Mr Kevin Selway v Griffith University Nathan (Griffith University)

[2016] FWC 2394

[2016] FWC 2394

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Kevin Selway
v
Griffith University Nathan (Griffith University)
(U2016/5113)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 15 APRIL 2016

Application for relief from unfair dismissal – application dismissed.

[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 Selway and the respondent ended in July 2006. Mr Selway lodged his application at the Fair Work Commission on 4 March 2016. Mr Selway’s application was lodged more than nine years and six months outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Selway. I wrote to Mr Selway on 14 March 2016 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Selway asked for an extension of time to provide medical evidence. I granted that extension. Mr Selway provided medical evidence in support of this application for an extension of time. I considered that evidence.

[4] I issued an Order refusing his application for an extension of time and dismissed his application on 11 April 2016.

[5] 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.

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 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 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]

[6] 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.

[7] The substance of Mr Selway’s explanation for delay in lodgement of his application is set out below;

“I became aware of the termination of my position at the university only after it had taken effect. No performance issues had been brought to my attention in the 28 years of my employment. I have not had a satisfactory explanation for the termination.

At the time I was dismissed I was receiving treatment for a brain tumour. The dismissal letter was dated the same day I was in Brisbane undergoing surgery to remove the tumour. After the surgery I convalesced for two weeks and went through a rehabilitation program also in Brisbane. The letter of termination was sent to my home address 140 kilometres away from Brisbane. As I live alone and had no way of getting my mail I didn't know I had been terminated until! returned home some three weeks after my operation.

I was unable to dispute the dismissal at the time primarily due to my ill health and the two-week period allowed at that time to lodge a dispute had already lapsed.

I have been incapacitated for some time due to the mental health issues that occurred because of ongoing conflict with my supervisor at the time, Mr Stevens, and my physical health issues. Until now, I have not had access to the support required to assist me with compiling my response.

There was a complicating factor in that I had felt bullied by Mr Stevens and had lodged a Work Cover claim in relation to bullying. I was not satisfied with the outcome of the investigation into my claim, however as I was still very unwell and had little support, I was unable to challenge Work Cover's findings. It has recently come to my attention that Mr Stevens' employment has been terminated by Griffith University for harassment and bullying of several members of staff. I believe this new information brings additional support for my application for relief from unfair dismissal.

In relation to the accusations of bullying by Mr Stevens, I understand that there was an investigation in 2014 by an independent organisation appointed by the university. Of the seven employees interviewed through the 2014 investigation, three were my colleagues at the time of the original Work Cover investigation. I believe this application has merit as it has now been established that Mr Stevens behaved in a manner that is unacceptable in a workplace. I've been told his employment was terminated due to the harassment and bullying of several members of his team. If a new, independent investigation were to be conducted, the witnesses who reported concerns relating to their involvement with the original investigation would now be able to speak more openly about their experiences with Mr Stevens. Moreover, as I was not cognisant of the results of the report there was no opportunity for me to address the findings. It seems that Griffith University - Nathan has been negligent in the handling of this matter.

I was unable to address my unfair dismissal at the time due to the reasons explained above. I do appreciate the opportunity to provide this correspondence and I look forward to receiving your response.

Yours Sincerely”

[8] 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)

[9] The reason Mr Selway provided for his delay in lodgement was ill health.

[10] The substance of the medical report provided by Mr Selway’s treating specialist is set out below:

“This is to certify that Mr Kevin John Selway is my patient and I have been seeing him for over 20 years ; in that time I have had to counsel and refer him to psychologists and to psychiatrists for the stress he still faces with respect to him having been dismissed from work as a result of depression and anxiety he developed because of what appears to have been bullying at work by his supervisor back in 2003/ 2004 at Griffith University.

He had a workcover claim at the time for the his work related stress symptoms of depression and anxiety but this claim was rejected by Workcover Qld ; then Kevin had to apply to Q-Super for help. Kevin has since learnt that the said supervisor who bullied him at work was terminated in 2015 by Griffith University for the same bullying behaviour he exhibited to Kevin and Kevin's coworkers. Kevin has not been able to focus or concentrate effectively on the every day goings on in his life as the feelings of being unjustly dealt with by Griffith University have simmered over the past 12 years to the point where now they are affecting his family and his ability to move forward from his unfair dismissal ; he feels that if Griffith University had dealt with the above matter more effectively he still would have had a job and would have probably been a happier man.

Since the above occurred he has been on lexapro a medication for depression and anxiety ; prior to the work related issues he had not been on any anti - depressants.

Kevin had no opportunity to respond to Griffith Univeristy at the time they issued him with the dismissal from work as he was still in hospital recovering from having had neurosurgery to his Pituitary gland with Dr Robert Campbell neurosurgeon ; at the time this was a major crisis in his health.”
[My emphasis added]

[11] While sympathetic to Mr Selway’s circumstances I was not persuaded that his 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 Selway became aware of the end of his relationship with the respondent in July 2006.

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

[13] Mr Selway disputed his dismissal by lodging this application.

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

[14] I considered that there might be prejudice to the respondent caused by Mr Selway’s application being listed now than there would have been had it been lodged in time 9 ½ years ago. However there was no evidence of any prejudice before me and therefore prejudice to the respondent was a neutral consideration.

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

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

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

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

[17] Having considered all of the matters to which my attention is directed by the Act 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 the application. Mr Selway’s circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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