Kevin Rowe v v/Line Pty Ltd

[2013] FWC 5415

[2013] FWC 5415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Rowe
v
V/Line Pty Ltd
(U2012/17463)

COMMISSIONER CRIBB MELBOURNE, 15 AUGUST 2013

Application for unfair dismissal remedy - jurisdiction - extension of time.

[1] This decision concerns an application by Mr Kevin Rowe (the applicant), under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of his dismissal by V/Line Pty Ltd (V/Line, the respondent). The application was lodged on 28 December 2012 which was one week outside the statutory time limit.

[2] The application did not proceed to a conciliation conference as V/Line lodged a jurisdictional objection to the application on 22 January 2013. The ground of the objection was that the application had been lodged out of time.

[3] The hearing of the extension of time application by Mr Rowe was on 5 April 2013. Written closing submissions were provided by the applicant on 29 April 2013 and the respondent on 22 May 2013. Closing submissions in reply were provided by Mr Rowe on 29 May 2013.

[4] Mr Rowe represented himself whilst V/Line was represented by Ms J Young of Counsel.

THE EVIDENCE

Mr Rowe

[5] Mr Rowe provided two witness statements 1 and gave oral evidence.

[6] It was Mr Rowe’s evidence that the meeting on 7 December 2012 was the first official meeting since 2005. He stated that he had not met with any Supervisor or Manager or HR since then. 2 Mr Rowe later said that the meeting was the first meeting with Management (including HR) since the near miss incident on 18 December 2010, apart from the Locomotive Driver Supervisor.3 He agreed that Ms Clarke was responsible for managing his absence but believed that he had not had regular contact with her. He could not recall Ms Clarke contacting him every couple of months.4 Mr Rowe did not dispute that he did have contact with Ms Clarke - rather the frequency of it.5 Mr Rowe stated that the first time he spoke to Ms Clarke was in June 2012. It was confirmed that he had contact with his Regional Driver Supervisor, Mr Cameron, who was responsible for ensuring that he had certificates of capacity from Dr Taylor.6

[7] Mr Rowe confirmed that, between January 2011 and December 2012, V/Line had arranged for two assessments by Dr Turnbull. He believed that he had seen Dr Felman on three occasions and not the five occasions that V/Line were saying. Mr Rowe indicated that he had not seen Dr Felman on 27 January 2011 or 23 February 2011. 7 In his Closing Submissions, Mr Rowe said that he was incorrect and that he had seen Dr Felman five times, as asserted by V/Line.8 It was agreed by Mr Rowe that V/Line was involved in arranging the assessments/reviews with Dr Felman as well.9 He stated that the purpose of the assessments was to ascertain his capacity to perform his role as a locomotive driver. The outcomes of the assessments were set out in the various reports.10

[8] It was agreed by Mr Rowe that he saw Dr Felman in September 2011 and that a report was produced from that in October 2011. He confirmed that Dr Turnbull provided a report following Dr Felman’s report in October 2011. Its purpose was to assess his ability to perform a safety critical role. Mr Rowe agreed that Dr Turnbull’s conclusion in this report was that he was not fit to return to his pre-injury duties and that he was permanently unfit to work as a locomotive driver. 11 It was stated that he was assessed by Dr Felman again in September 2012 and that Dr Felman concluded that he was still suffering from PTSD and expressed concern about his capacity to return to his substantive position in a durable manner.12

[9] Mr Rowe confirmed that Dr Felman’s report, following the September 2012 review, post-dated Dr Newlands’ June 2012 report by either six or nine weeks. He agreed that Dr Felman had the benefit of Dr Newlands’ views and that Dr Felman’s report had taken into consideration Dr Newlands’ views. 13 He stated that Dr Newlands’ report was commissioned for Work Cover purposes and that Dr Newlands was not qualified to assess whether he was fit to perform a safety critical role ie. his role as a locomotive driver. However, Mr Rowe said that Dr Newlands had considered the impact on him should there be a further occurrence. It was said that Dr Newlands had expertise in PTSD but not regarding critical rail safety requirements.14

[10] It was agreed by Mr Rowe that a further report was prepared by Dr Turnbull, in October 2012, following Dr Felman’s report of September 2012. Mr Rowe confirmed that Dr Turnbull concluded that he was permanently unfit to return to his pre-injury role and that he could not undertake any other role in a safety critical rail environment. Further, it was agreed that Dr Turnbull had concluded that he could not undertake any alternative employment because of his concentration difficulties. 15 Mr Rowe argued that Dr Turnbull had not seen him for 85 weeks and that, without doubting his qualifications, he did not believe that Dr Turnbull had the experience in PTSD that others have. He reluctantly agreed with the proposition that Dr Turnbull was better placed than he and Ms Young to make a decision about his capacity to perform his role as a locomotive driver.16

[11] With respect to the period from January 2011 to December 2012, Mr Rowe agreed that, for all of that time, the medical opinion was that he was suffering from PTSD. In addition, none of the certificates provided indicated that he had a capacity to perform his pre-injury role or any other duties. It was Mr Rowe’s view that Dr Taylor, in certifying him unfit for any duties, was influenced by V/Line to do so. 17

[12] In terms of the meeting on 7 December 2012, Mr Rowe confirmed that he had been telephoned by Ms Clarke, on 29 November 2012, requesting that he attended a meeting. She had told him that the purpose of the meeting was to discuss the findings of the medical reports. 18 He stated that he had requested Ms Clarke obtain RTBU representation for him for that meeting as he would not go to a meeting with HR without a union representative. Mr Rowe explained that he thought it was important to have the union involved in everything but said that he had also been told to make sure he had union representation.19

[13] It was Mr Rowe’s evidence that, on Wednesday, 5 December 2012 he had become very suspicious about the likelihood of being dismissed at the meeting. By Thursday 6 December 2012, he was said to have been “beside myself”. 20 He agreed that he knew that a possible outcome of the meeting was the sack as the union had discussed this with him on Wednesday 5 December 2012.21 However, he said that he naïvely had relied on 44 years of service and his good standing. He confirmed that the meeting was rescheduled from 6 December 2012 to 7 December 2012 as his union representative was unavailable on 6 December 2012.22

[14] Mr Rowe agreed that, in the week commencing 3 December 2012, he had had more than one telephone conversation with Ms Clarke. He recalled that, when the union told him that he was going to be dismissed, he had rung Ms Clarke and asked her if that was correct. He said that he had been reassured by her response that it was not a foregone conclusion. 23

[15] In terms of the meeting on 7 December 2012, Mr Rowe confirmed that he did not provide any material from Dr Taylor or Dr Bruozis. This was because the meeting was to discuss the reports. 24 It was recalled that, neither he nor Dr Taylor found out, until the afternoon of the day before, that the reports had found him permanently unfit to be a train driver.25 Mr Rowe said that he had been told by Dr Taylor and Dr Bruozis that they would support a structured return to work plan/ were going to certify him as fit. However, it was said that there was insufficient time to obtain this in writing. Mr Rowe agreed that he did not bring any such documentation from these doctors to the meeting.26

[16] With respect to Dr Newlands’ report, it was agreed by Mr Rowe that he had raised it during the meeting and that Ms Clarke had told him that V/Line had considered it. He recalled that V/Line had said that Dr Newlands was not a safety critical medical examiner. Mr Rowe said that the respondent had probably told him that Dr Newlands’ report had predated Doctors Felman and Turnbull’s most recent reports but he did not remember that particular argument as the pre-dating was only by nine weeks. 27

[17] Mr Rowe confirmed that he had raised the possibility of making an unfair dismissal application at the end of the meeting as he knew that he had a right to. It was said that it was in his contemplation. Mr Rowe stated that he had not discussed it with Mr Marotta after the meeting. 28

[18] It was explained by Mr Rowe that the reason there was a delay of seven days in making his application was because, following his dismissal, he ended up in a place where he never wanted to be again. 29 He said that he had provided the Commission with medical certificates from Doctors Taylor and Bruozis to support this. It was indicated that he had seen Dr Taylor on 11 December 2012 (four days after his dismissal) and on 19 December 2012 (two days before the deadline for lodging an application). Mr Rowe believed that he had also seen Dr Taylor on another occasion (three times in all). Dr Bruozis was said to have seen him on 18 December 2012.30

[19] Mr Rowe recalled that Dr Felman’s report referred to avoidance issues. He stated that difficulty in making decisions goes with PTSD. He agreed that he was able to have the thought process that he could make an unfair dismissal application on 7 December 2012. Mr Rowe acknowledged that Dr Bruozis’ letter did not say that the avoidance often involved with PTSD had caused the delay. 31

Ms Joanne Clarke

[20] Ms Clarke is a Senior HR Consultant with the respondent. She provided a witness statement 32 and gave oral evidence.

[21] With respect to the incident on 18 December 2010 where Mr Rowe was involved in a near miss, it was recounted by Ms Clarke that the psychologist who had conducted the subsequent phased critical incident session with Mr Rowe, advised V/Line that they had grave concerns about Mr Rowe’s ability to continue to work. It was stated that there were then discussions between V/Line, Mr Rowe and his treating practitioner. These were said to have resulted in V/Line advising Mr Rowe’s doctor that V/Line wanted a review with Dr Turnbull regarding the medical requirements under the rail safety legislation. Mr Rowe’s doctor was said to have agreed that it was probably best for Mr Rowe not to return to work. He had therefore provided a medical certificate saying that Mr Rowe was not fit to return to work until he could be assessed. 33 Ms Clarke conceded that it did take some time (Christmas period) for the assessment to be undertaken.34

[22] It was stated by Ms Clarke that Dr Turnbull is V/Line’s Chief Medical Officer and that V/Line requested him to undertake a further examination of Mr Rowe following Dr Feldman’s report in September 2012 (Dr Turnbull’s supplementary report of October 2012). The reason for the request was to assess Mr Rowe’s ability to perform his pre-injury role of locomotive driver or any other alternative duties within V/Line. 35 Ms Clarke recalled that Dr Turnbull had told her that he would not need a face-to-face consultation with Mr Rowe as his diagnosis was psychological and Dr Felman was best placed to make the diagnosis. Dr Turnbull had also said that he would consult with Dr Felman and review the past files.36 Ms Clarke gave evidence that Mr Rowe had seen Dr Felman five times between January 2011 and 7 December 2012. This included in January 2011 and February 2011.37

[23] With regard to Dr Newlands’ report, Ms Clarke stated that Dr Newlands was engaged, as part of the Work Cover process, to assess Mr Rowe's capacity to work. It was recalled that the first-time V/Line had seen Dr Newlands’ full report was on 6 December 2012 when it was provided by Mr Rowe. 38 Ms Clarke explained that Dr Newlands’ assessment was different from the V/line assessment as V/Line was assessing Mr Rowe regarding his capacity to perform his pre-injury duties as a locomotive driver in a rail safety work environment. Ms Clarke stated that V/Line reviewed Dr Newlands’ report on 6 December 2012 and during the discussions on 7 December 2012.39 She said that Dr Newlands’ report did not give consideration to the rail safety requirements of V/Line.40 Further, it was indicated that Dr Newlands’ report pre-dated further medical evidence from Drs Felman and Turnbull. However, Ms Clarke explained that Dr Newlands’ report plus all of the other medical evidence was considered. This was said to include Dr Taylor’s certificates that there was no capacity to undertake any work. She said that V/Line considered the reports in their entirety but not the individual specific details of each report.41

[24] Ms Clarke’s recollection was that Mr Rowe first requested copies of Doctors Turnbull and Felman’s reports in August 2012. She said that she had told Mr Rowe the V/line needed written consent from both doctors before they could be released to Mr Rowe’s doctor (Dr Taylor). Dr Turnbull was said to have provided consent on 30 August 2012 and Dr Felman on 6 September 2012. It was stated that she had then posted both reports to Dr Taylor. 42 Ms Clarke said that she was told by Mr Rowe, on 29 or 30 November 2012, that Dr Taylor had not received the reports. She had then posted them to Dr Taylor again on 30 November 2012, together with the two other reports that had been issued in early September 2012. Mr Rowe had advised her that the reports had not been received on either 3 December 2012 or Tuesday 4 December 2012. It was stated that the reports were faxed to Dr Taylor on 5 December 2012. However, they were not received despite an okay receipt being received at V/line’s end. It was stated that, finally, the reports were received by Dr Taylor on 6 December 2012 after four or five attempts.43 It was Ms Clarke’s understanding that there were five assessments resulting in five reports.44

[25] With respect to Mr Rowe’s absence from work between January 2011 and December 2012, it was Ms Clarke’s evidence that she and Mr Rowe were in regular telephone contact during this period - at least monthly to every second month. The reason for this was that Ms Clarke was managing Mr Rowe’s case and organising reviews/assessments with Doctors Felman and Turnbull. 45 It was stated that Mr Rowe also had regular contact with his supervisor, Mr Cameron. Ms Clarke did not agree that her contact with Mr Rowe, at this time, with very limited.46

[26] Ms Clarke explained that Mr Rowe had asked for representation when she had requested, on around 29 November 2012, that he attend a meeting to discuss the status of his medical condition and the options available. She said that she had then asked Mr Marotta to attend the meeting as Mr Rowe’s representative. She recalled discussing with Mr Marotta, on 29 November 2012, the nature of the meeting, the status of Mr Rowe’s medical evidence and Mr Rowe’s potential employment options (including dismissal). 47 It was stated that termination of employment was simply one option.48 Ms Clarke defended her discussion of Mr Rowe’s options with Mr Marotta, prior to doing that with Mr Rowe, on the basis that that was the purpose of the 7 December 2012 meeting - to discuss the medical evidence and options.49

[27] It was recalled by Ms Clarke that, in the week commencing 3 December 2012, there were numerous conversations with Mr Rowe. She said that Mr Rowe appeared to be quite anxious about the meeting and the possible outcome. It was stated that Mr Rowe appeared to be aware that dismissal was one of the options that may be discussed. 50 She did not recall an alleged conversation during which Mr Rowe had told her that the union had told him that the V/line was going to sack him.51 Ms Clarke recollected Mr Rowe saying that he was going to be told at the meeting “Don't come Monday”.52

[28] Ms Clarke’s evidence was that some consideration was given by V/Line to postponing the meeting of 7 December 2012, given that Dr Taylor had only received the medical reports on 6 December 2012. She explained that V/Line was very concerned about Mr Rowe as he was quite anxious/concerned about the meeting. As there had been no request from Mr Rowe until late on 6 December 2012, V/Line decided to continue with the meeting on 7 December 2012 - in the best interests of Mr Rowe, given his anxiety. 53

[29] Ms Clarke indicated that, at the meeting, on 7 December 2012, she and Mr King, the Train Crew Manager, met with Mr Rowe and Mr Marotta. She stated that V/Line outlined the findings of the medical reports which had concluded that he would not be able to return to his pre-injury duties then or in the foreseeable future and so was considered permanently unfit as a locomotive driver. Further, due to his concentration difficulty, Mr Rowe would not be fit for office based duties away from the rail safety environment. 54 It was recalled that the meeting went for almost 2 hours with two adjournments. During these breaks, there were consultations with the other V/Line decision makers about what had been discussed during the meeting. It was recalled that the first adjournment was the result of a deadlock between the parties. The second one was to allow V/Line to consider and take advice about Mr Rowe’s request for a payout of his long service leave.55

[30] It was Ms Clarke’s recollection that, in response, Mr Rowe had stated that he had evidence from his doctor and Dr Newlands which supported his return to work and that his doctor had cleared him for duty. 56 During the meeting, Ms Clarke recalled Mr Rowe requesting that his position be kept open/his employment maintained because he felt he would have a capacity to return to work. He had also said that he wanted to face his demons on a gradual process.57 She could not recall Mr Rowe requesting additional time in employment to allow his medication to take effect. Ms Clarks understanding was that Mr Rowe had been on the same medication for quite some time.58 She said that she could not recall Mr Rowe specifically mentioning new medication during the meeting.59

[31] It was explained by Ms Clarke that the decision to dismiss Mr Rowe was made by Ms Kelman, General Manager HR, Mr Arthur, General Manager Operations, Mr King, Train Crew Manager, the HR Services Manager and herself on 7 December 2012. 60 The only reason for Mr Rowe’s dismissal was stated by Ms Clarke to be that he was considered permanently unfit to perform the duties of locomotive driver and any other roles within a rail safety environment. She said that no other factor influenced the decision and that Mr Rowe’s impending entitlement to access his accrued sick leave did not influence the decision.61 It was stated that Mr Rowe’s ability to have accessed his sick leave 22 days later (if he had not been dismissed), was not a consideration on 7 December 2012.62

[32] Ms Clarke denied that the termination of Mr Rowe’s employment was a foregone conclusion prior to the 7 December 2012 meeting. She stated that it was just one of the options that V/Line was considering. It was said that, if Mr Rowe had presented other medical evidence, apart from Dr Newlands’ report, it would have been considered with possible other alternatives. Ms Clarke said that, given the medical evidence before V/Line, termination was the option that was proceeded with. 63 It was stated that Mr Rowe had been requested to bring any other medical evidence with him to the meeting. She said that Mr Rowe had indicated to her that he had medical evidence from Dr Taylor saying that he was fit to undertake some duties.64 Ms Clarke could not recall Mr Rowe saying, during the 7 December 2012 meeting, that his treating Psychiatrist and GP would support a structured return to work plan and that his doctor would give him a certificate of capacity.65

[33] It was Ms Clarke’s evidence that Mr Rowe challenged the decision to terminate his employment during the 7 December 2012 meeting. Ms Clarke recalled that Mr Rowe had indicated to his representative that unfair dismissal proceedings would be an option. 66 Mr Marotta was said to have indicated that he would not be supportive of Mr Rowe taking that option. Ms Clarke denied that she had told him that such an application would be unsuccessful. Rather, she recalled Mr Marotta saying that.67 In response to Mr Marotta saying that she would have that angle (unfair dismissal) covered, Ms Clarke said that she had stated that it was Mr Rowe’s entitlement, under the legislation, to pursue an unfair dismissal.68

SUBMISSIONS

Mr Rowe

Reason for the delay

[34] It was submitted by Mr Rowe that the reason for the delay was neither ordinary, usual or even normally encountered in a dismissal. 69 The circumstances of the whole case and particularly the reasons for the late application were said by Mr Rowe to be exceptional.70 Mr Rowe explained that anxiety was normal both in PTSD and dismissal. However, he stated that the levels of anxiety he felt were not normal but extreme.71 Mr Rowe contended that, to suggest that the symptoms that befell him were normal adjustment or separation anxiety as a result of losing his job, misses the point that the reason he was dismissed was because he suffered from PTSD.72

[35] Mr Rowe said that, after his dismissal, he had lost all hope of being able to pursue his recovery - by returning to work and gaining some control over the symptoms. 73 It was stated that the symptoms of PTSD fell heavily on him. This included depression, an inability to confront issues or to think clearly and so he was not in a fit state to make a rational decision. Dr Felman’s report and the letters from Dr’s Taylor and Bruozis were highlighted as support for the delay. In particular, Mr Rowe referred to Dr Taylor’s letter which stated: “He was in no fit state to make any rational decision at that time”.74 Mr Rowe therefore argued that this met the criteria of “exceptional, out of the ordinary course and uncommon”.75

Aware of the dismissal

[36] Mr Rowe indicated that he was aware, at the meeting on 7 December 2012, that he was being dismissed. 76

Disputed the dismissal

[37] It was stated by Mr Rowe that he had vigorously disputed his dismissal at the meeting on 7 December 2012 on the grounds that it was unfair and unreasonable. Mr Rowe recounted that he had requested time for the new medication to take effect. 77 He said that he had raised the possibility of pursuing an unfair dismissal claim at the meeting.78 Mr Rowe explained that he was unable to further dispute his dismissal until 28 December 2012 due to the deterioration in his health.79

Prejudice to the employer

[38] Mr Rowe said that he failed to see how a delay of seven days would prejudice V/Line. 80

Merits of the case

[39] It was argued that there was no valid reason for his dismissal and that it was harsh, unjust and unreasonable. Mr Rowe stated that the decision to dismiss him did not properly consider the fact that his medication had changed. Rather, V/Line had concentrated only on the negative elements of the medical reports - which he had only access to 2 hours before the meeting on 7 December 2012. 81

[40] Mr Rowe contended that he was not given an adequate opportunity to respond to the alleged problems contained in the medical reports. This was due to his being silenced in the meeting, together with his union representative, before he was told to resign or be dismissed. 82 In addition, it was argued that he was prevented from responding to the reports as they were not made available to him until late the day before the meeting. He said that, as at the date of the hearing, his doctor still had only had access to 2 reports - Doctors Turnbull and Felman. V/Line was said to have supplied him with a further report from Dr Turnbull and three from Dr Felman. However one report was said to still be unaccounted for. Further, it was recounted by Mr Rowe that he had been requesting all of the medical reports since 2011 and that Dr Felman had given permission in 2011.83

[41] It was submitted by Mr Rowe that he was blindsided going into the meeting on 7 December 2012 in that he had naïvely believed that there were options. He stated that he had not accepted the only option available i.e. resign or be sacked. He explained that he would have resigned if the problem was the result of his failing. However, as it was caused by his job, he felt that V/Line had a duty of care to it least give him a fair go rather than just reducing its liabilities. 84

Fairness as between others

[42] Mr Rowe argued that, had he been dismissed three weeks later (in 2013), he would have had three weeks to make his application. Those who apply now were said to have three weeks. Further, it was stated that, in other cases, applicants have been granted leave to apply late on medical grounds. 85

V/Line

[43] It was submitted on behalf of V/Line that the Commission should decline to exercise its discretion, under section 394(3) of the Act, to allow a further period for the application to be made. This was on the basis that Mr Rowe had not established that “exceptional circumstances” existed for the delay such that the Commission could be satisfied and therefore grant an extension of time. 86

Reason for the delay

[44] Mr Rowe’s reason for the delay was said to have been his inability to confront issues after being dismissed as his PTSD symptoms fell heavily on him and he was in no fit state to make a decision. It was stated that PTSD was an ongoing condition which Mr Rowe had suffered for nearly two years prior to his dismissal. Therefore, it was submitted that the reason for the delay was not unusual or uncommon. 87

[45] It was argued that the letters from the two medical practitioners do not support a finding that Mr Rowe’s medical condition constituted an appropriate “exceptional circumstance”. Dr Taylor’s letter was said to not make an express reference to Mr Rowe’s PTSD symptoms. 88 Rather, Mr Rowe was described as “agitated” and “unable to think clearly”.89 The respondent contended that the Commission has consistently decided that an employee feeling distressed or upset by losing their job does not constitute an exceptional circumstance. Therefore, Mr Rowe’s symptoms following his dismissal were said to not be exceptional.90

[46] With respect to Dr Bruozis’ letter, it was stated that the letter said that the PTSD contributed to the delay but not that it was the reason for the delay. Further, the letter was said to not confirm whether Mr Rowe was suffering from such avoidance that he was unable to file his application. The respondent contended that the balance of the medical evidence does not suggest that, as a result of his PTSD, Mr Rowe found it difficult to make decisions. 91 In addition, it was stated by V/Line that the letters from Drs Taylor and Bruozis were prepared nearly two months after the period in question.92

[47] It was submitted that Mr Rowe was last examined by Doctors Taylor and/or Bruozis around 19 December 2012 - two days prior to the filing deadline. The respondent contended that there is no evidence that Mr Rowe had any medical assessment during the further nine days it took him to lodge his application. It was therefore argued that Mr Rowe had failed to provide sufficient evidence to satisfy the Commission about the delay in filing his application. 93

[48] V/Line also stated that the Commission should have regard to the lack of detail and candour in assessing the credibility and weight of Mr Rowe’s evidence about the delay. 94

[49] Finally, the respondent contended that Mr Rowe was aware of his ability to make an unfair dismissal application and was already contemplating doing so. The evidence of Ms Clarke was highlighted in this regard - as was the applicant’s. 95 Further, it was stated that Mr Rowe had the benefit of union representation at the meeting on 7 December 2012 and also advice in relation to making an unfair dismissal application.96

[50] It was argued that the evidence contradicts Mr Rowe’s assertion that, following his dismissal, his PTSD symptoms were heightened so that he was unable to research and make an application within the statutory timeframe. It was stated that Mr Rowe was aware of his legal right and was capable of considering whether or not to exercise it. 97

Knowledge of dismissal

[51] It was stated that Mr Rowe did not dispute that he knew, on 7 December 2012, that his employment would cease on that date. 98

Action taken to dispute the dismissal

[52] The respondent contended that, on 7 December 2012, Mr Rowe had raised the possibility of making an unfair dismissal application in the presence of his union official. It was stated, however, that the first time Mr Rowe challenged his dismissal was when he filed an application on 28 December 2012. V/Line argued that this factor should fall in favour of the respondent. 99

Prejudice to the employer

[53] It was submitted that the mere absence of prejudice to the respondent does not provide a sufficient basis to extend time. Further, V/Line argued that an extension of time would prejudice the respondent because it would be required to defend a case which had not been made within time. 100

Merits of the application

[54] The respondent argued that the application has no merit as Mr Rowe’s dismissal was not harsh, unjust or unreasonable. 101

[55] With respect to valid reason, it was stated that the decision to dismiss Mr Rowe was based on undisputed medical evidence from Dr Felman and Dr Turnbull. Their evidence was said to confirm that Mr Rowe was permanently unfit to perform his pre-injury role or any other role within the organisation - the reason for Mr Rowe’s dismissal. Dr Felman’s and Dr Turnbull’s reports were highlighted. 102

[56] A meeting was held on 7 December 2012 to discuss the medical evidence regarding Mr Rowe. The applicant attended with his union representative (Mr Marotta) and the medical reports were discussed. The conclusions of Drs Felman and Turnbull regarding Mr Rowe’s permanent unfitness for work in his pre-injury or any other role within the rail safety environment were said to have been put to Mr Rowe. It was contended that Mr Rowe was aware that one of the possible outcomes of the meeting might be the termination of his employment. 103¹⁰⁴

[57] During the meeting, it was stated that Mr Rowe provided a report from Dr Newlands but no material from Drs Taylor or Bruozis. Neither was V/Line provided with certificates indicating a change in Mr Rowe’s capacity to work. The respondent stated that Dr Newlands’ report pre-dated the most recent reports from Doctors Taylor and Turnbull. Further, Dr Felman was said to have considered Dr Newlands’ report prior to completing her own in September 2012. The respondent argued that, in light of all of the medical evidence, it was considered that Mr Rowe was permanently unfit to perform his role as a locomotive driver or any other safety critical role and was also unable to undertake any office based role. Therefore, there was no suitable employment available for Mr Rowe. It was stated that his employment was terminated due to his permanent unfitness to perform his role as a locomotive driver. 105

[58] It was said that, at the time of his dismissal, Mr Rowe had been absent from work for nearly 2 years due to his PTSD. The respondent had also monitored Mr Rowe’s medical condition through his own medical practitioner and from assessments and reports from Doctors Turnbull and Dr Felman. It was stated that all of this medical evidence consistently confirmed Mr Rowe’s continued inability to perform his pre-injuries duties as a locomotive driver. Further, it was argued that Mr Rowe’s own medical practitioner had certified him as fully unfit to perform any duties for the two years prior to his dismissal and also following his dismissal. 106

[59] With respect to Mr Rowe’s reliance on Dr Newlands’ report, the respondent contended that this report pre-dated the Felman and Turnbull reports, was prepared for WorkCover purposes and was considered by Dr Felman in her report. This was said to mean that the Newland’s report considered Mr Rowe’s capacity to undertake any work rather than a critical safety role within the rail environment. 107

[60] It was said that it was the applicant’s submission that there was no valid reason for his dismissal because there was the prospect of an improvement in his PTSD symptoms. To this end, Mr Rowe was said to appear to be relying on a change in his medication in about July 2012 which was recorded in the Newlands’ report. However, this report was stated to have not been put into evidence. 108

[61] In terms of procedural fairness, V/Line contended that Mr Rowe, at all times, was afforded procedural fairness. A chronology of events from 29 November 2012 onwards was set out in detail. 109 Reference was made to the request for copies of Doctors Felman and Turnbull’s reports and their subsequent provision. As well, the circumstances and outcome of the applicant’s request to postpone the 7 December 2012 meeting were outlined in detail. This was in addition to the request to the applicant to bring to the December meeting any medical evidence he wanted considered by V/Line. It was stated that Mr Rowe did not bring any medical evidence with him to the meeting which supported his view that he could return to work.110

[62] V/Line submitted, in summary, that the application was without merit as there was a valid reason for the dismissal. In addition, it was stated that Mr Rowe had been notified of the reason on 7 December 2012 and was given an opportunity to respond at the meeting on that day, accompanied by his union representative. 111

[63] Finally, with respect to Mr Rowe’s contention that, if he had been dismissed three weeks later, he would have had an additional week to make an application, V/Line stated that this was not a relevant consideration. This was because, at the time of Mr Rowe’s dismissal, Parliament intended the timeframe to be 14 days. Therefore, there was said to have been fairness between Mr Rowe and other applicants in like positions at the relevant time. 112

CONSIDERATIONS AND CONCLUSIONS

[64] The applicable statutory framework, at the time of Mr Rowe’s application, for the making of an unfair dismissal remedy application, was set out in the then section 394(2) of the Act as follows:

“(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).”

[65] 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.”

[66] I will deal with each of these factors in turn.

Reasons for the delay - s.394(3)(a)

[67] Mr Rowe’s reasons for the delay in lodging his application were that, when he was dismissed “the PTSD symptoms fell on me heavily, leaving me in no fit state to ponder or make any decisions for myself. I was unable to progress the matter any further. When I regained some presence of mind, I did some research and applied for a decision [made an application] as soon as I was able.” 113 He acknowledged that, during the meeting on 7 December 2012, he had raised the possibility of making an unfair dismissal application and that it was in his contemplation. Mr Rowe denied discussing it with his union representative at the end of the meeting.

[68] In support of the reasons for the delay, Mr Rowe obtained letters from his treating practitioner, Dr Taylor and his psychiatrist, Dr Bruozis. 114

[69] For its part, V/Line argued that the letters from Doctors Taylor and Bruozis did not support an extension of time. Dr Taylor’s letter was said to not expressly refer to Mr Rowe’s PTSD symptoms and simply described him as “agitated” and “unable to think clearly”. Further, it was stated that Dr Bruozis’ letter said that the PTSD had contributed to the delay but not that it was the reason for the delay. In addition, the letter did not confirm that Mr Rowe was suffering from such avoidance that he was unable to file his application within time.

[70] It was also submitted that there is no evidence before the Commission that Mr Rowe was medically assessed between the date of his last assessment (Dr Bruozis on 19 December 2012) and the date of the application - 9 days later.

[71] V/Line further contended that, at the time of his dismissal, Mr Rowe was aware of his ability to make an unfair dismissal application and was contemplating doing so. As well as being aware of his legal right, it was submitted that Mr Rowe was capable of considering whether or not to exercise it.

[72] Finally, V/Line raised issues regarding the credibility of Mr Rowe’s evidence in light of his alleged lack of detail and candour.

Considerations

[73] Mr Rowe was dismissed on 7 December 2012 and his application should have been lodged by 21 December 2012 but was not lodged until 28 December 2012.

[74] It was Mr Rowe’s evidence that, following his dismissal, he had seen Dr Taylor on 11 December 2012 and on 19 December 2012 and Dr Bruozis on 18 December 2012. A letter from Dr Taylor, dated 14 February 2012, was provided by Mr Rowe. The letter stated that Dr Taylor had seen Mr Rowe on 11 and 19 December 2012 and that “He was really agitated and unable to think clearly”. 115 The last sentence of the letter was typed in bold and underlined. It said that Mr Rowe was not in a fit state to make any rational decision at that time.116

[75] The letter from Dr Bruozis was dated 14 February 2013 and it said, in effect, that he believed that Mr Rowe’s PTSD contributed to him making a late application. Dr Bruozis hoped that this could be taken into account when considering Mr Rowe’s late application. 117

[76] It was common ground that, since January 2011 and continuing post his dismissal, Mr Rowe has been/is suffering from PTSD. This was the medical reason, together with the resultant consequences, for his dismissal. It is therefore not possible to accept that what Mr Rowe experienced following his dismissal, was simply the usual anxiety/distress from losing one’s job. In addition, Dr Taylor was very clear that, at that time (11/19 December 2012), Mr Rowe was unable to make any rational decisions. Given that Mr Rowe had been suffering from PTSD for nearly two years prior to his dismissal and continued to provide certificates of incapacity after his dismissal, it is most probable that Mr Rowe’s condition did not change between 19 December 2012 and 28 December 2012. It is noted that Dr Bruozis’ letter stated that Mr Rowe’s PTSD contributed to the delay.

[77] The medical evidence provided by Mr Rowe is accepted by the Commission. Therefore, I am satisfied that the reason for the delay in Mr Rowe lodging the application was because he was not capable of making any rational decision at the relevant time. It is apparent from the evidence that, prior to his dismissal, Mr Rowe was aware of his right to make an unfair dismissal application and was in contemplation of doing so. However, consistent with Dr Taylor’s letter, Mr Rowe was not capable of making the decision to do so.

Aware of the dismissal - s.394(3)(b) and any action taken - s.394(3)(c)

[78] It was Mr Rowe’s evidence that he knew, on 7 December 2012, that his employment would cease on that date.

[79] It was Mr Rowe’s view that he had vigorously disputed his dismissal at the meeting on 7 December 2012. It was common ground that Mr Rowe had raised the possibility of making an unfair dismissal application during the meeting. However, it was V/Line’s contention that the first time Mr Rowe challenged his dismissal was when he filed an application on 28 December 2012. Mr Rowe’s response was that he was unable to dispute his dismissal further until 28 December to the deterioration of his health.

[80] It would appear from the evidence that Mr Rowe first became aware of the dismissal at the time he was being dismissed. Also, Mr Rowe was notified of his dismissal by letter dated 7 December 2012. 118 It would also seem that, apart from disputing his dismissal during the meeting on 7 December 2012 and lodging his application, Mr Rowe did not take any other action to dispute his dismissal. I accept Mr Rowe’s explanation for this - that it was due to the deterioration in his health.

Prejudice to the employer - s.394(3)(d)

[81] Mr Rowe indicated that he failed to see how a delay of 7 days would prejudice V/Line.

[82] On the other hand, the respondent argued that it would be prejudiced if an extension of time was granted. This was because it would be required to defend a case which had not been made within time.

[83] Taking all of this into account I find that there is no additional prejudice to V/Line other than the usual prejudice which accompanies any granting of an extension of time.

Merits of the application - s.394(3)(e)

[84] Mr Rowe argued that there was no valid reason for his dismissal and that it was harsh, unjust and unreasonable. It was his contention that V/Line did not properly consider that his medication had changed. Further, the medical reports were not made available to himself or his doctor until late the day before the meeting on 7 December 2012 and his request to therefore move the meeting to another date was refused by Ms Clarke. Accordingly, he was unable to provide written material from his doctors which supported a structured return to work/would clear him fit to return at the meeting.

[85] For V/Line’s part, it was submitted that the application has no merit as the dismissal was not harsh, unjust or unreasonable. It was stated that there was a valid reason for Mr Rowe’s dismissal based on the undisputed medical evidence of Doctors Felman and Turnbull. This advice confirmed that Mr Rowe was permanently unfit to perform his pre-injury role or any other role. Further, the respondent contended that the report that Mr Rowe was relying on - that of Dr Newlands - pre-dated the latest reports from Doctors Felman and Turnbull and was prepared for Work Cover purposes. This was said to be very different from Doctors Felman and Turnbull’s assessment of Mr Rowe within the safety critical rail environment. In addition, Dr Felman had taken account of Dr Newlands’ report of July 2012.

[86] With respect to procedural fairness, V/Line contended that this was offered, at all times, to Mr Rowe. The provision of Doctors Felman and Turnbull’s reports to Mr Rowe and his doctor was referred to, as was the request to bring any medical evidence to the meeting and the provision of a union representative. It was also argued that Mr Rowe was given an opportunity to respond during the meeting on 7 December 2012.

Considerations

[87] I have carefully considered all of the material before me on this aspect of the matter. It appears that there are gaps in the evidence before me eg Dr Newlands’ report. Neither Mr Rowe nor V/Line provided the report. Mr Rowe represented himself whilst V/Line was represented by Counsel. Mr Rowe was clearly inexperienced and potentially handicapped by his heath condition whilst Ms Young was extremely capable. On the basis that not all of the available evidence was before the Commission, it is not possible to say that the application is without merit.

Fairness as between the applicant and other persons in a similar position - s.394(3)(f)

[88] With respect to Mr Rowe’s submission that, had he been dismissed three weeks later, he would have had an additional week to make an application, I agree with the respondent that this is not a relevant consideration. This is on the basis that, any other person who was dismissed on 7 December 2012, was subject to the same statutory timeframe of 14 days as Mr Rowe was.

Are there exceptional circumstances - s.394(3)?

[89] It was argued by Mr Rowe that the reason for the delay amounted to exceptional circumstances and that they were not ordinary, usual or common. He said that the PTSD symptoms that befell him were not the normal outcomes of losing one’s job. Rather, it was stated that this contention missed the point that he was dismissed because he suffered from PTSD. The exacerbation of his PTSD symptoms, as attested to by Doctors Taylor and Bruozis, was said to have been such that he was not in a ft state to make a rational decision. Mr Rowe contended that such a situation was exceptional, out of the ordinary and uncommon.

[90] V/Line submitted that Mr Rowe had not established that exceptional circumstances existed for the delay and, therefore, the Commission should not exercise its discretion and extend time. It was stated that the letters from Dr Bruozis and Dr Taylor did not support a finding that Mr Rowe’s medical condition constituted an “exceptional circumstance”. Rather, Mr Rowe’s symptoms were said to not be exceptional. Dr Taylor’s references to “agitated” and “unable to think clearly” were referred to. It was argued that these fell into the category of distress or upset due to losing one’s job that the Commission had previously found not to be exceptional circumstances. Further, Dr Bruozis’ letter did not say that Mr Rowe’s PTSD was the reason for the delay but that it contributed to it.

Considerations

[91] The basis on which it is decided if the Commission’s discretion should be exercised to grant an extension of time is whether there are “exceptional circumstances” taking into account the factors considered in paragraphs 67 to 88 above.

[92] The term “exceptional circumstances” has been considered in a number of decisions of Fair Work Australia. A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 119 summarised various decisions which dealt with the meaning of “exceptional circumstances”. The Full Bench found that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances 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. 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” 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.” 120

[93] I respectfully adopt this approach.

[94] Taking account of all of the factors set out in s.394(3) of the Act, I find that there are “exceptional circumstances” such that I should exercise my discretion and grant an extension of time. The situation that applied to Mr Rowe, following his dismissal, can be described as “out of the ordinary course, unusual, special or uncommon”. Mr Rowe had been suffering from PTSD for nearly two years prior to his dismissal and certificates of incapacity continued to be supplied by Dr Taylor after Mr Rowe was dismissed. Mr Rowe was dismissed as a result of his PTSD which then caused a deterioration in his health such that he was unable to make any rational decision. This meant that there was a delay in Mr Rowe lodging an application. The medical evidence, which, as indicated earlier in the decision is accepted by the Commission, indicates that Mr Rowe was not capable of making a rational decision in the period following his dismissal. This combination of factors could only be described as “out of the ordinary course, unusual, special or uncommon”. Given the particular facts of this matter, it is distinguishable from those cases where the Commission has previously found that an applicant’s upset and distress following their dismissal did not constitute “exceptional circumstances”.

[95] Accordingly, Mr Rowe’s application for an extension of time is granted. The date for lodgement of his application is extended to 28 December 2012.

[96] An order 121 to this effect will be issued separately.

[97] The application will be referred for conciliation.

Appearances:

Mr Rowe representing himself

Ms J Young of Counsel for the Respondent

Hearing details:

2013.

Melbourne:

April 5.

Final written submissions:

For the Applicant. 29 April 2013.

For the Respondent. 22 May 2013.

For the Applicant. 29 May 2013.

 1   Exhibits A1 and A2

 2   Transcript PN 197 - 121

 3   Ibid PN 126 - 139 and Exhibit A2

 4   Ibid PN 141 - 146

 5   Ibid PN 154

 6   Ibid PN 147 - 153, 155 and 185

 7   Ibid PN 161 - 178

 8   Applicant’s Closing Submissions, dated 29 April 2013

 9   Transcript PN 179 - 180

 10   Ibid PN 189 - 192

 11   Ibid PN 193 - 205

 12   Ibid PN 206 - 213 and Exhibit A2

 13   Ibid PN 213 - 217

 14   Ibid PN 218 - 227

 15   Ibid PN 228 - 241

 16   Ibid PN 229 - 230 and 242 - 250 and Exhibit A2

 17   Ibid PN 265 - 268

 18   Ibid PN 274 - 278 and 378 - 381 and Exhibit A1

 19   Ibid PN 279 - 285, 290, 307 and 436

 20   Ibid PN 286 - 292 and 477

 21   Ibid PN 377 and 383 - 384

 22   Ibid PN 303 - 305

 23   Ibid PN 389 - 398, 436 and 477 and Exhibit A2

 24   Ibid PN 401 - 402 and 436

 25   Ibid PN 403 and Exhibits A1 and A2

 26   Ibid PN 399 - 411 and ibid

 27   Ibid PN 412 - 416 and Exhibit A2

 28   Ibid PN 417 - 427 and 436

 29   Ibid PN 439 and 477 and Applicant’s Submissions in Reply, dated 29 May 2013

 30   Ibid PN 439 and 464 and Exhibits A1 and A2

 31   Ibid PN 468 - 474 and 477

 32   Exhibit R2

 33   Ibid at paragraphs 5 - 8 and Transcript PN 718 - 721

 34   Ibid PN 722

 35   Ibid PN 620 and 851 - 852 and Exhibit R2 at paragraph 14

 36   Ibid PN 621 - 622

 37   Ibid PN 623 - 625

 38   Ibid PN 641 and 662

 39   Ibid PN 642, 673 - 674 and 699

 40   Ibid PN 643

 41   Ibid PN 699 - 700 and Exhibit R2 at paragraph 28

 42   Ibid PN 626 - 630 and 853 - 855 and ibid at paragraphs 18 - 19

 43   Ibid PN 631 - 633 and 856 - 867 and ibid at paragraph 22

 44   Ibid PN 727 - 753

 45   Ibid PN 634 and 779 - 782 and Exhibit R2 at paragraph 3

 46   Ibid PN 635

 47   Ibid PN 636 - 637 and 783 - 785 and Exhibit R2 at paragraphs 17 and 20

 48   Ibid PN 638 - 639

 49   Ibid PN 783 - 789

 50   Ibid PN 640 and Exhibit R2 at paragraph 23

 51   Ibid PN 650 - 651, 773 - 777 and 899

 52   Ibid PN 640, 771 - 772, 778 and 897 - 898 and Exhibit R2 at paragraph 23

 53   Ibid PN 884 - 894

 54   Exhibit R2 at paragraphs 24 - 26

 55   Ibid PN 692 - 698

 56   Exhibit R2 at paragraph 27

 57   Ibid at paragraph 29 and Transcript PN 656 and 701

 58   Ibid PN 657

 59   Ibid PN 702

 60   Ibid PN 681 - 687

 61   Ibid PN 643 - 646 and Exhibit R2 at paragraph 31

 62   Ibid PN 879 - 880

 63   Ibid PN 652 - 653 and 790

 64   Ibid PN 793 - 797

 65   Ibid PN 799 - 803

 66   Ibid PN 647, 703 - 705 and 868

 67   Ibid PN 647 - 649

 68   Ibid PN 702 - 708

 69   Applicant's Closing Submissions, dated 29 April 2013

 70   Exhibit A2 at paragraph 29

 71   Applicant's Closing Submissions, dated 29 April 2013

 72   Exhibit A2 at paragraph 32

 73   Applicant’s Closing Submissions, dated 29 April 2013

 74   Exhibit A1 at Attachment A and Applicant's Submissions in Reply, dated 29 May 2013

 75   Ibid, Exhibit A2 at paragraphs 32 - 33, 26 and 29, Transcript PN 47 and Applicant's Submissions in Reply, dated 29

May 2013

 76   Applicant’s Closing Submissions, dated 29 April 2013 and Exhibit A2 at paragraph 35

 77   Ibid, ibid at paragraphs 26 and 36 and Applicant's Submissions in Reply, dated 29 May 2013

 78   Exhibit A2 at paragraphs 26 and 36

 79   Applicant's Closing Submissions, dated 29 April 2013

 80   Ibid

 81   Ibid

 82   Ibid, Exhibit A2 at paragraph 19 and Applicant’s Submissions in Reply, dated 29 May 2013

 83   Applicant's Closing Submissions, dated 29 April 2013 and Applicant’s Submissions in Reply, dated 29 May 2013

 84   Ibid, Exhibit A1 and Applicant’s Submissions in Reply, dated 29 May 2013

 85   Applicant’s Closing Submissions, dated 29 April 2013 and Exhibit A2 at paragraph 26

 86   Exhibit R1 at paragraphs 41 - 43, Respondent’s Closing Submissions, dated 22 May 2013, at paragraphs 10 - 12 and 59

- 61 and Transcript PN 509 - 511 and 527

 87   Ibid at paragraphs 30 and 32, ibid at paragraphs 13 - 15 and ibid PN 512 - 513

 88   Ibid at paragraphs 32 - 33, ibid at paragraph 16 and ibid PN 513

 89   Respondent’s Closing Submissions, dated 22 May 2013, at paragraph 17

 90   Ibid at paragraph 18 and Exhibit R1 at paragraph 31

 91   Ibid at paragraph 19 and Transcript PN 514

 92   Transcript PN 514

 93   Respondent’s Closing Submissions, dated 22 May 2013 at paragraph 20

 94   Ibid at paragraph 21 and Exhibit R1 at paragraph 34

 95   Ibid at paragraph 22 and Transcript PN 514

 96   Transcript PN 514

 97   Respondent’s Closing Submissions, dated 22 May 2013 at paragraph 23

 98   Ibid at paragraph 25, Exhibit R1 at paragraph 35 and Transcript PN 515

 99   Ibid at paragraphs 26 - 27, ibid at paragraph 36 and ibid PN 516

 100   Ibid at paragraphs 29 - 30, ibid at paragraphs 37 - 38 and ibid PN 517

 101   Ibid at paragraph 31 and ibid at paragraph 39

 102   Ibid at paragraphs 33 and 38 and Transcript PN 518 - 520

 103  

¹⁰⁴

Ibid PN 521 - 523

 105  

Ibid PN 523 - 526

 106  

Ibid PN 518 and Respondent’s Closing Submissions, dated 22 May 2013 at paragraphs 34 - 35

 107  

Ibid at paragraph 36

 108  

Ibid at paragraphs 36 - 37

 109  

Ibid at paragraphs 39 - 54

 110  

Ibid at paragraphs 41, 43 - 44 and 46 - 48

 111  

Ibid at paragraph 56

 112  

Ibid at paragraph 57 and Transcript PN 518

 113  

Exhibit A1

 114  

Ibid at Attachments A and B

 115  

Ibid at Attachment A

 116  

Ibid

 117  

Ibid at Attachment B

 118  

Exhibit R2 at Attachment A

 119  

[2011] FWAFB 975

 120  

Ibid at paragraph 13

 121  

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