Paul Burden v Downer EDI Services Pty Ltd

[2015] FWC 1590

[2015] FWC 1590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Paul Burden
v
Downer EDI Services Pty Ltd
(C2014/7197)

DEPUTY PRESIDENT KOVACIC CANBERRA, 11 MARCH 2015

Application to deal with contraventions involving dismissal - extension of time.

[1] Mr Paul Burden (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 25 November 2014 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed on 10 October 2014 and that his dismissal was in contravention of the general protections provisions of the Act. On 2 December 2014, Downer EDI Services Pty Ltd (Downer - the Respondent), objected to the application on the grounds that it had been made outside the 21-day timeframe specified in s.366(1) of the Act.

[2] On 1 December 2014 the Commission issued directions requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Those directions invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with its directions. Neither party asked to be heard on the matter.

[3] In addition to both parties lodging outlines of submissions, Mr Burden filed two affidavits, the second on 5 March 2015. Mr Colin Dobson, Downer’s Surfacing Manager - South Coast and Mr Burden’s former supervisor, filed an affidavit on behalf of Downer.

[4] The Commission convened a brief telephone hearing on 5 March 2015 to enable it to ask the parties a number of questions regarding their outline of submissions and evidentiary material.

[5] For the reasons set out below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.365 of the Act. Accordingly, the application cannot proceed and the application is therefore dismissed.

Background

[6] Mr Burden commenced employment with Downer in July 2008. Mr Burden resigned from his employment on 13 October 2014. On 26 September 2014, Mr Burden was asked to attend a meeting on 30 September 2014 with Mr Colin Dobson, Downer’s ACT Manager, and two other Downer staff. The meeting was to discuss Mr Burden’s “performance in relation to “At risk behaviour” in the workplace.” Specific issues identified for discussion were:

“... the following events:

• Placing yourself in the line of fire.



• Not focussing on the task at hand and putting yourself and others at risk.



• Not identifying hazards discussed during toolbox talks.”

[7] Based on the material before the Commission, I understand the term “Line of fire” to be the area behind a moving vehicle.

[8] Mr Dobson attests that Mr Burden took Carer’s Leave for the period 26 September 2014 to 9 October 2014 to care for his injured mother and that as a result the proposed performance meeting did not occur until 10 October 2014. Mr Burden on the other hand attests that he was on medically certified stress leave for the period 25 September to 9 October 2014 as a result of the death of two close friends and a debilitating injury to his mother.

[9] What occurred at the meeting of 10 October 2014 is disputed. Mr Burden alleges in his application that he was dismissed at that meeting, whereas Mr Dobson attests that Mr Burden requested that he (Mr Dobson) hold off making a decision as to disciplinary action so that he (Mr Burden) might consider his options over the weekend. This request was apparently made after Mr Burden was informed by Mr Dobson that the most likely outcome was that Mr Burden would be dismissed. As noted above, Mr Burden tendered his resignation on 13 October 2014.

[10] Mr Burden lodged his general protections application on 25 November 2014, 43 days after he tendered his resignation and 22 days outside the 21 day statutory timeframe specified in s.336(1) of the Act. I note that Mr Burden asserts that he was constructively dismissed on 10 October 2014. Relying on this date would see his application lodged 25 days outside the statutory timeframe. The difference is not material.

[11] Mr Burden states in his application that the decision to dismiss him flowed from a workplace injury that he had suffered in August 2012 and the likelihood of Downer having ongoing obligations in relation to that injury under workers’ compensation legislation. In short, Mr Burden alleged that adverse action was taken against him in breach of s.340 (which relates to exercising or not exercising workplace rights) and s.351 (which relates to discrimination) of the Act. Downer, in its submissions, disputes Mr Burden’s contentions in this regard.

The Relevant Legislation

[12] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC 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.”

Whether to allow a further period for the application to be made

[13] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[14] Mr Burden submitted that that he was experiencing extenuating medical circumstances in the period prior to his termination. In his first affidavit, Mr Burden attested that “It was only during my meeting with Boettcher Law on 21 November 2014 that I became aware that a time limit of 21 days applies to a general protections application.” Mr Burden further attested that during the delay period he was recovering “from a stress related condition and was not focussed to progress any compensation issues that would prevent my recovery.”

[15] In his second affidavit, Mr Burden stated that:

(i) in the period 1996 to 2008 he had a compensable worker’s compensation claim involving a post-traumatic stress condition; and
(ii) he had a stress related condition from 26 October 2014 to 21 November 2014, though he had not obtained professional expert opinion on this condition.

[16] Mr Burden, in his submissions, relied on the decision of the Federal Court of Australia in Reeve v Ramsay Healthcare Australia Pty Ltd 1(Reeve) in asserting that the death of his two friends and his mother’s injury impaired him to the extent that he was incapable of taking action to dispute his dismissal.

[17] For its part, Downer submitted that there were no exceptional circumstances involved in the late lodgement of Mr Burden’s application. Downer further submitted that Mr Burden had at no stage prior to his resignation indicated that the period of Carer’s Leave in late September/early October was for personal stress reasons. At the hearing, Downer stated that the medical certificate provided by Mr Burden relating to that absence referred to his mother’s injury and the death of his friends and stated that Mr Burden was “shaken by a series of disasters.” However, the certificate made no mention of stress.

[18] One of the key reasons for the delay relied upon by Mr Burden was that he was not aware of the 21 day statutory timeframe until he met with Boettcher Law on 21 November 2014. However, that meeting occurred well outside the 21 day period (either 18 or 21 days depending on the termination date used). As to the stress related condition suffered after his dismissal/resignation, Mr Burden did not provide any medical evidence to support his submission on this point. With regard to the decision in Reeve, in which Commissioner Cloghan acknowledged the death of the applicant’s grandmother during the statutory time frame for lodgement for an application made under s.773 of the Act, the Federal Court noted that despite this the Commissioner “....was not satisfied that there were exceptional circumstances shown to explain the delay.” 2

[19] Finally, I note that in his second affidavit Mr Burden attests that he spoke to a solicitor after 10 October 2014 in respect of his trust payments for a redundancy position. Noting that that discussion occurred after the performance meeting with Mr Dobson, Mr Burden did not provide any explanation as to why he did not raise with the solicitor the issue of the options available to him to challenge his dismissal, particularly as Mr Burden contends that he was dismissed at the 10 October 2014 meeting.

[20] Taken together, these factors support a finding the reason for the delay was that Mr Burden was unaware of the statutory timeframe.

(b) Any action taken by the person to dispute the dismissal

[21] Mr Burden attests that during the delay period he unsuccessfully tried to contact the Australian Workers’ Union (AWU) and the Construction, Forestry, Mining and Energy Union (CFMEU) to discuss his ability to progress his compensation and termination claims. In his second affidavit, Mr Burden states that he sought to make contact with these organisations on a total of eight occasions. Beyond this, Mr Burden appears to have taken no steps to dispute his termination until he met with Boettcher Law on 21 November 2014.

[22] Downer disputed Mr Burden’s evidence, citing that the AWU did not have a presence in the ACT or any members among its workforce. As to the CFMEU, Mr Dobson attested that he had contacted Mr Hardy of the CFMEU on 30 September 2014 to give him a heads up that he may be contacted by Mr Burden requesting that he participate in the above mentioned performance meeting as a support person. Mr Dobson further attested that Mr Hardy’s response was that Mr Burden was not a member of the CFMEU but that he would nonetheless be willing to participate if contacted. As such, Downer submit that Mr Burden’s attempts to dispute his termination only occurred after the 21 day statutory timeframe had elapsed.

[23] At the hearing of 5 March 2015, Mr Burden stated that he had spoken to Mr Hardy of the CFMEU prior to taking the period of personal leave in mid-September 2014 and that Mr Hardy advised him to obtain a medical certificate for that period. In those circumstances it is somewhat odd that the CFMEU did not return Mr Burden’s calls as he attests.

[24] Based on the material before the Commission, I am unable to reach a definitive view on whether or not Mr Burden took action to dispute his dismissal. While I accept that Mr Burden probably did try and contact the AWU and CFMEU, as noted above no explanation was provided as to why he did not raise his dismissal in the abovementioned discussion with a solicitor on or about 10 October 2014.

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

[25] Downer submitted that it would be prejudiced if an extension of time were granted, further contending that Mr Burden’s application was an attempt to pursue a commercial settlement.

[26] Mr Burden submitted that Downer would not be prejudiced if an extension of time were granted as the delay in lodgement was modest.

[27] I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[28] The general protections provisions which Mr Burden contends were contravened by Downer are set out at paragraph [10] above. However, Mr Burden provided little if any material to substantiate his contentions in this regard.

[29] As previously noted, Downer disputes that it contravened the general protections provisions of the Act.

[30] A further issue which would need to be determined in any Court proceedings is whether Mr Burden resigned or was dismissed.

[31] Based on the limited material before the Commission, the merits of the application appear less than compelling.

(f) Fairness as between the person and other persons in a like position

[32] No views were expressed on this point.

Conclusion

[33] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 3(Nulty) in the following way:

“[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.

[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...” [Underlining added]

[34] As noted in Nulty, ignorance of the statutory timeframe does not constitute an exceptional circumstance. While Mr Burden contends that he was recovering from a stress related condition during the delay period, he provided no evidence to substantiate that assertion. In those circumstances, the only logical conclusion which can be drawn is that the primary reason, if not the sole reason, for the delay was that Mr Burden simply was not aware of the 21 day statutory timeframe. That finding, together with my observation above that merits of the application are less than compelling, weigh very heavily against a finding that there were exceptional circumstances warranting the granting of a further period for the making of an application.

[35] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.365.

[36] Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be separately issued.

DEPUTY PRESIDENT

Appearances:

R Markham for the Applicant.

C Carloss for Downer EDI Works Pty Ltd.

Hearing details:

2015.

Melbourne-Canberra-Brisbane (telephone):

March 5.

<Price code C, PR561752>

 1 [2013] FCA 499

 2   Ibid at [21]

 3   [2011] FWAFB 975

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