John Scuderi v Mount Isa Mines Limited T/A Xstrata
[2011] FWA 7045
•30 NOVEMBER 2011
[2011] FWA 7045 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Scuderi
v
Mount Isa Mines Limited T/A Xstrata
(U2011/1295)
COMMISSIONER SIMPSON | BRISBANE, 30 NOVEMBER 2011 |
Unfair dismissal - extension of time for lodging application
[1] An application for an unfair dismissal was lodged 29 June 2011 by Mr John Scuderi. The matter was listed for conciliation on 3 August 2011. The Respondent, Mount Isa Mines Limited objected to the Application on 2 August 2011, on the basis that the Application was lodged outside the prescribed time limit. The Application was required to be filed by Friday 3 June 2011 and was therefore 26 days out of time.
[2] On 2 August 2011 the Respondent also lodged its Response to the Application where it requested that the objection be heard before any conciliation or conference. On the basis of that request the conciliation conference was cancelled and the matter was listed for Extension of Time Conference/Hearing on Thursday 13 October 2011. Directions were issued for the filing of submission and witness statements.
[3] Submissions were filed on behalf of the Applicant on 9 September 2011 along with a Statutory Declaration of the Applicant. Submissions were filed on behalf of the Respondent on 26 September 2011.
[4] On 13 October the Applicant was represented by Mr L R Middleton of Counsel, instructed by Ms Nikki Dawson at Brad Robbins Legal Centre, appearing by Videolink from the Townsville Supreme, District and Magistrates Court Complex and the Respondent was represented by Ms S Betzien, a Solicitor at Minter Ellison Lawyers. Permission was granted for both parties to be legally represented.
[5] Section 394(2) of the Fair Work Act 2009 (FW Act) provides:
“(2) [Standard time limit] The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).”
[6] Section 394(3) provides:
“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
Background
[7] The Applicant was employed by the Respondent as an Occupational Health and Safety Training Coordinator from 10 October 2008 until 20 May 2011. On 20 May 2011 the Applicant’s employment was terminated at a meeting attended by him that he was asked to attend the previous day by a telephone call from a representative of the Human Resources Department.
Section 394(3)(a) reason for the delay
[8] It is submitted for the Applicant that the reason for the delay was that at the time the dismissal meeting was scheduled, Mr Scuderi was unfit for work due to stress and anxiety however the employer continued with the process regardless. Further it is said that the Applicant’s ability to comprehend and to take advice was impaired on the 20 May 2011, which was the date of dismissal and continued to be up to 3 June 2011 which was the last date that the Application could be filed within time.
[9] The Applicant’s Statutory Declaration 1 was admitted into evidence and attached to that declaration were medical certificates covering the period 19 May 2011 to 6 June 2011, 2 6 June 2011 to 6 July 2011,3 7 July 2011 to 7 August 2011,4 and 8 August 2011 to 6 September 2011.5
[10] The three medical certificates issued in the first instance by Dr Thamil Bharathan in Mount Isa for the period from 19 May 2011 to 6 June 2011, in the second instance by Dr Donna Challinor in Townsville for the period from 6 June 2011 to 6 July 2011 and in the third instance by Dr Kay Jaumees in Townsville for the period from 7 July 2011 to 7 August 2011 provide no particulars regarding the nature of the Applicant’s medical condition except to say that he is receiving medical treatment and will be unfit to continue his usual occupation.
[11] The fourth medical certificate which was provided for the period from 8 August 2011 to 6 September 2011 is a Workers Compensation medical certificate provided by Dr Kerry Gillespie dated 5 August 2011 6 and describes his diagnosis as being “stress from previous boss”, his injury as “ongoing” and his stated cause of injury as “stress caused by previous boss, loss of confidence.”
[12] The Respondent concedes it was provided a copy of the Applicants first medical certificate on 19 May 2011, the day before the dismissal meeting on 20 May 2011. The Respondent argues that the medical certificates provided by the Applicant are not sufficient evidence of the Applicant’s incapacity to act during the two week period following his dismissal.
[13] The Applicant sought legal advice four days after the time limit had expired. He says in his Statutory Declaration;
“.....
8. I obtained initial legal advice on 7 June 2011, and I was still unsure how to proceed. The Brad Robins Legal Centre had asked me to provide them with a number of employment related documents, only some of which I had in my possession. The only way I could provide the Brad Robins Legal Centre with what they requested, was for me to return to my unit in Mount Isa - and at that stage I did not feel that I was physically capable of returning to Mount Isa. The very idea made me anxious.
....” 7
[14] The Applicant attached to his Statutory Declaration a letter under the signature of Nikki Dawson a solicitor of the Brad Robins Legal Centre sent on his behalf to the Respondent which advises instructions have been received to act on behalf of Mr Scuderi, provides copies of medical certificates and goes on to say;
“.....
We confirm our client is receiving further medical treatment, and we hope to receive his further instructions shortly.
In the interim, we would appreciate if you would be kind enough to provide us with confirmation of the terms of our client’s employment (ie State or Federal Award; Enterprise Agreement), in addition to copies of our client’s employment file, by way of disclosure.
We take this opportunity to hereby place you on notice that in the future, an unfair dismissal application may be made on behalf of our client.” 8
[15] This correspondence needs to be considered in the context of the following evidence given by the Applicant under cross examination.
“......PN50
See you said in your statutory declaration that you obtained initial legal advice on 7 June 2011, is that right?---That’s correct.
PN51 But you said also in your statutory declaration that you were unsure about making an unfair dismissal application at that point in time?---Yes.
PN52 And so you hadn’t decided what you wanted to do at that point, is that point?
---No, I hadn’t, that’s correct.
**** JOHN LEONARD SCUDERI XXN MS BREZIEN
PN53 Mr Scuderi, I understand from your statutory declaration that you instructed your lawyers to write to the company, which they did on 10 June 2011?---Yes.
PN54 And that was already some time outside of the unfair dismissal application period of time to file, wasn’t it?---I wasn’t aware of any time constraints on the application.
PN55 Mr Scuderi, at what point did you decide that you wanted to make an unfair dismissal application against the company?---I (indistinct) from the start and the process during the proceedings leading up to the whole - the final (indistinct) So once I then (indistinct) some thought went into it and I actually went forward.
PN56 All right. But at 7 June you hadn’t made any decision about making an unfair dismissal application, you told me earlier?---Yes.
PN57 So at what point did you change your mind about that?---I went to seek legal advice as to whether a case would stand or not.
PN58 And when did you get that legal advice?---When I met with Nikki Dawson.
PN59 On 7 June?---That’s right, yes.
....” 9
[16] It appears during the course of the meeting on 7 June 2011 the Applicant did not give instructions to Nikki Dawson at the Brad Robins Legal Centre to file an unfair dismissal claim but was instead seeking advice as to whether, to use his expression“a case would stand or not”. It would appear from the evidence the decision taken as a result of that meeting with his representatives on 7 June 2011 was not to pursue an unfair dismissal at that time but instead to seek to obtain further information from the Respondent in order that his legal representatives could then provide further advice to the Applicant on whether or not to pursue a claim.
[17] Three days after the meeting of 7 June 2010 the solicitors for the Applicant sent correspondence to the Respondent requesting a copy of the Applicant’s employment file and putting them on notice that in the future, an unfair dismissal application may (my emphasis) be made. This raises the question of whether an application should have been filed on the 7 June 2011 and the failure to do so amounts to a case of representative error on the part of the solicitors for the Applicant. The difficulty with that proposition is that the evidence including the statutory declaration of the Applicant is clear that he had not decided as at 7 June 2011 to pursue an unfair dismissal application. The use of the word “may” in the correspondence sent to the Respondent on 10 June 2011 is consistent with the evidence of the Applicant on this point.
[18] Mr Scuderi had in his possession the termination letter which set out the reasons for his dismissal and he attended the meeting of 20 May 2011 himself. He had sufficient information to give instructions to his solicitors to make the application on 7 June 2011 but the evidence is he had not made a decision at that time.
[19] On that basis I cannot conclude that this is a case of representative error on the part of the solicitors for failing to promptly file an Application when the Applicant’s own evidence is he was undecided on the matter and his solicitors had not received instructions to file an unfair dismissal application at that stage.
[20] The explanation provided for the delay from the date of 7 June 2011 when the Applicant first sought advice from a legal representative to 29 June 2011, a period of some 22 days, is in two parts. Firstly he was waiting for a response to the correspondence sent to the Respondent, and secondly on not receiving a response made a decision to travel to Mt Isa from Townsville to recover documents in order to decide whether to file or not file an application.
[21] It is on these grounds in combination with his medical condition that Mr Mr Scuderi relies for being unable to instruct his solicitors to file an unfair dismissal from the 7 June 2011 to 29 June 2011. This needs to also be considered in the context that in that timeframe he had instructed his solicitor to write a letter to the Respondent about his dismissal, and he also drove the 800km trip each way between Townsville and Mt Isa at some time on or after 22 June 2011. 10
Section 394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[22] The Applicant confirmed he understood he was had been terminated on 20 May 2011. 11
Section 394(3) (c) any action taken by the person to dispute the dismissal
[23] It is asserted for the Applicant that he sought the advice of the Brad Robbins Legal Centre on 7 June 2011, and on 10 June 2011 the Applicant put the Respondent on notice that he intended to dispute the dismissal and asked for documents concerning the investigation process. As the documents were not disclosed this limited the ability of his legal advisors at The Brad Robbins Legal Centre to give proper legal advice.
[24] The Respondent points to the Applicant not seeking advice until three days outside the time limit, and the letter of the 10 June 2011 not being sent until six days outside the time limit.
[25] The Respondent says it was a further three weeks after the letter of 10 June 2011 and his initially seeking legal advice before the application was filed on 29 June 2011.
[26] The Respondent says it is not reasonable for the Applicant to take a further 22 days from first instructing legal representatives to the Applicant’s application being filed. The Respondent says the fact he could instruct lawyers is inconsistent with his evidence that he was not capable of comprehending his predicament.
Section 394(3) (d) prejudice to the employer (including prejudice caused by the delay)
[27] The Applicant says there can be no prejudice to the Respondent as it cannot be said important documents or witnesses have been lost, and the Respondent was put on notice on 10 June 2011, only seven days after the time limit expired and the employer would not have destroyed any relevant documents.
[28] The Respondent says it will suffer prejudice as Mr Godfrey, the Senior Human Resources Advisor who was responsible for overseeing previous show cause processes, formal warnings and a performance improvement plan in relation to the Applicant as well as other investigations involving allegations against the Applicant has left the employment of the Respondent. The Respondent says Mr Godfrey was employed by the Respondent at the time of the Applicants dismissal and his departure was weeks following the termination of the Applicant but before the Applicant was filed.
[29] The Respondent says had the Application been filed within time the Respondent could have ensured all necessary information was obtained from Mr Godfrey prior to him leaving.
[30] It is clear the Respondent will suffer some prejudice in terms of the preparation of its case due to the departure of Mr Godfrey having occurred after the filing of the Application which is caused by the delay on the part of the Applicant. However I also believe in a case such as this one where the respondent has some 3,800 employees 12 it has the resources to overcome this disadvantage and it is not a sufficient of itself find against extending time.
Section 394(3) (e) the merits of the application
[31] As there are contested grounds between the parties it is not appropriate for me to embark upon a fact finding exercise in relation to the merits of the case and I cannot say at this stage that the application is hopeless or unarguable or bound to fail.
Section 394(3)(f) fairness as between the person and other persons in a similar position
[32] Both the Applicant and Respondent agreed this factor is not relevant in this case.
Exceptional Circumstances
[33] Section 394(3) requires that FWA is satisfied that there are ‘exceptional circumstances’ to allow a further period of time to make an application after the 14 day time limit has lapsed.
[34] ‘Exceptional’ describes a circumstance which is such as to form an exception, which is not 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. 13
[35] The Applicant referred to a decision of Vice President Lawler in Christopher Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery 14where the Vice President was satisfied that there were exceptional circumstances when a bona fide attempt to file an application through the FWA web site within time, which was unsuccessful for reasons beyond the understanding of the applicant was filed four days out of time.15
[36] The Applicant says the exceptional circumstance in this case is that the Applicant was dismissed at a time when he was certified unfit to work and the Respondent pushed ahead regardless even though the Respondent was aware of his medical condition. Further the Applicant was unfit due to mental and emotional circumstances during the material time and there had been a significant denial of natural justice.
[37] The Applicant said that on the morning of 20 May 2011 he met with another employee of the Respondent, Mr Bill Brydson, who at the time was a Human Resources Advisor and provided him with a copy of the Medical Certificate issue to him by Dr Bharathan on 19 May 2010. He also said that he provided Mr Brydson with a letter of complaint about the way he had been treated by Sonia Finney. 16
[38] It is argued for the Applicant it does not matter that the medical certificate did not specify the precise nature of the illness as the certificate is prima facie evidence that the Applicant was not fit for work.
[39] The Respondent says the medical evidence provided by the Applicant does not suggest that he was incapable of taking any action in respect of his dismissal during the two week period following his dismissal. He was not hospitalised. The Applicant claims that he experienced trauma in connection with his termination. He says he was ‘not himself’ and was ‘not fully capable of appreciating’ his predicament and his rights.
[40] The Respondent submits there is no evidence to demonstrate the Applicant was suffering incapacity sufficient to create the abnormal circumstances which would justify an extension of time and it relied on Rose v BMDC Constructions T/L 17whereCommissioner Roe in that decision dealing with a case where an Applicant sought an extension on the basis of incapacity said as follows;
“.....
[9] The evidence of the Applicant does not suggest that she was incapable of taking any action in respect to her dismissal during the two weeks following the dismissal. She was not hospitalised. She says that she was shocked and traumatised but there is no suggestion of incapacity. The Applicant provided a medical certificate dated 16 December 2010 stating that “Susan Rose tells me she was dismissed from her job in September 2010 and has reported to me this has produced anxiety/depression.” This is not strong evidence of incapacity to act during the two week period immediately following the dismissal.
[10] It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.
.......” 18
[41] The obligation on the Applicant in this matter is not to show he was unfit for work, but is instead to show he was not capable of taking the necessary steps to have an unfair dismissal claim lodged within 14 days justifying an extension of time. The difficulty for the Applicant in this case is that there is not strong evidence that this was the case. The Applicant did not call expert medical evidence and the medical certificates provided for the relevant time are not specific.
[42] The Applicant states that he suffered from anxiety, stress, probably depression and vomiting when worrying about work. Further he says his termination on 20 May 2011 exacerbated his condition. However he elected to attend the meeting on 20 May 2011 despite presenting a medical certificate to Mr Brydson. He evidence was not that he opposed the meeting proceeding or that he had requested an adjournment of the meeting however he said he prepared and presented to Mr Brydson a letter of complaint about Ms Sonia Finney at the same time as he presented the medical certificate. On the particular facts in this case I do not believe the decision of the employer to proceed to make a decision in regard to the termination on 20 May 2011 is of itself an exceptional circumstance that would justify an extension of time.
[43] There is further evidence that he made an argument at the commencement of the meeting seeking the exclusion of Ms Finney. These are not the actions of a person who was incapable, at least on the day of 20 May 2011 itself, of taking the necessary steps to lodge an unfair dismissal claim.
[44] The Respondent also referred to Elrifai v Demons Formwork & Construction Pty Ltd 19 where an extension of time application based partly on mental and physical health issues which were not specific and not supported by medical evidence was rejected.
[45] The Respondent relies on Ballarat Truck Centre Pty Ltd v Melissa Kerr 20where a Full Bench dismissed an application for an extension of time on the basis that the applicant was quite capable of acting in her own capacity despite evidence from a treating doctor and a counsellor that the applicant was suffering from anxiety and a depressive illness at the time.
[46] The Respondent also referred to Copping v Motown Media Proprietary Limited 21where the Applicant for an extension of time relied on evidence from a treating specialist that the applicant was suffering from a depressive condition. It was held in that matter that the mental state of the applicant did not mean instructions could not be given by the applicant to her lawyers.
[47] The credibility of the Applicant’s argument that he was suffering from a level of stress that made him incapable of filing an unfair dismissal claim between 20 May 2011 and 3 June 2011 is weakened in the context of other evidence about him obtaining other employment.
[48] I say this because of the four medical certificates covering the period from 19 May 2011 to 6 September 2011. It is only the last certificate that makes any reference to him suffering from stress, the first three merely saying he is unfit to continue his usual occupation. While the certificates said he was unfit to continue his usual occupation he gave evidence that he commenced new employment on 5 July 2011, which was confirmed by his Representative as that of a Training Co-ordinator. 22
[49] The evidence that he has been in paid employment from 5 July 2011 to the time of the Hearing on 13 October 2011 sits somewhat uneasily with the medical certificates he seeks to rely on which say no more than that he was either unable or unfit for work in his usual occupation from 19 May 2011 to 7 August 2011 when the third certificate expired, and again from 8 August to 6 September 2011 according to the fourth certificate saying he was not able to work at all due to ‘stress from previous job’.. There is an overlap of just over two months from when he commenced new employment as a Training Co-ordinator and the time period covered by the medical certificates relied upon saying he was unfit for work.
[50] The fact that the medical certificate that applied during the period of the 14 day time limit was in almost identical terms to the medical certificate that applied when he commenced new employment on 5 July underscores the difficulty for the Applicant in attempting to rely on the medical certificates covering the period between 20 May 2011 to 29 June 2011 to argue he was not capable of taking the steps necessary for an unfair dismissal application to be filed during that time. I acknowledge the fourth certificate makes reference to stress but does not provide any detail as to how this would impact on the Applicant’s ability to file an unfair dismissal application.
[51] The explanation provided for the 22 day delay from 7 June 2011 to 29 June 2011 rests on his medical condition, waiting for a response to correspondence sent to the Respondent, and being required to travel to Mt Isa to collect documents. The Applicant did not call any direct evidence from a treating doctor, however as was referred to by the Respondent, even in cases where direct evidence from treating doctors is called, if the evidence does not deal directly with the capacity to cause an application to be made it may not support the finding of an extension of time in any event.
[52] There is no satisfactory explanation for the delay in the Applicant making a decision to file an application once he had an opportunity to consult a legal representative on 7 June 2011. He knew he was dismissed on 20 May 2011 and he had in his possession the termination letter setting out the reasons for dismissal when he consulted a lawyer. The Applicant’s case also needs to be considered in the context that in the period from 7 June 2011 to 29 June 2011 he was capable of instructing his solicitor to write a letter to the Respondent about his dismissal, and he was also capable of driving the 800km trip each way between Townsville and Mt Isa. This is in addition to other evidence that he had prepared and presented a complaint about Ms Finney on or around the day of his termination.
[53] I have considered all of the evidence and submissions in the light of section 394(3) and I find that exceptional circumstances do not exist in this case which would justify the granting of an extension of time for the making of the Application 26 days late.
[54] The Application for unfair dismissal remedy cannot proceed and the Application is dismissed.
COMMISSIONER
Appearances:
Mr Middleton from The Brad Robins Legal Centre, for the Applicant
Mr Betzien from Minter Ellison, for the Respondent
Hearing details:
Brisbane
2011
13 October
1 Exhibit 1 - Applicants Statutory Declaration
2 Applicants Statutory Declaration - Annexure A
3 Applicants Statutory Declaration - Annexure B
4 Applicants Statutory Declaration - Annexure D
5 Applicants Statutory Declaration - Annexure E
6 Applicants Statutory Declaration - Annexure E
7 Exhibit 1 - Applicant’s Statutory Declaration paragraph 8
8 Exhibit 1 - Applicant’s Statutory Declaration Annexure C
9 Transcript of Hearing - 13 October 2011 paragraph 50 - paragraph 59
10 Transcript of Hearing - 13 October 2011 paragraph 153 - paragraph 163
11 Transcript of Hearing - 13 October 2011 paragraph 46.
12 Form 3 Response to the Application for Unfair Dismissal
13 Mann v Minister for Immigration and Citizenship [2009] FCAFC 150
14 Christopher Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394 PR994029
15 Christopher Johnson v Joy Manufacturing Co Pty Ltd t/a Joy Mining Machinery [2010] FWA 1394 paragraph 29
16 Exhibit 1 - Applicant’s Statutory Declaration paragraph 4
17 Rose v BMDC Constructions T/L[2011] FWA 673
18 Rose v BMDC Constructions T/L[2011] FWA 673 at [10]
19 Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090 PR512852
20 Ballarat Truck Centre Pty Ltd v Melissa Kerr [2011] FWA FB5645 PR513733
21 Copping v Motown Media Proprietary Limited[2010] FWA 7410 PR501985
22 Transcript of Hearing - 13 October 2011 paragraph 78 - paragraph 87
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