Kevin Barth v Timco Pty Ltd
[2012] FWA 3788
•3 MAY 2012
[2012] FWA 3788 |
|
DECISION |
Fair Work Act 2009
s.365—General protections
Kevin Barth
v
Timco Pty Ltd
(C2012/3176)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 3 MAY 2012 |
Application to deal with contraventions involving dismissal - extension of time - NOT granted.
[1] On 23 March 2012 Mr Barth lodged an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment on 28 March 2011. In this application, Mr Barth asserts that the termination of his employment breached ss.342(1) and 351(1) of the FW Act.
[2] Notwithstanding that the application was lodged substantially outside of the 60 day time limit specified in s.366 of the FW Act, the matter was the subject of a conciliation conference on 11 April 2012. No agreement was reached and the respondent indicated its objection to the granting of any extension of time in this matter.
[3] The extension of time issue was the subject of a hearing on 30 April 2012. At this hearing, Mr Barth was represented by Mr Manuel and Ms Nachiappan, of counsel, and the respondent, by Mr Richards, as agent.
[4] An amendment to the application was made by consent so as to confirm that the application was made against Timco Pty Ltd.
[5] Mr Barth gave evidence in support of his application for an extension of time. In considering his evidence I have noted that Mr Barth has had strokes in February and March 2012 and I have accepted that these have affected his short-term memory.
[6] Mr Barth’s application was lodged some 10 months beyond the 60 day time limit. Section 366 permits Fair Work Australia (FWA) to extend this time limit. Section 366(2) states:
“366 Time for application
....
(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.”
[7] I have considered Mr Barth’s application for an extension of time on this basis.
Reason for the Delay
[8] Mr Barth immigrated to Australia from the United Kingdom in 2009. He worked as a truck driver for some 14 months before commencing work as a casual yard-man and then truck driver for what is now Timco Pty Ltd (Timco) in January 2011. On 8 February 2011 he was involved in an accident where he injured his knee. He continued to work after the accident. His evidence is that his work performance was affected by his injured knee. Mr Barth’s evidence is that on 28 March 2011:
“At the General Manager’s office, the General Manager told me words to the effect of We are sacking you as you are not performing well ... not enough deliveries.
I was shocked and asked for reasons. The General Manager appeared angry and further said You’re not performing up to the mark, poor performance.”
[9] Mr Barth subsequently lodged a workers compensation claim and has been in receipt of workers compensation income maintenance payments. I have considered each of the following reasons put to me to explain the delay in lodging the application.
1. As a recent immigrant he was unaware of the legislation. In this respect, I do not consider that ignorance of the legislative time limit can be considered an acceptable basis for the delay. 1Mr Barth does not have language or cultural impediments which prevent him from finding out about his rights at work. He was able to lodge and pursue a workers compensation claim. While he lived and worked in rural South Australia, this was only an hour away from Adelaide and his location does not provide an acceptable reason for the substantial delay.
To the extent that Mr Barth asserts that the WorkCover authority or the respondent failed to explain this jurisdiction to him, I do not consider that either were under any obligation to do so or that this satisfactorily explains the long delay.
2. Mr Barth and his wife had a new baby shortly before the termination of his employment. This does not explain the delay and certainly does not represent an exceptional circumstance.
3. Mr Barth asserts that he was not given formal advice of the termination of his employment, a Separation Certificate or a final pay advice. Further, as a casual employee, he asserts that this created uncertainty about whether he was in fact dismissed.
I do not accept that the evidence establishes this assertion. Mr Barth’s evidence 2 indicates that he clearly understood on 28 March 2011, that he was dismissed. Further, Mr Barth’s evidence indicates that he has been seeking alternative employment,3 and that he was well aware of the termination of his employment.4
I am not satisfied that Mr Barth was in any doubt that his employment had been terminated. In any event, his delay in seeking legal advice until March 2012 is not satisfactorily explained on this basis.
4. Mr Barth asserts that the complexity of the FW Act contributed to the delay in as much as it made compliance with the time limit difficult. I am not satisfied that this represents an acceptable reason for the delay or that it explains why Mr Barth waited until March 2012 to obtain advice in this respect.
5. Mr Barth saw his doctor about his knee injury on the day after he was dismissed. He had surgery on this injury on 30 June 2011. While Mr Barth’s counsel confirmed that the knee injury was not proposed as a reason for the delay, to the extent that Mr Barth’s witness statement asserts that his knee injury explained the 10 month delay, I do not consider this to be an acceptable reason for the delay.
6. Mr Barth asserts that his inability to sleep was a factor which contributed to the delay. I do not consider that the evidence supports this contention.
7. Mr Barth advises that he has anxiety and depression and that he has been prescribed medication for this condition. That condition and its attendant medication have the potential to impact on a person’s decision-making ability. However, I am not satisfied that the evidence establishes that Mr Barth had that condition or was on that medication for a period which could explain the substantial delay involved here.
8. Mr Barth has had two strokes, in February and March 2012. Those strokes have affected his short term memory. I accept that the strokes have caused him and his family substantial concern, but I cannot conclude, on the evidence before me, that they explain the delay from late May 2011 (when the 60 day lodgement period expired) to February 2012 (when Mr Barth had the first stroke).
I have considered the extent to which I should review all of Mr Barth’s evidence in light of his advice about his short-term memory loss and the possibility that some adverse medical condition which preceded the strokes. The evidence does not support this. Additionally, Mr Barth was legally represented and had such a position been pursued, I would have expected it to be supported by evidence.
Action taken to dispute the dismissal
[10] I am not satisfied that Mr Barth took action to dispute his dismissal, other than making his workers compensation claim. Had the evidence indicated that he actively sought advice through a lawyer, union or other government agency, I may have reached a different conclusion. On the evidence before me, this factor does not support the granting of an extension of time.
Prejudice to the Employer
[11] Timco elected not to call evidence in this matter. Whilst it argued that the granting of an extension of time of this magnitude would disadvantage it, I would have expected that position to be supported by some evidence, particularly given that the employer representative was present at the hearing.
[12] Whilst it appears quite plausible that the delay would prejudice Timco, the absence of evidence to this effect means that I have regarded this as a neutral factor.
Merits of the Application
[13] I am not in a position to make any definitive findings with respect to the merits of Mr Barth’s application. Notwithstanding this, Mr Barth’s evidence appears to indicate that it was only after the termination of his employment that he advised the Timco General Manager of his injury. If it is the case that Timco management were not aware of the injury at the time the termination of employment decision was made, Mr Barth is unlikely to be able to successfully pursue this claim.
[14] Notwithstanding this, I do not consider that the evidence requires a conclusion that Mr Barth’s claim is so lacking in merit that the extension of time should be refused.
Fairness between Mr Barth and other persons in a like position
[15] I have applied this factor on the basis that it relates to the approach adopted by FWA toward other persons in similar circumstances to those of Mr Barth. 5 That approach would not generally support the granting of an extension of time of this magnitude, in these circumstances.
[16] To the extent that this factor is limited to situations where more than one person is dismissed by the employer, it cannot be relevant to either this or most other comparable circumstances.
[17] I am not satisfied that the authorities referred to me in support of Mr Barth’s position are apposite.
Conclusion - Exceptional Circumstances
[18] In Nulty v Blue Star Group 6 a Full Bench discussed the meaning of exceptional circumstances in the following terms:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is 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.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[Note: references removed]
[19] I have considered whether one or more of Mr Barth’s circumstances could be regarded as exceptional in this context. In summary form, Mr Barth has not established to me that a medical reason caused the substantial delay in lodging the application. Other than his ignorance of the legislative time limit, he has not explained why it took him nearly a year to seek legal advice about the termination of his employment or how some factor outside his control or responsibility caused the delay. The delay in this matter is substantial and I do not consider that a coherent or cogent reason for the delay has been made out such that I could regard Mr Barth’s circumstances as exceptional.
[20] An Order [PR523348] dismissing the application for these reasons will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
R Manuel and S Nachiappan, counsel for the Applicant.
A Richards, agent for the Respondent.
Hearing details:
2012.
Adelaide:
April 30.
1 Cheyne Leane Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, para [14]
2 Exhibit B2, paras 35 and 36
3 Ibid, para 46
4 Ibid, para 48.5
5 [2011] FWAFB 5645
6 [2011] FWAFB 975
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