Kim Hickey v Australian Postal Corporation T/A Australia Post

[2016] FWC 3444

[2016] FWC 3444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kim Hickey
v
Australian Postal Corporation T/A Australia Post
(U2016/4079)

DEPUTY PRESIDENT KOVACIC CANBERRA, 27 MAY 2016

Application for relief from unfair dismissal - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Kim Hickey (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 27 January 2016 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the Australian Postal Corporation T/A Australia Post(Australia Post – the Respondent) on 9 December 2015 was unfair.

[2] On 2 March 2016 the Commission wrote to Mr Hickey indicating that his application appeared to have been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was received 28 days outside the 21 day statutory timeframe.

[3] The extension of time issue was initially listed for a telephone hearing on 30 March 2016. However, that hearing did not go ahead as Australia Post was not in a position to proceed with the hearing at that time. The issue was the subject of a telephone hearing on 14 April 2016. At the telephone hearing, Mr Hickey appeared on his own behalf, while Mr Dean Hope, Senior Workplace Relations Advisor, appeared for the Respondent along with Mr Sokratis Kokonis, Manager MyHR, and Mr Scott Allison, Wellbeing Manager.

[4] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Mr Hickey’s application cannot proceed and will be dismissed.

Background

[5] Mr Hickey commenced employment with Australia Post on 14 June 1993.

[6] Australia Post in its Form 3 – Employer Response to Unfair Dismissal Application provided the following brief chronology of events leading up to the termination of Mr Hickey’s employment.

• Mr Hickey had been off work since 24 April 2014, with Australia Post contending that in the ensuing period it had tried to work with Mr Hickey to achieve his return to work and that Mr Hickey had several workers’ compensation claims which were unsuccessful and subject to appeal;



• on 7 August 2015 Australia Post wrote to Mr Hickey reminding him that he would reach the maximum continuous leave without pay period of 78 weeks in October 2015;



• on 12 August 2015 Mr Hickey was contacted by his MyHR case manager to confirm receipt of the earlier correspondence and to explain the need to arrange for an incapacity assessment to determine if he would be fit to return to work or should be medically incapacity retired, adding that during this conversation Mr Hickey indicated that he did not agree with the process and expressed the view that he could not be medically retired because he was pursuing his workers’ compensation claims;



• during October 2015 two medical appointments were made for Mr Hickey, however he failed to notify his ability to attend and subsequently missed both appointments;



• on 5 November 2015 Australia Post wrote to Mr Hickey advising that he had reached the maximum period to be off work without pay and gave him a further opportunity to provide any new or additional medical information regarding his condition by 20 November 2015;



• in the absence of Mr Hickey providing any material Australia Post wrote to him again on 23 November 2015 providing notification of retirement, with the letter also advising Mr Hickey of the timeframe for appealing that decision; and



• in the absence of Mr Hickey appealing Australia Post’s decision within the specified timeframe, his termination was actioned.

[7] With more particular regard to the Notification of Retirement letter of 23 November 2015, that letter stated, inter alia, that:

“I refer to previous correspondence from Ms Nicole Finn dated 5 November 2015 in which you are offered one final opportunity to forward any further medical evidence you may wish to be considered prior to any action to medically retire you that was received by no later than 20 November 2015.

As no further medical evidence has been received for consideration it would appear that your previous medical conditions remain unchanged. As such, you have been on continuous absence since 24 April 2014 suffering from the conditions of back pain, right and left foot pain and depression and this period now exceeds the maximum period of 78 weeks continuous absence for all types of leave, as per the Australia Post Enterprise Agreement 2013. Therefore after reviewing all of the available information in relation to your case, I have approved that action proceed to retire you on the medical grounds of incapacity from the Corporation with effect from close of business 9 December 2015. The decision is made pursuant to clause 3 of the Australia Post Principal Determination.

Medical retirement under the Non-Work Related Policy is separate and unrelated to your Administrative Appeals Tribunal proceeding and does not impact your current claims before the AAT.

You have a right to request a review of the decision to incapacity retire you on medical grounds by a Board of Reference Chairman, pursuant to clause 5 – Grievances of the Australia Post Principal Determination, if you consider the decision to be harsh, unreasonable, unjust or unfair. An application for review of the decision must be lodged with Mr Sokratis Kokonis, Manager myHR … within 14 days of this notification.” 1

[8] On 9 December 2015 Mr Hickey emailed Mr Kokonis advising among other things that he wished to have the decision to retiring on medical grounds reviewed.

[9] Mr Kokonis replied to Mr Hickey on 14 December 2015 in the following terms:

“Thank you for your email below dated the 9 December 2015; 8:24pm.

I would like to refer to the correspondence I sent to you on the 23 November 2015, copy attached, advising that due to your non-attendance at the two Incapacity Assessments arranged for you by Ms Nicole Finn and no further medical evidence being provided by yourself for consideration that Australia Post would proceed to medically retire you on the grounds of incapacity close of business on the 9 December 2015. The correspondence also advised you of the right to request a review of this decision by a Board of Reference by which a request must be lodged within 14 days of the date of that notification, this was also noted on the Employee Acknowledgement Form, copy attached, that advised a request for review of the decision must be lodged with the manager of myHR by close of business on the 7 December 2015.

Unfortunately you have not submitted the request for review within the permissible time frame and your cessation is in effect and final.

During the process prior to the outcome of incapacity retirement on medical grounds you are provided two opportunities to attend Incapacity assessments. You were provided notification of the appointment arranged for 22 September 2015 on the 21 August 2015 … as you did not acknowledge your attendance in writing Ms Finn followed this up with an email … on the 15 September 2015 and a phone call on the 16 September 2015 but no response was received back from yourself; in this instance the appointment was postponed.

To provide you a further opportunity the incapacity assessment was rescheduled to 3 November 2015 again with notification being send to you 6 October 2015 … again you failed to notify your attendance and did not attend.

Before commencing the medical retirement process you were sent further correspondence on the 5 November 2015 to provide you one final opportunity to provide updated medical evidence on your condition again … this was requested to be provided by the 20 November 2015. No further medical evidence was received from yourself.

Therefore on the 23 November you were provided the Notification of Retirement on the Medical Grounds of Incapacity letter … As noted above you have not submitted the request for review within the permissible time frame and your cessation is in effect and final.” 2

[10] Mr Hickey responded to Mr Kokonis later that day stating as follows:

“Please see attached letter from Dr Haroon Riaz confirming ongoing medical grounds upon which I have great difficulty in completing any paperwork sent to me by APC. Australia Post has had copy of that document since shortly after it was penned in 2014, however it appears to have been ignored in the haste to have me ousted. Further, it is well documented that, as a direct result of injuries sustained by me whilst carrying out normal duties under the employ of Australia Post some 22 years ago, I have had a traveling restrictions in place. The appointments made for me by Ms Finn to which your reply refers, were to take place at a local situated well outside the limitations of that restriction, however this to had been ignored by Ms Finn.

Finally, regardless of those points, I maintain that Australia Post’s actions in proceeding with my cessation were unlawful insomuch that liability for my injuries remains a question yet to be determined by the AAT and as a consequence, it remains premature to classify ‘any’ of that time for which I have not been able to attend my work place as a result of my injuries, as “Leave Without Pay”. On that basis, I maintain your interpretation of the act is plainly an error and that the circumstances of the matter simply do not qualify your use of the Act in this way.” 3

[11] Mr Kokonis responded on 18 December 2015 with Mr Hickey in turn responding on 21 December 2015 as follows:

“Thank you for your reply of the 18th December 2015.

Please refer to any of my previous email sent to your email address …

All of my emails stipulate that in your attempt to have me forcibly retire me from APC via application of subsection C, Clause 3, of the APC Principal Determination, you have attempted to ‘make’ my circumstance fit those qualifications required to achieve your desired outcome, by incorrectly categorized leave I have taken as a result of injuries sustained by me as a direct result of my employment by APC as “leave without pay”.

I reiterate that the properties of the leave that you are attempting to apply as validation for your argument, is yet to be determined by the Administrative Appeals Tribunal. In that I remain confident that APC’s original determination shall not stand up to that pending challenge, and therefore, any missed appointments, failed contacts, and indeed the entire crux of your position, shall proven invalid.

With that I advise that should you on behalf of APC, continue to maintain a position indicating “cessation is in effect and final”, I shall seek to file with Fair Work Australia against APC upon grounds of wrongful dismissal.” 4

[12] As previously noted, Mr Hickey’s unfair dismissal application was received by the Commission on 27 January 2016, 28 days outside the 21 day statutory timeframe.

The Relevant Legislation

[13] Section 394 of the Act provides:

“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.

(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[14] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[15] Mr Hickey contended at the telephone hearing that it was very difficult for him to deal with this matter, adding that he suffers from anxiety and that the medication which he takes is quite strong and results in him being unable to express himself in a way that is in his best interests. Mr Hickey further contended that his anxiety was magnified when having to deal with Australia Post. Also at the telephone hearing, Mr Hickey indicated that he was not aware of the 21 day timeframe, adding that even if he had been aware of the timeframe it would not have mattered as he could not get himself in the right frame of mind to prepare his application.

[16] Australia Post submitted that it believed Mr Hickey clearly understood that his termination was pending, the reasons for his termination and that his termination was to occur on 9 December 2015. Referring to its letter to Mr Hickey of 23 November 2015, Australia Post highlighted that the letter made it clear the termination would occur and also set out the internal review process and the timeframe for seeking a review, adding that Mr Hickey’s review request was not lodged until several days after the affording day timeframe had expired. Australia Post also referred to Mr Hickey’s email to Mr Kokonis of 21 December 2015, submitting that it indicated that Mr Hickey was aware of the scope to make an unfair dismissal application. In short, Australia Post submitted that there were no exceptional circumstances warranting the granting of an extension of time.

[17] It was clear at the telephone hearing that Mr Hickey was anxious. However, his submission that he found this matter difficult to deal with is undermined by his exchange of emails with Mr Kokonis over the period 9 to 21 December 2015. If anything, Mr Hickey’s emails point to him engaging in matters relating to Australia Post despite his medical condition. Further, I note that the letter from Dr Riaz referred to in Mr Hickey’s email of 14 December 2015 appears to be dated 5 January 2014, i.e. almost two years prior to his dismissal. While Mr Hickey provided a more contemporaneous letter from his doctor dated 29 September 2015 which outlines Mr Hickey’s various illnesses/conditions, that letter gives no indication as to what, if any, impairment Mr Hickey suffers as a result of those illnesses/conditions.

[18] Finally, with regard to Mr Hickey’s acknowledgement at the telephone hearing that he was not aware of the 21 day timeframe for making a general protections application, I note that in Cheyne Leanne Nulty v Blue Star Group (Nulty) 5a Full Bench of the then Fair Work Australia determined that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[19] By way of background the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in similar terms to s.394(2)(a) of the Act.

[20] The above analysis, together with the decision in Nulty, do not point to the existence of exceptional circumstances.

(b) Whether the person became aware of the dismissal after it had taken effect

[21] Mr Hickey contended that he became aware of his dismissal after it had taken effect.

[22] Australia Post contended that it was clear from its correspondence to Mr Hickey that he is dismissal would take effect from 9 December 2015.

[23] I therefore consider this factor to be a neutral consideration.

(c) Any action taken by the person to dispute the dismissal

[24] It is clear from the email exchange between Mr Hickey and Mr Kokonis outlined above that Mr Hickey took steps to dispute his dismissal with Australia Post. This was acknowledged at the telephone hearing by Australia Post.

[25] Against that background, I consider this factor to point to the existence of exceptional circumstances.

(d) Prejudice to the employer (including prejudice caused by the delay)

[26] Mr Hickey submitted that Australia Post would not be disadvantaged were an extension of time granted.

[27] Australia Post contended that it had a generous approach to people being off work without pay adding that in this case it believed it had followed all of its processes to the letter. More specifically, Australia Post submitted that were an extension of time granted in this case it would establish a precedent which would make it difficult for it to manage such cases going forward. While I note Australia Post’s submission in this regard, its concerns do not constitute prejudice in the sense that it would be disadvantaged in defending the application as a result of the delay in lodging the application.

[28] Against that background, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[29] Mr Hickey submitted that as a result of his injuries he was unable to sit for more than 30 minutes adding that the appointments made by Australia Post involved 45 minutes travel time. Mr Hickey further submitted that he did not consider that Australia Post had been very supportive at all. I note from the exchange of emails between Mr Hickey and Mr Kokonis, that Mr Hickey contends that Australia Post’s categorisation of his absence as leave without pay as incorrect.

[30] Australia Post submitted that as Mr Hickey had been off work for almost two years it was important for it to determine his medical condition. Against that background, Australia Post submitted that it asked Mr Hickey to attend to medical appointments with Mr Hickey refusing on the basis that he thought Australia Post could not direct him to attend. Australia Post further submitted that it had been both fair and patient with Mr Hickey and alluded to countless emails where he refused to cooperate with it.

[31] Clause 21.6 of the Australia Post Enterprise Agreement 2013 6 (the Agreement) provides that:

“21.16 Sick Leave Without Pay

An employee who has exhausted all leave allowable with pay may be granted leave without pay, provided that:

(a) in respect of the first year of continuous employment, the aggregate period of any sick leave without pay must not exceed 20 days; and

(b) in respect of any continuous period of absence thereafter, leave with and without pay must not exceed 78 weeks.”

[32] In other words, Australia Post’s actions do not appear inconsistent with the Agreement. However, there was no material before the Commission regarding the Australia Post Principal Determination referred to in the Notification of Retirement letter of 23 November 2015.

[33] As to the process followed by Australia Post, based on the material before the Commission, it would appear that Australia Post has provided Mr Hickey with reasonable opportunities to provide additional evidence regarding his medical condition but that for whatever reason Mr Hickey has chosen not to do so. While it might be argued that the medical appointments arranged for Mr Hickey by Australia Post could have had more regard to the limitations his medical condition placed on him, it is not clear whether Mr Hickey raised this with Australia Post at the time the appointments were made.

[34] The above analysis does not point to Mr Hickey having a strong case. However, in the absence of hearing evidence as to Mr Hickey’s medical condition and a closer examination of the provisions in the Australia Post Principal Determination relied upon by Australia Post to terminate Mr Hickey’s employment, I am not prepared to form a definite view regarding the merits of Mr Hickey’s application. I therefore consider this factor to be a neutral consideration.

(f) Fairness as between the person and other persons in a similar position

[35] Mr Hickey did not directly address this factor in his oral submissions other than to say he was sure that there were other persons who suffer from anxiety and depression.

[36] Australia Post submitted that it has extensive policies and procedures which it followed in this case, adding that it had been very careful to ensure fairness across the board in this matter.

[37] In the absence of more compelling submissions regarding this factor, I consider it to be a neutral consideration.

Conclusion

[38] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Nulty in the following way:

“[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.”

[39] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[40] Accordingly, Mr Hickey’s application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

K. Hickey on his own behalf.

D. Hope for Australian Postal Corporation T/A Australia Post.

Hearing details:

2016

Melbourne and Perth (telephone hearing):

April 14.

 1   Attachment to Form F2 – Unfair Dismissal Application

 2   Ibid

 3   Ibid

 4   Ibid

 5 (2011) 203 IR 1

 6   AE4025555

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