James Borg v Summit Health Care Pty Ltd T/A SummitCare (Australia)
[2017] FWC 951
•20 FEBRUARY 2017
| [2017] FWC 951 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
James Borg
v
Summit Health Care Pty Ltd T/A SummitCare (Australia)
(C2017/427)
DEPUTY PRESIDENT DEAN | SYDNEY, 20 FEBRUARY 2017 |
Application to deal with contraventions involving dismissal.
[1] On 24 January 2017, Mr James Borg (the Applicant) made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Summit Health Care Pty Ltd T/A SummitCare (Australia) (the Respondent) in contravention of the general protections provisions in the Act. The Respondent denies the allegations and contends that the Applicant was dismissed for performance reasons.
[2] The Applicant commenced employment with the Respondent in or around May 2005 and his employment was terminated on 10 November 2016. The Applicant’s general protections application lodged on 24 January 2017 was made some 54 days outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).
[3] The matter was listed for hearing by telephone on 16 February 2017 to consider the extension of time issue. Both parties were granted permission to be legally represented. The Applicant was represented by Ms A McRobert of Hayward Solicitors and the Respondent by Ms A Nelson of Kennedys (Australasia) Pty Ltd.
Consideration
[4] The Commission may allow a further period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.
[5] Section 366 of the Act provides:
366 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.
[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd1 where 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.”
[7] The burden of demonstrating exceptional circumstances rests with the Applicant.
[8] I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
[9] The general protections application made by the Applicant provided two reasons for the delay. The first was that he was unaware of the 21 day timeframe, and the second was that he had been in contact with the Respondent since his dismissal to dispute the dismissal. A further reason related to the Applicant’s health was included in his detailed written submissions filed in support of his application to extend time.
[10] The Applicant’s written submissions provided the following explanation for the delay:
a. The Applicant had suffered from an illness since 18 July 2016. At the time of his termination on 10 November 2016, the Respondent was aware that he was unwell.
b. The Applicant remained unwell for the period of 10 November 2016 to 23 January 2017.
c. The Applicant was diagnosed with Adjustment Disorder, predominantly generalised anxiety, panic attacks with depressed mood.
d. The Applicant continued to suffer from his diagnosed medical condition which manifested in him feeling depressed, suffering from sleeplessness and frequent night disturbances, hot sweats and frequent panic attacks. For a considerable period during this time the Applicant was unable to leave the house other than to attend medical appointments and would feel insecure and panicked when he left the house.
e. The Applicant continued to see his doctor and psychologist.
f. The Applicant was not aware of the time limitation period and in part due to his medical condition did not seek legal advice regarding his termination until 23 January 2017.
g. On 26 July 2016 the Applicant signed an authority authorising the Respondent to correspond with his wife due to his medical condition. The Respondent had since corresponded with his wife at various times.
h. On 18 and 21 November 2016 the Applicant’s wife sent emails to the HR Director of the Respondent advising that the Applicant had not received his final payment.
i. The Applicant’s daughter, a lawyer, wrote to the CEO of the Respondent on 24 November 2016, raising a number of concerns about the Applicant’s termination. The Applicant’s daughter was not acting in any capacity as the Applicant’s legal representative.
j. The correspondence of 24 November 2016, written by the Applicant’s daughter, disputes the dismissal and the Respondent was on notice of this from at least 24 November 2016.
k. The Applicant’s daughter resent the letter on 9 December 2016. The Respondent did not respond to both letters.
l. The Applicant’s wife wrote to the Respondent on 11 January and again on 20 January 2017. The Respondent responded on 20 January 2017.
m. The Applicant did not obtain legal advice until 23 January 2017. This was the first time the Applicant became aware of the 21 day time limit. The Applicant immediately filed the general protection application on 23 January 2017.
[11] A number of attachments were included with the written submissions, which I have reviewed and taken into account.
[12] The Applicant gave evidence, in the form of a witness statement, which dealt in detail with the matters summarised above. He was not cross-examined about his evidence.
[13] A medical certificate obtained the day before the hearing was also tendered.
[14] In response, the Respondent submitted that there were no exceptional circumstances demonstrated by the Applicant which would warrant the granting of an extension of time.
[15] An applicant needs to provide a credible reason for the whole of the period that the application was delayed.2 In this case I am not satisfied that the Applicant has made out a credible reason.
[16] First, the medical evidence in support of the Applicant’s medical condition included both the medical certificate 3 from the Applicant’s doctor dated 15 February 2017 and the Workcover certificates of capacity attached to his written submissions. The medical evidence confirmed that the Applicant was unfit to attend work but did not establish that the Applicant was incapacitated to a degree that he was unable to lodge his application.
[17] In relation to his second reason for the delay, being that he was unaware of the timeframe, mere ignorance of the statutory time limit is not an exceptional circumstance.4 For an ordinary layperson to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon.5
[18] While this alone would have been sufficient for me to find no satisfactory reason for the delay, in this case the Applicant’s daughter is a lawyer who had been assisting him in correspondence with the Respondent. In this correspondence, references were made to the possibility of taking of legal action. I consider it reasonable that the Applicant’s daughter could have determined the timeframe for making a general protections application on her father’s behalf.
[19] On the material before me, I am not satisfied that the explanation of delay advanced by the Applicant constitutes an exceptional circumstance.
Any action taken by the person to dispute the dismissal
[20] The Applicant has clearly taken action to dispute the dismissal. This is evidenced by correspondence to the Respondent by the Applicant’s daughter on 24 November and 9 December 2016, and by the Applicant’s wife on 11 and 20 January 2017.
[21] I consider that this weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[22] On the evidence before me, I am not persuaded that the Respondent would suffer prejudice if the extension of time were granted.
[23] While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[24] In the matter of Kornicki v Telstra-Network Technology Group6 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.7
[25] 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.’8
[26] The Applicant contended that the Respondent has breached ss.340 and 343 of the Act. It was submitted by the Applicant that his employment was terminated because:
a. He exercised his right to take personal leave;
b. He exercised his right to make a worker’s compensation claim.
c. He was temporarily absent from work due to an illness or injury of a kind prescribed by the regulations.
[27] The Respondent denied any contraventions of the general protection provisions and maintained that it was entitled to terminate the Applicant’s employment in the manner that it did.
[28] While substantive evidence has been adduced by the Applicant, I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[29] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm9 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’10
[30] There were no submissions or evidence that there were any persons in a similar position and I find it to be a neutral consideration.
Conclusion
[31] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
[32] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
A McRobert for the Applicant.
A Nelson for the Respondent.
Hearing details:
2017.
Sydney (by telephone):
February 16.
1 [2011] FWAFB 975.
2 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at pp. 408‒409.
3 Exhibit A2.
4 (2010) 197 IR 403.
5 [2010] FWA 8895
6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
7 Ibid.
8 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
9 [2015] FWC 8885.
10 Ibid at [29].
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