Karl Turner v Swire Pacific Ships Management

[2021] FWC 6404

[2021] FWC 6404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karl Turner
v
Swire Pacific Ships Management
(U2021/9436)

COMMISSIONER WILLIAMS PERTH, 22 NOVEMBER 2021

Application for an unfair dismissal remedy - Application made out of time

[1] Mr Karl Turner (Mr Turner or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent is Swire Pacific Ships Management (the Respondent).

[2] The Application states that Mr Turner was notified of his dismissal on 29 October 2019, and he says this took effect 35 days later. The application to the Commission was made on 1 September 2021

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission, however, has the discretionary power to allow a further period for such application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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] Consequently, the Commission directed the Applicant to provide a written response to the matters to be considered under section 394(3) of the Act. On 27 October 2021, the Applicant addressed the reason for delay in his application and provided further comprehensive information. The Respondent has also provided a response to the application, including the extension of time question.

[6] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Factual findings

[7] The Applicant was notified of his dismissal in late October 2019. The dismissal took effect at the latest 35 days after 29 October 2019.

[8] As noted in the employer’s response, the Applicant has filed a number of prior applications.

[9] Firstly, on 18 November 2019 the Applicant lodged a general protections application involving dismissal under section 365 of the Act (C2019/7058). The application was listed for a telephone conciliation on 3 February 2020.

[10] The Commission’s records show that the Applicant engaged with the Commission on a number of separate occasions. On 27 December 2019 he filed supplementary documents. On 16 January 2020 he called and spoke to the Commission staff.

[11] On 31 January 2020 the Commission emailed Mr Turner and the Respondent relevantly as follows,

“Dear Mr Turner,

C2019/7058 - Turner, Karl v Swire Pacific Ship Management (Australia) Pty Ltd

I refer to the matter above, and the telephone conversation between yourself and I earlier today. I note that this matter has been allocated to Deputy President Boyce and that his Honour has carriage of the matter.

Withdrawal of claim

During that telephone conversation, I confirm that you informed the Fair Work Commission that you intended to wholly withdraw your application (on the basis that you may seek to bring a claim before another court or tribunal and/or in another jurisdiction).

Having discussed your oral application to withdraw your claim with the Deputy President, his Honour has taken your withdrawal application as complete and effective immediately. Further, the Deputy President does not require that you complete and return a Form F50 (see: Fair Work Commission Rules 2013 Rule 10).

This matter is now wholly withdrawn before the Fair Work Commission and the file is closed.”

[12] Consequently, the listed telephone conference was vacated and did not proceed.

[13] In the written information filed on 27 October 2021, the Applicant says that the general protections application process, and the stress of his work situation stressed him, and the symptoms of the schitzoaffective disorder that he had just been diagnosed with began to manifest. He says he was hospitalised on 30 January 2020 and so had to cancel the conference.

[14] On 17 March 2020, the Applicant lodged an unfair dismissal remedy application under section 394 of the Act (U2020/3147). The Respondent objected to the application on the grounds that it was out of time and, in any event, the dismissal was not unfair.

[15] On 29 April 2020, a conciliation conference in relation to this application was conducted by a staff conciliator but was unsuccessful.

[16] The same day this application was allocated to me for hearing and determination.

[17] On 6 May 2020, a letter was sent to the Applicant which explained his application had been made beyond the 21 day time limit and highlighted the requirements of s.394(3) of the Act.

[18] Relevantly the letter said,

“It appears that your application was made out of time.

If that is the case the Fair Work Commission is required to decide whether it should allow a further period for this application.

The Commission will have regard for the comprehensive materials you have already filed with your application however if you wish to provide any additional witness statements, submissions or documentation to allow the Commission to determine if there are exceptional circumstances in this case this must be provided to the Commission and copies served on the Respondent by 4:00pm Wednesday, 20 May 2020.”

[19] On 19 May 2020, the day before the Applicant was due to file any further materials, the Applicant emailed to the Commission a completed Form F 50 - Notice of discontinuance.

[20] On the form the Applicant ticked the box which reads “Wholly discontinues this matter to pursue an alternative application” and underneath had written “communicating with my manager”.

[21] In the written information filed on 27 October 2021, the Applicant says he:

“..Repeatedly applied for a Seacare Rehabilitation and Compensation claim but my employer refused to process the claim. I have approached Comcare and Seacare, and the Administrative Affairs Tribunal for help…”

[22] He also says that he sent complaints to ARPRAH regarding his treatment by his rehabilitation case manager.

[23] The information filed also includes the following documents,

•  a letter dated 2 September 2021 to the Applicant from the Manager Complaints Resolution of the Health and Disability Services Complaints Office, which refers to prior correspondence from them dated 11 August 2021. The letter mentions that he has previously raised the same issues with the office on two prior occasions.

•  a letter from the Health Care Complaints Commission of New South Wales which refers to additional information he submitted on 5 September 2021.

•  a letter dated 17 September 2021 to the Applicant from the Administrative Appeals Tribunal, which refers to his application for a review of the decision made by the Respondent.

•  an email from Comcare referring to his “…emails of 15 October 2021 to the Seacare helpdesk.”

[24] Also attached to the application was a medical report signed on 13 September 2021 by Dr Sally Osborne of the Osborne Park Mental Health Service.

[25] The report states at 2.3 that the Applicant’s current diagnosis is schizo – affective disorder complicated by methamphetamine/amphetamine use.

[26] The report at 2.5 refers to the Applicant as having been admitted to Graylands Hospital from 5 June to 12 August 2021 and was discharged on a Community Treatment Order.

[27] At 3.4 report states that the Applicant has recovered from the acute exacerbation of his disorder which resulted in his admission to Graylands Hospital and is now in the longer term phase of recovery.

The reason for the delay

[28] In the further information filed by the Applicant on 27 October 2021 he states,

“In my unfair dismissal application email I sent through a medical document detailing my current Community Treatment Order and the doctors detailing of my condition to let you know that it has been impossible for me to submit my application for unfair dismissal any earlier.”

[29] The Applicant submits that he believes the information he has provided demonstrates that at no earlier time was it possible for him to submit this unfair dismissal claim.

[30] Considering the facts in this matter and the Applicant’s submissions regarding the reasons for the delay in making this application, I do accept that for the period when the Applicant was hospitalised he was unable to make this application to the Commission. I also accept that some further part of the delay in making this application is explained by the Applicant’s, at times, problematic mental health.

[31] However, between the Applicant’s dismissal in 2019 and when he made this application on 21 October 2021, there clearly were periods when he was not hospitalised and his mental health condition would not have prevented him from making this application.

[32] This is self-evidently the case because before making this application on 21 October 2021, the Applicant made a general protections application concerning dismissal and separately an unfair dismissal remedy application. At these times his mental health did not prevent him making these applications.

[33] In addition, it is apparent from the Applicant’s own documentation that his mental health had not prevented him engaging competently in writing with a number of other organisations between August 2021 and 15 October 2021. He was, during this time, capable of actively pursuing with these respective organisations’ complaints, reviews of earlier decisions and compensation claims.

[34] Consequently, whilst I accept the Applicant does have acceptable reasons for some of the delay in making this application, he has not provided evidence of an acceptable reason for a large part what is a lengthy delay in this case exceeding 600 days.

[35] In conclusion the reasons the Applicant has, which reasonably explain part of the delay, in the full circumstances here do not weigh in favour of finding there were exceptional circumstances.

[36] Separately, the fact that at times the Applicant’s mental health was problematic is not itself an exceptional circumstance.

When the Applicant became aware of the dismissal

[37] This was not a case where the Applicant first became aware of his dismissal after it had taken effect.

[38] This weighs against a finding of there being exceptional circumstances.

Action taken to dispute the dismissal

[39] I accept that the Applicant has consistently disputed his dismissal, directly with him his employer and through multiple applications to this Commission and with other regulatory authorities.

[40] This weighs in favour of finding there were exceptional circumstances.

Prejudice to the employer

[41] I accept the lengthy delay in this instance is prejudicial to the employer in this case.

[42] This weighs against a finding of there being exceptional circumstances.

The merits of the application

[43] The merits of this application would involve evidence about the Applicant’s state of mental health over a period prior to his dismissal, and his capacity to carry out the inherent requirements of his position as a seafarer in 2019.

[44] It is clear that these issues would be heavily contested and would likely necessitate the calling of a number of medical persons who had at various times examined and/or treated the Applicant.

[45] In determining the question of whether a further period, beyond the legislated 21 days, should be allowed for the Applicant to make his application the Commission does not engage in a full hearing of the merits of this case. It is not possible on the materials filed to form a considered view as to the merits of this particular application.

[46] Consequently, the merits of this application are a neutral factor when determining whether there are exceptional circumstances here.

Fairness between the Applicant and other persons in a similar position

[47] This factor is not relevant in this case.

Conclusion

[48] The onus is on the Applicant to demonstrate to the Commission that there are exceptional circumstances that warrant the Commission exercising its discretion to allow a further period of time, beyond the legislated 21 days, for the Applicant to file his application.

[49] In this instance, taking into account all of the factors the Act requires the Commission to consider, I am not satisfied that there are exceptional circumstances. Consequently, the Commission is not empowered to exercise its discretion to extend the period of time for the Applicant to make his unfair dismissal remedy application.

[50] This application is therefore dismissed. An order [PR736000] to that effect will be issued in conjunction with this decision.

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