John Talbot v O'Connor Haulage (ACT) Pty Ltd T/A O'Connor Haulage
[2012] FWA 3969
•9 MAY 2012
[2012] FWA 3969 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
John Talbot
v
O’Connor Haulage (ACT) Pty Ltd T/A O’Connor Haulage
(C2012/2949)
COMMISSIONER GOOLEY | MELBOURNE, 9 MAY 2012 |
Application to deal with contraventions involving dismissal.
[1] On 6 March 2012 Mr John Talbot made an application pursuant to section 365 of the Fair Work Act 2009 (FW Act) for Fair Work Australia to deal with a general protections dispute.
[2] Mr Talbot’s employment with O’Connor Haulage (ACT) Pty Ltd (the Respondent) ended on 20 January 2012. Mr Talbot lodged his section 365 application on 6 March 2012. This was within the 60 days provided for in section 366 of the FW Act.
[3] In the application lodged with Fair Work Australia Mr Talbot alleged that his employment was terminated because he was temporarily absent from work because of illness or injury of a kind prescribed by the regulations. 1
[4] A conference was conducted on 26 March 2012 and the dispute was not resolved. At the conference Mr Talbot advised that he wished to amend his application to include a claim that he was dismissed because he proposed to exercise a workplace right or to prevent him exercising a workplace right. 2 Mr Talbot alleged that his employment was terminated because he proposed to make a workers’ compensation claim and exercise his right to return to work on light duties.
[5] The Respondent did not consent to Mr Talbot’s proposed amendment. The parties were permitted to file submissions in support and opposition to the application to amend and the application was to be determined on the papers.
[6] I have had regard in this decision to the application filed by Mr Talbot and his submissions. I have further had regard to the Respondent’s response to Mr Talbot’s application and the Respondent’s submissions. Both parties have set out their version of events leading up to the termination of Mr Talbot’s employment. This evidence has not been tested.
Mr Talbot’s Submissions
[7] On 30 March 2012 Mr Talbot filed submissions in support of his application to amend his application without specifying any specific provision of section 340 of the FW Act that he relied upon.
[8] Mr Talbot submitted that he was injured at work in the week commencing 18 December 2011 but he continued working until 24 December 2011 when he commenced annual leave. He attended hospital on 31 December 2011 and received a medical certificate which provided that he was unfit for work from 31 December 2011 to 12 January 2012 due to an “exacerbation of back pain.” Mr Talbot submitted that he received a phone call from Carlos the allocator of the Respondent and Mr Talbot told him that the doctor thought he was suffering from gallstones. It is not disputed that Mr Talbot did not provide the Respondent with his medical certificate. 3
[9] Mr Talbot obtained another medical certificate on 4 January 2012 which advised that he was unfit for work until 11 January 2012. He again spoke to Carlos and advised that he would not be at work for another week. It is not disputed that Mr Talbot did not provide the Respondent with his medical certificate. 4
[10] On 6 January 2012 Mr Talbot said he spoke to Mr Ashley O’Connor a director or senior manager with the Respondent and told him that he had a bulging disk and Mr O’Connor told him to keep him updated. 5 Mr Talbot did not in his material claim that he told Mr O’Connor that this was a work related injury.
[11] On 17 January 2012 Mr Talbot obtained another medical certificate which gave no details about Mr Talbot’s condition and advised that he was unfit for work until 17 January 2012. 6
[12] Mr Talbot then went to Sydney to see his GP and on 18 January 2012 was given a further medical certificate. That certificate gave no details of Mr Talbot’s condition and advised he was unfit for work until 2 February 2012. 7
[13] On 20 January 2012, Mr Talbot went to the Respondent’s workplace in Sydney and met with Mr O’Connor and Mr Cameron Taylor, the National Manager for the Respondent. Mr Talbot was advised that his employment had been terminated due to his abandonment of employment. It is not disputed that Mr Talbot did not provide the Respondent with any of his medical certificates at this meeting despite claiming in his material that he had them with him and told the Respondent that he had them. 8
[14] Mr Talbot’s wife contacted Fair Work Australia after about 14 days and was told Mr Talbot was out of time to lodge an unfair dismissal claim and that he could file a general protections claim. Mr Talbot, on legal advice, lodged this application alleging his employment was terminated because he was temporarily absent from work due to an illness or injury. 9
[15] Mr Talbot lodged a worker’s compensation claim after the termination of his employment. A workers compensation medical certificate was provided to the Respondent on 1 March 2012. It was dated 21 February 2012 and advised the Mr Talbot had been unfit to work from 31 December 2011 to 6 March 2012. None of the earlier medical certificates had been worker’s compensation incapacity certificates. His workers compensation claim post dated the termination of his employment and there is no material which suggested that Mr Talbot proposed to lodge a worker’s compensation claim prior to the termination of his employment. 10
[16] Mr Talbot submitted that he should be permitted to amend his application because the “delay in filing an application seeking the protection of section 340 arises because, with respect to the applicant’s previous legal advisors, the applicant may have issued an application seeking the protection of section 352 without considering whether there had been compliance with Regulation 3.01” 11
[17] Mr Talbot submitted that given his employment was terminated due to his alleged abandonment of employment there was little he could do to contest the termination at the time. Mr Talbot submitted that there was no prejudice to the employer in permitting him to amend his claim. Mr Talbot submitted that his claim under section 340 was strong. 12
The Respondent’s Submissions
[18] In its response to the original application filed by Mr Talbot the Respondent submitted that Mr Talbot’s employment had been terminated on 18 January 2012. However the Respondent accepted that this decision was not communicated to Mr Talbot until 20 January 2012. 13
[19] The Respondent submitted that Mr Talbot was due to return to work on 3 January 2012 and he did not. The Respondent submitted that it had made numerous attempts to contact Mr Talbot but to no avail. 14
[20] The Respondent submitted that on 20 January 2012 Mr Talbot met with Mr O’Connor and Mr Taylor and was told that because they considered that he had abandoned his employment his employment had been terminated on 18 January 2012. Mr Talbot told them that he was not fit for work as he had sustained a back injury. He was asked when the injury occurred and Mr Talbot advised that he was unsure what he caused his injury. The Respondent submitted that Mr Talbot then proposed three solutions:
● The Respondent pay Mr Talbot severance pay.
● The Respondent guarantee a continuous open position of employment for Mr Talbot.
● The Respondent refer the back injury to worker’s compensation in order to receive immediate treatment because Mr Talbot did not have private health insurance. 15
[21] The Respondent did not agree to any of these options as “at not stage during the course of his employment did he inform our company of a workplace injury.” 16
[22] The Respondent submitted that Mr Talbot should not be permitted to amend his application as the application under section 340 was not lodged within 60 days of the dismissal. It was submitted that the current application was 10 days late. 17 The Respondent complains that the basis of the Applicant’s amended claim is unclear.18
[23] The Respondent submitted that there are no exceptional circumstances warranting an extension of time to amend the application. Inherent in the Respondent’s submission is the assumption that the power to permit a document to be amended is limited by section 366(2) of the FW Act if the Applicant seeks to add a claim that is in effect out of time. I will return to this issue latter in this decision.
[24] The Respondent submitted that there are no exceptional circumstances warranting an extension of time. 19 Mr Talbot did not explain why he did not lodge an application alleging a breach of section 340 the same time as he lodged his application alleging a breach of section 352. The Respondent submitted that Mr Talbot did not submit that there was representative error. The Respondent submitted that it cannot be said that Mr Talbot’s medical condition prevented him from making an application that included an alleged breach of section 340.20
[25] The Respondent submitted that Mr Talbot first disputed his termination when he lodged his application on 6 March 2012. 21 The Respondent submitted that this is a neutral factor.
[26] The Respondent submitted that it will be prejudiced by being required to attend a further conciliation conference. 22
[27] The Respondent submitted in light of the failure of Mr Talbot to identify a workplace right means that the merits of the application are poor. 23
The Legislative Framework
[28] Section 586 of the FW Act gives Fair Work Australia with the power to allow a correction or amendment of any applications and documents as follows:
“FWA may:
(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to FWA.
[29] Section 366 of the FW Act provides as follows:
“(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; 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 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.”
[30] Section 366 refers to the criteria to be applied by the Tribunal if an application is made out of time. However there is nothing to suggest that these criteria apply when an application has been made in time and an amendment to that application is proposed.
[31] In this case a valid application is before the Tribunal. Mr Talbot seeks to amend that application. In my view it is not necessary to import into the consideration applicable to section 586 the criteria set out in section 366. The FW Act requires an applicant make an application alleging that that they have been dismissed in breach of Part 3-1. There is no requirement in the FW Act that the applicant particularise the sections of Part 3-1 that they rely upon. This is a requirement of the Fair Work Australia Rules.
[32] In CEPU v Active Tree Services Pty Ltd 24Federal Magistrate Coker, in dismissing a section 365 application, concluded that “there is a requirement for there to be as full as possible particularity, in relation to the nature of the dispute, before the conduct of the conciliation conference is able to be considered.”25 Coker FM concluded that “the use of the term “dispute” in each of the sections of the Act to which [he had] referred, section 365, section 368, section 369 and section 371 are one and the same dispute and not one which is simply a developing area of complaint or concern, following through from the negotiating process.”26
[33] Respectfully I do not agree with the conclusion that the application must be fully particularised prior to the conference. However if during the conference the dispute is articulated differently to that contained in the application then section 586 provides a mechanism for amendment of the application to ensure that the dispute that is conciliated is properly described.
[34] I agree with Commissioner Cloghan 27 when he said in response to the CEPU’s subsequent application against Active Tree Services Pty Ltd:
“[39] In my opinion, the construction of s.365 of the FW Act has two materially important and simple features, and they are: that the person has been dismissed and that the dismissal was allegedly in contravention of Part 3-1 of the FW Act. Should these two material features be evident to the Tribunal, the Tribunal must conduct a conference.
[40] In short, the Tribunal must deal with a dispute if it has the relevant material which characterises that an employee has been dismissed, and the employee alleges that the dismissal is in contravention of Part 3-1 of the FW Act.
[41] Having been required to deal with a dispute, it is not uncommon for the applicant to advance argument to FWA in one, two or more alternative ways in which the other party has not complied with Part 3-1 of the FW Act. In some instances, the allegation of contravention of Part 3-1 of the FW Act, expand or contract in light of discussions at conference.
[42] Further, and finally, in relation to the provisions of the FW Act relating to the mandatory conference, which must be held where there is a “dispute”, there is nothing to suggest that Parliament intended to limit FWA to deal with the content contained in the application only. On the contrary, Parliament has mandated the FWA deal with the “dispute” in its entirety without being fettered. And it is the “dispute”, in its wholeness, which the Tribunal certifies that all reasonable attempts to resolve have been, or are likely to be unsuccessful.
[43] Turning to a practical way to overcome the nature and manner in which these applications came to the Tribunal, where the nature of the dispute expands beyond that initially outlined in the application, is for applicants to make application pursuant to s.586 of the FW Act, where appropriate, to amend an application or seek an adjournment of proceedings, to amend an application in the context of further and better particulars in relation to a dispute. Such action would be consistent with s.577 of the FW Act, where FWA must perform and exercise its powers in a manner which, among others, is fair, just, quick, informal and avoids unnecessary technicalities.”
[35] Section 586 provides Fair Work Australia with a wide discretion to permit a party to amend an application. In my view this discretion must be exercised having regard to the objects of the FW Act generally and Part 3-1 of the FW Act in particular.
[36] Relevantly section 336 of the FW Act provides that the object of Part 3-1 of the FW Act are:
“(a) to protect workplace rights
(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contravention of this Part.”
Conclusion
[37] I have decided to permit the Applicant to amend his application.
[38] This is not a case in which case management considerations are relevant to the exercise of the Tribunal’s discretion. The proposed amendment was raised by Mr Talbot early in the proceedings.
[39] Further the wider dispute as articulated by Mr Talbot was considered at the conference and there was no resolution of that dispute.
[40] It is relevant to the exercise of my discretion that Mr Talbot is unable to proceed with this aspect of his claim if an amendment is not permitted.
[41] It is relevant to the exercise of my discretion that no specific amendment is proposed by Mr Talbot. It is not sufficient for Mr Talbot to seek to amend his application to generally allege that his employment was terminated because he exercised or proposed to exercise a work place right or to prevent him from exercising a workplace right. The failure to clearly specify the workplace right and the failure to make any submissions that he either had exercised a particular work place right or proposed to exercise a particular work place right and that the Respondent was aware of that when it made the decision to terminate his employment weighs against the exercise of the Tribunal’s discretion in this matter.
[42] Further just because the Applicant and his legal advisors did not turn their minds to the strength of the claim currently before Fair Work Australia does not warrant the exercise of discretion by Fair Work Australia to permit the Applicant to amend his application to add a further unspecified cause of action. There were no submissions that this is a case involving representative error.
[43] I accept that the Respondent would not be prejudiced in any material fashion by granting permission for a specific amendment. While Mr Talbot has not made a specific amendment the general nature of the amendment was discussed in the conference. As that matter was considered at the conference there would be no need for a further conference to be conducted and therefore the prejudice identified by the Respondent would not materialise.
[44] Mr Talbot was represented when he made his original application, at the conference and in making this application. This is a relevant consideration when considering his application for an amendment.
[45] It is further relevant that should Mr Talbot elect to proceed to court that he is required to prove he had a workplace right and or proposed to exercise a workplace right. As it is not disputed that Mr Talbot’s employment was terminated if he established any of these elements then it is presumed that the Respondent took the adverse action for the reasons alleged unless the Respondent proves otherwise. 28
[46] Mr Talbot’s claim that his employment was terminated because he was proposing to make a worker’s compensation claim or to work on light duties is not strong. Nothing in what Mr Talbot filed suggested that he proposed to make a workers’ compensation claim or to return to work on light duties. However on the Respondent’s material it appears that on 20 January 2012 Mr Talbot told the Respondent that he was going to make a claim for worker’s compensation and he wanted them to keep his job open.
[47] If the Respondent’s evidence were accepted the decision to terminate Mr Talbot’s employment was made prior to his attendance at the Sydney office. It is difficult to conceive that an employer could be found to have terminated someone’s employment because they proposed to make a worker’s compensation claim and return to work on light duties if the employer had no knowledge that the employee claimed to have a work related injury. Mr Talbot however claims that he told Mr O’Connor of his injury prior to the termination of this employment. What can be drawn from this is difficult to determine as no submissions were made about any inferences that could be drawn from this claim.
[48] The fact that Mr Talbot’s claim appears on the material before the Tribunal to be very weak would, but for section 361 of the FW Act, weigh against Mr Talbot being permitted to amend his application.
[49] I have had regard to the material put forward by Mr Talbot and the Respondent. I have decided that, as the denial of the amendment would prevent Mr Talbot having his dispute dealt with to finality in one proceeding, the balance is tipped in favour of the exercise my discretion to permit an amendment to the application.
[50] However I would not permit an open ended amendment. Mr Talbot will be permitted to amend his application to allege that his employment was terminated because he proposed to lodge a worker’s compensation claim and return to work on light duties or to prevent him exercising his workplace right namely to return to work on light duties.
[51] Mr Talbot is directed to file and serve by the close of business on 16 May 2012 an amended application consistent with this decision. As the conference held on 26 March 2012 was unable to resolve the dispute a certificate to that effect will be issued after 16 May 2012.
COMMISSIONER
1 Section 352 of the Fair Work Act 2009
2 Section 340(1)(a)(iii)
3 Applicant’s submissions at [4]-[7]
4 Ibid at [8]
5 Ibid at [9]
6 Ibid at [10]
7 Ibid at [11]
8 Ibid at [12]
9 Ibid at[15]-[16]
10 Ibid at [17]
11 Ibid at [18(a)]]
12 Ibid at [18(d)]
13 Submissions of the Respondent at [5]-[7]
14 Employer F8A form
15 Ibid
16 Ibid
17 Submissions of the Respondent at [8]
18 Ibid at [8]
19 Ibid at [9]
20 Ibid at [11.a.i]
21 Ibid at [11.b.i]
22 Ibid at [11.c.i]
23 Ibid at [11.d.i]
24 [2011] FMCA 535
25 Ibid at [33]
26 Ibid at [34]
27 CEPU v Active Tree Services Pty Ltd [2011] FWA 5418
28 See section 361
Printed by authority of the Commonwealth Government Printer
<Price code C, PR523560>
3