Mr Joel Wickham v Austin Health
[2023] FWC 1140
•26 MAY 2023
| [2023] FWC 1140 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Joel Wickham
v
Austin Health
(U2023/3005)
| COMMISSIONER LEE | MELBOURNE, 26 MAY 2023 |
Application for an unfair dismissal remedy -determination of effective date of dismissal-application made outside of statutory time frame by 1 day-not satisfied exceptional circumstances-extension of time not granted-application dismissed.
Introduction
Mr Joel Wickham commenced employment with the Respondent, Austin Health, on 3 July 2017. He was employed in the position of mental health clinician.
The reason given by the Respondent for the decision to terminate the Applicant’s employment was set out in the letter of termination. That is, that there was no evidence of the Applicants capacity to perform the inherent requirements of his role as a mental health clinician. Also, that the Applicant had refused to follow a reasonable and lawful workplace direction.
The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 6 April 2023.
Application was filed outside the statutory timeframe
An application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
The Applicant states that his employment was terminated by the Respondent with effect from 15 March 2023. The Applicant was of this understanding as the termination letter he received from the Respondent stated in clear terms “I now write to confirm the outcome of this investigation is termination of your employment, effective 15 March 2023”
The Respondent submitted that the reference to the 15 March 2023 in the letter was an error and the termination in fact took effect on 14 March 2023. This was said to be the intention of the Respondent and was reflected in the fact of the letter being dated, sent and received by the Applicant on 14 March 2023, that a sub heading in the letter referred to the termination being without notice and that there is a further reference in the letter to the Applicants last day of employment being 14 March 2023.
I have considered the submissions and evidence as to the effective date of dismissal. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[1] In this matter, the letter of termination highlighted in bold that the termination of employment was effective on 15 March 2023. While the subheading referring to Termination without notice and a later paragraph refers to 14 March 2023, the Applicant was entitled to consider that the date of his termination was the one the employer chose to highlight in the letter in very clear terms. That date is 15 March 2023 and is the effective date of dismissal.
Based on a termination date taking effect on 15 March 2023, the application for a remedy should have been lodged by no later than 5 April 2023.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 1 day after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, I will outline the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay,
· whether the Applicant first became aware of the dismissal after the date it took effect,
· any action taken by the Applicant to dispute the dismissal,
· prejudice to the Respondent including prejudice caused by the delay,
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[2]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.[3] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.
I now consider these matters in the context of the Application.
a)Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant’s favour, however all of the circumstances must be considered.[4]
The Applicant submitted a witness statement and gave evidence at the hearing. In the Applicants witness statement, he states “didn't know that I was a day off until I was notified. The fact that I had more stressful life and family circumstances at the time, more than my belief of my unlawful termination, may speak to the overwhelming shock and stress that may have confused the date. Everybody I spoke to reminded me of the 21 days, so I was convinced I had made the deadline.”[5] At the hearing the Applicant stated that he had been told numerous times about the 21 day period so that when he was informed the application was lodged late, he was shocked. In the Applicants Form F2, he answered yes to the question “Are you making this application within 21 days of your dismissal taking effect”
Having considered the evidence of the Applicant, I am not satisfied there is an acceptable reason for the delay. There is no evidence as to his “life and family circumstances” or how that impacted on his ability to lodge the application within the time period. There is no indication the Applicant was so affected by shock or stress that it impacted on his ability to lodge the application in time. The Applicant was reminded by others of the requirement to lodge within the 21 days yet failed to do so.
In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
b)Whether Applicant first became aware of the dismissal after the date it took effect
Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the clear evidence is that the Applicant was advised on 14 March 2023 that his employment would end on 15 March 2023.
In the circumstances, the Applicant was clearly informed of the date of his dismissal, the day before he was dismissed.
In the circumstances, that is a matter that is a neutral consideration.
c)Action taken by the Applicant to dispute his dismissal
Turning next to the question of the action taken by the Applicant to dispute his dismissal.
In the Applicants witness statement, he states “highlighted the lack of merit prior and request more information about my workplace medical judgment that went against my GP's advice. No reply was provided, despite the CEO indicated to take my matter seriously”[6] This appears to be a reference to the Applicants letter to the CEO on 9 March 2023 setting out various concerns about alleged discriminatory treatment by Austin Health during his employment and his concerns about an investigation process.[7] The CEO replied to the Applicant on 10 March 2023. These events precede the dismissal and do not evidence action taken to dispute his dismissal.
I have taken into account that the Applicants treating practitioner wrote a “to whom it may concern” letter which was directed to the applicant’s employer. That letter is dated 27 March 2023. The letter seeks to make “clarifications and qualifications” on the use of the doctor’s letter dated 27 February 2023.
The letter includes a series of statements including:
· To be clear Joel is not unwell. He just needed appropriate consideration of his specific circumstances.
· Joels medical support was a “systems issue” not a “capacity issue”
· Joel is in a high-risk group for COVID and remains as not having had COVID.
· I would find it very alarming that a doctor not working in the field of Aboriginal Health would have the expertise to make the judgement that Joel was unfit for work medically.
· That Joel is shocked by the dismissal but still very passionate about the work he was doing and would still be able to do. [8]
Had this letter been provided to the employer prior to this application being made, it would have, in my view evidenced action by the Applicant to dispute his dismissal. However, this letter was not provided to the employer and they were unaware of it, until the Applicants Form F2 was lodged with the Commission. This was made clear during the hearing.[9] It does not represent action by the employee to dispute the dismissal given he did not provide it to the employer until lodging this application.
No other action has been identified as action taken by the Applicant to dispute his dismissal. In the circumstances, that is a matter that is Neutral.
d)Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.
The Respondent submitted that there may be some prejudice to the employer in the event that matter proceeded to arbitration in the event evidence from a team leader, who is no longer employed, was required.[10]
The Applicant made submissions that related to claims of prejudice to himself based on his Aboriginality which is not relevant to this factor.
In my view, the issue raised by the Respondent would cause some difficulties for the Respondent irrespective of the one-day delay of filing the application. I am not satisfied there is any prejudice to the employer arising from the delay. In the circumstances, that is a matter that is Neutral in the instant case.
e)Merits of the application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Respondent sets out the background to the termination in the Form F3 supplied where at 13.1 the Respondent provides:
“1. The Applicant’s employment was terminated, for serious misconduct on the following basis:
• failing to comply with the lawful and reasonable direction to attend an independent medical examination (IME).
2. The Applicant was directed to attend the IME, to assess his capacity to safely perform the inherent requirements of his position, including by consideration of any reasonable adjustments.
3. The Respondent was provided with limited medical information from the Applicant’s treating practitioner, in connection with the Applicant’s restrictions and/or capacity to perform the inherent requirements of his position.
4. Prior to the Applicant being directed to attend the IME, further information was requested from the Applicant’s treating practitioner, to understand his medical conditions and/or any restrictions, including the consideration of any reasonable adjustments.
5. The Applicant refused to provide any further information from their treating practitioner and was subsequently directed to attend the IME.”[11]
The starting point for these events appears to be that the employer required its staff to return to the office in October 2022 (post the height of the pandemic) but the Applicant refused to do so on the basis of his medical condition.
The Applicant states at question 3.2 of the Form F2 that he was unfairly dismissed because:
· the instructions to attend a medical assessment was not clear
· the GP’s medical advice was not to attend such an appointment as the Applicants health and his capacity to do my job was not relevant as it was a “systems issue”.
· type 2 diabetes poses a risk for attending the office
· other employees had been allowed to work in the matter the Applicant was requesting
· the Applicant had legal advice that clarified the workplace can’t instruct him to attend medical assessments that discriminated against his health
· the instruction was disturbing, with the history of claims made that his Aboriginal brain is inferior
It would seem the employer would have a compelling argument to insist on an IME in circumstances where an employee was failing to follow an instruction to return to the workplace, there was limited medical information provided as a reason for the refusal to attend and there was further refusal to have the employees medical practitioner provide further information. However, all of the circumstances have to be taken into account. It is apparent that the Applicant was very concerned that the IME he was asked to attend was with a neuropsychologist and he did not understand the basis for that.The Respondent submitted at the hearing that the decision to refer the Applicant to a specialist of that nature was connected to concerns the Respondent had about how the Applicant was presenting and interacting in the workforce, a genuine concern about the Applicants wellbeing and the Respondents duty to ensure the Applicant could perform his duties without placing himself or others at risk.[12] . There is also the consideration that there was at first instance, an attempt by the employer to have the Applicants treating practitioner provide further information, which proved unsuccessful and the associated consideration of the Applicants treating doctors role in advising the Applicant not to provide further information. There are also other factors to be considered in an evaluation of whether a dismissal is unfair, including the relatively long period of service of the Applicant and matters relevant to matters related to procedural fairness. It appears that the Applicant was put on notice that the Respondent was considering termination and it provided the Applicant with an opportunity to respond before terminating his employment.
It seems to me therefore, based on the limited material before me, that his claim is, on a preliminary assessment basis, not without merit but nor is it particularly meritorious. In the circumstances, that is Neutral consideration.
f)Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.
The Applicant submitted that he had a colleague who avoided being in this situation as they had a union representative who said it was unlawful and as a result, the Respondents HR acknowledged it was unlawful.[13]It is not clear what action was said to be unlawful, It would seem it was connected to the request of the employer to have employees return to the workplace and requests to provide medical evidence if they indicated they had a medical reason to not do so. The Respondent did not have any particular knowledge of the particular matter raised by the Applicant but submitted that any employee who raised concerns of a similar nature would have been required to provide medical evidence.
I have taken into account this factor, however the evidence on the matter is vague. I do not have any evidence as to the particular circumstances pertaining to this other individual referred to by the Applicant. In the circumstances this is a neutral consideration
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
As I have indicated, there is not an acceptable reason for the delay. That is a matter that weighs against the Applicant. All other factors are neutral considerations. There are no factors weighing in favour of the Applicant.
In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will separately be issued.[14]
I note, that in the event employer has not paid the Applicant entitlements up to 15 March 2023, the date I have determined as the effective date of termination, they will need to rectify any underpayments that result from that determination.
COMMISSIONER
Appearances:
J Wickham, on his own behalf
I Kaplan, on behalf of Austin Health
Hearing details:
2023
Melbourne
12 May
[1] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[5] Witness statement of Joel Wickham.
[6] Ibid.
[7] Attachment 6 to Form F2.
[8] Ibid.
[9] PN134 – PN140 and PN159 to PN164.
[10] PN166
[11] Question 3.1 of the Form F3.
[12] PN169, PN187 – 211.
[13] PN120.
[14] PR762513
Printed by authority of the Commonwealth Government Printer
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