Garry Hart v Truss Guard Rail Pty Ltd

[2016] FWC 3833

[2016] FWC 3833

FAIR WORK COMMISSION

DECISION & REAONS

Fair Work Act 2009
s.394—Unfair dismissal

Garry Hart
v
Truss Guard Rail Pty Ltd
(U2016/6050)

COMMISSIONER RYAN MELBOURNE, 8 JULY 2016

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

[1] The Applicant, Mr Hart, was dismissed from his employment with the Respondent on 17 March 2016 and he filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) with the Commission on 8 April 2016, one day outside the 21 day time period specified by s.394(2)(a) of the Act. The Applicant seeks an extension of time pursuant to s.394(2)(b) of the Act.

[2] Both the Applicant and the Respondent filed submissions and witness statements in accordance with directions of the Commission and the matter came before me for hearing on 10 June 2016. Mr Hart represented himself and Mr Horseman, the Director of the Respondent represented the Respondent.

[3] After hearing from the parties, I informed them that I would grant an extension of time to the Applicant for filing his application to the date it was actually lodged and that I would issue my reasons for doing so at a later date. My reasons now follow.

[4] Section 394(3) permits the Fair Work Commission to extend the 21 day time period in in the Act subject to the Commission being satisfied that there are exceptional circumstances taking into account each of the relevant matters enumerated in s.394(3).

“394 Application for unfair dismissal remedy

(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.”

[5] The term "exceptional circumstances" has been considered in a number of decisions of Fair Work Australia. A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd summarised various decisions which dealt with the meaning of "exceptional circumstances". The Full Bench found that:

"[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.” 1

Reason for the Delay in making the Unfair Dismissal application - s.394(3)(a)

[6] The Applicant contends that there are three reasons for his late filing of the unfair dismissal application. Firstly, the Applicant contends that the day before his dismissal that he was assaulted by a client and that this affected him. Secondly, the Applicant contends that he was told by the Fair Work Commission on 7 April 2016 that he had until 8 April 2016 to file his Form F2. Thirdly, the Applicant contends that he had health issues which covered the time of his dismissal and the time of his filing the Form F2.

The assault on the day before the dismissal

[7] On the material before the Commission it is not possible to consider that an assault on the Applicant on the day before the dismissal had any impact on the Applicant’s ability to file an unfair dismissal application on time. The details of the assault were not made known to the Commission nor was any evidence produced as to the effect that the alleged assault had on him. Communications between the Applicant and the Respondent on 17 March 2016 and the Applicant’s letter to the Respondent on 29 March 2016 do not mention the assault on the Applicant.

[8] The assault on the Applicant does not provide a reason for the delay in filing the unfair dismissal application.
Alleged advice from FWC

[9] Apart from the simple assertion from the Applicant that “I rang the Fair Work Commission on 7/04/2016 to clarify of the correct time/date limit for F2 Form lodgement and was told that my application had to be lodged before the end of Friday 08/04/2016, which it was” there is nothing before the Commission to support that contention.

[10] The contention sits oddly with the letter sent by the Applicant to the Respondent on
29 March 2016 in which the Applicant acknowledged receipt of text messages which confirmed his termination on 17 March 2016 and which specifically acknowledged that “(t)he cut off date to lodge a dismissal dispute application to the Fair Work Commission is Thursday 7^th April, 2016.”

[11] In the circumstances of the present matter the Commission cannot be satisfied that contention of the Applicant is made out. The Commission is not satisfy that this contention provides a reason for any delay in filing the unfair dismissal application.

Health Issues

[12] The third reason for the delay requires more lengthy consideration.

[13] It is clear from the evidence of Mr Horseman and from the Applicant that the Applicant has suffered mental health issues for some years. Whilst these mental health issues have impacted on the Applicant, they have not prevented him from maintaining his employment with the Respondent as the Respondent has made allowances for the Applicant’s position. Mr Horseman described matters as follows:

“7. I am aware through my conversations with Garry that he has been experiencing cycles over the last couple of years where he struggles with personal issues and depression. I am not a doctor and not aware of the medical significance of depression, however, I am aware that these episodes have been an ongoing cycle with Garry for a significant amount of time.

8. From approximately June 2015 I started noticing a change in Garry whereby his demeanour had started to change at work to the point where it was becoming difficult to talk to and work with him due to his erratic behaviour.

9. I further noticed Garry's behaviour significantly worsening, and subsequently authorised Garry to take early Long Service Leave in July 2015 plus an additional four (4) weeks annual leave deal with his personal issues and depression.

10. Garry remained on leave from July 2015 until January 2016. Upon Garry's return to work, his attitude and demeanour appeared to have stabilised.

11. However, from February 2016 Garry's behaviour turned erratic once again.

12. From my interactions with Garry during the time of his employment, I can conclude that suffering from personal issues and depression was not out the ordinary course for Garry.

13. On 10 March 2016, Garry was involved in an incident at the workplace which constituted serious misconduct.”

[14] The Applicant relies on a medical certificate produced by his treating doctor on
21 May 2016 but which relates to a consultation which took place on 24 March 2016. The medical certificate provides as follows:

“Mr Garry Hart was seen by me on 24/3/2016 with Major Depressive Episode. Due to his state of mind at the time – which would include 2 weeks prior to the date mentioned and up until a few weeks ago, it would have been difficult for him to maintain regularity in his life and any lapses that may have occurred at around that time should take into consideration his state of mind at the time.” (emphasis in original)

[15] The Respondent in its written submissions prepared and filed by Employsure Pty Ltd (Employsure) contended as follows:

“47. The Respondent submits that it has first-hand knowledge that the Applicant has suffered from similar major depressive episodes for a couple of years and is not something which is out of the ordinary for the Applicant to deal with and was not a result of the circumstances surrounding the Applicant’s termination. Attached and marked “C” is a copy of the Witness Statement of Simon Horseman.”

And

“51. Suffering from a major depressive episode does not give rise to exceptional circumstances, especially when such an episode is in the ordinary course and especially when the Applicant had the ability to write a letter to the Respondent disputing his termination.”

[16] The Respondent in its written submissions draws conclusions which are not supported by the witness statement of Mr Horseman. Mr Horseman considered that the Applicant’s “suffering from personal issues and depression was not out the ordinary course for” the Applicant. However, Mr Horseman acknowledged his lack of understanding about depression:

“7. I am aware through my conversations with Garry that he has been experiencing cycles over the last couple of years where he struggles with personal issues and depression. I am not a doctor and not aware of the medical significance of depression, however, I am aware that these episodes have been an ongoing cycle with Garry for a significant amount of time.”

[17] Whilst Mr Horseman was prepared to acknowledge his inability to express a medical opinion as to the mental health of the Applicant, Employsure proffers a submission which can only succeed if Employsure is medically qualified to express a medical opinion as to the mental health status of the Applicant. It is quite wrong for Employsure to contend that the Respondent has first-hand knowledge that the Applicant has suffered from similar major depressive episodes for a couple of years when Mr Horseman specifically disavows any knowledge as to the medical significance of depression. The further contention advanced by Employsure on behalf of the Respondent that “suffering from a major depressive episode does not give rise to exceptional circumstances” is a dogmatic statement completely inconsistent with the lengthy treatment of the subject “major Depressive Disorder” in DSM:V The making of the statement means that Employsure are proclaiming an expert knowledge in mental health matters which they can translate into an employment law situation. The Respondent is ill served by such an unprofessional approach by
Employsure.

[18] In the present matter the importance of the medical certificate is that it identifies a specific medical condition suffered by the Applicant over a period from about 10 March 2016 to about the end of April or early May 2016. The specific medical condition is not the ordinary “suffering from personal issues and depression” which Mr Horseman referred to. Also the medical certificate is issued by a competent and qualified medical practitioner.

[19] The key professional reference manual in this field is the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition”, commonly referred to as “DSM:V”. Under the heading of Depressive Disorders DSM:V briefly describes the section and includes the following:

“Depressive disorders include ….,.major depressive disorder (including major depressive episode),…
and
“Major depressive disorder represents the classic condition in this group of disorders. It is characterized by discrete episodes of at least 2 weeks’ duration (although most episodes last considerably longer) involving clear-cut changes in affect, cognition, and neurovegetative functions and inter-episode remissions. A diagnosis based on a single episode is possible, although the disorder is a recurrent one in the majority of cases. ….”

[20] DSM:V deals in detail with Major Depressive Disorder and explains what is meant by a major depressive episode and what effect a major depressive episode has on an individual. What is very clear from the DSM:V description of a person suffering from a major depressive episode is that this is certainly a circumstance which is out of the ordinary course, or unusual, or special, or uncommon. Although DSM:V makes clear that major depressive disorder is a recurrent one in a majority of cases it is not a circumstance which is regularly, or routinely, or normally encountered. In the circumstances of the present matter where the Applicant was diagnosed as suffering from a Major Depressive Episode over a period of time which includes the whole of the period from the date of his dismissal to the date he filed his unfair dismissal application I consider that this reason for the late filing of his application provides a sound and sufficient reason for the delay.

When the Applicant first became aware of the dismissal - s.394(3)(b)

[21] On the Applicant’s own material it is clear that the Applicant first became aware of his at the time that the dismissal was effected.

[22] The factor raised by s.394(3)(b) weighs against the Applicant.

Any action taken by the Applicant to dispute the dismissal - s.394(3)(c)

[23] The Applicant wrote to the Respondent on 29 March 2016 disputing the dismissal. However as earlier identified that letter contained a clear acknowledgment from the Applicant that he knew that the time limit for filing an unfair dismissal application was 7 March 2016. This factor does not support the Applicant’s claim for an extension of time.

[24] The factor raised by s.394(3)(c) weighs against the Applicant.

Prejudice to the Respondent - s.394(3)(d)

[25] The Respondent’s written submissions contain the following:

“61. The Respondent submits that should the Applicant succeed, the Respondent would suffer considerable prejudice. The Respondent has been required to expend significant time and money in order to defend the Application, and would be further prejudiced, should the Applicant be granted an extension of time.”

[26] It appears that the Respondent has engaged the services of Employsure to prepare the Respondent’s material in opposition to the application for an extension of time. However no other details of the alleged prejudice that will be suffered by the Respondent have been detailed and the Respondent’s witness, Mr Horseman, provides no details of any prejudice in his witness statement.

[27] In the absence of any evidence the Commission cannot be satisfied as to the level of prejudice that may be suffered by the Respondent. The Commission accepts that non compliance with s.394(2)(a) by an Applicant and reliance by an applicant on s.394(2)(b) can of itself constitute a degree of prejudice to the employer, albeit a very small prejudice.

Merits of the Application - s.394(3)(e)

[28] The merits of the application in this matter must be taken into account but this is not the time for the Commission to consider the detailed merits of the case. The guidance provided by the Full Bench in Kyvelos v Champion Socks P/L, 2 is apposite:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to (s.394(2)(b)). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.”

Fairness as between the Applicant and other persons in a similar position - s.394(3)(f)

[29] This factor is not a relevant factor in the present matter. There are no other employees of the Respondent who are in a similar position to the Applicant.

Conclusion

[30] In order to grant an extension of time the Commission must be positively satisfied that there are exceptional circumstances, having considered all of the relevant factors in s.394(3).

[31] In the present matter the Commission has weighed the factors which favour a grant of an extension of time against the factors which do not favour the grant of an extension of time and the weighing exercise produces a very strong outcome in favour of granting an extension of time.

[32] The Commission is satisfied that in this matter there are exceptional circumstances which warrant the Commission exercising its discretion to grant an extension of time to the Applicant to allow him to file his application for an unfair dismissal remedy on 8 April 2016.

[33] The time for filing an unfair dismissal remedy by the Applicant in relation to his dismissal by the Respondent is extended until midnight on 8 April 2016. The application by the Applicant is therefore within the time allowed under s.394(2)(b).

[34] Directions have been issued to the parties in relation to further proceedings to deal with the application.

COMMISSIONER

Appearances:

G. Hart on his own behalf.

S. Horseman on behalf of Truss Guard Rail Pty Ltd.

Hearing details:

2016.

Melbourne:

June 10.

 1   [2011] FWAFB 975 at pn [13].

 2 T2421 at [14].

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