Mr Adam Nathaniel Kirk v Frank Cross Tyres Pty Ltd
[2011] FWA 1592
•23 MARCH 2011
[2011] FWA 1592 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
Mr Adam Nathaniel Kirk
v
Frank Cross Tyres Pty Ltd
(U2011/4482)
COMMISSIONER CARGILL | SYDNEY, 23 MARCH 2011 |
Alleged dismissal - extension of time.
[1] In this matter Mr A Kirk (the applicant) lodged an application under section 643 of the Workplace Relations Act 1996 (WR Act) for relief in respect of the alleged termination of his employment by Frank Cross Tyres Pty Ltd (the respondent). The application is made on four grounds: the termination was harsh, unjust and unreasonable; there was an alleged contravention of section 659 of the WR Act; an alleged contravention of section 660 of the WR Act; and, an alleged contravention of section 661 of the WR Act.
[2] The application was lodged outside the 21 day time limit imposed by the WR Act. The respondent objects to an extension of time being granted and also objects to conciliation before the determination of that issue. The respondent also raised a number of other objections to the matter including whether the claim had been brought under the appropriate legislation. This issue is dealt with further in my conclusions.
[3] In correspondence dated 3 February 2011 I invited the parties to provide further information in support of their respective positions in relation to the extension of time issue. A timetable was set for this process. The parties were referred to and provided with a copy of the principles in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns).
[4] The applicant provided material in response to my written invitation. Material was provided on behalf of the respondent by its representative Mr Baumgartner, Senior Employment Relations Advisor, Motor Traders’ Association of New South Wales, an organisation of which it is a member.
[5] In my correspondence to the parties I stated that, after considering the arguments put forward by each party, I would decide whether a hearing was necessary or determine the extension of time issue based on the written material. I have taken account of the information which has been provided in response to my written invitation. I have also considered, as I am required to do by section 648(1), the cost that would be caused to the business of the employer by requiring the employer to attend a hearing.
[6] I have decided in the circumstances not to hold a hearing.
BACKGROUND FACTS
[7] The applicant commenced employment with the respondent on 4 June 2007. He was employed as a tyre fitter and repairer. Further details of his duties are set out in an attachment to the claim for relief.
[8] The applicant states that he was injured at work on 11 September 2007 and has been on workers’ compensation since that time.
[9] It appears that the applicant resigned his employment on 19 September 2007. Attachment A to the respondent’s submissions is a letter dated 19 September 2007 from the applicant in which he states that he is giving one week’s notice “due to emotional stress of leaving on 25th September 2007”. The applicant does not deny the resignation but claims that he was coerced into writing it and consequently was constructively dismissed.
[10] In his claim for relief, the applicant notes that the date when he last worked for the respondent was 25 September 2007. He provides two dates for when the termination took effect: 28 August 2007 and 18 September 2007.
[11] The application was lodged on 25 January 2011. This is more than three years outside the time limit specified in the WR Act.
APPLICANT’S CASE
[12] The material in support of the applicant’s case for an extension of time was extensive and is contained in several documents: attachments to the claim for relief; three pieces of correspondence each dated 15 February 2011 and attachments; and, further correspondence in reply dated 10 March 2011 and a number of attachments.
[13] The applicant submits that the delay in the lodgement of his claim was not intentional. He puts forward a number of explanations for the delay.
[14] The applicant has been on workers’ compensation since September 2007. As a result of having to comply with the relevant legislation, he has had to attend over 400 medical appointments. Some of these appointments have required the applicant to travel, often for periods of up to 11 hours, from his home near Dubbo.
[15] The applicant has undergone two operations on his shoulder. He was bedridden for at least 12 weeks while he was recuperating. The applicant suffers ongoing chronic and debilitating pain. The cause of this pain has not been diagnosed.
[16] The applicant sets out details of the severity of his injuries. These include: complex regional pain syndrome; scapular dyskinesis; annular tears and disc bulge in his cervical spine; pain in his thoracic spine and lumbar spine; damaged muscles in spasm in his back and neck; and, continued recovery from the most recent shoulder operation. The applicant also has psychological issues arising from his physical injuries and the respondent’s treatment of him.
[17] The applicant has been on strong medication to deal with the pain and the associated depression and anxiety. He has been physically and mentally fatigued by his injuries and is still unable to work. The applicant provided medical certificates which show unfitness for work during the period 25 November 2010 to 28 February 2011. In his material in reply, the applicant provided further medical certificates indicating unfitness for work until 15 May 2011.
[18] The applicant submits that, as a consequence of these issues, he has been unable to attend to the matter of the termination of his employment.
[19] The applicant also submits that he made inquiries of a number of government departments but was not successful in receiving proper advice. In particular, the applicant telephoned “Workcover” on numerous occasions to attempt to actively pursue his claim during the “allowable period”. It is unclear whether this is a reference to the 21 day period for lodgement or to something else.
[20] It was not until September 2010 that the applicant received the relevant form for lodging his claim. He submits that, until then, he was unaware of the redress he could seek. I note that, in some of his correspondence, the applicant appears to assert that the claim is only five months late. This appears to be based upon a submission that the time for lodgement of his claim did not begin until the form was received by him.
[21] The applicant submits that, if he had been properly informed and had received the application form before September 2010, he would have lodged it in time.
[22] The applicant submits that he was advised by an officer of the Workers Compensation Commission to lodge a claim with that body. It is unclear, however, the applicant appears to submit that this officer also advised him to make the present claim.
[23] The applicant also submits that he saw some solicitors about his claim however they failed to represent him. The applicant submits that the solicitors told him that they had no expertise in the area and no time to address the matter. They did however offer to help him complete the form.
[24] It is not entirely clear, however, it appears that the applicant’s approach to the solicitors took place after he had received the application form. I note that the applicant states that he has been legally represented in relation to his workers’ compensation claim. I am unable to ascertain if these solicitors are the same ones who were approached by the applicant in relation to this claim.
[25] The applicant submits that he has been as active in pursing his claim as has been possible given his injured state and the need to attend the medical appointments referred to earlier. He has taken considerable action in relation to his workers’ compensation claim.
[26] The applicant submits that the respondent would not be financially prejudiced if the time for lodgement of the claim was extended. Further, the respondent has been aware of his injury and the harassment he had suffered from about the time the incidents occurred. The applicant states that he would be prepared to grant the respondent further time to present its case if it needed to gather more information.
[27] The applicant submits that he has been significantly prejudiced by the respondent’s behaviour.
[28] The applicant submits that there is merit in each of the grounds of his claim. In particular he has provided much material about the alleged instances of bullying and harassment upon which he relies.
[29] The applicant submits that, in the interests of law and human rights, an extension of time should be granted. He states that his ongoing condition of anxiety and depression would be reduced and he would come to some form of resolution.
CASE ON BEHALF OF THE RESPONDENT
[30] The submissions on behalf of the respondent are dated 2 March 2011. They include a number of attachments and two affidavits, one from the proprietor of the respondent Mr F Cross, the other from one of its managers Mr B Blackhall.
[31] The respondent disputes the fact that the application has been made under the WR Act rather than the Fair Work Act 2009 (FW Act). It submits that it is prejudiced by this as it is unable to use the “exceptional circumstances” argument which would be relevant if the application had been brought under the latter legislation.
[32] The respondent submits that the applicant’s suggestion that he was not aware he could make a claim to contest his alleged dismissal is not believable. An approach to his workers’ compensation solicitors or to the Workplace Ombudsman could have provided guidance in this respect.
[33] The applicant’s explanation as to failures by some solicitors is not sufficient to account for the delay. It is noted that there is no suggestion that the solicitors provided incorrect advice, merely that they were limited in both time and expertise.
[34] The respondent submits that the fact that the applicant is on workers’ compensation and is still physically unfit for work is not relevant and does not amount to a reasonable explanation for a delay in lodgement of more than three years. Regardless of the number of medical appointments he had to attend, if the applicant had seriously wished to contest the alleged dismissal, he could have done so at a much earlier time.
[35] The respondent refers to the applicant’s submission concerning the advice from the Workers Compensation Commission. The respondent submits that, if the applicant’s motivation in making this claim is to support any claim in the workers’ compensation jurisdiction, that is an insufficient reason to support an extension of time being granted.
[36] The respondent submits that the injuries and illnesses suffered by the applicant do not account for the delay in lodgement. Further, many of these issues could not possibly be attributed to the brief period of the applicant’s employment with the respondent. The respondent submits that, even if it is accepted that the applicant was bedridden for a period of at least twelve weeks while recovering from an operation, this does not provide an acceptable explanation for a delay of over three years.
[37] The respondent submits that there is no evidence of any other action taken by the applicant to challenge his alleged dismissal.
[38] The length of the delay in lodgement has dramatically affected the recollection of the respondent’s witnesses as attested by Mr Cross and Mr Blackhall. All other potential witnesses have left the business.
[39] The respondent submits that the applicant’s claim has no merit. It submits that the part of the claim which alleges that the dismissal was harsh, unjust or unreasonable could not proceed because the number of employees employed at the relevant time was 51. Reference in this regard is made to the affidavit of Mr Cross.
[40] The respondent notes that the applicant resigned and was not dismissed. It submits that there is no basis to the applicant’s suggestion that he was coerced into resigning. Further, even if it was found that the applicant had been constructively dismissed, there is nothing to suggest that the respondent breached any of the provisions of section 659(2).
[41] The respondent submits that there is no evidence of any disparate treatment of the applicant compared to others in like positions.
APPLICANT’S CASE IN REPLY
[42] The applicant has provided a very detailed reply to the respondent’s submissions and to the affidavits of Mr Cross and Mr Blackhall referred to earlier.
[43] The applicant rejects much of what is contained in those affidavits and the respondent’s submissions. The applicant submits that the respondent has lied and defamed him to cover up its unjust and unlawful treatment of him during his period of employment and since.
[44] The applicant submits that the respondent is unreasonably using tactics of avoidance.
[45] The applicant rejects the respondent’s submission that it would be prejudiced if the extension of time is granted. On the contrary, the respondent’s position of opposing the extension of time before the claim is properly dealt with, is most unreasonable and will cause severe prejudice to the applicant himself.
[46] The applicant submits that a refusal to grant an extension of time and allow the matter to be determined would be a denial of procedural fairness. Such a refusal would leave the applicant with no means of redress against the respondent.
[47] The applicant notes that he has the right to represent himself in this matter rather than be legally represented.
[48] The applicant rejects the respondent’s submission that his motivation in bringing the application is to bolster or support his workers’ compensation claim.
[49] The applicant submits that he has a strong claim especially in relation to the issues of harassment, bullying and intimidating behaviour by the respondent.
[50] The applicant rejects the respondent’s submission about disparate treatment. He submits that this part of the Brodie-Hanns principles does not necessarily refer to other employees but to how the respondent treated the applicant before and after the injury.
CONCLUSIONS
[51] As indicated earlier in this decision, the respondent questions the fact that the application has been brought under the WR Act rather than the FW Act. It submits that it is prejudiced by this as it is unable to use the “exceptional circumstances” argument which exists in section 394(3) of the FW Act.
[52] The alleged dismissal of the applicant took place in 2007, that is, prior to the repeal day of the WR Act. The WR Act applies due to the operation of items 11 and 12 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act). The wording of these provisions is relatively clear and unambiguous. However paragraphs 19 to 22 of the Explanation Memorandum to the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 put the matter beyond doubt.
[53] The issue was recently addressed by a Full Bench in Sudani v HealthWise Management (Aust) Pty Ltd T/A HealthWise Pharmacies Group[2011] FWAFB 1022. Indeed in that matter, the decision at first instance was quashed as the extension of time issue had been dealt with under the FW Act even though the relevant dismissal had occurred before the repeal day of the WR Act.
[54] It should be noted that, by the combined operation of section 2 of the TPCA Act and the definition of both “WR Act repeal” and “WR Act repeal day” in item 2 of Schedule 2 of that Act, the WR Act repeal day was 1 July 2009.
[55] I now turn to consider the question of whether or not to grant an extension of time.
[56] Section 643(14) of the WR Act provides:
“(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.”
[57] This is an application under subsection (1).
[58] Subsection 643(15), which relates to applications under sections (2) or (4), is in relevantly similar terms. A note appearing immediately after subsection (15) refers to Brodie-Hanns and the principles therein.
[59] I accept that there has been some conjecture as to whether the Brodie-Hanns principles are appropriate considerations in matters such as this. I propose to specifically have regard to and apply the Brodie-Hanns principles in my decision bearing in mind that the discretion is a general one. Those principles are as follows:
“1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
[60] The first issue to consider is the explanation for the delay. As indicated earlier, the exact date of the alleged termination is a little unclear. It would appear however that the latest it could be is 25 September 2007 which was the last day on which the applicant worked for the respondent. For the purposes of this decision I accept that as the relevant date. It should be noted however that my decision would not be different had I accepted that one of the earlier dates set out in the application was the date of dismissal.
[61] The applicant has provided much material and advanced many arguments in support of his claim. In brief these fall into three categories: the applicant’s health and his consequent inability to attend to the matter of his alleged dismissal; his lack of awareness of any possible redress prior to his receipt of the application form in September 2010; and, the absence of proper legal assistance. I have carefully considered all that the applicant has put.
[62] I accept that the applicant’s health issues have taken up a great deal of his time and effort. However I note that he has been able to pursue his workers’ compensation claim during this period. I also note that he states that he has been legally represented in relation to that claim.
[63] Lack of knowledge of avenues of redress is not in itself a proper basis for an extension of time. I note that, even if this was a sufficient explanation for the delay until receipt of the form in September 2010, the application was then not lodged until 25 January 2011.
[64] The absence of legal assistance provides an explanation for some part of the delay.
[65] All in all I am not satisfied that the applicant has provided an acceptable explanation for the whole of a very lengthy period of delay such that it makes it equitable to extend the time for lodgement.
[66] Although, strictly speaking, the applicant did not take any other action to contest the alleged dismissal as such, he has brought and is pursuing a workers’ compensation claim against the respondent.
[67] I accept that the respondent will suffer some prejudice if the time for lodgement is extended. In view of my acceptance of this prejudice the fourth Brodie-Hanns principle is not directly relevant.
[68] Although not specifically referred to in the Brodie-Hanns principles, I note in passing that a failure to extend time will prejudice the applicant.
[69] The applicant will face some difficulties in further pursuing that part of his claim which alleges that the dismissal was harsh, unjust and unreasonable. This is because of the provisions of the WR Act concerning the question of a qualifying period of employment. The respondent has also foreshadowed an objection based on the number of employees at the relevant time. There may also be difficulties in relation to the alleged contravention of section 660. I also note that there is a live issue as to whether there was a dismissal at the initiative of the respondent.
[70] However, on what is before me there are competing positions on that part of the claim which alleges a contravention of section 659. In the circumstances I am not able to conclude that the claim is without merit.
[71] There has been nothing put to me which satisfies me that the final Brodie-Hanns principle has either a positive or negative influence on the exercise of my discretion in this matter.
[72] In all of the circumstances I do not consider that the applicant has made out a case for the statutory time limit to be extended. The application to extend the time is refused and the substantive application is dismissed.
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