Keith Watts v G.B. Galvanizing Service Pty Ltd

[2016] FWC 1768

[2016] FWC 1768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Keith Watts
v
G.B. Galvanizing Service Pty Ltd
(U2016/4446)

COMMISSIONER WILSON MELBOURNE, 22 MARCH 2016

Application for relief from unfair dismissal - extension of time.

[1] This matter concerns an application made by Keith Watts alleging unfair dismissal against his former employer, G.B. Galvanizing Service Pty Ltd. Mr Watts’ application to the Fair Work Commission was first received in the Commission on 10 February 2016.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). For reasons articulated below, I find the date Mr Watts’ dismissal took effect to be 15 January 2016. It is apparent from the dates referred to above that the application is therefore 5 days out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Mr Watts for the making of his application, and for the reasons set out below, I am not satisfied that a further period should be allowed for the making of his application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] G.B. Galvanizing objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Watts, the Applicant, and, on behalf of G.B. Galvanizing, Ms Tina Eason, the company’s Human Resource Manager, and Ms Caroline Davie, its OHS&E Officer.

Background

[7] Mr Watts was employed by G.B. Galvanizing Pty Ltd on 12 January 2005 and worked for the company undertaking various tasks associated with the cleaning of metal as part of its production processes. In the course of 2015 he had been struggling with injuries in connection with an injury at work.

[8] The material before the Commission is not precise as to the injuries or the period of time away from work that was had by Mr Watts, however the chronology prepared by the Respondent, and which has been taken into account by me, indicates that Mr Watts sustained a lower back injury in January 2014; was then subject to certification for light duties and a stay-at-work plan. The same chronology indicates that issues about Mr Watts’ return to work and the state of his capacity for work continued to be a question during 2015. By early December 2015 the matters had not resolved and a case note in the chronology reports the following;

“Keith came to work to drop off a medical certificate from his doctor. The doctor has told him to rest the shoulder for a month and spoke of the possibility of early retirement. I told Keith that if he was to look at early retirement that he could call his super fund which is Australian Super for advice. I asked him why he was using the grinder when he has been told several times in the past not to use it. He said it is easier to use the grinder than to use the file.” 3

[9] That note was made by Tina Eason, G.B. Galvanizing’s Human Resources Manager and, on 8 December 2015, her colleague, Caroline Davie, the company’s OHS&E Officer, went to Mr Watts’ home and discussed the situation with him. Part of that discussion included the following, recorded by Ms Davie;

“On the 08/12/15 as the applicant is a good friend of my fathers, I called the applicant and offered to go to this house which is close to work as the applicant had nil capacity to work and doesn’t have a car.

The applicants role had previously been modified in writing to adjust his capacity for work as instructed by his doctor. His doctor recommending that he was not able to undertake heavy industrial duties. I had been advised by hi [sic] direct supervisor and plant manager that on several occasions the applicant had been breeching the inherent lifting requirements of his job description and was lifting well above his capacity to work. As a result, the applicants doctor said that he was not able to work. Up to this point the applicant had not put in a workcover claim for his injuries but indicated that he was no longer fit enough to do the job.

The discussion I had with the applicant at his house was very brief. I indicated that the director of the company was disappointed that he was not adhering to the lighter duties in his job description as it was the collective goal for the applicant to continue working at this capacity until he decided to retire. I advised the applicant that he had several options that I knew of: He could do a transition to retirement and work part time, but that he needed to call his superannuation fund for details, I told him he could submit a workcover claim, or that he could continue in his current role but he would be given warnings for breeching the light duties order for his own safety, or that he could retire as he didn’t think he was fit enough to do the job anymore. I told him to think about it and let Tina (Human Resources) know what he wants to do.” 4

[10] This recollection accords without Ms Eason who recollects the following about this period;

“On 08/12/15 the OHS&E Officer (Caroline Davie) went to the applicants home as he does not have a car and presented him with various options to consider.

The applicant called me via the phone and said that he is going to retire/resign and claim disability payments through Centrelink. He informed me that his last day of work will be 15/01/16 and he will come in in person in the new year to collect any paperwork he will need.” 5

[11] Ms Eason’s evidence is that she took from these circumstances that Mr Watts did not intend to work for the company after 15 January 2016.

[12] Not long after these interactions, on 17 December 2015, Mr Watts attended his medical practitioner who gave him a medical certificate certifying him as being unfit for work in the period 18 December 2015 to 15 January 2016, inclusive. The context of this situation was that Ms Eason and Ms Davie had resolved with Mr Watts that if he provided a medical certificate to G.B. Galvanizing for the period until 15 January 2016 he would be paid his accrued personal leave during that period, which was in the order of four weeks’ pay.

[13] While there had been agreement that Mr Watts would finish up with the company on or around 15 January 2016, it took until 20 January 2016 to make contact with him and invite him into the company’s premises to complete the process associated with Mr Watts’ termination of employment. When the meeting took place Mr Watts was provided with an employment separation certificate recording that he had ceased work voluntarily on 20 January 2016. While indicating that it took until 20 January 2016 to make contact with Mr Watts in order to confirm his departure from the company, the evidence from both parties is that this date was merely a product of the time it took for G.B. Galvanizing in particular to return from the period of the Christmas/New Year closedown and for the company’s managers to turn their mind to Mr Watts’ circumstance.

[14] While the employment separation certificate refers to a termination date of 20 January 2016, the evidence leads to a finding, which I make, that Mr Watts’ last day of employment with G.B. Galvanizing was on Friday, 15 January 2016. This is corroborated by Mr Watts’ submissions to the Commission which refer to a resignation date of 15 January 2016, 6 as well as the material contained within the payslips he tendered to the Commission, and the evidence given by both parties about the circumstances of the discussions with Mr Watts on or around 7 and 8 December 2015, and the medical certificate Mr Watts provided on 17 December advising he was unfit for work until 15 January 2016.

[15] After agreeing to this arrangement, Mr Watts thought better about the matter and discussed it with his son, who lives in Queensland. The two decided that Mr Watts probably should “approach Fair Work” about the situation. While Mr Watts is not precise about the date of the conversation with his son, he thinks it probably occurred after 20 January 2016.

[16] Mr Watts’ evidence about what then occurred, following his change of heart, is also imprecise.

[17] He tried to obtain information about making an application to the Fair Work Commission including by calling the Commission’s helpline, which he found difficult to deal with. His evidence is that he made numerous calls to the Commission, but is not able to recollect the dates on which those calls took place. In addition, he struck difficulties in finalising his application because he did not have access to a computer for at least part of the time, because his own was not working.

[18] Having found that Mr Watts’ termination of employment took place on Friday, 15 January 2016, in order for his application to be within time it should have been made to the Fair Work Commission no later than Friday, 5 February 2016, while it was actually lodged on 10 February 2016.

Legislation

[19] For the purposes of s.396 of the Act, Mr Watts is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances.

[20] In considering whether an extension of time should be granted to Mr Watts, I am required to consider all of the criteria in s.394, which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[21] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 7 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.8 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.9

[22] Taking into account the matters which are before me, I am satisfied that the reason for Mr Watts’ delay in making an unfair dismissal application is that he had difficulties both in obtaining information on the subject and then making an application to the Commission.

[23] His change of mind about leaving G.B. Galvanizing came about sometime after 20 January when he discussed the matter with his son. If that conversation was close to 20 January 2016, there would have been almost 2 weeks in order for him to exercise his rights to make an unfair dismissal application within time. It is possible that in actuality the balance of the period was less than two weeks, but that still leaves a significant amount of time for Mr Watts to have exercised his right to make an application within time before the time limit expired on 5 February 2016.

[24] A circumstance in which a person finds difficulty in obtaining information about what they should do or how to obtain the relevant form from the Fair Work Commission or elsewhere is, of itself, not exceptional, and so in the absence of any alternative explanation for the delay in making an unfair dismissal application I do not consider an acceptable reason has been put forward for the delay in Mr Watts making an unfair dismissal application.

[25] Accordingly, this criterion does not resolve in his favour.

2. Whether the person first became aware of the dismissal after it had taken effect

[26] As set out above, I am satisfied that Mr Watts first became aware of the termination of his employment when he agreed in December 2015 to resign on 15 January 2016. This is therefore not a circumstance where Mr Watts only became aware of his termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[27] Mr Watts’ evidence about the actions taken by him to dispute his termination of employment is that it consists entirely of making the application for unfair dismissal to the Commission. There is no evidence that either before or shortly after receiving the employment separation certificate on 20 January 2016 he had indicated to G.B. Galvanizing that he no longer wished to go through with the agreement he had reached with them in December 2015.

[28] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of Respondent.

4. Prejudice to the employer (including prejudice caused by the delay)

[29] The delay in the filing of the application is 5 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[30] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 10

[31] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[32] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[33] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 11

[34] The merits of Mr Watts’ case, to the extent that I have seen at this time, appear to weigh against his interests. As a result of the difficulties he was having in managing injuries and his capacity to return to work, he agreed in December 2015 to resign from the company’s employment. In return for that agreement G.B. Galvanizing agreed to make payment to him of the remainder of his accrued personal leave. There is at least an argument on the part of the Respondent that such did not need to be done by them, although because it could well be argued on the part of the Applicant that had he not agreed to resign when he did, that he would still have been able to access any accrued personal leave if he remained in employment, or indeed to have access to workers compensation payments if his injury was a compensable injury.

[35] I consider this factor to weigh against the interests of the Applicant.

6. Fairness as between the person and other persons in a similar position

[36] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 12

[37] In applying the facts of Mr Watts’ matter to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that there had been some process of diligent inquiry or dispute by him not long after the dismissal. However, this was not the situation. Accordingly, consideration of this criterion also resolves against the Applicant.

[38] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making his unfair dismissal application, I am not satisfied that there are exceptional circumstances that would warrant allowing a further period to Mr Watts for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of his case but also to the criteria set out within s.394(3) of the Act.

[39] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Fair

Work Act and will issue an order dismissing Mr Watts’ application as being out of time.

COMMISSIONER

Appearances:

Mr K Watts on his own behalf.

Ms T Eason and Ms C Davie on behalf of G.B. Galvanizing Service Pty Ltd.

Hearing details:

2016.

Melbourne:

7 March.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 3   Exhibit R3, Respondent’s Documents List, Document 2, 6.

 4   Witness Statement of Caroline Davie (marked after the hearing as Exhibit R4).

 5   Exhibit R2, Witness Statement of Tina Eason.

 6   Exhibit A2, Applicant’s Outline of Argument: merits, [3b].

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 8   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 9   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 10   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 11   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 12   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

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