Luciano Lombardo v Department of Education, Employment and Workplace Relations

[2013] FWC 9957

[2013] FWC 9957 [Note: An appeal pursuant to s.604 (C2014/3249) was lodged against this decision - refer to Full Bench decision dated 1 July 2014 [[2014] FWCFB 2288] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luciano Lombardo
v
Department of Education, Employment and Workplace Relations
(U2013/2400)

COMMISSIONER DEEGAN CANBERRA, 18 DECEMBER 2013

Termination of employment - jurisdictional objection - extension of time - no exceptional circumstances - application dismissed.

[1] On 19 July 2013 an application was made under s.394 of the Fair Work Act 2009 (the Act) by Mr Luciano Lombardo (the applicant) seeking an unfair dismissal remedy. The applicant had been dismissed from his employment with the Department of Education, Employment and Workplace Relations (the respondent) on 22 August 2012.

[2] On 5 August 2013, the respondent filed their response (Form F3) objecting to the application on the basis that as required by s.394(2) of the Act, at the relevant time, the application had not been made within 14 days of the date on which the dismissal took effect.

[3] Despite the objection, the respondent participated in a conciliation conference which took place on 27 August 2013. As the matter was unable to be resolved, it was referred for formal proceedings.

[4] As the application was not lodged until 19 July 2013, 317 days after the expiration of the 14 day time limit, it is necessary for a determination to be made as to whether further time will be allowed for the application to be made pursuant to s.394(2) of the Act. Directions were issued on 25 September 2013, and amended on 1 October, requiring parties to file submissions and statements in respect of the extension of time application. The initial directions noted that the Commission would determine whether a hearing was necessary upon receipt of the parties’ submissions and evidence.

[5] The applicant and respondent both complied with the amended directions. Having received the written submissions and supporting documentation I determined that no hearing was required and the matter would be decided on the basis of the documents filed.

Submissions for the Applicant

[6] The applicant submitted that he had not filed his application within the 14 days of the dismissal taking effect as he:

• had been occupied and ‘fixated’ on his application lodged with the Administrative Appeals Tribunal (AAT) on 27 August 2012 to review a Comcare decision and was thus, unable to devote time to also run an unfair dismissal case;



• was disappointed with his union’s handling of his dismissal and dissatisfied with their lawyer’s advice on his proposed application to the AAT and thus, had to represent himself in the AAT matter, and would also have had to represent himself in an unfair dismissal case if an application had been lodged; and



• believed the added stress of running the two actions concurrently would have constituted a danger to his mental health as he was suffering from depression.

[7] The applicant explained that no action had been taken by him to dispute the dismissal as he was suffering from depression and could not focus on more than one thing at a time but that as soon as the AAT decision was handed down on 5 July 2013, he was then able to dispute the dismissal and lodged his unfair dismissal application.

[8] He also submitted that a Canberra Times article, which he believed was drawn from both the AAT’s conclusion that he did suffer from a psychological condition and the AAT’s projection of the case, had referred to his termination as an unfair dismissal case and this reaffirmed his original impression about the situation. As it was now public knowledge, he felt ‘even more strongly that (he) must defend himself’ 1.

[9] According to his statement, the applicant suffered a depressive disorder on 2 February 2011 as a result of an administrative decision by the respondent not to give him a redundancy which disadvantaged him at his workplace. He had not been to work since that date. The applicant stated that he made the decision to go ahead with the AAT application first, rather than pursue both applications at the same time, because that issue had been going on since his application to Comcare in February 2012 and ‘was the more advanced and substantive issue’ 2. He further stated ‘if I were to be successful it would not have been appropriate to also seek compensation for the dismissal’3.

[10] The applicant also produced statements from his GP, Dr Helen Wessell, and his psychologist, Dr Neil Harrigan, which covered the nature and impact of the applicant’s mental health issues. Both doctors expressed the opinion that his condition in September 2012 was such that he could not pursue two cases concurrently.

Submissions for the Respondent

[11] The respondent opposes the extension of time application and submitted that there was nothing exceptional in relation to the circumstances the applicant was in during the 14 day time period after his dismissal.

[12] It was put that the applicant was clearly advised in his termination letter of 22 August 2012 4 of his rights in relation to making an unfair dismissal application and the 14 day timeframe within which he was required to do so. According to the respondent, the applicant had made a conscious decision to pursue his AAT application in preference over lodging an unfair dismissal application. It was contended that the applicant had turned his mind to the matter of making an unfair dismissal application and had decided not to do so.

[13] The respondent submitted that the view of Dr Wessell and Dr Harrigan, that the applicant could not pursue two cases concurrently, should not be accepted as:

• Dr Inglis Synnott, an independent consulting psychiatrist to whom the applicant was referred for a fitness for duty assessment on 16 July 2012, found that the applicant had no current psychiatric condition and no incapacity for employment;



• Dr Synnott reported 5 that, during the interview, the applicant “gave what appeared to be a thoughtful, considered, coherent and organised history- no overt cognitive impairment”;



• there was a lack of understanding by Dr Wessell and Dr Harrigan of the unfair dismissal claim process, ‘a simple exercise of filling out a form’, and that the applicant could have lodged the application and then sought an adjournment of his claim until after the AAT matter had been finalised;



• their findings were inconsistent with the applicant’s capacity to focus on the possibility of his dismissal as the applicant had, in reply to the respondent’s letter of 10 August 2012 6 directing the applicant to return to work, responded by letter on 15 August 20127 with ‘a cogent and reasoned argument as to why he would not be returning’.



• no explanation was given as to why the applicant could not lodge an unfair dismissal application at times when he was not dealing with the AAT matter.

[14] According to the respondent, the applicant had ample time to turn his attention to the issue of his dismissal and lodge the unfair dismissal application. If not in between the lodgement of the AAT application and the preliminary case conference, a period of 8 days in which nothing was required to be done and which would render the application within the required time, then at the following times:

• after the AAT matter had been listed for a conference, 169 days after the AAT application was lodged;



• after the conference up until the day of hearing, a further 81 days; or



• when the AAT’s decision was reserved and handed down on 5 July 2013, a period of 59 days.

[15] The respondent noted that, at the time he was pursuing his Comcare claim, the applicant was able to turn his mind to the issue of his imminent dismissal in writing the letter of 15 August 2012 8.

[16] It was ultimately the respondent’s position that it was a combination of the AAT’s decision to reject the applicant’s claim and the publicity generated by the Canberra Times article, which was put as not being unusual, special or uncommon as AAT proceedings are public and decisions are routinely published, that motivated him to lodge the unfair dismissal application. It was submitted that this was after having made a considered decision to forego a challenge to his dismissal and pursue a claim for compensation with Comcare. The respondent also noted that after the applicant was notified of his dismissal, there was no indication by the applicant that he intended to dispute the matter further.

The Legislation

[17] As at the date of the termination of the applicant’s employment s.394 of the Act provided as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

(2) 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).

(3) 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.

Consideration

[18] I have considered the question of whether a further period should be allowed for the lodgement of this application in light of those matters set out in s.394(3) of the Act.

[19] The main reason given by the applicant for his delay in filing is his pursuit of a worker’s compensation claim which was eventually determined by the AAT on 5 July 2013. He claims that he was ‘fixated’ on that matter and that he was unable to pursue an unfair dismissal case at the same time. He has submitted in evidence two letters, one from his general practitioner and one from his psychologist, both advising that he was unable in September 2012, due to his mental state at that time, to pursue his unfair dismissal case in addition to his Comcare application. I accept the advice of both doctors that the applicant was, in September 2012, unable to pursue his unfair dismissal case. I do not accept, however, that from September 2012 until 19 July 2013 the applicant was incapable of either deciding on whether to make an unfair dismissal application or lodging such an application. Neither of the letters from his doctors supplied by the applicant supports such a conclusion.

[20] There is nothing exceptional in the circumstances that applied to the applicant. It is not unusual for a person whose employment is terminated to pursue or continue with a worker’s compensation claim. Nor is it exceptional for a person whose employment has been terminated to be stressed or anxious. While it would be unusual for a person’s mental condition to prevent him from lodging an unfair dismissal claim for almost a year, there is no evidence that this was the case in this instance. I note the differing assessments made by the various doctors of the applicant’s mental state in the weeks leading up to the termination. I also note that the applicant was clearly capable of responding to the employer about his reasons for refusing to return to work and to press his workers compensation claim. The applicant’s submissions make it clear that he took a reasoned decision to pursue his compensation claim rather than an unfair dismissal claim and only decided to lodge the unfair dismissal application when his compensation claim both failed and he received publicity he was concerned about. None of these matters constitute exceptional circumstances.

[21] The applicant was dismissed with effect from 22 August 2012. He took no action to dispute the dismissal until he lodged this application on 19 July 2013.

[22] I accept that while there may be some prejudice caused to the employer if a further period were allowed for lodgement I do not consider such prejudice would be sufficient, of itself, to refuse the application for a further period within which to lodge.

[23] On the limited evidence as to the circumstances of the termination I am unable to conclude that the application is totally without merit and is therefore a neutral consideration. I make no further finding on that matter.

[24] The matter of fairness as between the applicant and other persons in a similar position is of little relevance to my decision in the circumstances of this case.

Conclusion

[25] Taking all the matters set out in s.394(3) into account I am not satisfied that there are exceptional circumstances in this matter such that I should allow a further period for the filing of the application.

[26] The application is dismissed. An order [PR545886] to that effect will be published separately.

 1   Applicant’s outline of submissions.

 2   Applicant’s witness statement, paragraph 11.

 3   Ibid.

 4   Applicant’s witness statement, Attachment B5.

 5   Respondent’s outline of submissions, Attachment A.

 6   Applicant’s witness statement, Attachment B3.

 7   Applicant’s witness statement, Attachment B4.

 8   Ibid.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR545885 >