Paul Wakelam v Uniting Agewell Victoria T/A Uniting Aged Care

[2017] FWC 3004

[2017] FWC 3004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Paul Wakelam
v
Uniting Agewell Victoria T/A Uniting Aged Care
(C2016/7672)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 31 MAY 2017

Application to deal with contraventions involving dismissal.

[1] Mr Paul Wakelam alleged that the termination of his employment by Uniting Agewell Victoria trading as Uniting Aged Care was in breach of the general protections provisions of the Fair Work Act 2009. UAC denies the allegation.

[2] At the hearing, I granted permission for UAC to be legally represented. I accepted the submission that it would be unfair to not grant permission because UAC was not able to represent itself effectively.

[3] In his outline of argument, Mr Wakelam said his dismissal did not take effect until 8 December 2016. The letter of termination provided to Mr Wakelam on 7 December 2016 confirmed the advice given to Mr Wakelam on 7 December 2016 that his employment was terminated effective 7 December 2016. Mr Wakelam did not dispute this and said that he finished up on 7 December 2016.

[4] As I am satisfied that his dismissal took effect on 7 December 2016, his general protections application lodged on 29 December 2016 was not made within 21 days of the date the dismissal took effect.

[5] The Fair Work Commission can extend time for the lodging of a general protections application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6]
The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[7] Mr Wakelam submitted that a family member’s illness and his sacking caused him distress. He provided a medical certificate dated 12 April 2017 which advised that Mr Wakelam had attended his doctor on 4, 14, 22 and 28 December 2016. His condition was such that his doctor recommended hospitalisation. Mr Wakelam declined due to his concerns about his family member.

[8] Mr Wakelam, at the hearing, gave evidence that in December he also attended his psychiatrist.

[9] Mr Wakelam is autistic and is cognitively impaired. He gave evidence of the impact of that condition on his capacity to function. He further gave evidence that a family member discouraged him from making this application because it would harm the church. He said given his religious beliefs he thought it would be wrong to make a claim.

[10] Mr Wakelam gave evidence that his condition caused him to blame himself for his dismissal. He felt he had been judged by the church and found wanting. He further blamed himself for his family member’s illness because, in part, he had worked back late. He said his disabilities meant that there were many days when he could not do anything. He gave evidence that his disabilities caused him to focus on the wrong things and caused him to do things in the wrong order. He said his disabilities caused him to miscalculate the date he needed to lodge the application. He further gave evidence that he was only able to make the application after exhausting himself so that his mind would stop racing.

[11] Mr Wakelam acknowledged that during this period he was able to send emails to UAC, amend his LinkedIn contacts, make a Facebook post, attend doctors’ appointments and on 29 December complete a detailed 14 page application in relation to this claim.

[12] Mr Wakelam had an unfortunate series of events in his personal life prior to his dismissal. It was his evidence that he was still grieving during the time he needed to file this application. Also his family member’s illness demanded significant attention. Mr Wakelam was one day late in filing his application. On the day the application was due Mr Wakelam attended his doctor.

[13] UCA submitted that I should give the doctor’s certificate little weight as the doctor was not called to give evidence. There was no objection to the tendering of the medical certificate and while it does not describe the severity of Mr Wakelam’s cognitive impairment that the medical practitioner recommended Mr Wakelam be hospitalized, is an indication of the severity of Mr Wakelam’s medical condition.

[14] UCA submitted that suffering stress, shock or confusion as a result of the dismissal is not unusual and I accept that submission. However Mr Wakelam’s stress and confusion was affected by his medical condition, his impairments, his family member’s serious condition and recent events. Mr Wakelam’s evidence of his circumstances took his stress, shock and confusion beyond what is normally experienced by dismissed employees.

[15] UCA submitted that Mr Wakelam could function during this period. He attended medical appointments, sent emails and prepared a coherent lengthy application. It submitted that nothing changed between the 28 December and 29 December that explained why Mr Wakelam was able to make the application on 29 December rather than 28 December.

[16] Normally ignorance of or confusion about the date for filing an application would not favour an applicant. However if an applicant faces a particular disability that contributes to his or her ignorance or confusion then that disability must be considered. In this case I accept Mr Wakelam’s evidence that his disabilities caused him to be confused about the date. I also accept Mr Wakelam’s evidence that his disabilities meant that he was not able to simply fill in the form. His anxiety and fear meant he needed to write a detailed application. I accept that his disabilities caused him to delay making the application until the last minute.

[17] I am satisfied that the medical and personal issues faced by Mr Wakelam during this time provide a reasonable explanation for the delay in lodging his application.

[18] This weighs in favour of a finding that there are exceptional circumstances.

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

[19] Mr Wakelam was in communication with UAC immediately after the termination. These emails disclose that Mr Wakelam was trying to understand the reasons for his dismissal. I consider that this is a neutral consideration.

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

[20] No particular prejudice was relied upon by UAC. Given the application was one day late this is appropriate. While a lack of prejudice does not by itself establish exceptional circumstances I am satisfied that a lack of prejudice weighs in favour of such a finding.

(d) the merits of the application;

[21] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."  3

[22] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 4 

[23] Mr Wakelam was terminated during his probation period. Mr Wakelam submitted that he was dismissed because he asked to take carer’s and bereavement leave and because of his family and carer’s responsibilities.

[24] In its response to the application and in its submissions, UAC said it dismissed Mr Wakelam due to his performance and conduct during the probationary period. Similarly UAC denied that it dismissed Mr Wakelam for the reasons he alleges and submitted that it had approved Mr Wakelam’s applications for leave and had made adjustments for his family and carer’s responsibilities. However no evidence was called by UAC to support that submission. UAC submitted that I should find that the merits are a neutral consideration.

[25] In circumstances where no evidence was called by UAC I am satisfied that Mr Wakelam’s case is not without merit particularly given the onus will be on UAC to establish that his requests for carer’s and bereavement leave and his family and carer’s responsibilities were not one of the reasons for his dismissal. This weighs in favour of a finding that there are exceptional circumstances.

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

[26] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5 considered this criterion and said:

"cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.” 6

[27] There were no submissions that there were any persons in a similar position. I consider this criterion to be a neutral consideration.

Conclusion

[28] I am satisfied that there are exceptional circumstances. Mr Wakelam has a reasonable explanation for the delay and the other criteria are either neutral or weigh in favour of a finding of exceptional circumstances. I am satisfied that the circumstances faced by Mr Wakelam were, when taken together, out of the ordinary course. Having found exceptional circumstances the decision to grant an extension of time is discretionary. There was no submissions made as to why I should not exercise my discretion to extend time particularly given Mr Wakelam was only one day late.

[29] As the matter has been to conciliation a certificate will now be issued.

DEPUTY PRESIDENT

Appearances:

P. Wakelam on his own behalf.

L. Pallot for the Respondent.

Hearing details:

2017.

Melbourne, by telephone:

31 May.

 1   [2011] FWAFB 975.

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 5   [2015] FWC 8885.

 6 Ibid at [29].

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