Francis v Holmesglen Institute
[2017] FWC 3910
•26 JULY 2017
| [2017] FWC 3910 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Andrew Francis
v
Holmesglen Institute
(C2017/2428)
COMMISSIONER CIRKOVIC | MELBOURNE, 26 JULY 2017 |
Application to deal with contraventions involving dismissal – whether to extend time for lodging the application.
[1] On 6 May 2017, Mr Andrew Francis (Applicant) lodged a general protections application (application) with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Holmesglen Institute (Respondent).
[2] The Applicant commenced employment with the Respondent on 5 February 2007. He was a carpentry teacher.
[3] The Applicant submits that he was unaware of his termination as he did not receive any notification until approximately 18 March 2017. The Respondent submits the Applicant was terminated effective 27 February 2017.
[4] The application therefore was lodged either 28 or 47 days late.
[5] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.
Alleged Contravention
[6] The Applicant submits that he was dismissed because he was on sick leave without pay, he was providing regular medical certificates to the Respondent, the Respondent directed him to see a Doctor of its choice and he did not agree to be assessed by the Respondent’s appointed Doctor. The Applicant submits he exercised his workplace rights by informing the Respondent that he did not agree to be assessed by its appointed Doctor and that as a result he was adversely treated and was terminated. A breach of s.340, 343, 344, 351 and 352 are alleged.
Legislative scheme
[7] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:
(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).
[8] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:
(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.
[9] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:
“[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.” [Endnotes not reproduced]
[10] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:
“13 General requirements for lodging documents
...
(2) A document must be lodged with the Commission by:
(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or
(b) sending the document by post to an office of the Commission; or
(c) emailing the document in accordance with rule 14; or
(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or
(e) faxing the document in accordance with rule 16.”
Approach of the Commission
[11] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).
[12] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:
“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:
‘[12] This decision makes an important point which we consider deserves re-emphasising. 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. …’
[30] This extract must be read in its entirety. The decision goes on to state:
‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’
[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”[Endnotes not reproduced]
Background
[13] On 7 June 2017, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of an outline of argument: extension of time.
[14] On 20 June 2017, the matter was listed for hearing on 29 June 2017 and my chambers sent correspondence to the parties advising that any party wishing to apply for permission to be represented at the hearing by a lawyer or paid agent was to file submissions addressing section 596 of the Act.
[15] On 21 June 2017, the Respondent representative filed submissions regarding permission to appear and requested an adjournment on the grounds that Ms Farnes, the Associate Director Human Resources and only member of staff who has responsibility for employee relations at the Respondent, was unable to attend as she was scheduled to chair a conference on 29 June 2017.
[16] On 22 June 2017, my chambers sent correspondence to the Applicant asking for his views on the Respondent’s adjournment request. On 23 June 2017 the Applicant responded raising his objections to the Respondent being represented, however did not address the adjournment request. I granted the request and the matter was relisted for hearing on 7 July 2017.
[17] On 4 July 2017, the Applicant sent correspondence to my chambers to say he was unable to appear at the hearing. My Associate contacted the Applicant who advised that he did not want the matter to be adjourned, nor did he want to discontinue, and instead requested that I conduct the hearing in his absence on “what is before” the Commission.
[18] My chambers sent correspondence to the Respondent on 4 July 2017 querying if they would be amenable to my deciding this matter on the basis of the material that was presently before me. The Respondent confirmed that they were satisfied with the course of action proposed and the hearing listed for 7 July 2017 was cancelled.
[19] Accordingly, I have determined this application on the materials that were filed by the parties. Therefore the question of permission to appear does not need to be resolved.
Matters to be taken into account pursuant to s.366(2)
[20] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.
(a) The reason for the delay
[21] The Applicant submitted that he was not notified of his dismissal until the 18th of March 2017. 2
[22] The Respondent submitted that they sent a letter to the Applicant by registered post to his residential address on 8 February 2017 advising that they were considering terminating his employment and inviting a response, however this was returned unopened on 9 March 2017. 3
[23] Meanwhile in the absence of a response from the Applicant, they sent further registered correspondence to the same address on 27 February 2017 enclosing this same letter along with a letter advising that his employment was terminated with effect from close of business that day. 4
[24] Upon receiving the unopened letter of 8 February on 9 March, the Respondent submitted that they sent the Applicant a letter dated 10 March 2017 including both of their previous letters and explaining that, as they had not received a response, his employment had been terminated. 5
[25] On that same day, 10 March 2017, after their first letter had been sent, the Respondent received a letter from the Applicant which prompted them to send further correspondence enclosing a statement of service and again confirming the termination. 6
[26] As I have not had the benefit of a hearing there is insufficient evidence before me to determine whether the Applicant’s dismissal took effect on the 18th of March 2017 as he maintains or, as the Respondent advances, on the day that the termination letter was sent by express post to the Applicant’s address.
[27] I have noted the statement of the Applicant’s Doctor in the medical certificate which was annexed to his outline of argument that the Applicant was “trying to ignore any communications” from the Respondent. Notwithstanding this, it is apparent that the best case for the Applicant is his nominated date of 18 March 2017, in which case his application is still 28 days late. I have come to my conclusion giving the Applicant that benefit.
[28] The Applicant further submitted that he was and is currently still undergoing psychiatric treatment to assist with his stress and anxiety, and that he had been in and out of hospital for vensections. 7
[29] The Respondent submitted that the Applicant had not provided any dates or evidence of hospital admissions, nor had he provided any evidence to indicate that his medical condition was such that he was unable to instruct solicitors to make the application for him within the allowed time, or to do so himself. 8
[30] The Respondent further submitted that there was no evidence that the Applicant’s medical issues prevented him from making his application in time. They noted that the Applicant complied with the directions of 7 June 2017 whilst still suffering from those medical conditions. 9
[31] The only medical certificate supplied by the Applicant in relation to his extension of time was one dated 9 June 2017 from the Applicant’s medical practitioner, which provides that the Applicant:
“HAS REQUESTED A MEDICAL CERTIFICATE RELATED TO LATE ONSET OF PAPERWORK TO THE FAIRWORK (sic) COMMISSION – HE HAS BEEN SEVERELY ANXIOUS WITH RELATION TO HIS FORMER WORKPLACE AND ANY COMMUNICATIONS FROM THEM TO THE POINT OF TRYING TO IGNORE THEM GIVEN HIS HEIGHTENED ANXIETY – HE IS ATTENDING A PSYCHOLOGIST AND ALSO HAS HAD TO SEE A HAEMATOLOGIST WITH REGARDS TO ELEVATED IRON LEVELS LEAVING TO VENESECTIONS ON A REGULAR BASIS”
[32] I accept the accuracy of this medical certificate however in and of itself it does not explain the delay in making the application in this matter. Whilst I sympathise with the Applicant and any employee who suffers from distress at losing their employment involuntarily, the medical evidence supplied does not in my view support a finding that the Applicant was ‘incapacitated’ such that he would have been unable to lodge an application on time.
[33] The Applicant also submitted that his wife had undergone surgery and required 24/7 care ‘in this period’. 10
[34] The Respondent submitted that the Applicant had not defined what ‘this period’ referred to, nor the nature of the care he was required to provide, nor any supporting evidence. They further submitted that it is not credible that such care would preclude the Applicant from completing his application within 21 days. 11
[35] There is no evidence before me that identifies ‘the period’ that the Applicant refers to, nor does he provide any supporting evidence as to the nature of his wife’s condition or the care required. There is insufficient material before me to make a finding that the Applicant’s obligations to care for his wife prevented him from filing his application within 21 days.
[36] For this consideration there must be an acceptable reason for the delay 12 and this must be for the whole period that the application was delayed.13 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. Overall the evidence does not support a finding that there was a credible reason for the whole period of the delay. This weighs against a finding of exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[37] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 14
[38] The Applicant did not provide any submissions regarding any action taken to dispute his dismissal. The Respondent also did not file any submissions addressing this criterion.
[39] This factor is neutral in considering whether to exercise the discretion to allow a further period for the Applicant to lodge his application.
(c) Prejudice to the employer (including prejudice caused by the delay)
[40] Prejudice to the employer will go against the granting of an extension of time.15
[41] The Applicant submitted that he saw no disadvantage to the employer arising from the delay. 16
[42] The Respondent submitted that they would experience prejudice should time be extended to allow the application. They submitted that the circumstances of the termination of the Applicant’s employment have long passed and that they should not now face a potential liability arising from matters that could have been addressed long ago. 17
[43] While I note the Respondent’s submission, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.
(d) Merits of the application
[44] The Applicant submitted that he was dismissed whilst on sick leave for refusing to attend a psychiatric examination conducted by a doctor of his employer’s choosing. 18
[45] He submitted that the Respondent made medical appointments with non-agreed medical practitioners who were not independent even after he advised them that he did not agree to attend, and further that they sent their medical practitioner an introductory cover letter that was false and irrelevant to his employment conditions in an attempt to induce a medical report in the Respondent’s favour. 19
[46] The Respondent submitted that the Applicant’s application is without merit. They submitted that, in accordance with their responsibilities as an employer under the Occupational Health and Safety Act 2004, they were entitled to instruct the Applicant to attend a medical examination in circumstances where he had been absent from his employment in excess of twelve months and was continuously refusing to communicate with them, and to terminate his employment when he refused to comply. 20
[47] I note that, for the purpose of determining whether to grant an extension of time to the Applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case.” 21
[48] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 22 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application.
[49] I have not done so. There is insufficient material presently before the Commission to draw any conclusions about the prospects of success. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.
(e) Fairness as between the person and other persons in a like position
[50] In response to the question of how the Applicant thought his situation was more or less fair than the situation of other people in a similar position, the Applicant referred to his previous submissions and stated ‘all of the above’ as indicating unfairness to him. There is no further detail provided by the Applicant with regards to this criterion.
[51] The Respondent submitted that if an extension of time were to be granted in circumstances of an application that is so far out of time it would create unfairness between the Applicant and other persons in similar circumstances who have failed to file relevant applications within time and who have been denied an extension of time. 23
[52] The Respondent referred to the decision of the Commission in Wemyss v Mission Australia Employment Services 24 in which a delay of two and a half times the prescribed time limit was referred to as a considerable delay relative to the prescribed time limit. They submitted that in the current application, the delay of either 47 days or 28 days over the 21 day time limit is also a considerable delay relative to the prescribed time limit.25
[53] The full bench in Perry v Rio Tinto Shipping Pty Ltd26 [2016] FWCFB 6963 considered this criterion and said (at 41):
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission on matters previously decided by the Commission.”
[54] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[55] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.366(2) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.
[56] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 27
[57] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.
[58]An order 28 to that effect will be published separately to this decision.
COMMISSIONER
1 [2011] FWAFB 975.
2 Applicant’s Outline of argument: Extension of time, 12 June 2017.
3 Respondent’s Outline of argument: Extension of time, 14 June 2017.
4 Respondent’s Outline of argument: Extension of time, 14 June 2017.
5 Respondent’s Outline of argument: Extension of time, 14 June 2017.
6 Respondent’s Outline of argument: Extension of time, 14 June 2017.
7 Applicant’s Outline of argument: Extension of time, 12 June 2017.
8 Respondent’s Outline of argument: Extension of time, 14 June 2017.
9 Respondent’s Outline of argument: Extension of time, 14 June 2017.
10 Form F8 – General protections application involving dismissal, lodged 6 May 2017.
11 Respondent’s Outline of argument: Extension of time, 14 June 2017.
12 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
13 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409.
14 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
15 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
16 Applicant’s Outline of argument: Extension of time, 12 June 2017.
17 Respondent’s Outline of argument: Extension of time, 14 June 2017.
18 Form F8 – General protections application involving dismissal, lodged 6 May 2017.
19 Applicant’s Outline of argument: Extension of time, 12 June 2017.
20 Respondent’s Outline of argument: Extension of time, 14 June 2017.
21 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
22 Haining v Deputy President Drake (1998) 87 FCR 248, 250.
23 Respondent’s Outline of argument: Extension of time, 14 June 2017.
24 [2010] FWA 1798.
25 Respondent’s Outline of argument: Extension of time, 14 June 2017.
26 [2016] FWCFB 6963.
27 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
28 PR594838.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR594837>
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