Mr Matthew Cornelius v Grant Chugg Plumbing Pty Ltd
[2014] FWC 2937
•8 MAY 2014
[2014] FWC 2937
The attached document replaces the document previously issued with the above code on 8 May 2014.
The presiding Member’s name is inserted.
Abbygayle Lang
Associate to Deputy President Gostencnik
Dated 20 May 2014.
[2014] FWC 2937 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew Cornelius
v
Grant Chugg Plumbing Pty Ltd
(U2014/3704)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 8 MAY 2014 |
Application for relief from unfair dismissal; Extension of time; Application to be allowed a further period within which to make unfair dismissal remedy application granted
Introduction
[1] Matthew Leigh Cornelius (Applicant) began employment as an apprentice with the Grant Chugg Plumbing Pty Ltd (Respondent) on 20 October 2011. He had completed 2 years of that apprenticeship1 when he was dismissed from that employment by the Respondent on 15 December 2013. The Applicant filed an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act). The application should have been lodged by 6 January 2014 in order to comply with the statutory time limit2, however the Applicant did not lodge the application until 9 January 2014. The Applicant therefore requires the Fair Work Commission (Commission) to exercise its discretion under section 394(3) of the Act to allow a further period within which the application is made.
[2] On 17 April 2014 I heard the application for an extension of time and I decided that I was satisfied there were exceptional circumstances that would warrant allowing the Applicant a further period for the application to be made and so I exercised my discretion to allow a further period. These are my reasons for doing so.
Background and factual context
[3] The Applicant was, at the time of his dismissal and in the several weeks prior to his dismissal, experiencing a major depressive illness which had been clinically diagnosed and which manifested itself in symptoms such as insomnia, an absence of motivation and of energy3. The Applicant’s illness rendered him unfit for work for a 3 month period commencing 4 December 20134. As a consequence of the illness, the Applicant was admitted as an inpatient to the Northside Mental Health Clinic (Northside Clinic) located within the Launceston General Hospital on 4 December 20135. The Respondent became aware of the admission of the Applicant on 5 December 20136.
[4] On each of 14 and 15 December 2013, the Applicant was on day release from Northside Clinic. A day release involves a patient being permitted to leave the Northside Clinic in the morning of a particular day and returning in the evening for an overnight stay7.
[5] On 15 December 2013, whilst on day release from Northside Clinic, the Applicant attended the Respondent’s workshop. Whilst at the workshop the Applicant and Mr Grant Chugg of the Respondent had a conversation. The precise details of the conversation are in dispute but that dispute, for the purposes of deciding whether to allow a further period to lodge the application, need not be resolved. That which is not in dispute may be summarised as follows:
● The Applicant enquired about work over the Christmas break because he was experiencing financial difficulty8;
● Mr Chugg told the Applicant that “things weren’t looking fantastic and that he could not rely on me for a job in the future and that he should look elsewhere for full-time employment”9;
● Mr Chugg also told the Applicant that “he couldn’t work over the Christmas shutdown period because there would not be anything to do and because he had been unwell and would need a medical clearance from his doctor even if some work did come in”10;
● Mr Chugg had been considering dismissing the Applicant because of a downturn in business but dismissal of the Applicant was not planned to occur on 15 December 2013 and would likely not have occurred but for the Applicant’s visit to the Respondent’s workshop11;
● Mr Chugg offered to employ the Applicant on a casual basis but the Applicant said that he could not be engaged as a casual employee because of the apprenticeship12;
● The Applicant and Mr Chugg ended the conversation, each with understanding that the employment had been terminated13.
[6] An employment separation certificate dated 17 December 2013 was subsequently issued to the Applicant and cited “shortage of work or redundancy” as the reason for the dismissal14. The Applicant was discharged as an inpatient of the Northside Clinic on 16 December 2013, not because he was no longer a sufferer of depression but because there were other persons in greater need for inpatient services, and so a decision to discharge the Applicant, as well as other patients, was made15. At the time of his dismissal and after his discharge from the Northside Clinic the Applicant was taking prescribed medication to manage his diabetes and his depression16. He was assisted in the administration of his medication after his discharge from the Northside Clinic by his aunt Ms Janine Devlin17. The medication he was taking after his discharge required an adjustment in dosage because the side-effects of the medication caused the Applicant to be drowsy and tired18.
[7] It was not seriously contested that, during the period following the termination of the Applicant’s employment until this application was lodged, the Applicant was not able to look after his own affairs through a combination of the depression that he was suffering and the effect of high doses of antidepressants and that during this period Ms Devlin assisted the Applicant in managing his affairs including ensuring that he takes his medication19. The medical advice received by the Applicant after his discharge as an inpatient was that he should focus on his well-being and nothing else20.
[8] After his dismissal and early in January 2014, the Applicant attempted to contact Skills Tasmania, the body responsible for apprenticeship regulation in Tasmania, by telephone but was unsuccessful because it was closed for the Christmas break21. The Applicant together with Ms Devlin also travelled to the Launceston office of the Fair Work Ombudsman but that office was also closed22. Ms Devlin gave the following evidence about steps taken by the Applicant, variously with the assistance of Ms Devlin and the Applicant’s girlfriend Ms Tina Munn:
Now, we have mentioned that Matthew attempted to contact the Fair Work Ombudsman. Were you with him at that time?---Yes, I was.
How did that occur? Was that by telephone or did you approach the offices?
---We went online to see (indistinct) computer. Then we found a phone number. So we rang them but everything had been shut down because of the holidays. So we were (indistinct) time. So we got the forms downloaded and filled them out and faxed them off to them as soon as we could.
So when you say that you approached them and spoke to them, do you mean the Fair Work Ombudsman?---Yes.
Where is their office in Launceston?---I’m not too sure because I’m from Sydney. I know exactly – because Matthew and I drove there together. So we walked in and the office was empty.
Was there a - - -?---There was actually a notice on the door saying, “This office is closed.”
Did it give dates that - - -?---No, it didn’t.
It just said it was closed?---Yes, it just said it’s closed and we looked at each other and said, “What do we do now?”
When you say it was closed do you mean closed for the period or closed as in shut down?---It looked like it had been shut down.
So you couldn’t see in or anything like that?---We could see in. There was nothing on. There wasn’t even a chair at the desk or anything like that. There were only public phones there. There was no-one there. The lights were all out.
Now, we also know from Matthew and from Tina that Skills Tasmania was approached?---Yes.
Were you there when that approach was made?---He made it over the phone.
Were you there when - - -?---No, I wasn’t. He told me about it, though.
You have no reason to doubt Matthew, that he made that phone call?---I have no reason at all. He wouldn’t lie to me.
MR CORNIELIUS: (indistinct)
MS CLIPPINGDALE: Thank you. Were you present when Matthew finally managed to speak with someone from the Fair Work Ombudsman?---Yes. He occasionally used the phone at home. So he wasn’t using his mobile - - -
So he used your phone at your house on that day?---Yes.
Were you within listening range of the conversation?---Yes.
After that conversation you assisted Matthew to find the forms?---Yes, and Tina helped as well. She was actually skilled in all that sort of area.
So between the three of you – yourself, Matthew and Tina – the form was filled in based on the advice that Matthew had got in that telephone call?---Yes.
Now, as I understand, the telephone call was on 8 January?---Yes.
The form was filed on 9 January. What time of day did you speak with the Fair Work Ombudsman on 8 January?---It would have been about 11-ish (indistinct)
(indistinct) some - - -?---In the morning.
Did it take you some time to find the forms and – sorry, I’ll go back a step. The conversation you had with Fair Work, listening with Matthew with the Fair Work Ombudsman, did that take a period, a little while?---He was on the phone for about an hour and a half.
An hour and a half?---Yes.
Did they give Matthew the websites where he had to look to find the forms?
---Yes.
So after Matthew had hung up and you went to find the forms you had the website that you had to go to?---Yes.
The form was filled in. I know it has been a while but whose writing is it on the form?---I think it’s Tina’s or Matthew’s.
So Tina wrote on it and possibly Matthew as well. You didn’t actually write on it?---No, I didn’t.
But you were present and were able to read what was written on the form? Thank you. I don’t have any further questions at this moment, Deputy President.
THE DEPUTY PRESIDENT: Ms Devlin, you gave evidence a little bit earlier that you were with him when Matthew and/or Tina downloaded the application form. This is on 8 January? You’re going to have to speak for the transcript?
---Yes. I did speak, sorry.
I didn’t hear you. I apologise. Where did you get the address for the Fair Work Ombudsman’s office which you attended and which was closed?---The White Pages, telephone book.
Is there any reason why, at that time, Matthew couldn’t have gotten some assistance to find the unfair dismissal forms on the web?---That’s what we did do.
Yes, but you did that on the 8th. I’m going back earlier. You said that you went to the office of Fair Work Ombudsman. That was some time just after Christmas. Is that correct?---Yes. There’s (indistinct) phone calls (indistinct) a lot of places close down over Christmas and over January.
Yes, I understand that. But this particular office was – according to your evidence, it looked as though it had shut down, not just closed for Christmas?
---Yes.
Can you remember - - -?---Totally shut down.
Can you remember the date on which you travelled with Matthew to that office?
---Not specifically.
But it wasn’t on 8 January. It was earlier?---It was earlier than that, yes, probably a couple of days beforehand and then we (indistinct) time to find that we had to lodge everything.
That’s what I’m trying to ascertain. Your evidence, as I understood it, is that Matthew was able to locate the forms that were required to be filled in after he had a conversation with the Fair Work Ombudsman on the 8th?---Yes.
Now, before that time was there any step taken by either Matthew or you or Ms Munn to try and find information out about how to lodge an application?---We were all searching how to lodge an application.
When you say “we were all searching”, can you just explain to me what steps you understood were taken?---We went online and were able to find forms on there. We needed to know how to lodge them. So that’s when Matthew rang – I think it was a Melbourne number; there’s nothing in Launceston – to find out what we had to do and how he did it. So he went and got their information (indistinct) my email address and so wait for the information to come back to see what we had to do.
Did somebody email you?---They just sent us information of how to find the forms.
By email?---Yes.
Can you remember when that was?---It’s probably a few days before the 8th.
They sent you information about how to lodge an application a few days before the 8th?---Yes. The Launceston office had closed down at that stage. They actually suggested us to go there. When we went there it was closed. They didn’t even know themselves that the office was closed.
Ms Devlin, do you still have a copy of the email?---No, I don’t, sorry.
Do you remember who the email was from?---No, I don’t, sorry.
Do you remember what the email said, what information was contained in the email?---Just that we had to lodge papers by 21 days. The 21 days was actually up when we got the email.
Well, you said that you received the email a few days before the 8th. A few days before could be as late as the 6th, which was a Monday. Presumably the email didn’t arrive on Sunday the 5th or Saturday the 4th. So it could have been the 3rd. Both the 3rd and the 6th, on my calculations, were still dates on which the application could have been made within time, which is why I’m asking you this question?---Yes, I understand that but we didn’t know ourselves the time frame until we started looking into it and it was over the 21 days.
But you’ve just told me that the email that you received advised you that the time limit was 21 days. You also gave evidence that you received the email a few days before Matthew had contacted the Fair Work Ombudsman by telephone. A few days before, as I indicate, would either have been the 6th or the 3rd or perhaps even earlier, but just taking the nearest two working days to the 8th and taking you at your word, a few days, on 6 January the time had not elapsed, nor had it elapsed on the 3rd. So I’m just trying to understand precisely the time frame, because you say you didn’t understand or Matthew didn’t understand the time limit had applied. But at some point in time somebody sent you an email advising you of that. On one view of the evidence you’ve just given, you received that advice within sufficient time to still lodge within time?---Yes (indistinct) unfortunately I probably didn’t access my emails as I should have.
Do you remember which organisation sent you the email?---Sorry, no, I don’t.
Was there anything attached to the email, any documents attached?---No, there wasn’t.
So it was just an email which said that Matthew could pursue an unfair dismissal claim and if he wanted to do so he had to do so within 21 days after his dismissal took effect. Is that right?---Yes.23
Principles for allowing applications to be lodged outside the prescribed time limit and application in this case
[9] The Applicant’s dismissal took effect on 15 December 2013. His application for a remedy should have been made within 21 days after the dismissal took effect. That period ended on 5 January 2014. As that day was a Sunday the application could have then been made on 6 January 201424. The application was lodged on 9 January 2014 and was therefore 3 days outside of the time prescribed. The Commission may allow a further period within which an application may be made.25 The discretion to allow a further period will only be exercised if the Commission is first satisfied there are “exceptional circumstances”, taking into account26:
● the reason for the delay; and
● whether the person first became aware of the dismissal after it had taken effect on: and
● any action taken by the person to dispute the dismissal; and
● prejudice to the employer (including prejudice caused by the delay); and
● the merits of the application; and
● fairness between the person and other persons in a similar position.
[10] It is clear, from the structure of section 394(3) of the Act that each of these matters must be taken into account when assessing whether there exist “exceptional circumstances”.
[11] “Exceptional circumstances” are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances need not be unique, unprecedented or very rare27. Before considering whether to exercise my discretion to allow a further period within which the application may be made, it is first necessary to determine whether there are exceptional circumstances.
Reason for the delay
[12] There must be an acceptable reason for the delay28. The Applicant needs to provide a credible reason or credible reasons explaining the whole of the period that the application was delayed29. The Applicant submitted that during the whole of the period between his dismissal and the lodgement of his application he was unable to look after his own affairs through a combination of his depressive condition and the effects of the medication that he was taking to assist in the treatment and management of the condition. There is no dispute that the Applicant was unfit for work for a period of 3 months because of his depressive illness, including the whole of the period at issue. There is no dispute that the Applicant had been an inpatient of the Northside Clinic since 4 December 2013 and was discharged the day after his dismissal to free up finite resources for those in greater need. There is no serious dispute that the depressive illness combined with the antidepressant medication rendered the Applicant reliant on others to look after his well-being and to manage his affairs. To the extent that the Respondent suggested that the Applicant had driven a motor vehicle during the period in question and that this was evidence that he was able to cope, I reject that submission and I accept the medical evidence offered, and the observations of Ms Devlin and Ms Munn about the Applicant’s condition, his capacity to look after his own affairs and his reliance on others for the management of those affairs on his behalf.
[13] I am satisfied that the Applicant’s cognitive functioning and coping mechanisms were significantly affected by his depressive illness and medication regime during the whole of the period following the termination of the Applicant’s employment and the making of this application and that this contributed to the delay. The Applicant was not, during this period, able to look after his own affairs. I am satisfied that this provides an acceptable credible reason explaining the whole of the period the application was delayed. In addition, I am satisfied that although Ms Devlin endeavoured to assist the Applicant in obtaining information about making this application, Ms Devlin inadvertently contributed to some of the delay as indicated in the extract from transcript reproduced above, however given the Applicant’s condition, he should not be held responsible for that inadvertence.
[14] It follows that the Applicant has established an acceptable and credible explanation for the delay in lodging his application and this weighs in favour of the Applicant.
Awareness of the date the dismissal took effect
[15] The Applicant became aware that his dismissal took effect on the day that it took effect. Consequently he had the full 21 days within which to lodge an application. In the circumstances this weighs against the Applicant but not significantly given the Applicant’s depressive condition and the impact of that condition and antidepressant medication on his cognitive functioning during the relevant period.
Any action taken by the Applicant to dispute the dismissal
[16] The Applicant made a number of unsuccessful enquiries to external agencies but does not appear to have taken any action directly with his employer to dispute his dismissal in any substantive way. The absence of any such steps would usually weigh against the Applicant in proceedings of this kind however in the circumstances I consider the absence of any such step is essentially neutral given the Applicant’s depressive condition and the impact of that condition and antidepressant medication on his cognitive functioning during the relevant period. Moreover the Applicant’s medical advice during the relevant period was that he should focus on his well-being and nothing else.
Prejudice to the employer (including prejudice caused by the delay)
[17] The Respondent, properly in my view, did not contend that it would suffer any prejudice either by reason of the delay or if the Applicant were permitted to make his application outside the prescribed time period. However the mere absence of prejudice to the Respondent does not mean it is a sufficient basis to grant an extension of time30. In the circumstances of this case I regard this consideration is essentially neutral.
The merits of the application
[18] It is usually not practical in proceedings of this kind, to conduct a full evidentiary hearing to determine merit. Neither party led any substantive evidence going to the merits of the case. However I am satisfied, based on the limited material, and accepting that factual assertions about merit have not been tested by way of cross examination, that the application is not without merit. This is because the decision to terminate the Applicant’s employment was more opportunistic than planned and occurred in circumstances where the Respondent was well aware that the Applicant had been hospitalised in a mental health facility and that he was then unfit for work and was likely to continue in that state until at least March 2014. In the circumstances, that the Applicant’s claim is not without merit, weighs in his favour.
Fairness as between the person and other persons in a like position
[19] Neither party advanced any argument to address this consideration. Cases of this kind will generally turn on their own facts. I am also not aware of any application currently before the Commission which is comparable to this application, nor was my attention drawn to any decision of the Commission, which might have a bearing on this consideration. In the circumstances I regard this consideration in this case is essentially neutral.
Conclusion
[20] The statutory time limitation applicable to the exercise of a person’s right to make an unfair dismissal remedy application is an expression of the Parliament’s intention that rights must be exercised promptly so as to bring about certainty. Time limitations seek to balance a right to bring an action, against the desirability for prompt action and certainty. This is so that proceedings involving questions about actions that have been taken will be agitated within a particular period, otherwise that right of action is lost.
[21] A person seeking relief from unfair dismissal must make an application within 21 days after the dismissal takes effect. Only in exceptional circumstances will the Commission consider allowing a further period. Weighing all of the matters set out in section 394(3), this is a case in which I am satisfied that the Applicant has established that there are exceptional circumstances warranting consideration of the exercise of my discretion to allow a further period within which the Applicant may lodge an unfair dismissal remedy application. The Applicant’s case is not without merit, and he has established by evidence, a substantial reason, which I am satisfied is an acceptable and credible reason for the delay. The failure to take any substantive step to dispute the dismissal and the fact that the Applicant had the full 21 days within which to lodge the application because he knew his dismissal took effect on 15 December 2013, do not in the circumstances, operate to outweigh the other matters identified above as favouring the Applicant. There is no other matter which would suggest that I should not exercise my discretion and I propose to so in favour of the Applicant.
[22] In the circumstances I will allow a further period within which the application may be made. An order giving effect to this decision has previously been issued in PR549854.
DEPUTY PRESIDENT
Appearances:
E. Clippingdale for the Applicant
A. Williams for the Respondent
Hearing details:
Melbourne/Launceston
2014.
17 April.
1 Transcript PN 363
2 See section 394(2)
3 See Exhibit A4
4 Ibid
5 Exhibit A1
6 Exhibit R1 at [4]
7 Transcript PN 52 – PN 64
8 Exhibit A1
9 Exhibit R1 at [9]; See also transcript PN 352
10 Ibid
11 Transcript PN 337 – PN 339
12 Exhibit A1; Transcript PN 352
13 Ibid; See also transcript PN 117 and PN 353
14 Exhibit A2
15 Transcript PN 102 – PN 103
16 Transcript PN 136 – PN 137
17 Transcript PN 139
18 Transcript PN 136 – PN139
19 Exhibit A1; Exhibit A5; Transcript PN 212 – PN 230
20 Transcript PN 116; PN 124
21 Exhibit A1
22 Ibid
23 Transcript PN 234 – PN 285
24 Section 36(2) Acts Interpretation Act 1901
25 Section 394 (2) & (3) of the Act
26 Section 394(3)
27 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [5]
28 See Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299]-[230]
29 See Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at [408] – [409]
30 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
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