Mr A v the Respondent

[2013] FWC 2244

[2013] FWC 2244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr A
v
the Respondent
(U2013/6212)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 12 APRIL 2013

Application for unfair dismissal remedy - extension of time.

[1] This decision is published without the identification of the applicant or the respondent because of my concern that the applicant could regard the publication of his name as detrimental to his future well-being. The applicant is referred to as Mr A and the respondent simply as “the Respondent”.

[2] On 6 February 2013 Mr A lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment with the Respondent. The termination of Mr A’s employment took effect on 30 July 2012. As a consequence, Mr A’s application was lodged some 5½ months outside of the 14 day time limit then specified in s.394 of the FW Act.

[3] The application was not settled through the telephone conciliation process and was referred to me for determination. Section 396 states:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[4] At a Directions Conference on 13 March 2013 the parties confirmed that the only initial issue relevant to the application went to whether an extension of time should be granted.

[5] The extension of time issue was the subject of a hearing on 8 April 2013. At this hearing, Mr A represented himself. Ms Smith, of counsel requested permission to appear for the Respondent. Section 596(2) states:

“596 Representation by lawyers and paid agents

....

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.”

[6] A grant of permission was made to allow Ms Smith’s appearance pursuant to s.596(2)(a) on the basis that I was satisfied that her involvement would enable the matter to be dealt with more efficiently given the complexity of the material provided to me. I have also noted that Mr A’s allegations included concerns that he was, or may have been attacked at work. Consequently, I consider that legal representation was appropriate pursuant to s 596(2)(b). Whilst Mr A did not oppose this grant of permission I made it clear to him that I would assist him relative to issues of process in the hearing.

[7] Section 394(2) and (3) state:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[8] Mr A commenced employment with the Respondent as a Publishing (Production) Operator in November 2005. Mr A did not attend work for the Respondent from December 2011. Since that time he was on a combination of sick leave and annual leave. This leave commenced after Mr A raised concerns with human resource management personnel of the Respondent about his perception that he was being followed and was under surveillance and was the subject of violence in the workplace. Mr A advised the Respondent’s human resource management personnel that he was concerned for his own safety and that of other employees. Mr A also advised the Respondent that he was concerned that could be shot without detection in a thunderstorm, that his house was not safe and had been broken into, his car had been broken into whilst he was at work and that he generally feared for his safety including his safety whilst he was at work. Mr A also identified concerns that he might be poisoned and attacked at work with a knife. There is no dispute that Mr A has an anxiety disorder and psychological health issues which he has agreed affected his work. Mr A agreed with the Respondent that he should not work pending psychiatric assessments which were arranged and funded by the Respondent. The Respondent also paid for Mr A to have access to a “Rehabilitation Provider” to facilitate his return to work. Psychiatric advice provided to Mr A in April 2012 was to the effect that he would not be able to return to work without some worksite intervention. He was advised to take medication. Mr A refused to provide the psychiatrist’s report to the Respondent. Mr A advised the Respondent that he could not take medication prescribed for him because of his obsessive-compulsive disorder, eating practices and beliefs.

[9] In May 2012 the Respondent wrote to Mr A approving a request for annual leave as he had no further sick leave payment entitlement available to him. In this letter the Respondent expressed concern about Mr A’s capacity to return to work and its inability to communicate with his doctors so that it could be satisfied that he would be able to resume work at all.

[10] On 29 June 2012 the Respondent again wrote to Mr A and reiterated its concerns about his capacity to return to work. This letter stated:

....

We continue to hold those concerns which arise from the undisputed (and non work related or private) mental condition. Most recently, on 20 June 2012 you advised that you continued not to feel well and that you were continuing to deal with ‘personal issues’. We understand you are attending cognitive behaviour therapy on the recommendations of your treating doctor, but still want to return to work. You continue to indicate to us that you will not take medication prescribed for your condition by your doctor.

We also remain unhappy and uncomfortable about your refusal to provide a medical authority that will enable us, with a full and frank exchange of information, to better understand your condition, your fitness for work or otherwise, the nature and purpose of the medication you have been prescribed, and importantly, the full consequences and the risk to your health and others in the workplace if you choose not to take that medication. You have consistently indicated the decision not to medicate is your right and decision to make.

In the circumstances, we are forced to take the position of issuing you with a directive. That directive is to:

• Supply a signed medical authority for release of medical information for your treating Doctor/s



• Receipt of a full medical report and disclosure of condition from treating Doctor/s



• Provide a list of visits to treating Doctor/s



• Provide a list of visits to psychiatrist/psychologist



• Current medication/s you have been prescribed to take, the purpose of these prescribed medication/s and when you last took the prescribed medication/s




The purpose of our directive is to enable us to confidently and safely return you to your contracted role of Publishing Operator, where you can resume professional working relationships with the team of 24 colleagues on night shift. This directive has been necessary to issue because of your refusal to answer questions or allow information flow, and for us to ensure our compliance with obligations as to safety for yourself and others.

If you choose not to comply with our directive, the company will not be prepared to allow your return to work and further, you may face dismissal from employment for:

a. Not being able to satisfy us of your fitness for work and/or

b. Not being able to work in your contracted position and/or

c. Refusing to comply with our reasonable directive(s).

To be clear, our concerns are your mental health and contact with anyone at work. Given that you have no accrued sick leave and you are on leave without pay with our permission, this further reinforces the reasonableness of our directive.

You can respond to some or all of the questions/directives in part. All of the matters the subject of our directive must be complied with before we can indicate how and when or if you can return to the workplace. We think that 21 days is a reasonable timeframe for all of these matters to be completed, that is, by no later than Monday 23 July 2012.”

[11] Mr A met with the Respondent’s human resource management personnel on 23 July 2012. He provided a document which set out his employment concerns and listed his various visits to medical practitioners. He provided the psychiatric report of April 2012 to the Respondent’s personnel on a read-only basis for a limited time. Mr A listed his then prescribed medication and various medical certificates confirming that he was, at that time, unfit for work. Mr A confirmed that it was highly unlikely that he considered he would be able to take the medication prescribed for him. I note that Mr A continued to provide various medical certificates confirming he was unfit for work.

[12] By letter of 30 July 2013, which was delivered to Mr A at home, the Respondent terminated Mr A’s employment. This termination of employment letter stated:

“I refer to our letter to you of 27 June 2012 and your written response received 23 July 2012.

For a long time now, we have been trying to identify whether or if, you can be safely returned to the workplace. We have persisted over this time, in trying to obtain the necessary medical information from your treating doctors, to enable us to make decisions about your employment. Despite all of our attempts, you continue to avoid compliance with the directives given.

There is little point in responding to some of the controversial assertions made by your written response. What is clear is that you continue to refuse to do what has been asked of you, as clearly outlined in our letters of 27 June 2012, and 23 May 2012. As matters stand, the Company has held your position open to you for a significant period of time because of your absence due to personal issues. It is unreasonable to expect the Company to continue to do so in all of the circumstances.

In our view, there is a proper basis to effect the termination of your employment. Your continued refusal to freely exchange medical information with us, through the execution of the appropriate medical authorities, can no longer be accommodated. We cannot be expected to hold a position open for you where we have no information to enable us to be sure you can safely work in that role. Nor can we continue the employment of any of our employees who repeatedly refuses to co-operate with our reasonable requests and directives.

Accordingly, a decision has been made to terminate your employment effective immediately but by payment in lieu of notice amounting to 4 weeks pay. An employment separation certificate will follow.”

[13] Since the termination of his employment, Mr A has received further treatment. He has been assessed by the Australian Government as having a current capacity for 8-14 hours work per week which capacity should progressively increased to 23-29 hours work each week over the next two years. 1 Mr A has self-evaluated that his mental health has improved.

[14] Mr A asserts that the termination of his employment was unfair in that he identified various security and bullying concerns to the Respondent which were not properly addressed and the Respondent’s personnel colluded to force him out of the workplace.

[15] Mr A asserts that the reason for the delay in the lodgement of his application was related to his medical condition and inability to interact with other people so as to make the necessary enquiries and pursue a remedy. Mr A also advised he was not aware of the unfair dismissal remedy and that he had made various enquiries with other departments and functions before finally being directed to the Fair Work Commission. Thirdly, Mr A advised that his concerns about being under illegal surveillance and possible threats of violence had been such that he delayed acting to seek a remedy.

[16] Mr A advised that he endeavoured to challenge the termination of his employment with the Respondent directly but there was no response in this respect.

[17] The effect of Mr A’s submissions is that he asserts that his circumstances are exceptional such that an extension of time should be granted.

[18] The Respondent’s position is that evidence supporting Mr A’s assertion that his medical condition impacted on the delay has not been provided. Further, that, on his own evidence, Mr A was aware of his capacity to make an application on, or around 20 January 2013 but that he failed to lodge the application until 6 February 2013 and provided no sound basis for this failure.

[19] The Respondent asserts that evidence supporting Mr A’s assertions that he endeavoured to take action to dispute the termination of his employment has not been provided and that the application itself lacks merit. The Respondent’s Production Manager gave evidence to the effect that Mr A’s position had been filled on a permanent full-time basis in September 2012 and that the Respondent would be prejudiced if the application proceeded. He expressed particular concern about employee safety and Mr A’s ability to return to work. He advised that he was aware that Mr A had left a phone message after the termination of his employment but he had been unable to further contact Mr A. The Respondent’s position is that Mr A’s circumstances cannot be regarded as exceptional.

Findings

[20] I have considered the requirements of s.394(2) on the basis of all of the evidence before me.

Reason for the delay

[21] I am not satisfied that Mr A has established an acceptable reason for the delay in lodging this application. His ignorance of the capacity to lodge an unfair dismissal application cannot be an acceptable reason for the delay of itself.

[22] Mr A asserts that, after the termination of his employment, until sometime late in 2012, he felt unable to go about during the daylight hours and only went outside of his house at night, but that he overcame this fear after being assaulted at night. Notwithstanding this, Mr A has not provided any medical evidence of his inability to go outside during the day. Further, his own evidence indicates that he did this on numerous occasions. His evidence was that he attended his local library regularly for access to the Internet, that he attended the Respondent’s premises on various occasions and unsuccessfully sought to see various human resource management or legal personnel. Further, that he visited his bank in relation to his mortgage income protection insurance arrangements.

[23] In addition, Mr A’s evidence was that he visited the Fair Work Ombudsman’s offices in or around October 2012. He did not disclose what he was told by the Fair Work Ombudsman.

[24] I am not satisfied that Mr A has established that he was unable to pursue his application at an earlier time. Further, I am not satisfied that Mr A has provided me with an acceptable explanation of his visit to the Fair Work Ombudsman’s offices.

[25] Mr A’s evidence was that he visited the Fair Work Commission (FWC) offices to enquire about making an unfair dismissal application about a week before he completed the application. His application was signed on 25 January 2013 so that I have taken it that he visited the FWC offices in the week commencing 14 January 2013. While Mr A dated his application on 25 January 2013 he did not file it until 6 February 2013.

[26] I have concluded that, at the very latest, Mr A was aware of his capacity to make an unfair dismissal application in the week commencing 14 January 2013. Consequently, irrespective of the period before Mr A visited the FWC offices to enquire about making an application, the time that then elapsed before the application was made exceeds 14 days and lacks a proper explanation.

[27] I have considered Mr A’s evidence that his medical condition inhibited him from properly appreciating or recording times and events. That evidence is not medically supported and is inconsistent with Mr A’s relatively precise recollection of other matters and events.

When Mr A first became aware of the termination of his employment

[28] Mr A’s evidence was that he agreed that he was made aware of the termination of his employment on 30 July 2012 when he received the termination of employment letter delivered to his home by courier.

[29] I have noted that Mr A did not receive an employment separation certificate until sometime later and that he had to actively pursue this. Mr A’s evidence indicates that he needed this certificate for Centrelink and bank insurance purposes and he does not suggest that he was in any doubt that his employment was terminated with effect from 30 July 2013.

Mr A’s actions to dispute the termination of his employment

[30] I am satisfied that Mr A left at least one telephone message for the Respondent’s Production Manager. He also wrote an e-mail to various related corporate entities and global managers of the Respondent, on 27 December 2012 in which he raised concerns about the Respondent’s approach to him as an employee. This e-mail did not, however, seek to challenge the termination of his employment.

[31] I do not consider that Mr A has taken significant steps to challenge the termination of his employment, other than the late lodgement of this application.

Prejudice to the employer

[32] I have concluded that the very late lodgement of Mr A’s application would prejudice the Respondent and that this is a further factor mitigating against a grant of an extension of time.

The merits of the application

[33] Mr A was not dismissed because of his absence from work. As a consequence, the prohibition on dismissal because of a temporary absence from work, which is specified in s.352 of the FW Act and Regulation 3.01, is not applicable.

[34] Mr A was dismissed because he consistently refused to comply with a number of the reasonable directions given to him to provide information to enable the Respondent to make an informed decision about his safe return to work. Mr A did not provide a medical authority. He did provide some restricted disclosure of his condition and a list of medical practitioners and medications. He continued to advise that his obsessive compulsive disorder, an eating disorder and his belief structure meant that he was not taking, and would not take the medication prescribed for him. Mr A’s notes of the meeting he had with the Respondent’s personnel on 23 July stated: 2

“....

communicated that it was highly unlikely that due to my o.c.d./eating disorder and my belief structure that it was akin to chemical restraint for the non aggravating party, that i would not be able to take the medication of neulactil 2.5mg or seroquel 25mg -- a low dose tranquilizer to ease my anxiety at the workplace around individuals. of an aggressive demeanor

communicated that it was highly unlikely that i could take the anti depressant for a month leading to my re;entry to the workplace (Fluvoxamine being prescribed)

or even the beta blocker to mask my emotional-physiological symptoms to essentially deal with alledged workplace harrasment and the attempts by contractors to threaten me. (sic)

....”

[35] The position adopted by Mr A left the Respondent with no effective capacity upon which to found considerations about a safe return to work.

[36] The correspondence to Mr A of 29 June 2012 made him aware that a failure to comply with those directives would most likely result in the termination of his employment.

[37] I can discern no issues of unfairness associated with the process followed by the Respondent to effect the termination of Mr A’s employment and consider it highly unlikely that Mr A would be successful in pursuing his application on the merits.

Considerations of fairness between other persons in a similar position

[38] There are numerous examples of situations where the FWC and its predecessors have considered a person’s mental health as a major contributor to delays in lodging an unfair dismissal application. 3 In each case, the Tribunal has decided the issue on the particular circumstances. An undisputed mental illness does not, of itself, establish a valid basis for an extension of time.

[39] I am satisfied that the approach that I have adopted in this matter is consistent with other comparable circumstances.

Conclusion - Exceptional Circumstances

[40] Having considered each of the matters specified in s.394(3), I am not satisfied that Mr A’s situation represents an exceptional circumstance which justifies the grant of an extension of time for the lodgement of this application. Accordingly, the application must be dismissed. An Order [PR535642] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr A on his own behalf.

K Smith counsel for the Respondent.

Hearing details:

2003.

Adelaide:

April 8.

 1   Exhibit A1, Employment Services Assessment report 2/11/2012

 2   Ibid, notes of 23 July meeting

 3   [2011] FWA 3894, [2011] FWAFB 2216, [2008] AIRCFB 87, [2011] FWAFB 6729

Printed by authority of the Commonwealth Government Printer

<Price code C, PR535641>