Paul Terri v Skilled Offshore Pty Ltd

[2015] FWC 4791

[2015] FWC 4791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Paul Terri
v
Skilled Offshore Pty Ltd
(C2015/2935)

COMMISSIONER LEWIN MELBOURNE, 14 JULY 2015

Application to deal with contraventions involving dismissal – jurisdictional objection – effective date of termination – application made within 21 days – nevertheless exceptional circumstances – jurisdictional objection dismissed.

Introduction

[1] This decision concerns an application pursuant to s.366 of the Fair Work Act 2009 (Cth) (the Act). Mr Paul Terri filed an application pursuant to s.365 of the Act on 28 May 2015. Mr Terri was an employee of Skilled Offshore Pty Ltd (Skilled).

[2] Mr Terri commenced employment with Skilled in 2013. Mr Terri’s application claims that he was dismissed from his employment on 7 May 2015. Mr Terri filed his general protections application on 28 May 2015, being 21 days from the date following his dismissal.

[3] On 8 June 2015, Skilled filed their response to Mr Terri’s general protections application. Skilled made a jurisdictional objection claiming that Mr Terri’s employment with Skilled came to an end by way of Mr Terri resigning from his employment on 6 May 2015. Skilled contend that the application was made 22 days from the date following the dismissal, one day outside of the 21 day limitation prescribed by the Act.

[4] On 12 June 2015, the Fair Work Commission (the Commission) directed Mr Terri and Skilled to file and serve submissions and any witness statements in support of their respective contentions and any application for an extension of time to file the application, if required, pursuant to s.366(2) of the Act.

[5] On 19 June 2015, Mr Terri filed and served his submissions in response to the jurisdictional objection. On 26 June 2015, Skilled filed and served their submissions. On 29 June 2015, Skilled also filed and served a witness statement of Laura Michelle Fairman, a Human Resources Coordinator employed by Skilled. On 1 July 2015, both Mr Terri and Skilled consented to the application being determined on the papers.

Relevant Statutory Provisions

[6] Section 366 of the Act prescribes the time for making an application pursuant to s.365 of the Act:

“366 Time for application

(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).

(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.”

Consideration

[7] In order to determine the issue in contention it is necessary for me to make a finding concerning the effective date of the termination of employment. There is a factual controversy in relation to the circumstances in which the employment came to an end.

[8] In the event the Commission determines the employment came to an end on 6 May 2015, the parties agree that the Commission should determine the application for an extension of time pursuant to s.366 of the Act.

[9] The parties filed submissions and witness statements in relation to the factual issues concerning when the employment came to an end.

[10] In essence, the Respondent relies upon a message from the Applicant in the following terms:

“Hi Laura
Sorry I am unable to return to
Work because this ongoing sarga
Has now caused me a high family
Problems that has developed over
The last 9 weeks due to stress and
No income. My family deserve
Better…” [sic]

[11] Mr Terri works in the offshore pipeline construction industry. The work is hazardous and demands a high degree of fitness as a precaution. Skilled requires employees such as Mr Terri to undergo an annual medical examination and obtain a certificate of fitness for work. The evidence demonstrates that on undergoing the annual medical examination there was a flawed medical assessment, which caused considerable confusion as to Mr Terri’s fitness to perform work, lead to Mr Terri being unable to work as normal, caused him considerable stress and anxiety as well as financial costs associated with remedying the flawed assessment and obtaining a certificate of fitness for work. The consequences for Mr Terri, and his family, are evident in the message sent to Skilled on 6 May 2015 (as shown above). That message related to a direction from Skilled that Mr Terri commence work on 8 May 2015 after it had been resolved that the original medical examination was flawed and Mr Terri had been fit for work at all times.

[12] The witness statement for Skilled is to the effect that Mr Terri was asked if the above message meant that he was resigning from his employment on 6 May 2015 and that Mr Terri answered in the affirmative. It is therefore submitted, on the basis of this evidence, that the Commission should be satisfied that the employment came to an end on 6 May 2015.

[13] The submissions for Mr Terri are to the effect that the message of 6 May 2015 was a communication that Mr Terri was not in an appropriate state of wellbeing to safely commence the 8 May 2015 work roster as Mr Terri was stressed, angry and upset about the events concerning the flawed annual medical examination. Mr Terri maintains that his wife enquired into the subject of compensation for the period of time he was unable to work due to the flawed medical assessment and reimbursement of medical costs consequently incurred during a conversation with Skilled’s HR representative on 6 May 2015. Moreover, Mr Terri says Skilled requested that he participate in a further teleconference with his wife on 7 May 2015, at which Mr Terri was told that Skilled was unwilling to pay compensation and reimburse him for the medical costs incurred. Mr Terri found this conference call very distressing in the circumstances.

Date of termination

[14] For the purposes of this decision, I find that the employment came to an end on 7 May 2015 and that the application is within time. Whilst I have not had the benefit of observing Ms Fairman and Mr Terri, doing my best in the circumstances, I consider the evidence of Mr Terri more inherently coherent with the detailed factual matrix of the circumstances of the flawed medical examination, the effect on his ability to work, the steps necessary to rectify that situation and his concern that he could not safely return to work on the nominated date of 8 May 2015. I also find Mr Terri’s evidence of enquires made by he and his wife concerning payment of lost wages and compensation for medical costs incurred as inherently probable in the relevant circumstances. I find the evidence for the Respondent is barely limited to an alleged act of resignation and does not adequately address the relevant context and any ambiguity therein.

[15] Nevertheless, if I am wrong on this and the employment came to an end on 6 May 2015, I would nevertheless consider the circumstances of filing the application to be exceptional as follows. In my view, the only reason for the delay in the filing of the application was a result of the extraordinary circumstances arising from the flawed medical examination and the highly significant personal and financial impacts upon Mr Terri, his family and consequential effects upon Mr Terri’s ability to properly reckon the time for the filing of the Application. I accept that Mr Terri was under the impression that his employment had not come to an end on 6 May 2015, but occurred following the events of 7 May 2015, but did not take action to dispute the dismissal until the filing of the application, which he thought was in time.

[16] I find there is no prejudice to the Respondent in accepting the application one day out of time. The delay is minimal and would not cause the Respondent any disadvantage in responding to the application. I treat the merits of the application as neutral.

[17] I am unaware of any other employees in similar circumstances to Mr Terri. On the evidence before me I consider it highly unusual for an employee to be the subject of such a fundamentally flawed medical examination as that to which Mr Terri was subject. The effect on Mr Terri was highly significant; he was unable to work, his employer refused to pay him even though it was ultimately established by further medical examination that Mr Terri was at all times ready, willing and able to work.

[18] Given I have found that there are exceptional circumstances, that the extension of time is minimal, and having regard to the particular circumstances under which the employment came to an end, I find it appropriate to exercise the discretion to accept the application.

COMMISSIONER

Hearing details:

On the papers.

Final written submissions:

26 June 2015.

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