Lee Glindemann v Wingham Beef Exports Pty Limited T/A Wingham Beef Exports

[2015] FWC 7861

[2015] FWC 7861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Lee Glindemann
v
Wingham Beef Exports Pty Limited T/A Wingham Beef Exports
(C2015/5894)

DEPUTY PRESIDENT KOVACIC SYDNEY, 16 NOVEMBER 2015

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Lee Glindemann (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 1 September 2015 under s.365 of the Fair Work Act 2009 (the Act). Mr Glindemann resigned from his employment with Wingham Beef Exports Pty Ltd T/A Wingham Beef Exports (Wingham - the Respondent) on 21 November 2010 and in his application contends that he was constructively dismissed in contravention of the general protections provisions of the Act. As the application had been lodged almost five years outside the statutory timeframe for lodgement, the Commission issued Directions on 11 September 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.

[2] The application was the subject of a telephone hearing on 2 November 2015. At the hearing Mr Glindemann appeared on his own behalf, while Ms Andrea Willetts appeared with permission on behalf of Wingham together with Ms Leanne Yarnold, the Human Resources Manager for Wingham.

[3] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application will be dismissed.

Background

[4] Mr Glindemann was employed by Wingham for several periods as a casual labourer, with the first period of employment commencing in 2003 and the most recent period commencing on 17 November 2009 and ending on 21 November 2010 when Mr Glindemann resigned. In his application Mr Glindemann states that during his most recent period of employment with Wingham that:

• he had received a number of warnings concerning his absenteeism;



• his absences were in most cases as a result of the working conditions and an accident at work which occurred sometime between May and July 2010 and which caused him serious injury;



• his absences were notified on all occasions and supported by medical certificates;



• on 21 October 2010 he had no other option but to resign from his employment as a result of his ongoing incapacity caused by the abovementioned injury; and



• he subsequently sought further medical opinion before commencing negotiations with Wingham.

[5] Wingham submitted that Mr Glindemann had received numerous warnings for absenteeism during his most recent period of employment. Ms Yarnold deposed in her witness statement that over the period January to October 2010 Mr Glindemann was absent from work on 19 occasions and failed to notify Wingham on 10 of those occasions 1. In its submissions Wingham referred to meetings it held with Mr Glindemann on 2 February 2010 and 26 August 2010 to discuss his absenteeism, adding that Mr Glindemann was issued with a formal warning regarding his absenteeism at the conclusion of the latter meeting. Mr Glindemann was subsequently issued with a further formal warning for absenteeism on 11 October 2010.

[6] Wingham further submitted that at no stage did Mr Glindemann dispute any of the warnings he had been issued during his employment nor did he indicate that he felt that he was being forced to resign and/or that he considered his resignation amounted to a constructive dismissal.

[7] As to the injury Mr Glindemann sustained at work in May 2010, Wingham submitted that on or about 24 May 2010 Mr Glindemann sustained a minor injury while at work. Wingham cited the entry in its injury register which indicated that Mr Glindemann had hit his head while working on a bone truck and that the wound was dressed and cleaned and that Mr Glindemann did not require any time off work with respect to the injury.

[8] On 11 October 2010 Mr Glindemann attended Wingham’s premises following an earlier absence and according to Wingham did not provide any evidence to substantiate his absence over the period 5 to 8 October 2010 but merely stated that he was experiencing headaches and was getting a “cat scan”. Wingham submitted that at no stage during the course of that meeting did Mr Glindemann in any way suggest that the headaches he was allegedly experiencing were related to the workplace injury he sustained in May 2010. As noted above, Mr Glindemann was issued with a further formal warning for absenteeism at that meeting.

[9] In its submissions Wingham also referred to previous proceedings which Mr Glindemann had initiated against it in October 2012 in the Australian Human Rights Commission (AHRC) alleging that he had been discriminated against on the basis of his disability and subsequent proceedings initiated in April 2013 in the Federal Circuit Court of Australia alleging discrimination on the basis of disability as well as bullying and harassment. Wingham noted in its submissions that Mr Glindemann had also made a workers’ compensation claim in late 2014 relating to the injury he allegedly sustained in May 2010 and that it understood that liability for the claim had been denied.

[10] As previously noted, Mr Glindemann’s general protections application was received by the Commission on 1 September 2015 almost five years after he had resigned from Wingham. In his application, Mr Glindemann contends that he was constructively dismissed in contravention of sections 340, 344, 346, 351 and 352 of the Act which deal with workplace rights, protection in respect of industrial activities, discrimination and temporary absence due to illness or injury.

The Relevant Legislation

[11] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC 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.”

Whether to allow a further period for the application to be made

[12] 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.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[13] In his application Mr Glindemann stated that the reason for the delay in making his application was that he was incapacitated as a result of the injury he suffered at work in May 2010. Mr Glindemann further stated that following the cessation of his employment his immediate concern was to seek clarification from Wingham regarding his injury.

[14] Mr Glindemann did not address the reason for the delay in his written submissions. However, in response to a question from the Commission at the hearing regarding this factor, Mr Glindemann cited his impaired cognitive capacity as the reason for the delay in making his application, adding that he was unable to communicate with Wingham as a result of his diminished capacity. Mr Glindemann also alluded to delays he encountered in getting material which he requested from Wingham regarding his employment.

[15] Wingham described the reasons relied upon by Mr Glindemann as nonsensical, adding that at no stage had Mr Glindemann asserted that he was constructively dismissed nor had there been any negotiations around this issue between the parties. With regard to Mr Glindemann’s contention that he was waiting on Wingham to provide various materials which he requested relating to his period of employment, Wingham acknowledged that Mr Glindemann had requested various documents from it on a number of occasions in 2011 and 2012 but that it had provided what material it had relevant to those requests to Mr Glindemann. At the hearing, Wingham further submitted that Mr Glindemann had been in receipt of the relevant material since 2012.

[16] Wingham also referred to the AHRC and Federal Circuit Court proceedings which Mr Glindemann initiated in 2012 and 2013 to refute Mr Glindemann’s submission that his alleged incapacity precluded him from making his general protections application until September 2015.

[17] Mr Glindemann provided no medical evidence to substantiate his submission that his incapacity precluded him from making his general protections application until September 2015. Further, his submission in this regard is significantly undermined by the fact that he initiated proceedings in the AHRC and Federal Circuit Court in 2012 and 2013 respectively. As to the delays in receiving the material he had requested from Wingham, Mr Glindemann did not adequately explain how this precluded him from lodging his general protections application within the 21 day statutory timeframe.

[18] Taken together the reasons for the delay relied upon by Mr Glindemann fall well short of supporting a finding that there were exceptional circumstances in this case.

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

[19] Mr Glindemann did not address this factor in his written submissions. At the hearing, Mr Glindemann indicated that he did see Wingham after his employment had ceased in an effort to discuss the cessation. Mr Glindemann further submitted that Wingham had refused to provide him with documentation/information about his injury despite numerous written requests and in 2014 had stopped responding to his requests.

[20] Wingham submitted that the first notification it received that Mr Glindemann considered that he had been constructively dismissed was in late August 2015. Wingham contended that Mr Glindemann’s assertion that he was constructively dismissed is a recent invention and was simply an attempt to alter the factual circumstances in order to try and maintain any claim against it. On this latter contention, as noted above in respect of the reason for the delay, Wingham submitted that it had provided what relevant material it had to Mr Glindemann and that he had been in receipt of the relevant material since 2012.

[21] While it is not disputed that Mr Glindemann asked Wingham to provide a range of documents relating to his period of employment, this does not of itself necessarily mean that in doing so he was disputing the cessation of his employment. Other than the proceedings Mr Glindemann initiated in the AHRC and the Federal Circuit Court, it is not clear from the material before the Commission that Mr Glindemann took any other steps to explicitly challenge the cessation of his employment. This does not support a finding that there were exceptional circumstances.

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

[22] Mr Glindemann did not make any submissions in respect of this consideration other than to say that he would leave it to Wingham to address the issue of prejudice and that Wingham should have been aware of the circumstances underpinning his resignation as he had mentioned the accident and the effect that it had on him in the various counselling sessions with Wingham regarding his absenteeism.

[23] Wingham submitted that it would face substantial prejudice should Mr Glindemann be granted a further period within which to make his application. In support of that submission, Wingham highlighted that it had already been put to considerable expense in defending the litigation commenced by Mr Glindemann in both the AHRC and the Federal Circuit Court, adding that Mr Glindemann had not been successful with either of those actions. Wingham also mentioned that there remains an outstanding costs order against Mr Glindemann arising from the Federal Circuit Court proceedings. Against that background, Wingham submitted that it was now being put to further expense to defend proceedings which it says are without merit and simply an attempt by Mr Glindemann to “shop around” for a cause of action. This supports a finding that Wingham would be prejudiced were an extension of time granted in this case.

[24] Against that background, I consider the prejudice to Wingham to weigh against the granting of a further period for Mr Glindemann to make his application.

(d) The merits of the application

[25] Mr Glindemann did not address this factor in either his application or his written submissions, though at the hearing he did submit that he felt that he had no choice but to resign because he could not comply with the warnings issued to him by Wingham and in those circumstances he opted to resign rather than be terminated.

[26] Wingham submitted that Mr Glindemann’s application is without merit, highlighting that Mr Glindemann made no claim for workers’ compensation at the time of the injury and did not attend a medical practitioner or hospital in relation to the injury. Wingham also reiterated its previous submission that Mr Glindemann had not until recently contended that he had been constructively dismissed.

[27] Further, Wingham disputed Mr Glindemann’s submissions that he had on all occasions notified Wingham of his absences submitting that this was not the case and that it took adverse action on the basis of any injury or disability. On this latter point, Wingham submitted that there was no causal connection between any workplace injury and any workplace right purportedly exercised by Mr Glindemann and the cessation of his employment. More particularly, Wingham submitted that Mr Glindemann had not demonstrated that either the warnings regarding his absenteeism or his injury were factors in the cessation of his employment, reiterating that at no stage had Mr Glindemann disputed the warnings he received regarding his absenteeism.

[28] Mr Glindemann provided little if any material to substantiate his contention that he was constructively dismissed or to substantiate Wingham’s alleged contraventions of the general protections provisions. Against that background, the material before the Commission supports a finding that Mr Glindemann chose to resign of his own accord and was not constructively dismissed.

[29] Having regard to the above analysis, the application appears to be less than compelling in terms of its merits. This does not support a finding of the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[30] Mr Glindemann made no submissions in relation to this factor.

[31] Wingham contended that it treated Mr Glindemann no differently than any other employee.

[32] In the absence of any compelling submissions from either party on this factor, I consider this factor to be a neutral consideration.

Conclusion

[33] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group (Nulty) 2in 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.”

[34] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).

[35] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.

 1   Statement of Leanne Yarnold at paragraphs 13-14

 2   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573977>