Mr Matthew Dally-Watkins v FTS Securities Pty Ltd

[2013] FWC 7020

[2013] FWC 7020

FAIR WORK COMMISSION

DECISION

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

Mr Matthew Dally-Watkins
v
FTS Securities Pty Ltd
(U2013/9419)

DEPUTY PRESIDENT ASBURY BRISBANE, 25 SEPTEMBER 2013

Application for relief from unfair dismissal - extension of time.

OVERVIEW

[1] Mr Matthew Dally-Watkins applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by FTS Securities Pty Ltd (FTS). Mr Dally-Watkins states in his application for an unfair dismissal remedy that he was notified of his dismissal on 15 January 2013. In response to the question in the Form F2 as to the date the dismissal took effect, Mr Dally-Watkins states: “I have been ill since September 2012.

[2] Mr Dally-Watkins’ unfair dismissal application is dated 5 May 2013 and was filed in the Fair Work Commission on 10 May 2013. The application is made outside the time allowed in s.394(2) of the Act.

[3] FTS objected to the application and sought that it be dismissed, pursuant to s.587 of the Act, on the basis that it was made outside the required time, and no explanation or reason for the delay was provided. FTS sought that this matter be dealt with before conciliation.

[4] This decision concerns the question of whether the Commission should exercises its discretion under s.394(3) of the Act, to extend the time for Mr Dally-Watkins to make his unfair dismissal application.

[5] The matter was listed for Directions/Conference on 1 August 2013 and Directions were issued requiring the parties to file and serve outlines of submissions, witness statements and any documentary material in relation to the question of whether time should be extended.

[6] Mr Dally-Watkins was required to file his material by 8 August 2013 and FTS by 15 August 2013. Mr Dally-Watkins filed his material by the required date, but did not serve it on FTS. FTS notified my Associate that the material had not been received and sought an extension to the date by which its material was required to be file and served. The extension was granted and FTS filed an outline of submissions and material on 5 September 2013.

LEGISLATION AND ISSUES FOR DETERMINATION

[7] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as FWA allows under s.394(3). That sub-section provides as follows:

“(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.”

[8] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[9] Even when exceptional circumstances are established, the Commission has discretion as to whether time should be extended, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2

[10] The issue for determination is whether Mr Dally-Watkins has established that there are exceptional circumstances to trigger the exercise of the discretion to extend time, and whether in all of the circumstances the discretion should be exercised.

EVIDENCE

[11] Prior to Directions being issued in relation to the extension of time matter, a timeline of events in relation to the Applicant’s employment was submitted by FTS. This timeline raises alleged performance management issues in relation to Mr Dally-Watkins’ performance in his position. These matters are not relevant to the current issue for determination but are relevant to the context of the dismissal.

[12] In September 2012 the performance management issues were escalated by the FTS. On 20 September 2012 FTS contacted Mr Dally-Watkins and requested an “urgent” meeting regarding his performance. Mr Dally-Watkins left work on that day and has not returned to work since this time. The timeline submitted by the FTS indicates that efforts were made to contact the Applicant to discuss his performance and absence.

[13] On 14 January 2013 a letter of termination was sent by FTS to Mr Dally-Watkins in the following terms:

“It has now been over 3 months since we have had any contact with you despite many attempts to do so from FTS.

As you have obviously abandoned your position with FTS, we have no option but to terminate your employment with FTS effective immediately.

We will pay you any outstanding entitlements together with 2 weeks salary in lieu of any notice.”

[14] FTS states that this letter was sent by Registered Post. There is no evidence as to when Mr Dally-Watkins received the letter, other than in his application for an unfair dismissal remedy he states that he was notified of the dismissal on 15 January 2013. The submissions for the Respondent assert that Mr Dally-Watkins’ employment was terminated with effect from 28 January 2013 - upon the expiration of the two week notice period. While it is arguable that Mr Dally-Watkins’ employment ended before that date, I have determined this matter on the basis that the dismissal was effected on 28 January 2013. 3

[15] The Directions issued by the Commission set out the criteria in s.394(3) of the Act and specifically required the parties to address each of the criteria in s.394(3) of the Act. Mr Dally-Watkins filed a bundle of documents which appear to be copies of those submitted in relation to an application for a benefit from an income protection policy with MLC. Nowhere in these documents does Mr Dally-Watkins provide any form of submission or statement addressing the criteria in s.394(3).

[16] The covering email to Mr Dally-Watkins’ material states that the material is: “evidence as requested in regards to my stress which has caused delay in completing my claim with FWC and MLC within 3 weeks from mid-January 2013” 4. It is apparent that Mr Dally-Watkins asserts that the reasons for the delay, and the exceptional circumstances, are that he suffered medical complications, specifically “stress” which he states in his covering email “caused delay” in filing his application for unfair dismissal remedy.

[17] Mr Dally-Watkins provided a claim form for income protection insurance, dated 23 February 2013 and signed by Mr Dally-Watkins. “Disability details” are said to be “anxiety”. The response to questions about: when the symptoms first appear; when a doctor was first consulted; and the last day of work is “2012”. Statements are also included on the claim form that no tests have been conducted or recommended and that Mr Dally-Watkins’ current daily activities are: “[E]xercise and looking for work (outside of Advising)”.

[18] In response to the question “[P]rovide any other comments which may assist with the assessment of your claim” Mr Dally-Watkins states:

“Several legal matters pending

- Family Law.

- Enquiry into Fair Work

Termination by Employer”

[19] A number of medical records were also provided indicating that Mr Dally-Watkins attended upon Dr G Van Houten on 22, and 25 February, 19 March, 18 and 22 April, and reported matters including: “stress caused by break up with girlfriend who has a child by him” and “anxiety over repossession of property and lack of access to child following separation from wife”. A referral from Dr Van Houten to Dr Richard Williams, General Adult Psychiatrist states:

“Thank you for your ongoing care of this patient.with asevere anciety disorderlos s of propertybank siezed property alienated wife not providing acces to child” (errors in original)

[20] Doctor Williams’ report dated 27 March 2013 indicates that Mr Dally-Watkins is in training for a physical fitness test prior to entering the fire service and that he has been studying for a Diploma in Financial Planning. That report does not describe any diagnosis or imminent concerns in relation to Mr Dally-Watkins’ health and states:

“I have not prescribed for Matthew but invited him back after the holiday for further discussions.”

[21] A further, more substantial, medical record from Classic Way Family Practice as at 22 March 2013 was also tendered by Mr Dally-Watkins. This record commences in 2009. The record for Friday, 21 September 2012, being the first day after Mr Dally-Watkins non-attendance at work, reveals that he attended the practice complaining of “sinusitis”, and was referred to a specialist. Records for 24 and 28 September and 3 October 2012 indicate that Mr Dally-Watkins continued to complain of sinusitis.

[22] A record in relation to an attendance at the practice on 24 October 2012 indicates that Mr Dally-Watkins sought a medical certificate for work and that stress and anxiety were discussed. Medical data relating to a number of tests undergone by Mr Dally-Watkins was also tendered without explanation or submissions about the results.

[23] A report from Dr Van Williams to MLC for Mr Dally-Watkins’ continuing income protection reveals that the “current diagnosis” as at 12 April 2013 is Anxiety Disorder (the first word is illegible) and that the “current symptoms” are “anxiety, stress, isolated from daughter - several pending legal matters”. This notation however appears to be in Mr Dally-Watkins handwriting and is initialled by him.

[24] FTS submits that that there are no valid reasons for the delay in Mr Dally-Watkins making his application evidenced in his material, and that material does not demonstrate incapacity to file within the time period required by the Act. It is also submitted that the evidence establishes that Mr Dally-Watkins was aware of his ability to contact the Commission in relation to his termination of employment at or around the time of his termination and within the time limitation period or shortly thereafter. In support of this submission, FTS tendered an email from Mr Dally-Watkins to Mr Brian Bentley of the FTS dated 13 February 2013, in the following terms:

“Brian

Have you posted my suit jacket -certificate for adv. Dip And my letters?

Should I will contact the relevant authority; ASIC and fair work to?”

(errors in original)

[25] FTS submits that Mr Dally-Watkins was aware of his dismissal prior to it taking effect, and took no steps to contest his dismissal prior to lodging the application the subject of this decision. It is also submitted that FTS will suffer prejudice in that it will have to “expend significant monies in defending the claim”.

[26] Further, it is submitted that the application does not have sufficient merit to warrant the grant of an extension of time. In this regard FTS submitted that Mr Dally-Watkins had abandoned his employment and that it therefore had a valid reason for dismissing him. FTS also said that Mr Dally-Watkins had provided sufficient medical evidence for the entire period of his absence and that the medical certificates submitted by Mr Dally-Watkins covered the period of 2 to 19 October 2012. Mr Dally-Watkins also failed to respond to correspondence from FTS in relation to his absences from work and his expected return. FTS also submits that it will suffer prejudice if the extension is granted because it will be required to expend significant monies in defending the claim.

CONCLUSIONS

[27] Mr Dally-Watkins states in his application for an unfair dismissal remedy that he was notified of the dismissal on 15 January 2013. For the purpose of these proceedings I accept the submission of FTS that it took effect on 28 January 2013. The application was required to be made by 18 February 2013. The application was made on 10 May 2013 - 102 days after the dismissal took effect, and 81 days outside the time allowed in s.394(2) of the Act.

[28] After sifting through the evidence provided by Mr Dally-Watkins, I am unable to accept that there are exceptional circumstances such that the discretion to extend time is enlivened. The reason for the delay in making the application, as asserted by Mr Dally-Watkins, is anxiety, personal stress and work related stress.

[29] The medical evidence provided by Mr Dally-Watkins does not establish that any medical condition that he suffered was such that he was not able to make his application in the time required. In his email of 13 February 2013 to Mr Bentley, Mr Dally-Watkins alludes to the possibility of contacting the Fair Work Commission. In the application for payments under an income protection policy Mr Dally-Watkins refers to an “Enquiry into Fair Work”. In March 2013, Mr Dally-Watkins’ treating psychiatrist refers to him training for a physical fitness test to joining the fire service.

[30] There is no reasonable basis upon which I could find that Mr Dally-Watkins’ medical issues constituted exceptional circumstances or that when considered in conjunction with other matters there were exceptional circumstances causing him to be unable to make the application within the required time.

[31] As previously stated, Mr Dally-Watkins became aware of the dismissal on 15 February 2013 and there is no evidence that there was a lack of awareness impacting on the making of the application. Even if the dismissal is assumed to have taken effect on that date, the delay in making the application is not adequately explained. Other than sending an email outside the time in which the application was required to be made, requesting the return of a suit jacket and other personal items, and inferring that a failure to return these items may result in contact with the Fair Work Commission, there is no indication that Mr Dally-Watkins took any action to dispute his dismissal.

[32] Other than cost, there is no evidence that the delay will have any impact on FTC’s ability to defend the application. However, the delay is considerable and by the time the matter is listed for hearing, a significant period of time will have elapsed, making it likely that there will be prejudice because of matters such as the recollection of witnesses of events.

[33] Although it is not appropriate to conduct a detailed analysis of the merits of the substantive application in deciding whether to extend time 5, it is the case that the application does not appear to be one where the merits are obvious or of such significance that they would warrant an extension of time in the context of the other criteria.

[34] There is no indication in the present case that to extend time would raise considerations of fairness as between Mr Dally-Watkins and other persons in a similar position. However, I am of the view that to grant an extension of time to Mr Dally-Watkins would be contrary to precedent in cases dealing with applications for extensions of time by persons suffering from stress related conditions.

[35] This is not a case where the discretion to extend time is enlivened. The application by Mr Dally-Watkins for an unfair dismissal remedy is dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Final written submissions:

5 September 2013.

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

 3   Respondent outline of submissions at paragraph 2.

 4   Email from Applicant to FWC dated 8 August 2013.

 5   Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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