respondent that the bar had been placed higher under the Fair Work Act and that the Tribunal was required to apply the Brodie-Hanns principles in the context of whether there are exceptional circumstances in each case. 25

Acceptable explanation for the delay

[20] It was argued that the reasons given by the applicant, relating to personal matters, did not prevent him from lodging an application within the prescribed period. The applicant was said to believe that certain things had occurred during his employment which had upset him and to be dismissed could also be distressing, as well as the other personal issues he raised. However, it was contended that the applicant was in no different position to other employees who, for varying reasons, were also terminated. And, the legislation prescribed a time limit of 14 days. Further, the reasons given were said to not be causative of the delay in the lodging of the applicant’s application. In addition, it was submitted that the reasons given, albeit personally distressing, do not prevent the lodging of an application. 26

[21] With respect to when the applicant first become aware of the dismissal, it was noted that Mr Ebbott’s application recorded that he was aware on 30 June 2009 that his employment was to be terminated. The respondent stated that, on 12 May 2009 and 9 June 2009, the applicant was told that the work that he had been originally engaged in (the Wendouree project) would end on 30 June 2009. In addition, it was said that the applicant was also told that, unless he could adapt to other duties, there would be no work for him after 30 June 2009. Therefore, it was argued that, earlier than but certainly at 30 June 2009, the applicant was aware that his employment was to be terminated. 27

Any action taken

[22] It was noted that Mr Ebbott had not addressed this principle in his submissions. Mr McKenney stated that his instructions were that the applicant had accepted that his employment was going to end. 28

Prejudice to the employer

[23] The respondent contended that it had been prejudiced by the delay. It was stated that Mr Botterill, who had terminated the applicant’s employment, would be a key witness for the respondent. Given his high workload and geographic breadth of responsibility, there was prejudice to the respondent based on the significant time and resources that would be required of Mr Botterill. In support of this submission, Mr McKenney argued that an employer should not be lightly put to the cost and inconvenience of defending an application lodged out of time. 29

Merits of the application

[24] It was stated that the applicant had been employed in October 2008 to administer a particular project – the Wendouree neighbourhood renewal project. The respondent said that the job had been in place for at least six years prior to the applicant’s employment. It was recounted that Mr Botterill was advised by DHS, in January/February 2009, that no further funding would be provided for works beyond 30 June 2009. Mr McKenney referred to the email from Mc McIlroy regarding the ending of funding for the Wendouree project. 30 It was argued, therefore, that the applicant’s position was redundant as of 30 June 2009.

[25] With respect to the requirements of s385 of the Act, the respondent submitted that there had been a dismissal and that it clearly was a genuine redundancy. This was due to the employer no longer requiring the job to be done by anyone. It was stated that no-one had been engaged to replace the applicant. Therefore, it was argued that the Tribunal was not dealing with an unfair dismissal because s385 expressly excluded cases of genuine redundancy. Accordingly, it was submitted that the application had no merit. 31

[26] In the alternative, the respondent contended that, following advice that the Wendouree project was ending, attempts were made to redeploy the applicant in different roles. However, it was the respondent’s view that the applicant was unable to perform other duties satisfactorily eg the DSE Sebastopol work. Mr McKenney’s instructions were that the applicant was unable to read drawings and did not understand the processes involved. Further, there were complaints from a client which necessitated Mr Botterill taking on that job. Therefore, in the alternative, there was a valid reason for the applicant’s dismissal due to his incapacity to perform other work. In support of this contention, the warnings / discussions with the applicant, on 12 May 2009 and 9 June 2009, where he was warned about unsatisfactory performance, were highlighted. 32

[27] With respect to the training courses, it was argued that the employer had attempted to provide the applicant with additional skills. However, the applicant was said to have been unable to perform other work satisfactorily. 33

[28] Mr McKenney stated that it was not disputed that the applicant was employed to work on the Wendouree project nor that he was advised that the project would come to an end. Therefore, it was argued that, as the project came to an end with no further funding being provided, the applicant’s position was no longer required. It was contended that the Tribunal could only but find an absence of merit in the application. 34

[29] The respondent submitted that the concerns of the applicant, albeit serious and personal concerns, did not affect his capacity to lodge an application. This, together with the delay being almost double the prescribed time limit, would not amount to “exceptional circumstances”. 35

CONCLUSIONS

[30] Section 394(2) of the Act provides:

“(2) [Standard time limit] The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).”

[31] Section 394(3) provides:

“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

Reasons for the delay – s 394(3)(a)

[32] The applicant provided three reasons for the delay in lodging his application – distress from having been bullied at work then being dismissed and without a job; his girlfriend’s high risk pregnancy and the necessity to care for her, together with great concern regarding his girlfriend’s and baby’s health, and the death of his grandmother with whom he was very close.

[33] It was argued by the respondent that there was no causativelink between the personal matters and the failure to lodge the application within time. They were said to not have been an impediment to the timely making of the application.

[34] I have considered carefully all of the material before me and I find that the applicant has not provided an acceptable explanation for the delay. During the hearing, it was very evident that the applicant was most upset and distressed about what had happened during his employment with the respondent and subsequently. However, difficult and awful as that time was, with sympathy for the applicant regarding those personal matters, I do not accept that it prevented the applicant from lodging an application within time.

Aware of the dismissal – s 394(3)(b)

[35] On the basis of the evidence which has been presented, I find that the applicant was aware of the dismissal prior to 30 June 2009.

Any action taken – s 394(3)(c)

[36] Mr Ebbott does not appear to have taken any action to dispute the dismissal other than make an application for an unfair dismissal remedy.

Prejudice to the employer – s 394(3)(d)

[37] Taking into account all of the material before me, I find that there is no prejudice to the employer other than the usual prejudice which accompanies any grant of an extension of time.

Merits of the application – s 394(3)(e)

[38] It was submitted by the respondent that the applicant was dismissed on the grounds of redundancy. This was due to either the Wendouree project for which he was employed ending due to a cessation of its funding by DHS or that the applicant was unable to be redeployed to other work because he was unable to perform it satisfactorily.

[39] The applicant’s view was that work on the Wendouree project was still continuing beyond 30 June 2009 and that Mr Botterill had bullied him out of the company even though he was being trained to perform other work eg the Sebastopol project.

[40] Even after sworn testimony from the applicant and Mr Botterill, there is still a conflict in the evidence regarding whether there was other work which the applicant could have performed satisfactorily. The authorities make it clear that it is not appropriate for the Tribunal to undertake a fact finding exercise in relation to the merits of a dismissal for the purpose of determining an extension of time application. Therefore, it is not possible to say that the application is without merit due to the factual conflicts in the material before me.

Fairness as between the applicant and others – s 394(3)(f)

[41] This factor is not relevant in this matter.

Exceptional circumstances – s 394(3)

[42] After having taken account of all of the factors set out in s 394(3), I am not satisfied that there are exceptional circumstances such that I should exercise my discretion and extend the period for lodgement of this application.

[43] The application is dismissed.

[44] An order to that effect will be issued separately.

COMMISSIONER

 1   Transcript PN 296 - 324

 2   Ibid PN 326 - 328

 3   Ibid PN 325

 4   Ibid PN 217 – 219 and 258

 5   Exhibit R1

 6   Transcript PN 221 - 228

 7   Ibid PN 244 - 245

 8   Ibid PN 230

 9   Ibid PN 261

 10   Ibid PN 261 - 264

 11   Ibid PN 255 and 220

 12   Ibid PN 16

 13   Ibid PN 353

 14   Ibid PN 17

 15   Ibid PN 353

 16   Ibid PN 43

 17   Ibid PN 52 and 353

 18   Ibid PN 53 - 54

 19   Ibid PN 55 - 56

 20   Ibid PN 57

 21   Ibid PN 59

 22   Ibid PN 82

 23   Ibid PN 90-91

 24   Ibid PN 92

 25   Ibid PN 93

 26   Ibid PN 94 - 98

 27   Ibid PN 99 - 102

 28   Ibid PN 104 - 105

 29   Ibid PN 107 - 109

 30   Exhibit R1 and Ibid PN 112 - 114

 31   Transcript PN 114 - 120

 32   Ibid PN 121 - 126

 33   Ibid PN 127 - 129

 34   Ibid PN 133 - 134

 35   Ibid PN 136 - 142

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