Eric Owenhall v Aerocare Flight Support Pty Ltd T/A Aerocare

[2018] FWC 2478

[2018] FWC 2478

The attached document replaces the document previously issued on 4 May 2018.

The citation in paragraph 39 has been corrected to refer to the Full Bench decision [2018] FWCFB 3893.

Associate to Commissioner Platt

Dated 7 May 2018

[2018] FWC 2478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Eric Owenhall
v
Aerocare Flight Support Pty Ltd T/A Aerocare
(C2018/791)

COMMISSIONER PLATT ADELAIDE, 4 MAY 2018

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

Summary

[1] Mr Owenhall has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Aerocare Pty Ltd (Aerocare Flight Support Unit Trust) on 23 January 2018 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 14 February 2018.

[3] Mr Owenhall’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“Due to being unwell and my disability I was unable to attend to lodging of this claim within the 21 day deadline due on the 12th February 2018. I have provided a medical certificate dated the 13th February 2018 from Dr Janak Jayatilake for the period from 12 February 2018 to 13 February 2018 who also provided me with prescription on the day.”

[4] The Respondent filed a form F8A Employer Response on 27 February 2018 which indicated that the dismissal occurred on 23 January 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time and that the listed employer was incorrect.

[5] On 2 March 2018 the parties corresponded with the Commission and consented to the Respondents being amended to refer to Aerocare Flight Support Pty Ltd. Pursuant to s.586 of the Act, I allow the Respondent’s name to be amended to Aerocare Flight Support Ltd (Aerocare).

[6] This decision deals only with the extension of time issue.

[7] A conciliation conference was conducted on Monday 26 March 2018. The matter did not resolve. I note that Mr Owenhall provided a written submission for the purposes of the conciliation conference, due to the confidential nature of that conference I have not reviewed this submission.

[8] On 5 April 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 17 April 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. The parties were directed to provide material in support of their positions by Thursday 12 April 2018.

Submissions

[9] On 12 April, 2018 Mr Owenhall provided a written submission which is relevantly summarised as follows:

•  He was advised on 23 January 2018 that he would be dismissed and the dismissal took effect that day.

•  His application was due to be made by 13 February 2018 however at the beginning of February he fell ill from an ongoing medical condition. At the time he was due to submit the application he was taking medication which had a sedative effect and that made him lethargic and unable to concentrate or do anything but sleep.

•  Mr Owenhall saw his doctor, Dr Jayatilake, on 13 February 2018 and was prescribed antibiotics and a medical certificate. The original medical certificate provided was amended by Dr Jayatilake to read “he will be unfit to continue his usual occupation due to his ongoing [medical condition]”.

•  Mr Owenhall contended he disputed the dismissal at his termination meeting where he said he will be lodging a claim in Court, he was in the process of supplying the information to his lawyer and that he thought he had been discriminated against.

•  Mr Owenhall submitted that Aerocare had not been prejudiced by the delay.

•  Mr Owenhall submitted he was dismissed not because of alleged deficiencies in his work performance but that he had suffered a workplace injury and further had been discriminated against.

•  Mr Owenhall submitted a medical certificate dated 13 February 2018 from Dr Jayatilake which stated he was unfit to continue his usual occupation on 12 and 13 February 2018.

•  A referral letter dated 2018 which detailed his medical history and treatment.

•  An email from Ms Salemahomed dated 11 April 2018.

•  A letter from Gallager Bassett dated 22 March 2018 which refers to a workers compensation claim.

•  A text message dated 19 January 2018.

•  A copy of a Visitor Pass in the name of Mr Owenhall.

•  A copy of an access pass in the name of Mr Owenhall.

•  A transcript of the termination of employment meeting on 23 January 2018.

[10] On 16 April 2018 Mr Owenhall provided an additional submission which provided:

•  A copy of a medical certificate dated 16 February 2018 from Dr Armstrong which indicated that Mr Owenhall was admitted to a hospital for a medical condition and would not be suitable for work on 16 February 2018.

•  A discharge summary from the hospital dated 16 February 2018 detailing a medical diagnosis.

[11] I note that this information relates to event which occurred after the application had been lodged. I received his material over the objection from Aerocare on the basis that the material was provided late.

[12] On 12 April 2018 Aerocare provided a written submission which is summarised as follows:

•  Mr Owenhall was employed as a Airline Service Agent on 8 November 2017 and was dismissed on 23 January 2018 during his probationary period.

•  The dismissal took effect on 23 January 2018.

•  The application was filed on 14 February 2018 and was thus one day out of time.

•  The medical certificate dated 13 February 2018 did not establish any incapacity to lodge an application, only that Mr Owenhall was unfit for work on 12 and 13 February 2018.

•  Mr Owenhall took no other action to dispute the dismissal.

•  Prejudice was a neutral factor.

•  The merits was a neutral factor.

•  That no exceptional circumstances had been demonstrated and the extension of time should not be granted.

[13] On 16 April 2018 Aerocare provided a list of authorities which it relied upon.

[14] On 17 April 2018 Mr Owenhall provided a further written submission which (in so far as the material is relevant to the jurisdictional issue) states:

•  On 1 February 2018 he had a relapse of his medical condition.

•  He self-medicated Phenergan, steroids and antibiotics.

•  On 13 February 2018 he saw Dr Jayatilake.

•  He was unable to attend to lodging the application with the Commission on 13 February 2018.

•  On 14 February 2018 he was able to ‘just’ complete the application and email same to the Commission.

•  On 16 February 2018 Mr Owenhall became unwell and attended a hospital.

•  Mr Owenhall contended his circumstances was exceptional and referred to a number of authorities.

•  Mr Owenhall sought that his name be supressed from any decision pursuant to s.594 of the Act and that the medical evidence also be suppressed.

[15] A hearing was conducted by way of telephone conference on 17 April 2018. A sound file record of the telephone conference was kept. Mr Owenhall represented himself. Aerocare was represented by Ms Lynette Vanderstoep with Mr Greg Shelley who were both employees of Aerocare.

[16] Mr Owenhall’s position is summarised as follows:

•  He lives with his mother and step-brother.

•  After he was dismissed he downloaded the application form the next day.

•  He was aware of the 21 day time limit.

•  He spoke to 3 to 4 lawyers in the first week after the dismissal in relation to his workers compensation claim and also the Fair Work Commission Helpline.

•  Mr Owenhall suffered from a chronic medical condition. Between 1 and 13 February 2018 his medical condition reoccurred, his medication had a sedative effect on him which made him lethargic and tired.

[17] At the conference on 17 April 2018 Mr Owenhall was invited to seek an adjournment so that he could provide further medical evidence which “details the impact of Mr Ownehall’s medical condition, treatment and/or medication, on his capacity to lodge an unfair dismissal application between 23 January 2018 and 14 February 2018.” Mr Owenhall requested and was granted an adjournment until 27 April 2018 to provide this information. The hearing was adjourned until 1 May 2018.

[18] On 30 April 2018 Mr Owenhall submitted a letter from Dr Bruce Tate dated 27 April 2018 confirming that the medication taken by Mr Owenhall is a sedative drug and that Mr Owenhall’s medical condition is ongoing and its severity fluctuates over time. At the present time his condition was being controlled by topical steroids and moisturisers.

[19] Mr Owenhall also submitted a letter from Dr Waechter dated 23 April 2018 which stated Mr Owenhall was a patient of his clinic and that he took a named medication for his medical condition, that the medication has a sedative effect and ‘This had made it difficult to pursue his unfair dismissal claim”.

[20] On 1 May 2018 Mr Owenhall gave sworn evidence, which reinforced the material contained in his submissions. He was cross examined by Ms Vanderstoep.

[21] Aerocare reiterated its submissions and contended the Mr Owenhall’s circumstances were not exceptional.

Confidential evidence

[22] Section 594 of the Act permits the making of an order prohibiting or restricting publication of evidence, names and addresses, matters contained in documents or received in evidence of the whole or part of any decision.

[23] Section 594 of the Act relevantly states:

(1) The FWC may make an order prohibiting or restricting the publication of the following in relation to a matter before the FWC (whether or not the FWC holds a hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so because of the confidential nature of any evidence, or for any other reason:

(a) evidence given to the FWC in relation to the matter;

(b) the names and addresses of persons making submissions to the FWC in relation to the matter;

(c) matters contained in documents lodged with the FWC or received in evidence by the FWC in relation to the matter;

(d) the whole or any part of its decisions or reasons in relation to the matter.

(2) Subsection (1) does not apply to the publication of a submission made to the FWC for consideration in an annual wage review (see subsection 289(2)).

[24] Mr Owenhall contends that the identification of his name in any published decision may adversely impact on his future employment opportunities and also that the publication of his medical condition may also have an adverse consequence. Aerocare has adopted a neutral position.

[25] The principles of open justice were considered by the Commission in Bowker and Ors v DP World Melbourne Ltd & Ors [2014] FWCFB 9227.

[26] The decision of Vice President Hatcher in Amie Mac v Bank of Queensland & Ors 1 dealt with a request for the de-identification of parties to a matter. In that decision Vice President Hatcher referred to decision of in Seven Network (Operations) Limited & Ors v James Warburton (No 1) [2011] NSWSC 385whichidentified the main features of the open justice principle as follows:

“[2] The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L& A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.

[3] There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).

[4] The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.

[5] To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings openly and with transparency.” [emphasis added]

[27] Vice President Hatcher considered that those principles are equally applicable to this Commission which conducts its processes in a quasi-judicial fashion, and I adopt that approach in this matter.

[28] I accept that Mr Owenhall is concerned that the publication of his name in this decision could impact on his future employment opportunities. In my view this concern is insufficient to enliven an exception to the open justice principle. If that were the case then almost all applications to the Commission could be subject to confidentiality orders.

[29] With respect to the disclosure of the Mr Owenhall’s medical condition, I have determined that it is not necessary to describe his medical condition in order to deal with the application in an open way and I do not believe a confidentiality order is therefore required. The key issue in relation to Mr Owenhall’s medical condition is the impact of the medication he took on his capacity to lodge his application within time.

Applicable Law

[30] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

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

(b)  within such further period as the FWC allows under subsection (2).

(2)  The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

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

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

(d)  the merits of the application; and

(e)  fairness as between the person and other persons in a like position.”

[31] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd² 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.”

Consideration

[32] This general protections application by Mr Owenhall was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[33] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[34] If there is a credible explanation for the entirety of the delay then this weighs more heavily in favour of a finding that there are exceptional circumstances. 3

[35] If the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances - Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.

[36] The onus rests on Mr Owenhall to explain the delay.

[37] Mr Owenhall has not explained why he could not have lodged the application in the period between his dismissal and the 1 February 2018. Indeed Mr Owenhall at the time of his dismissal Mr Owenhall advised Aerocare that he intended to challenge it and downloaded the application form the day after his dismissal. There does not appear to have been any reason why Mr Owenhall could not have lodged his application immediately.

[38] As to the period after 1 February 2018, Mr Owenhall contends he was debilitated due to impact of the medication he was taken. Mr Owenhall could have lodged his claim by a variety of means including email, online, by express post, or in person. At the initial hearing Mr Owenhall was provided with an adjournment to afford him the opportunity to provide medical evidence as to how “his medical condition, treatment and/or medication [impacted] on his capacity to lodge an unfair dismissal application between 23 January 2018 and 14 February 2018”. The medical evidence provided, at best, was that the impact of his medication “would have made it difficult to pursue his unfair dismissal claim.”

[39] This case is similar to Shellum v Grill’d Pty Ltd T/A Grill’d Health Burgers [2017] FWCFB 3893 where the Full Bench observed:

“[16] Ms Shellum attached a substantial number of documents to her Notice of Appeal and filed further material after the permission to appeal hearing. As was pointed out during the hearing, 18 the difficulty for the Appellant is that none of the material provided specifically identifies the mental/physical health issues she was confronting which are said to have adversely affected her capacity to lodge the s.365 application during the 21 days after the termination of her employment. Nor was there any such material before the Commission at first instance.

[17] We would also observe that in the proceedings at first instance the Commissioner made it clear that Ms Shellum needed to produce:

‘… a certificate from a health practitioner of some description which expresses that person’s professional opinion as to whether or not you had an illness, whether it’s physical or mental… which impacted upon your ability to file an application’. 19

[18] The Commissioner made the same point a number of times 20 and provided Ms Shellum with a further opportunity to provide a medical certificate ‘as to your state of health between 22 January and 13 February and whether or not whatever condition you’ve got would have prevented you from making an application on time’.21 No such material was provided.”

[40] In that matter the Full Bench refused leave to appear from Commissioner Ryan decision to refuse the application for an extension of time.

[41] The medical evidence before me does not convince me that Mr Owenhall was so incapacitated that he could not have lodged his application by one of the means described above.

Any action taken by the person to dispute the dismissal

[42] Other that the protest at the time of dismissal Mr Owenhall took no other action to contest the dismissal, his contact with his legal representatives was in respect of an ongoing workers compensation dispute.

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

[43] There is no submission that the granting of an extension of time represents prejudice to Aerocare.

The merits of the application

[44] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

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

[45] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[46] Considering all of the matters discussed above, I am not satisfied that Mr Owenhall’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 Order⁴ reflecting this decision will be issued.

COMMISSIONER

Appearances:

Mr E. Owenhall the Applicant.

Ms L. Vanderstoep on behalf of the Respondent.

Hearing (Conference) details:

2018.

Adelaide:

May 1.

<PR606780>

 1   [2015] FWC 774.

2 [2011] FWAFB 975.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.

4 PR606781.

Printed by authority of the Commonwealth Government Printer