Mr Barry Thomson v Downer EDI Engineering Pty Ltd

[2014] FWC 7618

[2014] FWC 7618

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Barry Thomson
v
Downer EDI Engineering Pty Ltd
(U2014/11520)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 27 OCTOBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Thomson and the respondent ceased on 22 April 2013. Mr Thomson lodged his application before the Fair Work Commission on 7 August 2014. His application was lodged 462 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Thomson and the Employer Response. I wrote to Mr Thomson on 11 September 2014 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing those matters within 14 days. Mr Thomson provided a statement on 17 September 2014. I also considered that statement. The substance of that statement is set out below:

“Overview

I was the NSW Safety, Quality & Environment Inspector at the time which I held for approximately four years.

I had a work place injury whilst at Downer EDI Engineering which occurred on the 5th July 2011 which required three ankle operations and I am currently waiting for a knee replacement.

I was at home on restricted duties and was required in the Gladesville office to find I had been made redundant on the 22nd April 2013.

I then was immediately told to give all Downer EDI Engineering supplied car, computer, tools and phone etc. back to the Zero Harm Manager which I did. I had private emails on the computer from my work place injury which I could not back up including contacts etc on my phone.

I then was driven home by a Supervisor, all this was done in a matter of two hours after nearly 11 years of service to the company without even saying goodbye to my fellow work colleagues.

Reasons for delay

I was embarrassed, ashamed as they had humiliated (sic) in front of fellow work employees. I went home to tell my family that I was unemployed who were shocked by this as I had worked for the company for nearly 11 years. I than stated (sic) feeling sorry for myself and sad all the time and often cry for no reason and started self-medicating myself with alcohol to take away my thoughts.

I went to see my GP who prescribed me with Zolof an ante-depressant which did not help at the time.

I became very down on myself, not being able to leave in our house as I was scared of the outside world to the stage of being suicidal it was only then that I (sic) my whole world had fallen apart and I had hit rock bottom and knew I had to see someone to get help. I asked my GP for a referral to see a Psychologist who has indicated that my mental health issues and all these feelings I have are related to what had happened through this whole ordeal.

The pressure eventually affected my wife of 25 years who then left me on the 4th of March 2014. I have three children who I am now time sharing till the Family Court System divides up our assets which will mean we have to sell our family home and divide up our belongings as they see fit.

With the assistance of my Psychologist I am working through these things one part being negative thoughts which are hindering my recovery with this dismissal being high on the agenda. It is only now that the realisation of all this has become apparent and I need some closure. I just couldn’t deal with it with all these things going on in my life.

I contacted Legal Aid on the 25th of July 2014 who told me to go to my local community assistant centre and speak to the civil lawyer which I did on Tuesday the 5th August 2014 (They have consultations Tuesdays 9.30 am to 12.00) who advised me to explain my situation to Fair Work Australia for your thoughts. (sic)

I did not know that there was a time frame for discrimination or unfair dismissal (not using this as excuse or ignorance).

Please do not take this as a sob story I am just saying at (sic) it is.

Hope this explains why the delay in my application for unfair dismissal/discrimination.

I am still on workers compensation through this work place injury with no working capacity at the moment, and still attending Physiotherapy for complications to my ankle and back and awaiting Work Covers Arbitrator’s decision for my knee replacement. I am also still attending my Psychological meetings with all that has happened to me to assist with my mental health.

If you require any other documentation other than what I have supplied could you please contact me.

Thank you for considering my reason for the late delay.”

[4] The respondent provided a response on 28 September 2014. The substance of that response is set out below:

“Thank you for providing me with the opportunity of responding to Mr Thomson’s statement lodged in support of his application for an extension of time dated 11 September 2014.

[1] The Applicant states that had (sic) a workplace injury whilst in our employ.

The Applicant sustained an injury to his left ankle whilst in our employment and liability was accepted for this injury. Our insurance provider, Allianz Australia has advised that a determination has as yet been made for the Applicants left knee is yet to be resolved.

Mr Thomson’s employment was terminated by way of redundancy due to an organisational restructure of the Zero Harm functionality. It was not due to his work place injury.

[2] In relation to the Applicants statement that he ‘...was required in the Gladesville office to find I had been made redundant on the 22nd April 2013’.

Mr Thomson was contacted to attend a confidential meeting on 22 April 2014 at our Downer Infrastructure Gladesville office in order to be notified in person that his position had been made redundant. This was undertaken in private and not in the presence of the Applicants colleagues. It is best practise and common practise within our business to advise an employee confidentially and in person that their position has been made redundant, provide written notice of termination of employment, explain the reasons the position has been made redundant and provide the employee with an opportunity to ask questions.

[3] The Applicant states that he ‘...was immediately told to give all Downer EDI Engineering supplied car, computer, tools and phone etc back to the Zero Harm Manager.’

It is a Company requirement that prior to or on an employee’s final day of employment they return all Company assets in their possession.

[4] The Applicant states that he ‘...had private emails on the computer from my work place injury which I could not back up including contacts etc on my phone.’

The Applicant was afforded more than an hour in duration to access his work computer and retrieve personal files. Further to this, the Applicant was asked by management after this period if there were additional files which he required to access. If so, we would copy these to a disk or USB stick and have them sent to his postal address.

[5] The Applicant states that he was driven home by a supervisor...’

The Applicant was provided with the option of a cab charge to be able to return home; however, as he was a long standing employee, a local supervisor took him home as a sign of respect.

[6] The Applicant states that he was not afforded the opportunity to say good bye to his fellow colleagues.

The Applicant was provided with ample time to farewell his colleagues in the small section of the office that he worked in at Gladesville. The Applicant was not marched out the door nor humiliated in front of his work colleagues.

General comments

[1] The Applicants statement that he did not know that there was a time frame for discrimination or unfair dismissal.

In the matter of Wemyss, Helen v Mission Australia Employment services [2010] FWA 1798, Commissioner Cambridge noted that ‘it was a common misconception that ignorance of a time limit for lodgement of an unfair dismissal application could not be a matter for consideration.’

[2] The Applicant filed a s394 on 7 August 2014 - 473 days (338 weekdays and 134 weekend days) post the dismissal taking effect. This is well past the 21 day lodgment period, therefore, the applicant is considerably out of time.

[3] The dismissal was a case of genuine redundancy.

[5](sic) the company communicated the requirement for organizational change. provided preliminary notification of redundancy to employees whose positions were impacted.

[4] Redeployment opportunities were considered by the Company however, we were unable to identify any suitable alternate employment for the Applicant.

[5] It is not unusual that a person feels distressed post the notification that their employment is being terminated. We acknowledge that each individual deals differently when they receive such communication. As such, it is common practise that we extend employee assistance to our employees via Davidson Trahaire Corpsych. Further, Mr Thomson was provided with the career management services - Audrey Page & Associates to provide career management assistance.”

[5] I issued an Order refusing the application for an extension of time and dismissed Mr Thomson’s application on 1 October 2014 1.

[6] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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.

[7] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[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/Her 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/Her 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.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances 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. 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” 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.” [Endnotes not reproduced]

[8] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[9] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[10] The reasons cited by Mr Thomson for his delay in lodgement were predominantly related to his ill-health. Mr Thomson stated that he was embarrassed, ashamed and humiliated by the circumstances of the termination of his employment. He was sorry for himself, often sad and often in tears. He began to drink alcohol excessively. He saw his General Practitioner who prescribed Zolof for him as an antidepressant. He described a downward spiralling mental health situation. His marriage broke down.

[11] Mr Thomson sought assistance from a psychologist and was eventually able to contact Legal Aid on 25 July 2014. I accept that Mr Thomson had an extreme mental disturbance but the medical evidence provided to me does not demonstrate an incapacity to lodge within time or at least at an earlier time than the date on which he finally lodged his application. Mr Thomson dealt with other issues which were more pressing. Whilst sympathetic to his circumstances, I was not persuaded that Mr Thomson's difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[12] Mr Thomsonbecame aware of the cessation of his relationship with the respondent on 22 April 2013.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[13] Mr Thomson did not dispute his termination of employment other than by lodging this application.

prejudice to the employer-s.394(3)(d)

[14] I am satisfied that there would be a significantly greater prejudice to the respondent caused by this application being listed now than there would have been had it been lodged in time.

the merits of the application-s.394(3)(e)

[15] Merit was as a neutral issue in my consideration of this application.

fairness as between Mr Thomson and other persons in a similar position-S.394(3)(f)

[16] There was no issue of fairness involved in relation to any other person in a similar position.

[17] I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed this application.

SENIOR DEPUTY PRESIDENT

 1   PN556146

Printed by authority of the Commonwealth Government Printer

<Price code C, PR557087>