Edward Manns v Miwatj Employment and Participation Ltd T/A Mep

[2016] FWC 2764

[2016] FWC 2764

FAIR WORK COMMISSION

DECISION

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

Edward Manns
v
Miwatj Employment and Participation Ltd T/A MEP
(U2015/16737)

COMMISSIONER WILSON MELBOURNE, 4 MAY 2016

Application for relief from unfair dismissal - whether extension of time should be granted.

[1] This matter concerns an application made by Edward Manns alleging unfair dismissal against his former employer, Miwatj Employment and Participation Ltd, trading as MEP.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3).

[3] Mr Manns’ application to the Fair Work Commission was first received in the Fair Work Commission by email on 14 December 2015. The application advises a date of dismissal being 18 September 2015, with that date also being the date upon which the dismissal took effect. The Respondent’s reply suggests that the date of termination was instead 22 September 2015. Having heard the evidence of the parties I am satisfied that Mr Manns’ dismissal took place on Friday, 18 September 2015. It is apparent from these dates that the application is some 66 days out of time.

[4] In this decision, I have considered whether an extension of time should be granted to Mr Manns for the making of his application, and for the reasons set out below I am not satisfied that a further period should be allowed for the making of his application.

[5] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[6] MEP objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[7] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Mr Manns, the Applicant, and the evidence and submissions on behalf of MEP, which includes the oral evidence of its Chief Executive Officer, Jeremy Kee.

Background

[8] Mr Manns’ employment with MEP started in early 2014, with Mr Manns putting forward in his application that it started on 17 February 2014, and MEP indicating the commencement of employment was 6 January 2014. Despite the inconsistency the parties are broadly agreed that Mr Manns then worked for MEP from early 2014 until the time of his dismissal in September 2015.

[9] MEP is a community owned indigenous employment service based in Nhulunbuy and the nearby community of Yirrkala in the Northern Territory. While Mr Manns was initially engaged to teach computer skills, the job altered over a period of time to become that of an employment consultant. Mr Manns says that he became a permanent full-time employee from about January or February 2015 and that he was principally engaged as an employment consultant after that time. That job required him to speak with other consultants as well as dealing directly with clients of MEP.

[10] Nhulunbuy and Yirrkala are in East Arnhem Land, in a remote part of the Northern Territory, and Mr Manns both lived and worked there.

[11] In June 2015 Mr Manns was involved in an altercation at a nearby Community Centre. Other than in general terms, the precise circumstances of that altercation have not been detailed to the Commission, however there is sufficient evidence for me to find that it involved other employees of MEP as well as Mr Manns, and that arising out of the altercation there were several developments material to Mr Manns’ employment. These included that there was an investigation conducted into the circumstances of the matter including his behaviour; and that Mr Manns attended his general practitioner who referred him for a mental health review.

[12] The particular event was on or around Sunday, 28 June 2015. Mr Manns apparently also complained that his conduct was explicable, in part at least, to bullying against him by a co-worker. He also conceded that he had been impaired by alcohol at the time.

[13] The Respondent puts forward that it investigated the circumstances of the event and did not find bullying against Mr Manns. Instead, the Respondent's submissions are that the investigation had concluded Mr Manns was “misrepresenting a reasonable approach by his colleague to calm him down”. 3 The investigation concluded some interventions were needed to assist Mr Manns’ ongoing employment. These included a request that he agree to and sign a return to work plan which consisted of the following;

“Edward,
The series of events that have led to this Return to Work Plan have been very serious. You must recognise that you have made a mistake; that your behaviour has overstepped the line and that full responsibility for resolution and reformation must lie with you.

Before returning to work, you must:
1) Attend a psychological assessment to confirm that you are ready to return to work.
2) Commit to accessing professional help on a weekly basis to address issues of depression and anger-management for the next three months. This assistance can be accessed during work hours.
3) You must deliver an apology to [name] and [name] for your behaviour on the night of 28th June 2015, and inform them of your plan to change.

Your continued employment will be dependent on:
1) Continued accessing of professional help on a weekly basis to address issues of depression and anger-management for the next three months.
2) Continued professional and polite interactions in the workplace with all staff.

MEP is happy to work with you to continue your employment, but this support is completely dependent on your commitment to improving your behaviour. MEP can't help you if you can't help yourself.” 4

[14] Mr Manns agreed to and signed the plan. In effect, the return to work plan reads as a warning about future employment, with the matters warned about going to Mr Manns’ control of aggressive behaviour to others.

[15] On 11 September 2016 there was a further incident, about which the Commission does not have full details, but which led the Respondent to initiate a further discussion with Mr Manns about his conduct. The incident is referred to within the Applicant’s unfair dismissal application, with him submitting that “the new regional coordinator falsely accused me of yelling at a client”. 5

[16] The Respondent submits that the matter was investigated by its Operations Manager on the same day including through conducting interviews with Mr Manns and witnesses. The incident led to it issuing what is referred to as a “verbal warning of the intention to terminate employment” 6 being given on 18 September 2015. However that claim isinconsistent with the matters discussed in oral evidence which allows a finding that Mr Manns was informed on 18 September 2015 that his employment had ended. In this regard, I take into account the following;

• Mr Manns’ application refers to the termination taking place on 18 September 2015. That date is consistent with his evidence.



• Whereas the termination letter provided to Mr Manns refers to a termination date of 22 September 2015, and the Employment Separation Certificate is signed and dated 22 September, it refers to his employment having ceased on 18 September 2015. It appears from Mr Kee’s evidence that a mistake occurred when preparing the letter and certificate and that the termination date was 18 September 2015.

[17] Having been dismissed on Friday, 18 September 2015, the last day an unfair dismissal application could be lodged for it to be within time would have been Friday, 9 October 2015, while it was actually lodged on Monday, 14 December 2015, meaning that the application is 66 days out of time.

Legislation

[18] For the purposes of s.396 of the Act,Mr Manns is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances.

[19] In considering whether an extension of time should be granted to Mr Manns, I am required to consider all of the criteria in s.394(3), which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[20] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 7 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.8 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.9

[21] Mr Manns puts forward several factors as being relevant to and which could, either singularly or in conjunction, form the reason for the delay in the making of his unfair dismissal application.

[22] The first matter that he puts forward is an illness stemming from depression and anxiety. The material upon which Mr Manns relies in this regard includes a medical certificate issued by his general practitioner in February 2016, which refers to a review of Mr Manns conducted by her on 1 July 2015. That review was undertaken shortly after the first altercation with work colleagues that the Community Centre. The practitioner advises that she had referred Mr Manns for an urgent mental health review in July 2015 as she was concerned about his mental state. She records that he was particularly distressed due to negative interactions with work colleagues. Mr Manns puts forward that his poor mental state continued throughout the remainder of his employment and afterwards.

[23] The second matter referred to by Mr Manns is his lack of knowledge about the 21 day lodgement period for the making of an unfair dismissal application. In this regard he connects his lack of knowledge with his illness saying that “if I had been sound of mind I would have researched this on-line and I would have proceeded accordingly”. 10

[24] Thirdly, Mr Manns puts forward that he had been bullied in the workplace for some time, which left him in a negative frame of mind.

[25] These matters are crystallised in a submission made by Mr Manns to the Commission in relation to these proceedings, which sets out the following;

“The fact that I was being bullied in the work place had me in a negative frame of mind for quite some time. I however did not instigate or exacerbate the situation. I tried very hard to get along with my work colleague with her incessant demands for me to aid her with her work load to the point that our supervisor felt compelled to ask her not to add to my responsibilities. This however did little to ease the situation and I eventually spoke to Jeremy Kee. All he did was add to the bullying after I was assaulted by his friend, my colleague's partner, outside of the work place, by manipulating my efforts to seek mental health advice, which I sought without his coercion, and eventually terminating my position.

To add insult to injury, once I had been dismissed Jeremy visited me at home on the pretence that he was concerned about me asking me if I had found employment elsewhere. I informed him that I planned to apply for a similar position in another office and due to the fact that he expressed concern I asked him if I could use him as a reference. His reply did not help my mental state at all as he informed me that I could however I had to realise that he is honest. In other words he made it clear to me that he would make sure that I could not apply to any work positions in Nhulunbuy where we live. This spiralled me into a deep depression to the point that I did not leave my room during the next couple of months. I did not eat with my family or speak to anyone for quite some time.” 11

[26] A further factor raised by Mr Manns is that given where he lived, and given the work of the Respondent, having been dismissed by MEP and then being unable to obtain any other employment he was required to become a client of MEP, in order to access the usually available unemployment benefits. He sought, and still seeks, to maintain a good relationship with MEP, which at the time appears to have led to some reluctance on his part to challenge his dismissal.

[27] In any event, his evidence is that it was one of the MEP counsellors who mentioned to him that he could make an unfair dismissal application. Although he later conceded that he was broadly aware that there was a right of redress for unfair dismissal, he did not know how to contact the Commission or that there was a timeframe associated with making such applications. He subsequently made the application to the Fair Work Commission on the same day that he learned of the avenue.

[28] In the circumstances I find that the reason for the delay is Mr Manns’ lack of knowledge of the unfair dismissal system, connected with his state of health.

[29] Those matters in themselves are not unusual circumstances or acceptable reasons for the delay in making an unfair dismissal application. Neither do they, in conjunction, rise to an acceptable reason for the delay, which is considerably 66 days.

[30] As a result of this circumstance I consider an acceptable reason has not been put forward for the delay in Mr Manns making an unfair dismissal application. Accordingly this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.

2. Whether the person first became aware of the dismissal after it had taken effect

[31] As set out above, I am satisfied that Mr Manns first became aware of termination of his employment when he was dismissed on Friday, 18 September 2015. This is therefore not a circumstance where Mr Manns only became aware of his termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[32] Mr Manns’ evidence about the actions taken by him to dispute his termination of employment is that it consists entirely of making the application for unfair dismissal to the Commission.

[33] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

4. Prejudice to the employer (including prejudice caused by the delay)

[34] The delay in the filing of the application is 66 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[35] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 12

[36] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[37] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[38] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 13

[39] The merits of the application to which Mr Manns refers are that MEP was mistaken when it made decisions about his conduct, adverse to him, instead of making findings in his favour about his own complaints of workplace bullying.

[40] In the circumstances, I am not fully in a position to evaluate the merits of Mr Manns’ application. My consideration of this factor is therefore a neutral one.

6. Fairness as between the person and other persons in a similar position

[41] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 14

[42] In applying the facts of Mr Manns’ matter to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that there had been some process of diligent inquiry or dispute by him not long after the dismissal. However, this was not the situation. Accordingly consideration of this criterion also resolves against the Applicant.

[43] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making his unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period to Mr Manns for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of his case but also to the criteria set out within s.394(3) of the Act.

[44] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Fair Work Act and will issue an order dismissing Mr Manns’ application as being out of time.

COMMISSIONER

Appearances:

Mr E Manns on his own behalf

Ms C Tate (paid agent - SME Assistance Group) and Mr J Kee for the Respondent

Hearing details:

2016.

Melbourne (by telephone):

12 April.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 3   Exhibit R1, Form F3 – Employer Response, item 3.2.

 4   Exhibit R2, Respondent’s Submission, annexure MEP1.

 5   Exhibit A1, Form F2 – Unfair Dismissal Application, item 3.2.

 6   Exhibit R1, item 3.2.

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

 8   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

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

 10   Exhibit A2, Applicant’s Submission, [2].

 11   Ibid [3]-[4].

 12   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 13   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 14   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

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