Paul Souter v K&S Freighters Pty Ltd

[2017] FWC 2362

[2017] FWC 2362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Paul Souter
v
K&S Freighters Pty Ltd
(C2017/1385)

COMMISSIONER ROE MELBOURNE, 28 APRIL 2017

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

[1] Mr Souter was employed by K&S Freighters Pty Ltd from 20 April 2016 until 15 August 2016. He was employed for a short time earlier in 2016. The following facts were accepted by the parties:

• Date of dismissal: 15 August 2016.



• The dismissal was by telephone on the 15 August 2016.



• Mr Souter made contact with the Company around November 2016 disputing his dismissal and advising that he would take the matter to FWC.



• The general protections application was made on 15 March 2017.



• The application was therefore more than six months late.

[2] Section 366 of the Fair Work Act 2009 provides that I may allow a further period for the application if I am 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 similar position.

The reasons for delay

[3] The reason given for the delay is “I was unable to deal with it due to my medical condition.” Mr Souter has provided two medical certificates. The first of those certificates states that Mr Souter is suffering from a major depressive disorder and that he is grieving for the death of his son. The illness is said to have begun on 29 March 2016. Mr Souter is said to be unfit for work from 3 April 2017 until 3 July 2017. Mr Souter is said to be “feeling overwhelmed and to have low mood, fatigue and poor concentration.” The second certificate states that Mr Souter was suffering from major depression and that he has been unfit for work from 1 September 2016 until 2 November 2016. Mr Souter was said to be suffering from “low mood, poor concentration and frustration.” The medical certificates are in a format Mr Souter’s medical practitioner completed for Centrelink. Mr Souter gave evidence that he had also provided Centrelink with a similar medical certificate for the remaining period from November 2016 to April 2017.

[4] Mr Souter gave evidence that he had been exempted by Centrelink from the requirement to apply for jobs throughout the period since the dismissal.

[5] I am satisfied that Mr Souter was in an impaired condition and unable to work during the period since his dismissal. I am also satisfied that his symptoms of poor concentration, low mood and fatigue would satisfactorily explain some of the period of delay. However, incapacity to work and incapacity to complete an unfair dismissal application are two different things. I have seen many circumstances where a person has been unable to work but has been capable of completing an unfair dismissal application.

[6] I asked Mr Souter why he said that he was unable to complete the application throughout the period of the delay and he said that he was barely able to go out of the house or to look after himself and that he found completing tasks including the unfair dismissal application to be overwhelming and he just had to walk away. I asked him why he was able to meet Centrelink’s requirements but not able to complete an unfair dismissal application and he said that because he was exempt from having to apply for jobs all he had to do was leave a message each fortnight that his circumstances had not changed. I asked him why he did not complete the unfair dismissal application in November when he rang his employer to contest his dismissal and told them he was proposing to make a Fair Work Commission application. He said that he was unable to and he didn’t know why but I wouldn’t understand unless I had been through what he had been through. I asked Mr Souter what changed which enabled him to complete his application on 15 March 2017. Mr Souter said that the 19^th March would have been his son’s 21^st birthday if it had not been for his tragic death and that he knew that things would fall apart then and so he decided that he had to get through paper work prior to that time and he managed to complete the application.

[7] K&S Freighters did not challenge Mr Souter’s evidence concerning the reasons for delay. I accept his evidence that Centrelink have exempted him from applying for work and the implication that he is not capable of meeting the activity test requirements normally required of unemployed persons seeking to receive benefits.

[8] It would have been preferable if Mr Souter had provided direct medical evidence of his capacity to complete the unfair dismissal application. However, I have to determine this matter based upon the evidence which is before me. Although there are some shortcomings in the adequacy of the evidence I am prepared to accept Mr Souter’s evidence that he was incapable of making the application due to his illness during the period between the dismissal and the 15 March 2017. That is during the whole of the period of the delay. It is impossible for me to fully understand the impact the death of Mr Souter’s son has had on his health and his capacity. I am prepared to accept his unchallenged direct evidence that as a consequence of his ill heath he was not capable of completing the unfair dismissal application during the entire period of the delay.

[9] I am therefore satisfied that the reason for the whole of period of the delay supports a finding of exceptional circumstances justifying an extension of time.

Action taken to dispute the dismissal

[10] Mr Souter did make one contact with the company around November 2016 disputing the dismissal. This is a neutral factor because there was some action taken but there was little substantive or persistent action taken during a long period of delay.

Prejudice

[11] The period of delay is significant and I therefore consider that there may be some prejudice to the employer in defending the action due to the potential loss of memory of participants. K&S Freighters did not make a submission or provide any evidence of prejudice. In the absence of any submission or evidence I find this to be a neutral factor.

Merits

[12] Mr Souter says that the dismissal was at least in part due to him raising complaints about his employment and health and safety and due to him exercising his rights to personal leave. These matters could potentially form the basis of a finding of a breach of general protections. The termination letter said that “during the probation period your suitability and fit for the role/organisation is assessed and regretfully it has been determined that we do not think that an ongoing employment relationship is tenable.” K&S Freighters in their submission say that :

“The applicant was involved in a workplace behaviour incident on/around 11 May 2016, where it was reported by another worker that his behaviour was threatening and aggressive. At the conclusion of the investigation it was determined that the applicant’s behaviour was unacceptable and that the other worker did not make the claimed comments. After receiving his written warning the applicant did not accept the outcome, and engaged in multiple emails to the Company making broad allegations relating to the incident and concerns related to work practices. The Company attempted on numerous occasions to meet with the applicant to discuss his concerns and resolve the matters. The applicant refused offers to meet the Company personally and continued his email correspondences. A review of his grievances conducted around July 2016, concluded that his claims were not substantiated.”

[13] K&S Freighters denies any breach and says that they were supportive of Mr Souter in his illness, that the complaints were properly dealt with and that the dismissal was not for a prohibited reason.

[14] Given that Section 365 matters place the onus on the employer and that the company’s own submission suggests that there may be some relationship between the dismissal and Mr Souter’s complaints about his employment, it may be difficult for the company to discharge the onus. As I have not heard the evidence it is not possible to come to any conclusions. However, there is sufficient before me to conclude that the merits of the matter are either a neutral factor or a factor which stands in favour of a finding of exceptional circumstances.

Fairness with others in a similar position

[15] Neither party raised any issues in respect to this matter and I am satisfied that it is a neutral factor in this case.

Conclusion

[16] Considering all of the factors in Section 366 leads me to conclude that there are exceptional circumstances which justify an extension of time in this case. The reasons for delay and the absence of other factors which tell against a finding of exceptional circumstances is the major reason why I have come to this conclusion. The matter will now be listed for conciliation conference.

COMMISSIONER

Appearances:

Mr P Souter on behalf of himself

Ms K Evans on behalf of the respondent

Hearing details:

2017

Melbourne

28 April

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