Mr Dean Featherston v Hsy Autoparts Pty Ltd
[2011] FWA 362
•11 FEBRUARY 2011
[2011] FWA 362 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dean Featherston
v
HSY Autoparts Pty Ltd
(U2010/12211)
COMMISSIONER WILLIAMS | PERTH, 11 FEBRUARY 2011 |
Unfair dismissal – extension of time for lodging application.
[1] Mr Featherston (the Applicant) lodged an application with Fair Work Australia (FWA) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) asserting that he had been unfairly dismissed by HSY Autoparts Pty Ltd (the Respondent).
[2] The application was lodged on 7 September 2010. The application states the Applicant was dismissed in October 2009.
[3] Section 394(2) and (3) of the Act provides that:
“(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[4] The application was made after the 14 day time limit. This decision deals with whether or not a further period should be allowed for the Applicant to make the application.
[5] I turn to consider the particular factors specified in s. 394(3) of the Act.
The reason for the delay
[6] The Applicant has provided evidence regarding his health that is relied upon as the reason for the delay in lodging this application.
[7] The evidence of the Applicant regarding bowel surgery he underwent in late 2009 and regarding his admission to the mental health unit of the Joondalup Hospital, through to and including March 2010, is not contested by the Respondent.
[8] Whilst there is some doubt as to the specific date on which the after-effects of the bowel surgery no longer prevented the Applicant lodging this application I do accept that a combination of that bowel surgery after effects and the Applicants mental health difficulties did provide an acceptable explanation as to why the application was not lodged prior to the end of March 2010.
[9] However for the period from April 2010 to 6 September 2010, when this application was lodged, there is no specific medical evidence that supports the Applicants submission that he was not able to lodge this application during this period.
[10] There is evidence of the Applicant having an ulcer that was treated by his surgeon in the surgeon’s rooms in mid April 2010 but this seems to have been a relatively minor problem that would not have prevented the applicant lodging this application. For the period of time after this the only evidence regarding the further delay is the statutory declarations of the Applicant and Mrs Featherstone.
[11] The evidence of both the Applicant and Mrs Featherstone amounts to their respective personal views that the Applicant was not able to lodge an application until 7 September 2010. This evidence for the period after March 2010 is very limited and made up of simple generalised statements and personal observations regarding the Applicant’s capacity. This evidence includes various photos of the Applicants normal, and then at times distended, abdomen and surgical wounds. These photos, 14 in all, were taken between July 2009 and November 2010. The evidence however does not explain when the individual photos were taken other than one which is date-stamped 16 November 2009. Nor in any event do the photos of themselves establish that the physical discomfort obvious in some of the photos equated to a lack of capacity of the Applicant to for example instruct the Applicant’s solicitors by telephone to lodge an application on his behalf. I note the application lodged identified the solicitor whom the Applicant was instructing on other matters in May 2010 as his representative.
[12] Separately the Respondent correctly argues that Mrs Featherstone is not able to give opinion evidence regarding her husband’s mental state.
[13] I note that the evidence is that the Applicant’s surgeon Mr Basson said that in February 2010 the Applicants wounds had healed, there was no sign of infection and he was in minimal pain. His surgeon was to then review him in two months.
[14] Separately the opinion of the Applicants treating psychiatrist Dr Skerritt on 20 April 2010, following a consultation on 30 March 2010, was that the Applicants mental health was stabilised and the prognosis was good and he did not perceive any long term effects.
[15] There is no evidence that since the consultation on 30 March 2010 with Dr Skerrit that the Applicant has been receiving any ongoing treatment for his mental condition other than possible taking prescribed anti depressant medication.
[16] The evidence of the Applicant and Mrs Featherstone regarding the Applicant's lack of capacity to lodge the application between 20 April 2010 and 6 September 2010 is at odds with the medical opinion of Dr Skerritt as to the prognosis of the Applicant condition.
[17] There is also evidence that in May 2010 the Applicant took issue with some elements of the report of Dr Skerritt and instructed his solicitor to pursue those matters with Dr Skerritt. These actions by the Applicant are inconsistent with the evidence of the Applicant and Mrs Featherstone as to his lack of capacity prior to 6 September 2010 to lodge this application.
[18] Given the Applicant's medical history, when making this application for an extension of time it was obviously open to him to obtain specific medical opinion to support his submission that prior to September 2010 he was incapable of lodging this application. While there was no obligation on the Applicant to do this there is an onus on the Applicant in a case such as this to satisfy the Tribunal that an extension of time should be granted. In this case the Tribunal is being asked to accept that the Applicant was unable or incapable of lodging the application, for the latter part of the delay (a period of over four months) solely on the evidence of the Applicant and his wife Mrs Featherstone as to his incapacity. Further, no explanation has been provided as to the inconsistency of their evidence with the prognosis of Dr Skerritt and the positive report of the Applicants surgeon earlier in 2010, nor the fact that the Applicant was capable and in fact did instruct his solicitors to pursue issues on his behalf with Dr Skerritt during this period.
[19] Having considered all of the evidence and the submissions I am not satisfied on balance that for this latter period between April 2010 and 7 September 2010, the date on which this application was lodged, there is an acceptable explanation for the failure to lodge the application.
[20] The lack of an acceptable explanation for the full period of the delay in lodging this application does count against granting the application to extend time.
Other actions to contest the dismissal
[21] The evidence of Mrs Featherstone is that in November 2009 she sought advice from the Applicant's solicitors regarding an unfair dismissal claim. No evidence has been provided as to whether this was of her own volition or was on the instructions of the applicant nor what was discussed at that time nor what conclusions were reached or what advice was given.
[22] The Respondent submits that because at this time Mr Featherstone says he was incapacitated because of his health problems an appropriate course of action would have been for the Applicants solicitors to have written to the Respondent and put them on notice that in the future an unfair dismissal application may be made.
[23] No such action was taken.
[24] The evidence is that the Applicant has not taken any other steps to contest his dismissal during the nearly 12 months since the termination and that throughout this period the Applicant had been involved in receiving advice from his solicitors and also providing instructions to them.
[25] The fact that the Applicant has taken no other steps to contest his dismissal over this period of time does count against him in considering whether or not to grant an extension of time.
Prejudice
[26] A delay of this length involves some potential prejudice to the Respondent in terms of fading memories of critical witnesses however this appears to be a relatively marginal issue and the Applicant has submitted correctly in my view that this is a neutral factor.
Merits
[27] I accept the submission on behalf of the Applicant that he has an arguable case in this matter. That is not to say his case is strong nor does this involve any conclusion regarding the Respondent's contrary view that there is clear evidence of misconduct and potentially serious misconduct that warranted the Applicant being terminated. At this preliminary stage the Tribunal's role is not to embark on a full review of the evidence and consequently my view is that the question of the merit of the substantive application is a neutral factor in the determination of the application to extend time.
Fairness to others
[28] This issue is not relevant in this case.
Ulterior motive?
[29] The Respondent has urged the Tribunal to accept that the timing of this application is suspicious because it follows approximately 3 weeks after the sending of a letter of demand by the Respondents solicitors to the Applicant regarding the repayment of loans the Respondent asserts are outstanding. The Respondent argues that the coincidental timing of this application should be accepted by the Tribunal as demonstrating that the application has been launched as part of a strategic move to counter other legal actions being taken by the Respondent against the Applicant.
[30] This ulterior motive argument is denied by the Applicant.
[31] In terms of evidence there is nothing before the Tribunal that supports the Respondent's submissions as to an ulterior motive other than the timing of the application.
[32] In the circumstances I make no finding regarding this point and so this issue is not a consideration in determining whether or not an extension of time should be allowed to the Applicant to make this application.
Conclusion
[33] In this case a lengthy delay in making this application is involved. I am not satisfied that there is an acceptable explanation for a significant part of this delay. I have also concluded that the Applicant has not taken any other actions to contest his dismissal and that the other factors involved for consideration under s. 394(3) are neutral or not relevant.
[34] Overall I have decided that the Applicant has not discharged the onus upon him to satisfy the Tribunal that exceptional circumstances exist so that an extension of time should be granted. This application will now be dismissed.
COMMISSIONER
Appearances:
Mr I Tait, of Tait & Co Business Lawyers, on behalf of the Applicant
Mr R Sweet, Counsel, on behalf of the Respondent
Hearing details:
2010.
Perth:
December 3
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