Marcus Burke v Ozroll Pty Ltd

[2015] FWC 3283

[2015] FWC 3283

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Marcus Burke
v
OZROLL PTY LTD
(C2015/1580)

COMMISSIONER SIMPSON BRISBANE, 26 MAY 2015

Termination of employment - application was not filed outside 21 day time limit.

[1] This matter concerns an application filed pursuant to s.365 of the Fair Work Act 2009 (the Act) by Mr Marcus Burke (“the Applicant”) who alleges that the termination of his employment with Ozroll Pty Ltd (“the Respondent”) was in breach of the general protections provisions of the Act.

[2] The Applicant notes in Question 1.1 of the F8 application that he was dismissed on 14 January 2015 and filed the F8 on 5 February 2015. For the application to have been filed within time it needed to have been filed by Friday 4 February 2015.

[3] This matter was listed for conference 23 March 2015. The Respondent did not raise a jurisdictional objection that the Applicant had failed to make the application within 21 days. However, the Commission can only act within its defined jurisdiction under the Act, regardless of whether a party raises a jurisdictional matter.

[4] With the termination date of 14 January 2015, this application was lodged out of time and the Applicant is required to seek an extension of time prior to any conference being held. On 23 March 2015 the Commission issued directions for the parties to file and serve submissions in relation to the out of time issue.

Directions:

Mr Burke must provide his submissions and any other material that he intends to rely on regarding the Out of Time Application on or before 4pm Tuesday 30 March 2014 to Commissioner Simpson’s chambers and to the Respondent.

If the Respondent has any further submissions/ material he must provide it on or before 4pm on Tuesday 7 April 2015 to Commissioner Simpson’s chambers and to the Applicant.

If the submissions provided are not contested and the parties are in agreement, this matter will be determined on the papers. The Commissioner will conduct a hearing if requested to do so by one of the parties.

[5] A request from the Applicant for an extension to lodge his material was granted so he could obtain legal assistance. The amended date by which the Applicant had to file his material was close of business Friday 10 April and the Respondent by Monday 20 April 2015.

Summary of Submissions for the Applicant - Extension of Time

[6] The Applicant submits that the extension of time should be granted under s.394(3) of the Act on the following basis:

1. I was informed by email in the evening of 14 January 2015 that my position with Ozroll would be terminated effective the following day. The letter attached to the email states:

“as of Thursday 15 January your employment with Ozroll will be formally terminated”

2. A copy of the terminated letter is annexed to these submissions.

3. I lodged my application for General Protections by email on 5 February 2015. This day is the last day in the 21 day time frame that commenced on 15 January 2015.

4. On my application form I indicated that I had been terminated on 14 January 2015 because that was the day on which I was informed of the termination but, as the letter states, that termination did not become effective until 15 January 2015.

5. My last day of work was actually in December 2014 and I was meant to return to work on 14 January 2015. On the morning of 14 January 2015 I was attending at my doctor and received a telephone call from Colin Fabien, the manager at Ozroll who told me not to bother coming in that day as there wasn’t any work. As I was at the doctors at the time I asked her about returning to work and she told me that she did not think I was ready to go back in any event. After my consultation with my doctor I returned home.

6. That evening I received an email with the termination letter attached.

7. I had intended to go into work on 15 January 2015 but after receiving that email did not. I spoke to several colleagues on 15 January 2015 who advised me that I ought not to come in on that day because of the hostile attitude of management towards me.

8. As such, I believe the termination of my employment became effective on 15 January 2015. If, however, a finding is made that I was terminated on 14 January I submit that I have exceptional circumstances warranting an extension of time to file.

9. On 2 July 2014, while travelling to work on my motorbike, I was involved in a serious accident which left me unconscious for 24 hours and with a range of ongoing medical problems. Among my injuries were several broken and fractured bones for which I have had to take very heavy pain medication.

10. I also split my helmet from the impact and since then have had problems with my memory and managing the logistical aspects of making claims, keeping appointments and tending to paperwork. I am not sure how much of my struggle in this regard is related to the medication and how much is from an injury to my brain. I am still working this all out.

11. From July 2014 I had been attempting to get work cover because I had been unable to work on the same basis as before but it has been a struggle. I suffered financially and could no longer afford my rent. From around September 2014 I was effectively homeless. I have been predominantly living in my car and, when it is stormy I stay with friends if I can.

12. I am still homeless and have no income. Centrelink are still processing my application for a payment but none has been provided to me.

13. There is no prejudice to the employer as far as I can see from my application being one day late.

14. I believe my application for General Protections is a strong one for the following reasons:

a. I was terminated while unable to work at my former capacity due to an injury;

b. The injury was sustained on my way to work;

c. I had been off work on workers’ compensation following the injury and was in the process of returning to work. Access to workers’ compensation is a workplace right;

d. There is also a right within the workers compensation regime providing protection from termination for injured workers who face termination for reasons relating to their work injury and/or their right to bring a compensation claim;

e. Apart from matters pertaining to my injury and my employers frustration at managing the return to work process, there were no other issues raised with me relating to performance or my attitude as an employee;

f. I was terminated because of the work injury that I sustained and the difficulty my employer had in accommodating my return to work and the duties I could undertake at that time;

g. There is also a general prohibition for terminating workers with a disability because of that disability. I have a disability as a result of the work injury.

h. I was terminated for exercising a workplace right, specifically the right to claim workers compensation and to be provided with a suitable return to work plan. Further and in the alternative I was terminated because of the disability I sustained from the workplace injury to which the workers compensation claim relates.

i. I have struggled to find other work and cannot at this time because of my injuries.

I do not believe that granting me an extension of one day will constitute unfairness to any other person in a similar situation.

Summary of Submissions for the Respondent - Extension of Time

[7] In accordance with the amended directions, if the Respondent had any further submissions they were to be filed by Monday 20 April 2015. Further correspondence was sent to the Respondent on the 13 May 2015 and on 15 May 2015 the following correspondence was sent:

“Dear parties,

I refer to my email of 13 May 2015 requesting the Respondent advise if it intends to file any material in relation to the application for an extension of time. I note the auto response email stating:

“I am on annual leave from Monday 4th May, returning to the office on Monday 25th May. Emails will be distributed to the appropriate team member during this period, however, please feel free to contact the office on [phone] should you need to speak with someone urgently.

Regards

George”

With the absence of Mr O’Brien till the 25 May 2015, the Commissioner advises that if no response or material is received from the Respondent by close of business Tuesday 26 May  the Commissioner will consider that the Respondent does not wish to be heard in relation to the application. The Commissioner will consider the application for an extension of time on the basis of the material presently before the Commission, which is unchallenged.”

[8] Confirmation on the 25 May 2015 was received from the Respondent’s General Manager Mr O’Brien stating there will be no submission from Ozroll regarding the extension of time.

CONSIDERATION

[9] Section 366 of the Act reads as follows:

366 Time for application

(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).

(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.

[10] On the F8A Employers Response to General Protections Application the Respondent outlines their reasons for dismissal however has not specified a termination date. The date of dismissal according to the termination letter is 15 January 2015.

[11] I accept the Applicant’s reason for nominating 14 January 2015 on his application as this was the date he was informed of his dismissal; however the termination letter states the termination will be effective as of the 15 January 2015. The correspondence is not dated however reads:

Dear Marcus

Marcus unfortunately due to seasonal and market conditions we have had to lay off the majority of our casual workers. I am writing to inform you that as of Thursday 15th January your employment with Ozroll will be formally terminated.

I believe that all outstanding remuneration has been fully paid however should you believe that this is not the case then please do not hesitate to contact me to discuss.

Your time with Ozroll was appreciated and I wish you well in find future employment.

Regards

George O’Brien
State Manager Qld

[12] The Respondent has not appeared to challenge the Applicant’s submissions as to why he nominated the 14^th of January on his originating application. The Respondent also has not provided any alternate reason or explanation as to why the letter of termination states that the dismissal takes effect as of 15 January 2015. I accept the Applicant’s evidence and find that the dismissal took effect on 15 January 2015. The application was filed within time. I will have this matter allocated for conference. A notice of listing will issue shortly.

COMMISSIONER

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