Mr Jack Hoffman v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO

[2013] FWC 988

[2013] FWC 988

FAIR WORK COMMISSION

DECISION

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

Mr Jack Hoffman
v
Commonwealth Scientific and Industrial Research Organisation T/A CSIRO
(U2012/15119)

COMMISSIONER DEEGAN CANBERRA, 12 FEBRUARY 2013

Unfair dismissal - extension of time - application dismissed

[1] On 16 November 2012 Mr Jack Hoffman (the applicant) lodged, pursuant to s.394 of the Fair Work Act 2009 (the Act), an application for unfair dismissal remedy in relation to the termination of his employment by Commonwealth Scientific and Industrial Research Organisation (the CSIRO or the employer).

[2] On 5 December 2012 the employer lodged a Response to Application for Unfair Dismissal Remedy alleging that the applicant had resigned his employment on 6 July 2012 and that the application had not been made within 14 days of the date on which the dismissal took effect, as required by s.394(2) of the Act.

[3] According to the initiating application filed by the applicant his dismissal took effect on 6 July 2012. The application was filed 119 days after the expiration of the 14 day time limit. It is therefore necessary for a determination to be made as to whether additional time will be allowed for the filing of the application.

[4] Directions were issued on 4 January 2013 for the filing of an outline of submissions and any witness statements and supporting evidence in preparation for the hearing of the matter. Both parties complied with the Directions and the matter was heard on 7 February 2012.

[5] Section 394 of the Act provides as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

(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.

[6] It was the applicant’s case that although he had resigned his employment on 6 July 2012 he was nevertheless dismissed at the initiative of his employer as he had been forced to resign. He tendered in evidence a number of medical certificates which indicated that he suffered from a depressive illness. The medical certificates noted that the date of the onset of that illness was stated to be 31 May 2012. The first certificate, dated 6 November 2012, also stated that it was the doctor’s opinion that the applicant was, as a result of the illness, not capable of filing his application within the 14 day time period allowed. Essentially it was the applicant’s evidence that he was not in the correct frame of mind to lodge his application until after consulting a doctor about his illness on 6 November 2012. He also noted that he contacted the CEO of the CSIRO on 8 November 2012 and was initially hopeful that there would be some resolution of his predicament without the need for an application to Fair Work Australia. When no resolution was forthcoming he lodged the application on 16 November 2012.

[7] It was the employer’s position that the applicant had freely resigned his position whilst awaiting the outcome of an investigation into allegations of misconduct that had been made against him in late May 2012. The investigation had been conducted by an independent investigator who, on 3 July 2012, had provided the applicant with a draft of his report and recommendation. Having received the draft report the applicant had requested a meeting with senior management at his workplace. That meeting took place on 6 July 2012 and the applicant asked if he would be permitted to resign. He then provided a hand written resignation letter to the managers at the meeting. Following the applicant’s resignation he made contact with employees of his former employer on a number of occasions prior to lodging his application.

[8] On 16 July he contacted the HR Manager, Ms Francis, by email to request that he be allowed to use two CSIRO referees for future job applications. In this email the applicant expressed remorse for his behaviour which had led to the loss of his employment but noted that he had identified a large number of vacant positions for which he was well qualified indicating that it was his intention to start distributing his CV. He also informed Ms Francis that he had been able to make arrangements for his dog so as to widen the number of work opportunities he might pursue in other regions of Australia.

[9] In October 2012 the applicant sent a number of emails to Mr Stokker, accusing him of having destroyed his chances of gaining a position with a prospective employer by giving a reference which raised doubts about the applicant’s suitability for the position. The three emails were long and detailed, setting out the applicant’s reasons for believing that he would have gained the position were it not for Mr Stokker’s intervention, and noting that he had been interviewed for the position for two and a half hours, a positive sign in the applicant’s mind.

[10] On 8 November 2012 the applicant sent an email to the CEO of the CSIRO requesting that he be reinstated. The letter complained that he had been forced to resign his position, alleging that he had been bullied, victimised and harassed. In this letter he noted that he had been advised to seek assistance from Fair Work Australia but preferred to “resolve this matter amicably” 1 Despite being aware of his avenue for redress the applicant did not lodge his application for a further 8 days.

[11] I have considered the question of whether a further period should be allowed for the lodgement of this application in light of those matters set out in s.394(3) of the Act.

[12] I do not accept the reasons given by the applicant for the delay in filing his application as establishing the existence of “exceptional circumstances”. The applicant’s evidence was that for the first five days after he resigned from his position he was incapable of functioning normally, hardly left his bed or ate. Relying on the medical certificate supplied by his doctor on 6 November 2012, the applicant also claimed that his depressive illness prevented him from filing his application prior to 16 November 2012.

[13] I am prepared to accept the applicant’s evidence that he was incapable of lodging an application for unfair dismissal in the period 7 July to 12 July 2012, but I do not accept that the applicant was incapable of making an application as at 16 July, the date of his email to Ms Francis. It is apparent that, at that stage he was already preparing to apply for jobs he had found online, was thinking rationally and had access to his computer and the internet. In addition to this, in an email of 16 October the applicant states that he had made some 400 job applications since his employment was terminated. I cannot accept, in such circumstances, the applicant’s claim that his mental health was such that he was unable to pursue an application for unfair dismissal in the same period.

[14] The applicant took no action to directly contest his claim of unfair dismissal with his employer until 8 November 2012. Neither his email to Ms Francis of 16 July 2012 nor his email to Mr Stokker of 16 October 2012 raised any concern that the termination of his employment had in any way been unfair. The first suggestion that the applicant considered that he had any grievance about the manner in which his employment had ended (rather than his concerns for remarks referees may have made) occurred in the email to Mr Stokker of 23 October 2, and this was not in the manner of contesting the termination.

[15] Prejudice is claimed by the employer. Noting the decision in Finch v The Heat Group Pty Ltd 3, it was put for the employer that prejudice to the employer could consist of more than just that caused by the delay. In this respect the employer claimed that the applicant had made a number of statements about his former employer in the period since lodging the application with FWA. By claiming he had been sacked for stopping to buy a Big Mac the applicant had misrepresented the actions of the employer. The employer noted that the applicant had asked to resign and, while he had been in danger of losing his employment, it had not been as a consequence of his action in using the employer’s vehicle in breach of the policy but because he had lied to his employer on a number of occasions, including during the investigation. Further it was noted that the applicant had admitted that he had lied. While I accept that prejudice to an employer may include matters other than those caused by the delay I am not prepared to accept that the type of prejudice claimed by the employer in this case should impact on my decision allowing further time for lodgement.

[16] So far as the merits of the substantive matter are concerned I note that there is no dispute that the applicant resigned his employment. He claims that he had no choice. The evidence he gave about his reasons for requesting a meeting with senior management and taking that opportunity to submit his resignation is not fully consistent with this claim. Nor is the content of the email he sent to Ms Francis on 16 July 2012. While the limited evidence about the events which led to his resignation may not be sufficient to support a claim of constructive dismissal, all of the evidence in that regard was not before me. While the applicant’s claim for unfair dismissal appears, on the evidence provided in this proceeding, problematical, I cannot conclude that the application is totally without merit. I make no further finding as to the merits.

[17] The matter of fairness as between the applicant and other persons in a similar position is of little relevance to my decision in the circumstances of this case.

[18] Taking all the matters set out in s.394(3) of the Act into account, I am not satisfied that there are exceptional circumstances in this matter such that I should allow further time for the filing of the application.

[19] The application is dismissed.

COMMISSIONER

Appearances:

Mr J. Hoffman, applicant in person.

Ms S. Ralph with Ms A. Allars, for the respondent.

Hearing details:

2013.

Canberra:

February 7.

 1   Exhibit R3

 2   Exhibit R8 Attachment AR4

 3   [2011] FWA 4462 at [66]

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