Edward Doyle v SNP Security Limited

[2013] FWC 9867

[2013] FWC 9867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edward Doyle
v
SNP Security Limited
(U2013/14161)

DEPUTY PRESIDENT BOOTH SYDNEY, 18 DECEMBER 2013

Termination of employment - alleged unfair dismissal - application for an extension of time.

Background

[1] In or around 2007, having retired some years earlier from a career in the public service, Mr Edward (Eddie) Doyle (the Applicant) undertook a training course in security services. Following his course, and after obtaining the relevant accreditation, at the age of 74 he was employed by SNP Security Limited (SNP Security) as a security guard at Eora College of TAFE in Redfern, NSW, where SNP Security held the contract to provide security services. In 2012, a colleague made a complaint about him to Eora College management. After an unsuccessful attempt to resolve the matter internally, Eora College management advised their contractor, SNP Security, of the complaint and asked them to remove the Applicant from the college.

[2] Following the matter being referred to them by Eora College management in September or October 2012, SNP Security sought to investigate the matter. In accordance with their standard procedure they stood him down with pay during this process. After two weeks of investigation, in early November 2012, SNP Security invited the Applicant to attend a meeting to discuss the matter and advised him that he would be transferred to a role at the University of Sydney. The Applicant did not attend the meeting indicating that he was not well and provided SNP Security with a medical certificate to this effect. He did not take up the role at the University of Sydney.

[3] Seven months went by and during this time he exhausted his accrued personal leave and annual leave. A claim for workers’ compensation was denied by the insurers. SNP Security’s attempts to contact the Applicant’s doctor or to obtain a return to work date from the Applicant were unsuccessful.

[4] On 27 May 2013, SNP Security wrote to the Applicant inviting him to attend a meeting on 30 May 2013 to discuss his return to work. The meeting ended inconclusively and on 5 June 2013 SNP Security wrote to the Applicant terminating his employment effective from 4 July 2013.

[5] On 1 October 2013, the Applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act2009 (the Act).

[6] The Applicant and SNP Security attended a telephone conciliation on 12 November 2013 but it was unsuccessful.

[7] SNP Security object to the application on the grounds that it was lodged out of time by 68 days. Section 394(2) of the Act requires an application for an unfair dismissal remedy to be lodged 21 days after the date the dismissal took effect. To be within time the application would have had to have been lodged on 25 July 2013. It was lodged on 1 October 2013 or day 89 after the date his dismissal took effect.

[8] The Applicant accepts this and makes an application for an extension of time.

[9] The Applicant appeared, and gave evidence, on his own behalf before me on 3 December 2013. SNP Security was represented by Mr Ward, Employee Relations Manager and Mr McCreadie, Account Manager, Protective Services Division, gave evidence on behalf of SNP Security.

Extension of time

[10] Section 394 of the Act provides that an application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows pursuant to s.394(3). The whole of s.394 is reproduced below:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.

[11] In exercising my discretion in relation to this application I am mindful that when time limitations are set in legislation the applicant for an extension of time has the onus to demonstrate that an exception to the time limit ought to be granted. The Act makes it clear that an extension of time may (my emphasis) be granted by the Commission if there are exceptional circumstances, that is, the judgement to be made is still the Commission’s to make.

[12] Justice McHugh’s decision in the High Court judgement in Brisbane South Regional Health Authority v Taylor (Brisbane South Regional Health Authority case) 1 in an appeal against a judgement in the Court of Appeal of Queensland that had allowed an appeal against a decision of the District Court of Queensland to refuse an extension of time in which to commence an action makes the point clearly. He says at page 554:

“Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion.” 2

[13] So it is in this jurisdiction. There are certain matters set out in s.394(3)(a) to (f) that I must take into account in determining whether I am satisfied that there are exceptional circumstances, however, I must then apply my discretion as to whether an extension of time should be granted. In the words of McHugh J in the Brisbane South Regional Health Authority case I must decide whether “justice will be best served by excepting the particular proceedings from the general prohibition”.

[14] The Applicant claims that he has no memory of anything between the time of his dismissal in July 2013 and the lodging of his application in October 2013. He claims he cannot remember lodging the application. He advances no occurrences during the period that prevented him from lodging his application save his depression and the medication he was taking prescribed by his psychiatrist Dr Robert Hampshire.

[15] He provided a letter from Dr Hampshire in the following terms:

“Dear Sir

Re: Mr Edward DOYLE 24.11.1935

Mr Doyle has been a patient of mine since a severe motor vehicle accident in 2008.

During this time he has worked consistently and reliably, other than for a period straight after the motor vehicle accident when he was both physically and psychologically unwell.

Throughout this time he unfortunately developed what is now a chronic and moderately severe Post Traumatic Stress Disorder with comorbid depression and recurrent panic attacks. These problems were compounded somewhat with the death of his beloved wife in November 2011. Despite this however, Mr Doyle has continued to work and in fact his work has been a very important factor in him remaining well and able to cope. During this last year the above conditions have certainly not improved, and in fact if anything have deteriorated somewhat. In my opinion these conditions would have inevitably left Mr Doyle unable to deal with SNP Security, conducting the high level negotiations and discussions required of him by his employer.

At no time, even until today’s interview has he understood the fact that his employment has been terminated, or as to the reasons why he has been terminated. If you require further information or clarification concerning Mr Doyle’s psychiatric illnesses I have his permission to take your calls.

Yours sincerely,

(Signed)

Dr Robert B Hampshire M.B.B.S. F.R.A.N.Z.C.P.

Consultant Psychiatrist”

[16] His submissions and evidence were lucid and precise. His memory of the period leading up to being stood down in November 2012 was clear. He consulted his union, United Voice on several occasions and he assumes he lodged his application in this matter at the behest of his union but he cannot remember. At the age of around 78 he presented as a fit, healthy and feisty applicant. He could not tell me his exact age, in response to my question “How old are you now?” he replied “78, I believe. I go to a lot of trouble not to remember.” 3

[17] In all the circumstances it is difficult to accept that he was prevented from lodging his application by 25 July 2013 when it is clear that he consulted his union and was living independently albeit suffering from an illness that I do not understate the significance of.

[18] Dr Hampshire states that as at 25 September 2013 the Applicant did not understand that his employment had been terminated or the reasons why his employment had been terminated.

[19] I believe that the Applicant did not accept the reason why his employment had been terminated. His submissions and evidence made clear his belief that it was unfair, indeed unconscionable, that he was stood down then terminated in the wake of a complaint that he was never given full and complete details of nor the opportunity to contest. I can understand his outrage and accept that it contributed to his state of mind. However it is also clear that SNP Security dismissed him effective 4 July 2013 because for a period of seven months he did not return to work or provide any indication of whether he was willing or able to return to work.

[20] Whilst I note and have had regard to Dr Hampshire’s opinion set out above, I find it implausible that the Applicant did not know his employment had been terminated when he attended a meeting and received a letter soon thereafter stating as much. His submission in relation to this was:

“One of the problems with depression, you become not fully engrossed in anything happening to you, like letters from SNP, or emails, or anything like that. That completely just went over my head. The depression, one of the side effects of it is, you just don’t care.” 4

[21] I accept that the Applicant may have been diminished in his capacity to respond to his dismissal but on the submissions and evidence before me I cannot conclude that he was prevented from doing so, rather, he simply did not do so. This circumstance is not exceptional – it is sad and regrettable, however in my opinion it is not “out of the ordinary course, or unusual, or special or uncommon” to use the words of the Full Bench of Fair Work Australia, the predecessor to the Commission, in Cheyne Leanne Nulty v Blue Star Group Pty Ltd. 5

[22] SNP Security contend that they would be prejudiced by an application proceeding over five months from the dismissal and a year after the Applicant last worked. However notwithstanding the time period, because the case turns on facts that are on the record, namely the Applicant’s absence from work for seven months and uncertainty in relation to his return, I do not think that SNP Security would suffer any hardship that does not usually attend the conduct of an unfair dismissal case.

[23] However in the light of his absence from work for seven months and uncertainty in relation to his return I think that the likelihood of the Applicant being successful in obtaining an unfair dismissal remedy, particularly reinstatement, which is his wish, is remote. This is a relevant consideration in my exercise of discretion and weighs against my granting him an extension of time to proceed with his case.

[24] The Applicant clearly relished his role at Eora College. He received awards of recognition for his service and enjoyed the support of those who wrote references for him, which he tendered in this matter. The Applicant has much to be proud of and my conclusion in relation to his application does nothing to diminish this. It simply is not to the point of whether he should be granted an extension of time.

[25] There is no other person or persons in a similar position so this factor is not relevant to this matter.

Conclusion

[26] Taking into account all the circumstances of this case, and considering the matters I am required to take into account pursuant to s.394(3)(a) to (f) of the Act I have decided against granting the Applicant an extension of time in relation to his application. His application is dismissed. An order will issue with this decision.

DEPUTY PRESIDENT

Appearances:

E Doyle, the Applicant

G Ward for SNP Security Limited

Hearing details:

2013.

Sydney:

December 3.

 1 (1996) 186 CLR 441

 2   Ibid. at 554

 3   Transcript PN143

 4   Ibid. PN25

 5   [2011] FWAFB 975

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