Mr Jay Higgins v Coles Supermarkets Australia Pty Ltd T/A Coles

[2017] FWC 3057

[2017] FWC 3057

FAIR WORK COMMISSION

DECISION

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

Mr Jay Higgins
v
Coles Supermarkets Australia Pty Ltd T/A Coles
(U2016/12761)

COMMISSIONER RIORDAN SYDNEY, 6 JUNE 2017

Application for relief from unfair dismissal – extension of time.

[1] Mr Jay Higgins worked for Coles Supermarkets Australia Pty Ltd from 11 April 2014 to 12 September 2016. Mr Higgins lodged his application for an unfair dismissal remedy on 20 October 2016, some 16 days outside the statutory time limit of 21 days allowed for submitting such an application.

[2] Leave was granted in accordance with section 596(2) of the FW Act to allow Mr A. Anderson, from Anderson Fredericks Turner Lawyers to represent Mr Higgins, and for Ms C. Berry from Herbert Smith Freehills to represent Coles.

[3] Mr Higgins suffers from Attention Deficient Hyperactivity Disorder and Depressive Anxiety Disorder. Mr Higgins tendered a report from his regular doctor, Dr Kylie Norris, who had summarised a number of specialist reports about Mr Higgins and his illnesses. Coles did not require Dr Norris to attend for cross examination nor did they submit any contrary medical advice. Coles claimed to be unaware of Mr Higgins illnesses until the day of the Conference on 14 March 2017.

[4] Mr Higgins was cross examined on his witness statement. I found Mr Higgins to be an honest and trustworthy witness who appeared quite attentive and extremely intelligent on occasions yet quite distracted, confused and intectually challenged on other occasions.

[5] Coles have a raised a jurisdictional objection to Mr Higgins application on the basis that it was submitted out of time.

[6] Section 394(3) of the Fair Work Act, 2009 (the Act), enables the Fair Work Commission (FWC) to extend the time limit for an individual to submit an unfair dismissal application if the FWC is satisfied that there were exceptional circumstances associated with the application.

[7] The principles defining an exceptional circumstance are well established. A Full Bench of Fair Work Australia in Nulty v Blue Star Group 1 held:

“[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.”   

Section 394(3)(a) - reason for the delay

[8] Mr Higgins stated that he was aware of the 21 day timeframe but that he did not understand the absolute strictness and meaning of the actual date. Mr Higgins advised that he has always experienced difficulties in reading and writing and that his comprehension skills are quite poor. Mr Higgins acknowledged that he had difficulties in completing the FWC application which took him approximately 6 days. Mr Higgins advised that his life becomes more difficult and confused if he is required to function outside of his normal routine.

[9] Dr Norris’ report 2 contained the following paragraphs:

“3- Jay’s conditions would definitely affect his ability to understand and appreciate time frames, not so the medications he is taking.

4- Jay’s condition would most definitely affect his ability to complete any form of documentation necessary to lodge an unfair dismissal claim. As mentioned before he has difficulties with basic writing/spelling and word recognition. His anxiety symptoms can also make these tasks extremely overwhelming & highlight levels of disorganisation.”

[10] Coles submitted that there are no exceptional circumstances that warrant an extension of time being granted to Mr Higgins on the basis that Mr Higgins knew about the 21 day timeframe and was involved in negotiation with Coles throughout this period.

[11] Coles submitted that Dr Norris is not a specialist doctor and therefore less weight should be given to her report. I reject this submission. Whilst such a submission may have some veracity if Coles had supplied an alternate medical opinion from a specialist, this did not occur. The report from Dr Norris is the only medical evidence before the FWC.

[12] As a result, I am satisfied and find that Mr Higgins’ medical conditions, as identified by Dr Norris, provide a valid reason for the delay in Mr Higgins submitting his unfair dismissal application. I have taken this into account.

Section 394(3)(b) – whether the person first became aware of the dismissal after it had taken effect

[13] It is uncontested that Mr Higgins was verbally advised of his termination on 12 September 2016, which was confirmed by email on 13 September 2016. I have taken this into account.

Section 394(3)(c) – any action taken by the person to dispute the dismissal

[14] Mr Higgins responded to the 13 September email the same day by requesting that Coles reconsider the decision to terminate his employment and provided a number of alternatives. Coles responded on 14 September 2016.

[15] It is uncontested that the parties exchanged numerous emails over the following weeks. Mr Higgins responded to an email on 29 September 2016. Coles did not reply until 4 October 2016 at 5.05pm, which is a day after the expiration of the statutory time period. Relevantly, Mr Higgins responded at 6.20pm asking for the name of the Coles employee that he could put down on his FWC unfair dismissal application. Coles responds at 7.45pm. Coles did not mention to Mr Higgins that his application was now be out of time.

[16] I have taken the on-going negotiation between the parties into account. These negotiations highlight that Mr Higgins was disputing his dismissal from the day that he received written confirmation of his termination.

Section 394(3)(d) – prejudice to the employer

[17] I agree with the submissions of Coles that they have not suffered significant prejudice as a result of Mr Higgins application being filed out of time. I have taken this into account.

Section 394(3)(e) – merits of the application

[18] In Kornicki v Telstra-Network Technology Group 3 the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[19] For the purpose of determining whether to grant an extension of time the FWC “should not embark on a detailed consideration of the substantive case.”

[20] The substantive facts in this case appear uncontested. Mr Higgins sent a photo attached to a test to the private phone of his male Supervisor advising that he would not be attending for work. The colleague responded. Mr Higgins then sent another photo. The colleague advised Mr Higgins not to send any more photos or he would be in trouble. Mr Higgins accepted this advice but was terminated anyway.

[21] I am of the view that Mr Higgins’ unfair dismissal application is not without merit. I have taken this into account.

Section 394(3)(f) – fairness as between the person and other persons in a similar position

[22] I am satisfied that the issue of fairness between Mr Higgins and any other employee of Coles in a similar position is not a relevant consideration in this matter.

Conclusion

[23] I have taken into account all of the submissions and evidence that has been provided by the parties.

[24] The medical evidence provides a clear and irrefutable valid reason for the delay in Mr Higgins application. I am satisfied that Mr Higgins’ mental illness causes him sufficient process disability for it to be regarded as an exception circumstance in this scenario. I know Coles to be a caring and fair employer. I am in no doubt that if they had been aware of Mr Higgins’ medical condition, then this matter would have been treated differently.

[25] For the reasons stated above, I grant Mr Higgins an extension of time to file his unfair dismissal application until 20 October 2016.

[26] I so Order.

COMMISSIONER

 1   [2011] FWAFB 975

 2   Exhibit H1 – Annexure M

 3   Kornicki v Telstra-Network Technology Group AIRC Print P3168.

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