Mr Roland Genikas v Bourke Aboriginal Health Service

[2012] FWA 7342

Note: An appeal pursuant to s.604 (C2012/5538) was lodged against this decision.

[2012] FWA 7342

The attached document replaces the document previously issued with the above code on 13 September 2012.

Paragraphs [14] and [24] have been amended.

Luke Johanson

Associate to Commissioner Hampton

Dated 25 September 2012

[2012] FWA 7342

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Roland Genikas
v
Bourke Aboriginal Health Service
(C2012/4627)

COMMISSIONER HAMPTON ADELAIDE, 13 SEPTEMBER 2012

General protections application - extension of time - whether exceptional circumstances - statutory considerations applied - not satisfied exceptional circumstances demonstrated - extension not granted - application dismissed.

BACKGROUND AND CASE INTRODUCTION

[1] The matter arises in the context of an application made by Mr Roland Genikas (Mr Genikas or the applicant) pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging a contravention of the Act arising from a dismissal. The respondent employer is Bourke Aboriginal Health Service Limited (BAHS or the respondent).

[2] The present matter is best described as a General Protections application 1 and as a result the Act provides both a particular role for Fair Work Australia and a particular time period for the lodgement of this form of application. Subject to an extension being granted, s.366 of the Act provides that the application must be made within 60 days after the dismissal took effect.

[3] The application contends that Mr Genikas was dismissed on or about 21 March 2012. This application was lodged with Fair Work Australia on 18 July 2012. On that basis, the application should have been lodged by 21 May 2012 2 and is about eight weeks outside of that period.

[4] Part of the context for this matter is that on 1 June 2012, Mr Genikas lodged an application against BAHS relating to the same dismissal pursuant to s.773 of the Act (the unlawful dismissal application). Following an unsuccessful conference convened by this arm of the Tribunal on 28 June 2012, directions were issued for the filing of materials associated with two preliminary or jurisdictional issues arising from that application. Namely, whether an extension of time should be granted 3 and whether the unlawful dismissal application was valid given certain provisions of the Act.4

[5] The directions required the applicant to file materials with Fair Work Australia by 18 July 2012. However, what was filed was this s.365 application and materials said to support the extension of time required. The unlawful dismissal application was discontinued by Mr Genikas at that time.

[6] Directions were then issued to enable both parties to rely upon materials lodged in relation to the previous matter and to provide further evidence and submissions. 5

THE STATUTORY CONTEXT FOR THE EXTENSION OF TIME ISSUE

[7] The time period and the basis upon which an extension of time may be given by the Tribunal are relevantly set out in s.366 of the Act in the following terms:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

THE POSITIONS OF THE PARTIES

[8] Mr Genikas contends that he was dismissed by BAHS only after the respondent became aware of a serious medical condition. That is, his dismissal was the result, in whole or in part, of that fact. This, it is said, represents adverse action based on a prohibited ground and as such is a breach of the general protections of the Act.

[9] In terms of the delay in filing, Mr Genikas contends that his medical condition, the appointments and treatments in that context, and his mental state made it difficult to make the appropriate enquiries with Fair Work Australia and to have the application lodged in time.

[10] BAHS rejects any notion that the applicant’s apparent medical condition or any associated leave or absence played any role in the decision to dismiss him.

[11] BAHS also contends that an extension of time should not be granted, given the absence of exceptional circumstances. In particular, the respondent contends that:

• There is no material to justify the delay or the suggestion that the applicant’s medical condition and/or treatment prevented the lodging of this application on time; and



• Mr Genikas was apparently aware of his rights and there is no or insufficient information to justify the delay in seeking advice or making an application.

[12] BAHS also contends that there is significant prejudice to it as a result of having to answer two applications already, and given that this is a regionally located not-for-profit organisation, the costs and inconvenience of any proceedings will be substantial.

[13] The respondent further contends that there is little if any merit in the s.365 application and points to other decisions 6 of Fair Work Australia where an applicant’s personal and health circumstances where not considered to be exceptional circumstances for present purposes. This, it was argued, meant that a consistent approach to other employees would lead to the extension also not being granted in this case.

THE EVIDENCE AND GENERAL FACTS OF THE MATTER

[14] Mr Genikas provided two sworn statements 7 and a statement from his treating Doctor confirming his medical condition8. BAHS provided a sworn statement from Ms Rose Gordon, the Acting Chief Executive Officer of the respondent and Ms Patricia Canty, its Chairperson. I also note that the respondent sought to file a further statement contesting one element of an assertion made by Mr Genikas in his final submission. I did not permit that course of action however I have noted that this assertion is contested.

[15] There are certain factual conflicts evident in the statements before Fair Work Australia. Given that these have not been tested by cross-examination, I have determined this matter noting those conflicts and the different versions of certain facts. Many of the factual disputes are also associated with the merit of the application and it is not necessary, or appropriate, to attempt to resolve these at this juncture.

[16] Subject to these caveats, I find the following on the basis of the material and evidence lodged by the parties.

[17] BAHS provides a broadly based health service to a wide section of the aboriginal community in New South Wales and is based in Bourke.

[18] Mr Genikas commenced employment with BAHS in October 2011 in a position as a Regional Coordinator within the service’s Social and Emotional Wellbeing division. Mr Genikas is a qualified counsellor 9 and has had a long involvement in various aspects of community mental health promotion and service.

[19] The applicant’s appointment was subject to a six month “probationary” period.

[20] In January 2012, there were discussions between Ms Gordon and the applicant about the qualifications of a visiting psychologist and the potential personal counselling of another staff member.

[21] In February 2012, the applicant and Ms Gordon (amongst others) discussed the apparent concerns of an employee regarding Mr Genikas’ communications and others matters associated with management of that employee.

[22] In early March 2012, Ms Gordon became aware of allegations concerning the applicant’s views on the qualifications of the visiting psychologist and was concerned that this issue was continuing despite the earlier discussions. Ms Gordon also apparently sought details about the extent of actual counselling work being undertaken by the applicant.

[23] The respondent also allegedly raised other issues about the alleged promising of funds by Mr Genikas to an outside organisation without prior approval. This is in dispute.

[24] In mid March 2012, Mr Genikas was diagnosed with a probable medical condition and there is a dispute about the extent of information provided to BAHS regarding that matter. The applicant contends that the respondent was aware of the diagnosis from mid March 2012 and that a medical certificate was provided on 19 March. The respondent contends that only a passing reference was made to the need to have medical tests and that no relevant medical certificate was provided to BAHS at this time.

[25] On 19 and/or 20 March 2012, Ms Gordon raised a number of concerns with the applicant including an alleged written complaint and further allegations about other conduct. After discussions about these matters, which were disputed, Ms Gordon advised Mr Genikas that she considered that he was not suited to the position and would be consulting with the Chairperson of the service about his future employment.

[26] Later on 20 March 2012, after consultation with the Chairperson, Ms Canty, Ms Gordon advised the applicant that he was being dismissed within his probationary period and this was confirmed in writing the following day. The employment ceased at that time.

[27] On 10 April 2012, the applicant was treated at the Daw Park Hospital in South Australia and subsequently attended this and another hospital related to his condition. It is evident that from time to time, Mr Genikas was undergoing treatment in this period.

[28] The applicant contends that he made a number of attempts to contact Fair Work Australia however there is no detail of when and how this was done. It is likely that contact was made with the Tribunal in late April and the applicant contends that he visited the Tribunal’s website and was aware of the need to complete an application form.

[29] The unlawful dismissal application was lodged on 1 June 2012 and discontinued after a telephone conference before Fair Work Australia and the issuing of directions about certain jurisdictional issues, including the need for an extension of time to be granted in that matter.

[30] This application was lodged on 18 July 2012.

SHOULD AN EXTENSION OF TIME BE GRANTED?

[31] Section 366 of the Act provides Fair Work Australia with discretion to extend the time for lodgement beyond the 60-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take account of the considerations outlined in paragraphs (a) to (e) of s.366(2) of the Act. I have done so in this matter.

[32] Although the statutory discretion in s.366 requires the considerations in sub-section (2) relating to the existence of exceptional circumstances to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act. In assessing these matters I have been mindful of the approach to the concept of exceptional circumstances as summarised by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 10 (Nulty) which said:

“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.”  11

and

“A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended”. 12

[33] I have applied this approach in determining this matter.

The reason for the delay

[34] The delay of eight weeks beyond the stated period is significant in relative terms. This did occur in a particular context that must be considered as part of any explanation for the delay.

[35] I am prepared to accept that the applicant’s apparent medical condition and the associated treatment have contributed to the delay in lodging this application. Indeed, it is reasonable to infer that the nature of the condition and its treatment would have meant that at times, Mr Genikas was otherwise focused and not able to progress his dispute. However, there is little detail of its actual impact on his capacity to advance a dispute about his dismissal and the nature and timing of the apparent medical treatment is not a complete explanation, even based upon the assertions of the applicant. 13 This is particularly the case, given he was aware, at least by mid April 2012, that he could approach Fair Work Australia for information in relation to his potential rights.

[36] The applicant filed the unlawful dismissal application on 1 June 2012. The apparent jurisdictional hurdle (and the need for an extension of time) was raised in the telephone conference before Fair Work Australia on 28 June and Mr Genikas apparently took some advice on that issue and discontinued that application, and made this one, on the date that submissions were due to be filed in the earlier matter.

[37] The fact that some of the delay has been caused by the filing of the “wrong” application is relevant to the reason for present purposes. That is, the dispute about the dismissal was being progressed, albeit using the unlawful dismissal application which was itself lodged out of time and had to be abandoned for other reasons.

[38] To the extent that the absence of knowledge of legal rights is relevant here, this factor of itself has generally not been regarded by Fair Work Australia as sufficient for it to be satisfied as to exceptional circumstances. 14

[39] In summary, there is some explanation for elements of the delay in lodging the application however much of the delay has not been satisfactorily explained.

Any action taken by the person to dispute the dismissal

[40] This consideration is clearly related in this case to the reasons for the delay as discussed above.

[41] The applicant took no action to seek advice or apparently consider contesting the issue until late April 2012. The unlawful dismissal application was filed on 1 June 2012. Although there have been some further delays in the lodgement of this application, since that time Mr Genikas has been reasonably diligent in pursing the dispute regarding his dismissal.

[42] The respondent has been on notice since shortly after 1 June 2012 that Mr Genikas was disputing his dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[43] The respondent relies upon the prejudice of running the substantive case and the fact that it has already participated in proceedings arising from the unlawful dismissal application. Given the broad nature of the statutory consideration, and the fact that prejudice beyond that caused by the delay itself is contemplated, the prejudice of defending the general protections application before the Court may be a relevant consideration. Given the circumstances of BAHS, those proceedings would a significant issue. Any such prejudice also needs to be considered along with the prejudice to the applicant which arises under s.366(2)(d) of the Act.

[44] In terms of prejudice caused by the delay itself, nothing has been specifically advanced by the respondent.

The merits of the (general protections) application

[45] The consideration of the merit of the application in this context is limited to the prima facie merits. 15

[46] Some of the essential facts of the matter, including the awareness of the applicant’s medical condition amongst the decision makers within BAHS are in dispute. The motivation and context for the dismissal is also in dispute.

[47] Given that there was, on either case, an awareness of some medical tests prior to the dismissal by the respondent, the fact that the alleged reason need only be part of the reasons (s.360) and the operation of the “reverse onus of proof” provided by s.361 of the Act in these matters, the applicant has an arguable case. There is accordingly the potential for prejudice if the extension of time is not granted.

[48] The respondent has an apparently strong defence, particularly if the earlier performance and conduct concerns can be demonstrated and the absence of knowledge of the applicant’s medical condition by the decision makers at the relevant time can be sustained by evidence. 16

[49] It is sufficient for present purposes to confirm that the applicant has an arguable, but rebuttable, case in relation to alleged breach of the general protections of the Act.

Fairness as between the person and other persons in a similar position

[50] There are no directly relevant circumstances here. However, in my view, the consistent application of principles adopted by Fair Work Australia in similar matters, where an extension of time to contest a dismissal is sought, 17 is in line with this consideration and I have sought to adopt that approach in this case.

CONCLUSIONS

[51] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am on balance not persuaded that there are exceptional circumstances as contemplated by s.366(2) of the Act. There is accordingly no basis to extend the time for lodgement of this application under the Act.

[52] As a result, there is not a valid application before Fair Work Australia and an order that the general protections application be dismissed will be made in conjunction with this decision.

COMMISSIONER

Written submissions:

2012:

Applicant: 6, 9, 24 August

Respondent: 21 August.

 1   The general protections of the Act are set out in Chapter 3, Part 3-1 of the Act.

 2   This allows, without determining the issue, for the fact that 60 days after the dismissal would fall on the weekend.

 3   A similar 60 day time period for the lodgement of an unlawful dismissal application is provided by the Act in s.774.

 4   Section 723 of the Act provides that a person must not make an unlawful dismissal application in relation to conduct if that person is entitled to make a general protections court action in relation to that conduct. The decision of Watson VP in Thomasson v Toll Perkins Shipping[2011] FWA 7911 was drawn to the attention of both parties.

 5   Part of the process leading to that point (associated with the earlier application) also involved pointing out the particular statutory considerations concerning an extension of time application and the prospect that the parties could seek a hearing (in addition to filing submissions and evidence) on the issue. General liberty to apply was also granted.

 6   Hodder v Kincare[2012] FWA 5082, per Leary DP and Gao v Department of Human Services[2011] FWA 8072, per Bissett C.

 7   One declaration dated 18 July, which accompanied the application and a further declaration dated 6 August 2012.

 8   The details of the applicant’s medical condition have been suppressed from public disclosure.

 9   Mr Genikas may well also have other qualifications.

 10   [2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and Williams C.

 11   [2011] FWAFB 975 at [13]

 12   Ibid at [15]

 13   Mr Genikas has made a series of assertions about his medical treatment at various times and although not supported by evidence I have had regard to such given the Tribunal’s statutory charter and the circumstances of this matter.

 14   Anthony Inguanti v TRUenergy Gas Storage Pty Ltd[2011] FWAFB 6512, 26 September 2011 per Acton SDP, McCarthy DP and Simpson C. See also Nulty at par [14].

 15   Although also determined in a slightly different statutory context the decision in H Kyvelos V Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.

 16   The evidence of Ms Canty as outlined in her statutory declaration would be significant.

 17   See the approach of the Full Bench to s.366(2)(e) of the Act in Ballarat Truck Centre Pty Ltd v Melissa Kerr[2011] FWAFB 5645, 29 September 2011 per Acton SDP, Kaufman SDP and Williams C.

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