Mark Skirton v Hall Towbars Pty Ltd

[2014] FWC 4271

[2014] FWC 4271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mark Skirton
v
Hall Towbars Pty Ltd
(C2014/4017)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 7 JULY 2014

Application to deal with contraventions involving dismissal - extension of time - application refused.

[1] On 10 April 2014 Mr Skirton lodged an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act), in which he asserted that the termination of his employment with Hall Towbars Pty Ltd ( Hall Towbars) breached the general protections provisions of the FW Act.

[2] The application was initially listed for a conference on 5 May 2014. At the request of Mr Skirton’s lawyer, Mr Faull this conference date was changed to 23 May 2014. At the commencement of the conference I advised the parties that I considered that the application was made outside of the time limit specified in s.366 of the FW Act. The parties elected to proceed with the conference on the basis that, if no agreement was reached, the extension of time issue would be considered before any certificate pursuant to s.368 would be issued.

[3] No agreement was reached. As a consequence directions relative to the conduct of the matter were issued and the extension of time issue was considered at a hearing on 23 June 2014. Mr Faull appeared for Mr Skirton under a grant of permission pursuant to s 596(2)(a). Mr Roberts appeared on behalf of Halls Towbars.

[4] Section 366 states:

“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.”

[5] There is no dispute that the termination of Mr Skirton’s employment took effect on 26 December 2013 and that he was aware of that termination decision some weeks prior to it taking effect. His application was lodged some 83 days after the 21 day time limit. Consequently, an extension of that time limit is an essential prerequisite to the continuation of the application.

[6] There is limited dispute about the background to the application. Mr Skirton worked in an administrative and sales function from October 2010. After some 18 months he made a number of complaints about his treatment as an employee. These complaints included complaints about other employees and managers. He referred these complaints to SafeWork SA and the police. His situation was also investigated, at the request of Halls Towbars, by Business SA.

[7] Mr Skirton was declared medically unfit for work on psychological grounds from August 2013. He remains in receipt of WorkCover benefits.

[8] On 29 November 2013 Halls Towbars advised Mr Skirton that it would terminate his employment on 26 December 2013 as it had no suitable duties for him. There appears to be no dispute that WorkCover or its agent had agreed with that decision. Mr Skirton discussed the termination of his employment with his WorkCover claims agent, his doctor and his psychologist. He saw his lawyer, Mr Faull on 28 November, before he was aware of the termination decision, and again on 24 March 2014. The information before does not permit a definite conclusion about precisely when Mr Skirton advised his lawyer to initiate these proceedings but I have taken it that this was on, or soon after 24 March 2014.

[9] Mr Skirton proposes three reasons for the delay. Firstly he advises that he has a heart condition of a serious nature. He advises that he is being considered for a heart transplant, has a defibrillator and an implanted pulse generator in his back. He advised that in early 2014 his heart condition deteriorated such that he was concerned for his life and underwent investigative surgery on 5 March 2014. Mr Skirton provided various letters from his treating doctors which confirm his heart condition and indicate that delays in his dealings with other matters are not surprising. 1

[10] Secondly, Mr Faull asserts that Mr Skirton’s psychological condition prevented him from pursuing the termination of his employment. In this respect he advises that he suffers from reactive depression and anxiety associated with his employment with Halls Towbars. Mr Skirton asserts that his condition was exacerbated by the termination of his employment such that he was unable to think rationally without access to his psychologist in February, March and April 2014. While Mr Skirton provided a copy of correspondence from his treating psychologist dated 12 December 2013, this identifies an improvement in his psychological condition and neither it, or the other material from his psychologist confirms that he was psychologically unable to pursue this matter from 26 December 2013 until the lodgement of the application.

[11] Thirdly, Mr Faull asserts that Mr Skirton’s medical condition includes short term memory loss such that this explains his failure to lodge the application within the time limit. I am unable to identify medical evidence to this effect to support his contention. I note that the correspondence from his psychologist dated 12 December 2013 does not identify memory loss of this nature.

[12] Mr Skirton advises that, in the period between the termination of his employment and the lodgement of his application he attended 28 medical appointments.

[13] Mr Skirton confirmed that over this same time he went away for two brief holidays which he said were undertaken on the advice of his doctor.

[14] I have also noted that the advices provided by Mr Skirton’s psychologist indicate that Mr Skirton has been somewhat preoccupied with achieving a form of revenge directed at Halls Towbars and/or various of its staff. I have also concluded that, in his evidence, Mr Skirton was articulate and concise. Finally, I have noted Mr Skirton’s evidence was that he did not arrange to see his lawyer because his efforts were focused on visiting doctors who could produce positive outcomes for him and he did not regard his lawyer in that same light.

[15] Certain factors in this matter are indicative of an acceptable reason for the delay whilst others indicate that there was no acceptable reason for the delay.

[16] The primary factor which could represent an acceptable reason for the delay was the evidence about Mr Skirton’s heart condition. In this respect the significant number of medical appointments which he attended over the substantial period between the termination of his employment and the lodgement of the application supports this position in that I have taken it that these appointments were primarily related to his heart condition. The evidence before me indicates that Mr Skirton’s heart condition was, over this time, and quite understandably, a matter of great importance to him. The supporting medical evidence does not however establish that Mr Skirton was medically unable to pursue the termination of his employment over this time.

[17] I do not accept that Mr Skirton’s psychological condition over this time prevented him from pursuing the termination of his employment. In this respect I am simply not satisfied that the evidence supports this contention made by Mr Faull.

[18] I am similarly not satisfied that the evidence supports Mr Faull’s contention that, over this time Mr Skirton suffered from a short term memory loss problem. Medical evidence to this effect is not established.

[19] Mr Skirton’s confirmation that he went away for a couple of short holidays to relax does not lend support to his assertions relative to the all consuming nature of his heart condition. Similarly Mr Skirton’s advice that he did not inform his lawyer of the termination of his employment over this time because he was focussed on his health is inconsistent with his continued participation in WorkCover rehabilitation activities. For instance, in the week immediately after he underwent investigative surgery for his heart condition Mr Skirton records that he participated in WorkCover rehabilitation.

[20] Finally, Mr Faull did not seek to bring evidence about his submission that a further reason for the delay related to the extent to which Mr Skirton observed another employee, sitting in his seat between November 2013 and April 2014 and was advised this person had replaced him such that he then considered that he should be able to return to that job. I am not satisfied that this position has been made out or that, in any event, it represents an acceptable reason for the delay.

[21] The significance of Mr Skirton’s heart condition represents an acceptable reason for part of the delay but it does not explain the entirety of this very long delay.

[22] Mr Skirton did not take any other action to dispute the termination of his employment. He was clearly aware of the pending employment termination before it occurred. This was noted by his psychologist in mid December 2013 as a factor which prevented a return to work.

[23] The fact that Mr Skirton took no action in this regard, including his failure to even advise his lawyer of his dismissal, is a factor which goes against the granting of an extension of time.

[24] Halls Towbars has not argued that an extension of time would represent a prejudice to it. Accordingly, I have not taken this to be a factor which goes against the extension of time request. However, it cannot be taken as the basis for the granting of an extension of time.

[25] In terms of the merits of the case, I have significant doubt that Mr Skirton can establish that the termination of his employment occurred in breach of the general protections provisions of the FW Act. The limited information before me establishes that the decision to terminate Mr Skirton’s employment was endorsed and approved by the relevant WorkCover Agent as consistent with s.58B of the Workers Rehabilitation and Compensation Act SA (1986). This section states:

“58B—Employer's duty to provide work or pay wages

(1) If a worker who has been incapacitated for work in consequence of a compensable injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the injury arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).

Maximum penalty: $25 000.

(2) Subsection (1) does not apply if—

(a) it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies in any legal proceedings on the employer); or

(b) the worker left the employment of that employer before the commencement of the incapacity for work; or

(c) the worker terminated the employment after the commencement of the incapacity for work; or

(e) the employer currently employs less than 10 employees, and the period that has elapsed since the worker became incapacitated for work is more than 1 year.

(3) If a worker who has been incapacitated for work in consequence of a compensable injury undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the injury arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation.”

[26] I think it most likely that the decision to terminate Mr Skirton’s employment reflected Halls Towbar’s inability to offer him suitable employment and was consistent with the medical advice. For instance the advice of Ms Rawsthorne of 12 December 2013 states:

“Yes, I believe Mr Skirton has the psychological capacity to return to suitable employment undertaking his pre-injury role of Customer Support/Sales with a new employer. He appears to be highly organised, conscientious and reliable. However, I believe that it will be necessary for his psychiatric condition to be alleviated first.” 2

[27] It is possible that Mr Skirton’s claim relative to breaches of the general protections provisions whilst he was at work can be established but I note from the material provided to me that his claims have been disputed by Halls Towbars on the basis that he raised these issues in response to performance concerns. I also note that Mr Skirton’s concerns have been put to the Police, SafeWork SA and have been separately investigated. However, because the evidence from both Mr Skirton and Halls Towbars in this respect is very limited, I have regarded the merits of Mr Skirton’s application as a neutral consideration relative to the extension of time issue.

[28] Finally, in terms of fairness with persons in like situations, I am unable to identify a situation which corresponds directly with that of Mr Skirton. In this respect, whilst I have noted the Full Bench decision in Burke v Department of Agriculture, Fisheries and Forestry - Australian Quarantine and Inspection Service, 3 I do not consider Mr Skirton’s circumstances to be directly comparable.

Conclusions

[29] The Full Bench decision in Nulty v Blue Star Group Pty Ltd 4 dealt with an application made under s.365. I have adopted the same approach to the concept of exceptional circumstances considered by the Full Bench in the following terms:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11]Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12]The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 , a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.” 5

[30] The duration of the delay here is substantial. Having considered the overall circumstances I am not satisfied that it would be appropriate to grant an extension of time to Mr Skirton. A medically substantiated basis for his position is not established such that I should rely upon it to outweigh his continuing participation in Workcover actions, his brief holidays and his failure to even advise his lawyer of the termination of his employment until late March 2014. Additionally, the absence of any alternative action taken by Mr Skirton over this long period of time and significant doubt over the merits of his application, mitigate against an extension of time.

[31] The application will accordingly be dismissed. An Order (PR552507) to that effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

M Faull counsel for the applicant.

P Roberts for the Respondent.

Hearing details:

2014.

Adelaide:

June 23.

 1   Applicant’s submissions Annexure MS2, Correspondence from Professor Sanders dated 26 May 2014

 2   Applicant’s submissions Annexure MS4, Confidential Comprehensive Psychological Report, Ms J Rawsthorne, dated 12 December 2013, para 10

 3   [2011] FWAFB 8480

 4   [2011] FWAFB 975

 5   [2011] FWAFB 975, paras [10] to [12]

Printed by authority of the Commonwealth Government Printer

<Price code C, PR552489>