Mr Walter Goebel v QR Limited
[2011] FWA 3711
•14 JUNE 2011
[2011] FWA 3711 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Walter Goebel
v
QR Limited
(U2010/12805)
COMMISSIONER SPENCER | BRISBANE, 14 JUNE 2011 |
Termination of Employment - Jurisdictional Objection - Extension of Time.
Introduction
[1] The Applicant (Mr Walter Goebel) made an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), claiming he was unfairly dismissed from his employment with QR Limited, (the Respondent).
[2] In accordance with s.394 (2) of the Act, the application for relief must be made within 14 days after the dismissal took effect. This determination relates to the Respondent’s jurisdictional objection that the application was lodged out of time and whether an extension of time should be granted pursuant to s.394 (3) by Fair Work Australia (FWA) to allow the application to proceed.
[3] Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.
[4] The parties agreed at the Directions Hearing on 15 March 2011, to have the jurisdictional matter determined on the basis of the submissions provided by the parties, without a hearing. Directions were issued for the filing of materials in relation to the jurisdictional matter.
Legislation
[5] FWA is required to consider whether an application is made within time, as well as whether the Applicant was protected from unfair dismissal by the legislation, prior to considering the merits of the application. Section 394(3) of the Act authorises FWA to extend the time for making the application if it is satisfied that there are exceptional circumstances, taking into account specific matters.
[6] The relevant legislative provisions are set out below:-
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
…
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.
396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
…
Background
[7] The parties agreed that the Applicant’s employment was terminated on 20 August 2010. The application for unfair dismissal remedy was filed with FWA on 24 September 2010, 20 days after the 14 day statutory time limit lapsed on 3 September 2010.
Submissions of the Applicant
[8] The Applicant submitted two main reasons for the delay in making his application. The Applicant contended firstly, that the delay was caused due to the ill health and the admission to hospital of his parents, and the effect this had on his state of mind. The Applicant stated that his stepmother was admitted to hospital on 30 August 2010. The Applicant travelled from his home in Townsville, to Brisbane, due to his stepmother’s illness at a time after 30 August 2010 (no specific date was provided). The Applicant’s stepmother passed away on 22 September 2010.
[9] The Applicant submitted that his father was admitted to hospital on 8 September 2010 after suffering a stroke. The Applicant stated that as a result, he remained in Brisbane to care for and support his father.
[10] The Applicant submitted that the effect of his stepmother’s illness, her subsequent death, and his father’s illness and his depression prior to and after the loss of his wife, had affected his “thought process” and caused him “stress and anxiety”. The Applicant stated that he remained in Brisbane with his “ailing” father until “mid to late September 2010”. The Applicant stated that he did not have documentary evidence (such as hospital records and the death certificate) to support the matters he referred to, due to family difficulties.
[11] The Applicant stated that he was aware of the dismissal from 20 August 2010 when it became effective. However, he submitted his state of mind after the dismissal was occupied with the passing of his stepmother and his father’s ill health. He reasoned that this prevented him from filing the application. Upon returning to Townsville in “mid to late September 2010” the Applicant contended that he “immediately” sought advice as to any potential recourse available to him in relation to the dismissal. The Applicant stated he contacted “Unfair Dismissal Queensland” who informed him of their inability to assist him, as he had been an employee of QR Limited. The Applicant stated that this further delayed the filing of his application, by approximately 48 hours. The Applicant subsequently lodged his application with FWA, on 24 September 2010; 21 days late.
Submissions of the Respondent
[12] The Respondent submitted that the Applicant provided no evidence to support his claims that his stepmother was admitted to hospital on 30 August 2010 and subsequently passed away on 22 September 2010. The Respondent also contended the Applicant provided no evidence that his father was admitted to hospital on 8 September 2011. The Respondent further stated that the date of the Applicant’s father’s alleged admission to hospital on 8 September 2010 was 5 days after the 14 day prescribed time limit to make an application under s 394 had lapsed.
[13] The Respondent submitted that the “personal circumstances” of the Applicant, if accepted, however “difficult and awful”, were not in itself enough to warrant an extension of time. The Respondent argued that the Applicant provided no evidence that he was suffering from stress, anxiety or any other psychological condition that “operated as an impediment to the lodgement of his application within the 14 day time limit”.
[14] The Respondent submitted that there was also no evidence of the Applicant’s second reason for the delay in making his application, that is, that he had made inquiries to an entity other than FWA. The Respondent argued that even if accepted the dates of the Applicant’s enquiries to “Unfair Dismissal Queensland” were unclear. The Applicant had only indicated that the inquiries were made when the Applicant returned to Townsville in “mid to late September 2010”. The Respondent argued that “mid to late September 2010” was already some time after the prescribed time limit to make the application had lapsed.
[15] The Respondent cited Patrick Dyer v Aarya Alliance Pty Ltd T/A Mona Lisa Cafe Bar Restaurant 1, as authority to counter the Applicant’s argument that limited knowledge of legal remedies being available following a termination, might constitute exceptional circumstances. In support of the Respondent’s position, they quoted the following extract of Senior Deputy President Hamberger’s decision:
“For an ordinary layperson to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon, rather (perhaps sadly) it is a situation that is quite frequently encountered. The fact that Mr Dyer was unaware of his rights in respect of his termination of employment in these circumstances is not exceptional.” 2
[16] The Respondent contended that the Applicant’s limited knowledge of the legal remedies available to him following his termination was not uncommon and does not, therefore, create exceptional circumstances. The Respondent submitted further that, by the Applicant’s own admission in his submissions, this reason caused only a 48 hour delay when the total length of the delay was approximately “3 weeks”.
Consideration
[17] The following provides an assessment of each of the provisions in s.394 (3) of the Act, to examine whether exceptional circumstances exist to allow for an extension of time. The onus rests with an applicant to convince FWA to exercise the discretion to extend time.
s.394 (3) (a) the reason for the delay
[18] The Applicant relied on his pre-occupation with his stepmother’s illness and death, and the illness of his father and the subsequent care of his father after his stepmother died. The Applicant had travelled to Brisbane to support his father on a date after 30 August; that is more than 10 days after the dismissal. No particular reasons were provided to justify the delay in lodgement in relation to the critical 14 day time limit, apart from his mind being pre-occupied. However, in terms of the Applicant’s mind being distracted by the events he referred to, these events actually happened at the very end of or after the initial statutory period in which the application was to be lodged. The timing of the reasons for the delay do not equate to the initial statutory period.
s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[19] The parties agreed that the Applicant’s employment was terminated on 20 August 2010 and that the Applicant admitted in his submissions that he was aware of the dismissal from that same day. The Applicant’s reasons for the delay do not justify why the Applicant was unable to lodge the application in the 14 days after the dismissal, therefore this criteria does not support the Applicant.
s.394(3)(c) any action taken by the person to dispute the dismissal
[20] The Applicant stated he contacted “Unfair Dismissal Queensland” in mid to late September 2010 for information on any potential recourse in relation to his termination. The Respondent submitted that they were not notified of the Applicant’s intention to dispute his dismissal until they were in receipt of the application from FWA on 17 November 2010, which was 89 days the after dismissal and 75 days after the statutory time limit. The lack of action taken by the Applicant to contest the dismissal does not support the Applicant in the consideration of this criteria.
s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)
[21] The Applicant submitted there that was no prejudice to the Respondent.
[22] The Respondent submitted that the application was lodged 35 days after the dismissal. The Respondent stated that they were not notified of the Applicant’s intention to dispute his dismissal until they were in receipt of the application from FWA on 17 November 2010. The Respondent contended that they therefore became aware of the application “almost 3 months after the Applicant was dismissed”.
[23] The Respondent submitted that there were also further delays due to the Applicant failing to comply with the Directions issued by FWA to file and serve his outline of submissions in relation to the jurisdictional objection. The Respondent claimed these delays have adversely affected their ability and capacity to defend the claim due to the general decline in the reliability of witnesses’ recollection of the events over time. The Respondent submitted further that the costs and disruptions expected by the Respondent if the matter was to proceed to hearing would cause a further prejudice to the Respondent. These matters are considered to be the regular matters that a Respondent would face in the defence of a claim and this factor does not work against the Applicant.
s.394(3)(e) the merits of the application
[24] The Applicant submitted that he was bullied and harassed throughout his employment. The Applicant stated that an investigation was conducted in relation to the bullying and harassment reports. However, the Applicant submitted that the investigation was “not carried out appropriately” and the other employees that the Applicant claimed were bullied and harassed by the same supervisor of the Respondent, were not interviewed as he had requested.
[25] The Respondent stated that the Applicant was dismissed for serious misconduct and alleged that he had assaulted his supervisor on 2 August 2010. The Respondent submitted that the Applicant had been disciplined for inappropriate and aggressive behaviour towards other employees on two previous occasions. The Respondent provided two “Record of Discipline Interview” reports, both signed by the Applicant, that detailed the allegations of the Applicant’s inappropriate or abusive behaviour. The Respondent submitted that on 28 November 2006 the Applicant was warned about using “aggressive language towards supervisors 3, and on 25 July 20074 he received a warning about speaking to a colleague in an “inappropriate and insulting way”.5
[26] The Applicant responded in writing to both “Record of Discipline Interview” reports. 6 In the first “Record of Discipline Interview” report7 the Applicant accepted that his behaviour may be viewed as offensive and requested “appropriate assistance” from QR Limited. In the second “Record of Discipline Interview” report8 the Applicant disputed that there were any further incidences of inappropriate behaviour.
[27] Given the differing submissions of the parties on the substantive merits of the matter, considerable weight has not been attributed to this element.
s.394(3)(f) fairness as between the person and other persons in a similar position
[28] The Applicant does not address this subsection in his submissions. The Respondent also does not identify this subsection as having any relevance in these circumstances, accordingly no weight has been attributed to this element of consideration.
Conclusion
[29] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 9 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)10 as set out below:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
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.”
[Mann v Minister for Immigration and Citizenship [2009] FCAFC 150]”
[30] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:
“[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
[31] I sympathise with the Applicant’s circumstances in regards to the events outlined with his parents, and the associated stress and anxiety that he says this caused. However, in this matter the Applicant failed to establish with any evidence that the events with his parents acted as a psychological impairment to prevent the lodgement of the application during the initial 14 day time limit. Further there was an initial period (the statutory period) after the dismissal, prior to these events intervening, where he was not prevented by such, from lodging his application.
[32] The criteria in s 394 (3) have been carefully considered. I do not consider that on the basis of material provided that there were reasons advanced as to why the application was not lodged within the statutory time limit, when the events referred to, occurred at the end or after this period.
[33] No causative link was established on the basis of the circumstances, that justified why the application, could not have been lodged, in the statutory time frame, prior to these events as referred to.
[34] Given that exceptional circumstances have not been established, to justify the failure to file the application, during the statutory time limit, the application is accordingly dismissed pursuant to s 394(2). I Order accordingly.
COMMISSIONER
1 Hamberger SDP, [2010] FWA 8895, PR504080.
2 Ibid, at [14].
3 Affidavit of Mitch Patterson, Annexure MP1.
4 Note that this date is the date the Respondent states in their submissions (at para 50) but Annexure MP1, page 4 has an “Issue Date” of 22/11/2004.
5 Affidavit of Mitch Patterson, Annexure MP 2.
6 Affidavit of Mitch Patterson, Annexure MP1 and Annexure MP2.
7 Affidavit of Mitch Patterson, Annexure MP1.
8 Affidavit of Mitch Patterson, Annexure MP 2.
9 Whelan C, [2009] FWA 1638, PR991722.
10 Lawler VP, [2009] FWA 1394, PR994029.
11 Acton SDP, Cartwright SDP and Thatcher C [2010] FWA 7251, PR501782 at [5].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR510465>
1
4
0