Eric Robert Ditchburn v WJ & FJ Graham
[2012] FWA 5326
•27 JUNE 2012
[2012] FWA 5326 |
|
DECISION |
Fair Work Act 2009
s.773—Termination of employment
Eric Robert Ditchburn
v
WJ & FJ Graham
(C2012/3598)
COMMISSIONER WILLIAMS | PERTH, 27 JUNE 2012 |
s.774 - extension of time.
[1] This matter involves an application made under section 773 of the Fair Work Act 2009 (the Act) to deal with an unlawful termination dispute. The applicant is Mr Eric Ditchburn (the Applicant) and the respondent is WJ and FJ Graham (the Respondent).
[2] The application was made on 30 April 2012. If it is correct that the employer has terminated the Applicant’s employment it seems that this occurred on 16 December 2011.
[3] The legislation provides time limits within which applications such as this must be made.
[4] These are prescribed in section 774 of the Act set out below:
“774 Time for application
(1) An application under section 773 must be made:
(a) within 60 days after the employment was terminated; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the employee to dispute the termination; 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.”
[5] Self-evidently this application was not made within 60 days after the Applicant’s employment was terminated.
[6] At the time of making the application the Applicant requested that Fair Work Australia allow a further period for the making of the application under section 774 (2) of the Act and provided detailed submissions in support of this extension of time.
[7] Consequently I wrote to the parties and requested that they provide any information regarding the Applicant’s request for Fair Work Australia to extend the time within which this application may be made.
[8] No further information on this point was provided by either party. The Respondent however has lodged its response to the substantive application.
Background
[9] As explained by the employer Mr Ditchburn had been employed for approximately 8 years as a farm overseer on the Respondent’s mixed enterprise farm and was responsible for the day-to-day operations.
[10] In May of 2011 following an accident in the Respondent’s cattle yard Mr Ditchburn was admitted to hospital and consequently was unable to work and was on workers compensation for a number of weeks.
[11] In around October of 2011 during the course of treatment for his injuries Mr Ditchburn was found to have a mass in the vicinity of his injury and was subsequently diagnosed as having cancer. The Applicant explains that subsequently he has been diagnosed as having a chronic terminal medical condition.
[12] From this time onwards Mr Ditchburn was no longer able to work for the Respondent.
[13] During his employment the Applicant lived in a house on the Respondent’s property as part of his entitlements.
[14] Some months later there was a discussion between Mr Wes Graham and the Applicant about him no longer being able to remain in the job. The Respondent says that the Applicant advised that he was looking for a rental property in Esperance, the nearest town to the Respondent’s farm.
[15] The Respondents say their understanding of this discussion was that the Applicant was at this time resigning from his job and so the Respondent commenced the search for a replacement to fill the Applicant’s position. This discussion apparently occurred on 16 December 2011.
[16] The Applicant has a different view of these discussions and says that he remained on sick leave and he never formally resigned from his position even though he had advised the Respondent that he may never be able to return to his previous employment and he would be relocating to Esperance to be closer to medical treatment.
[17] Whether what occurred on 16 December 2011 was a termination of the Applicant at the employer’s initiative or a resignation by the Applicant or a mutual agreement that the employment would end is unclear and is not a matter to be determined by Fair Work Australia. Rather this is a matter that, if necessary, would be considered and determined by the Federal Magistrates Court or the Federal Court of Australia should this matter proceed and an unlawful termination court application be made.
[18] What is clear is that on 16 December 2011 the Applicant’s employment ended. The issue to be determined at this point is whether a further period should be allowed to make this application beyond the 60 day statutory time limit.
Consideration
[19] Considering the factors to be taken into account as prescribed in section 774 (2) of the Act, the Applicant says that the reasons for this delay in making the application were that he was diagnosed with a chronic terminal medical condition and that he has been having ongoing medical treatment for this.
[20] Separately it is argued that over a period of time the Applicant has been dealing with the Respondent and seeking information regarding his entitlements. The Applicant says that the Respondent has been either unable or unwilling to provide the information sought and it is only after this process had run its course was it then necessary for the Applicant to pursue this application.
[21] A further reason for the delay in making this application was because the Applicant was not aware that he had been dismissed by the Respondent until around 10 February 2012 when he received a letter from the Respondent that said the Respondent had “...accepted his resignation...” as of 16 December 2011.
[22] In terms of any action the Applicant has taken to dispute his termination other than this application the Applicant points to a series of enquiries to various departments and a number of letters to and from the Respondent regarding the Applicant’s entitlements which he believes are outstanding. These enquiries and correspondence occurred throughout February, March and April of 2012.
[23] It is not obvious that there is any particular prejudice to the employer should the Tribunal decide to extend the time for making this application.
[24] With respect to the merits of the application firstly it is disputed as to whether or not the employer here has terminated the Applicant’s employment. Secondly the grounds of the application are somewhat unclear however appear to be based on either an allegation that the Applicant was terminated because of his temporary absence from work because of illness or injury or that he was terminated because of a physical disability. Only limited information has been put before the Tribunal about the merits of the application and whilst on its face the Applicant does not have a strong case it is not correct to say that there is no prospect of success at all.
[25] The fairness as between the Applicant and other persons in a like position is not relevant in this instance.
[26] Clearly the Applicant does have acceptable reasons for a significant part of the delay in this instance. I accept that his terminal medical condition and the treatment of this will have at times prevented him pursuing an application such as this. Also importantly the Applicant did not come to the view that he had been dismissed by the Respondent, as of 16 December 2011, until he received a letter from the Respondent on 10 February 2012. In addition I accept that it was only after having failed to resolve his concerns about his entitlements over a number of months that the Applicant then turned his mind to his other legal options such as making this application.
[27] In conclusion I do accept that these matters taken together do amount to exceptional circumstances such that the Tribunal should now allow a further period for this application to be made. An order to that effect will be issued in conjunction with this decision.
[28] The parties will be contacted in the near future and a conference, which will be conducted by telephone, will be convened under section 776 of the Act to deal with the dispute.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code A, PR525479>
0
0
0