Leon Marshall v Radiolines Pty Ltd T/A Radio Install and Maintenance

[2020] FWC 139

[2020] FWC 139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Leon Marshall
v
Radiolines Pty Ltd T/A Radio Install and Maintenance
(C2019/6799)

COMMISSIONER YILMAZ MELBOURNE, 20 JANUARY 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

[1] On 7 November 2019, Mr Leon Marshall lodged a signed application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Radiolines Pty Ltd (Radiolines), and an earlier unsigned application on 6 November 2019. On 13 September 2019, Mr Marshall’s employment was terminated via email as he had not provided the employer with a legitimate residential address and was not working at the time of his termination.

[2] Mr Marshall alleges that the reasons for dismissal in the termination letter (which include loss of trust, providing a false address, failing to participate in a return to work program, failing to follow company instructions by not providing a driver’s licence and misrepresenting his employment role for personal gain) can be disputed and are false.

[3] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 33 days after the 21-day statutory time limit.

Mr Marshall’s submissions

[4] Mr Marshall submits that he commenced employment on 16 March 2019 and was dismissed on 13 September 2019. He submits he filed an unfair dismissal application on 3 October 2019 however was informed by the Commission that his application could not be processed because he was employed for less than six months and that he should redo the application as a general protections application. 1 He also submits that he was unable to file the general protections application on time because his partner was experiencing pregnancy complications and he was subsequently incarcerated on the day his son was born. He submits that his first opportunity to file his application was following his release from incarceration in November 2019. Mr Marshall is seeking compensation and contends that the contraventions of the Act by Radiolines relate to:

•  s.340 protection of workplace rights 2

•  s.352 temporary absence – illness or injury 3

[5] Mr Marshall alleges that Radiolines breached s.340 because he called “FWC about being injured and not being paid previously and had made inquiries into being underpaid.” 4 He claims it was his right to make these inquiries and Radiolines used that against him.5

[6] In relation to the allegation that Radiolines breached s.352, he states “most obviously and importantly they breached s.352 by dismissing me whilst injured. The reason I believe they sacked me was because it was additional work for the office to do regarding compensation. For the office to add this to their workload for incompetent staff to complete, meant they did not have as much time as pre claim to make money. It appears beyond reasonable doubt the decision was made solely for financial gain and that the health and safety of its workers was not a concern to them.” 6

Radiolines’ submissions

[7] Radiolines denies the termination is due to a contravention of Mr Marshall’s workplace rights or temporary absence.

[8] In relation to the allegation concerning breach of Mr Marshall’s workplace right, Radiolines submits it was unaware of any inquiry he made to them or the Commission. However, it submits the set of circumstances Mr Marshall may be referring to is the request for leave without pay on 10 May for the period from 27 May to 31 May 2019. On 17 May, Mr Marshall suffered an injury to his thumb and was sent home on the basis that he was only cleared to perform light duties of which there were none. He was paid sick leave from 17 to 21 May and WorkCover payments for the balance of the period. The WorkCover certificate of capacity states Mr Marshall lacerated his left thumb on a stanley knife and could perform light duties from 17 – 23 May 2019. 7 A subsequent medical certificate received by Radiolines on 6 June and dated 5 June, states that Mr Marshall is fit for work from 2 June 2019.8 Radiolines submits that it has no difficulty with employees seeking information about their entitlements and the above situation had no bearing on the termination of employment.

[9] Radiolines submits Mr Marshall’s employment was not terminated due to his temporary absence on workers compensation. Mr Marshall was absent from work due to a further WorkCover claim sustained on 18 July 2019 when he allegedly fell off a ladder. Radiolines provided evidence of their concern for Mr Marshall’s wellbeing, when he determined to travel against medical advice immediately after the accident. 9 A further email from a team member confirms Mr Marshall travelled by taxi, instead of the organised lifts from his co-worker from hospital to his accommodation and to return to see a doctor in hospital on 19 July 2019.10

[10] Radiolines relies on the reasons in the termination of employment letter emailed on 13 September 2019. The letter of termination of employment cites loss of trust by reference to Mr Marshall providing a false address in Wollongong, failure to participate in a return to work program, failure to follow directions (to provide a valid New South Wales driver’s licence) and misrepresentation of his employment with the company for personal gain. Mr Marshall was paid his entitlements and a week in lieu of notice.

[11] In respect to each of the reasons for termination, Radiolines makes the following submissions:

•  False address: Mr Marshall provided a residential address in his employment documentation including his Tax File Number form which was not his legitimate personal residential address. Radiolines submits it learnt the address was not genuine after the occupier (a commercial business) in late August returned mail intended for Mr Marshall stating that the address is purely commercial in nature. Radiolines also submits it learnt from the rehabilitation provider on 5 September 2019 that Mr Marshall’s New South Wales address was never legitimate and that he had returned to South Australia. On becoming aware of the false address, Radiolines wrote to him several times requesting current residential details in New South Wales, which appear not to have been provided prior to his termination of employment.

•  Failure to participate in a return to work program: On 5 September 2019, the Rehabilitation Provider advised Radiolines that Mr Marshall had not participated in the return to work program and returned to South Australia. Further Radiolines was advised not to make further payments as the medical certificate expired on 3 September 2019. 11

•  Current New South Wales medium rigid heavy vehicle licence- Radiolines submits Mr Marshall was aware of his requirement to hold a current New South Wales heavy vehicle licence. The South Australian licence submitted when employed expired on 1 August 2019. Mr Marshall was instructed to provide a colour copy of both sides of the new licence on multiple occasions. There is no evidence that he provided a copy of a current licence as instructed.

•  Misrepresenting the company- Radiolines was contacted by two real estate agents on 12 September 2019 in South Australia to verify Mr Marshall’s employment in respect of applications he had made for rental properties. Both agents sought to verify that Mr Marshall was employed in South Australia and had permanent employment. Mr Marshall was never employed by Radiolines in South Australia, and his employment required residence in New South Wales. One agent sought confirmation that Mr Marshall was in long term employment and has had at least 12 months’ work history with Radiolines. The other agent advised that Mr Marshall’s work supervisor, John Kalnins, provided information in support of the application concerning his work history with Radiolines. However, no John Kalnins is employed by the company.

[12] Radiolines raised the jurisdictional objection on the basis that the application was lodged outside the statutory time limit.

Consideration

[13] On 19 December 2019, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[14] General protections applications involving dismissal must be made within 21 days.

[15] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

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

[16] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 12 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 13

[17] I now turn to Mr Marshall’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[18] The signed general protections involving dismissal application was lodged with the Commission on 7 November 2019.

[19] Mr Marshall submits his application was lodged within 21 days because he lodged an unfair dismissal claim on 3 October 2019. He submits his unfair dismissal claim could not be processed because he had not met the minimum employment period requirement under the Act. He further submits he assisted his partner with her pregnancy (this involved driving her to and from the hospital) 14 and on 11 October 2019 was remanded in custody. He claims his first opportunity to lodge his general protections application was after his release from custody in November 2019.15 In his Outline of Argument, Mr Marshall accepts that the general protections application is a separate matter to his unfair dismissal claim and has been filed outside the 21 day period.

[20] The Commission’s records confirm that Mr Marshall filed an unfair dismissal claim on 3 October 2019. The records also show that he discontinued the unfair dismissal claim via telephone on 4 October 2019. Mr Marshall did not lodge his general protections application until 33 days after the 21-day statutory time limit.

[21] In support of his application for an extension of time, Mr Marshall filed evidence from the Department of Correctional Services in South Australia which indicates he was incarcerated on 23 to 24 September 2019 and again from 14 to 29 October 2019. However, he submits he was in custody from 21 to 25 September 2019, and 11 to 29 October 2019. 16 No evidence was provided to support the additional dates he submits he was incarcerated.

[22] Mr Marshall did not provide any other evidence to support his reasons for failure to comply with the 21-day statutory time limit.

[23] Mr Marshall is required to provide reasons and supporting evidence that meet the exceptional circumstances hurdle to satisfy an extension of time. Other than the days of incarceration which are supported by evidence, he provided no satisfactory reasons for the balance of the period. I note that he filed an unfair dismissal application within the statutory 21-day limit, and he submits he was informed of his options by the Commission, yet Mr Marshall took no action until at least 6 November 2019.

[24] Having regard to the submissions and evidence, I am not satisfied that Mr Marshall demonstrated exceptional circumstances regarding this consideration. I do not consider the reasons given for the delay weigh in Mr Marshall’s favour.

Steps taken to dispute the termination

[25] Mr Marshall did not take steps to challenge his termination of employment until he lodged his application in the Commission. The first that Radiolines was aware of the application was when it was served on 11 November 2019.

[26] The lack of any action prior to lodging his application does not weigh in his favour.

Prejudice to the employer

[27] Mr Marshall asserts that granting an extension of time will not cause Radiolines disadvantage or unfairness.

[28] Radiolines submits the lateness in the application is prejudicial to them as the Administration Manager responsible for Mr Marshall had left their employ, and as they are a small business this placed pressure on the business to respond to the extension of time application. Further, they submit that the lateness of the application combined with the departure of their Administration Manager will prejudice their ability to respond to the claims advanced by Mr Marshall should the matter be granted an extension of time. Radiolines also refers to Mr Marshall’s failure to comply with the Commission’s directions and the inconvenience this has caused the business.

[29] Mr Marshall did not dispute the submissions advanced by Radiolines.

[30] I accept that the granting of the extension of Mr Marshall’s application may be an inconvenience. I am mindful that Radiolines did not submit evidence to support their submissions of prejudice. While a long delay presumes prejudice, unless evidence supports prejudice given the period of delay coupled with the loss of critical staff or pressure on resources, I cannot find in favour of Radiolines. However, in line with established precedent, even the mere absence of prejudice is an insufficient basis to grant an extension. Therefore, in this matter I find this consideration to be neutral.

Merits of the application

[31] Mr Marshall contends that the reason for the termination of his employment was his temporary absence on workers compensation and his alleged exercise of his workplace rights. There is no evidence to support these contentions, rather the evidence demonstrates that Radiolines managed the workers compensation claim, and it was he who failed to comply with his obligations in respect to the return to work program and medical advice. In any event, the termination took place while he did not have a valid medical certificate to support an absence from work.

[32] Further evidence from Radiolines raises serious doubt about whether Mr Marshall intended to return to work at all; he moved to South Australia and had sought rental properties. He was aware the position required residence in New South Wales.

[33] During the hearing Mr Marshall stated that the address he provided in New South Wales was for his accountant and this was a temporary measure until he found permanent residence of which the company was aware of. However, no evidence supported this contention. Mr Marshall further submitted that he informed iCare (the workers compensation insurer) that he was relocating to South Australia. I am of the view that this also confirms that he did not intend to continue to work for the Respondent.

[34] Therefore, I find this consideration to not weigh in Mr Marshall’s favour.

Fairness between the person and other persons in a like position

[35] Both Mr Marshall and Radiolines did not make submissions in relation to this consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[36] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[37] On balance of all the considerations, I am not persuaded that Mr Marshall has substantiated exceptional circumstances for an extension of time.

[38] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), 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). Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mr L Marshall on his own behalf

Mr R McRae and Ms B Paxton on behalf of the Respondent

Hearing details:

2019

Melbourne

12 December (Telephone hearing)

Printed by authority of the Commonwealth Government Printer

<PR715839>

 1   Applicant’s Outline of Argument at Q1d.

 2   Applicant’s Form F8 at Q3.2.

 3   Ibid.

 4   Ibid at Q3.3.

 5   Ibid.

 6   Ibid.

 7   Respondent’s Outline of Argument at Attachment 17.

 8   Ibid at Attachment 64-66.

 9   Ibid at Attachment 21.

 10   Ibid at Attachment 22.

 11   Ibid at Attachment 15-20.

 12   [2011] FWAFB 975.

 13 Ibid at [13].

 14   Applicant’s oral submissions.

 15   Applicant’s Form F8 at Q1.4.

 16   Correspondence from Mr Marshall dated 12 December 2019.