Paul West v Central Wheatbelt Division of General Practice (Inc) T/A Wheatbelt GP Network

[2015] FWC 1170

[2015] FWC 1170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul West
v
Central Wheatbelt Division of General Practice (Inc) T/A Wheatbelt GP Network
(U2015/2414)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Mr Paul West alleges that the termination of his employment by Central Wheatbelt Division of General Practice (Inc) (the Practice) was unfair.

[2] Mr West’s employment with the Practice ended on 1 October 2014 but he did not file his unfair dismissal application until 16 January 2015. The unfair dismissal application was therefore not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal 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.

(a) the reason for the delay;

[4] Mr West said that he originally filed his application electronically on 27 November 2014 but he only discovered that it had not been received when he contacted the Commission on 15 January 2015. 1 In his submissions Mr West said he lodged the form electronically on 21 November 2014 and in cross examination Mr West said he was unsure of when he lodged the form electronically. Mr West’s application was signed on 27 November 2014.

[5] Even if Mr West had filed his application on 21 or 27 November 2014 his application would not have been filed within the required 21 days.

[6] Mr West submitted that whilst he was aware that employees could make an application for unfair dismissal he did not think he could because his income was above the high income threshold. He gave evidence that at the time of his dismissal he would have settled his claim if the Practice had met his claim for what he called his ‘entitlements’. Mr West met with the Secretary of the Board on 3 October 2014 and asked him to convey to the Board his proposal to settle the matter. Mr West sent a detailed email to the Board on 26 October 2014 again proposing to settle the matter. 2 On 18 November 2014 he again wrote to the Board and advised them that he was filing an application with Fair Work Australia. Again Mr West indicated a willingness to resolve the matter. Mr West gave evidence that at the time of his dismissal he was unwell and provided a medical certificate which stated that he was unfit for work from 19 September until 3 October 2014.

[7] Mr West had consulted a lawyer prior to his dismissal but he did not discuss with this lawyer what remedies were available to him if he was dismissed. Mr West gave evidence that after his dismissal he could no longer afford legal representation. He gave evidence that some time before 18 November 2014 he consulted an industrial advocate.

[8] Mr West said that his health deteriorated seriously after his dismissal. 3 Mr West was not cross examined on this evidence.

[9] Mr West had been advised by correspondence from the Commission that if he contended that health issues prevented him from making the application then he needed to provide a certificate/report that explained how his medical condition prevented him from making the application. Apart from the medical certificate that he was unfit to work until 3 October 2014, Mr West did not provide any medical evidence that his medical condition prevented him from lodging his application.

[10] Mr West accepted that he knew about the unfair dismissal regime when he was attempting to negotiate a settlement with the Board and he knew for example that there was a 6 month cap on compensation.

[11] Mr West said he knew before 18 November 2014 that he had 21 days to lodge the application and he was already out of time. Mr West said he did not know why he then waited until 27 November 2014 to file his application.

[12] Mr West in cross examination said that he had made the application only after he had looked at everything else. Had the Board negotiated a settlement with him he would not have made this claim.

[13] Mr West gave no evidence of what he did after 27 November 2014 to follow up his application with the Commission. On his form F2, he advised that he only contacted the Commission on 15 January 2015.

[14] Even if I assume that Mr West lodged his application on 27 November 2014, I am unable to conclude that, before this date, Mr West’s medical condition prevented him from lodging an application. Mr West was during this time able to communicate with the Board in an attempt to settle his claim. There is no explanation of why Mr West was medically able to do this but not able to complete and lodge his application.

[15] Mr West knew that employees could file unfair dismissal claims. I accept that Mr West thought that he was not eligible to make an application. However, ignorance of the right to make a claim is not unusual. Further Mr West advised the Board on 18 November 2014 that he was going to make a claim. He had spoken to an industrial advocate prior to this date. He was aware that his application was out of time yet he did not immediately lodge his application.

[16] Mr West’s evidence about when he uploaded the application is unclear. I do not accept that he attempted to lodge the application before the date on which it was signed. Mr West has not provided an explanation about why having advised the Practice that he was going to lodge the application he waited another 9 days to lodge his application.

[17] Mr West was entitled to see if he could settle his application without recourse to litigation. However, he took the risk that the 21 days time limit would expire before that attempt had been finalised. There was no impediment to Mr West making his unfair dismissal application at the same time as he was attempting to settle his claim.

[18] Mr West gave evidence that his lawyer did not give him advice about possible remedies before he was dismissed. However, there was no evidence that he had sought such advice. Further, he did not consult his lawyer after his dismissal. That he could not afford to do so is not unusual. He did consult an industrial advocate prior to 18 November 2014 but he still did not lodge his application until 27 November 2014.

[19] I therefore find that Mr West’s reasons for the delay weigh against granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[20] Mr West was aware of the dismissal when it took effect and had the full 21 days to lodge his application. This weighs against the granting of an extension to time.

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

[21] Mr West disputed his dismissal at the time and took steps to resolve the dispute arising from his dismissal. This weighs in favour of granting an extension of time.

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

[22] It was submitted that the Practice would be prejudiced because it would now be exposed to the cost of running an unfair dismissal claim. It was submitted by Mr West that no one had been appointed to his position and therefore no prejudice would flow to the Practice. Mr Kemp from the bar table advised that an appointment had been made and the person would take up the position after the public holiday. No objection was taken to this statement.

[23] While I accept that there would be prejudice to the Practice, it is not sufficient to weigh against the granting of an extension of time.

(e) the merits of the application;

[24] Mr West contended that he was covered by an enterprise agreement. The practice disputed this and it said the scope of the Agreement excludes the Chief Executive Officer (CEO). The Agreement is said to apply to employees employed on a salaried basis. There was no dispute that Mr West was an employee employed on a salaried basis. The Practice submitted that Mr West’s position as CEO was not contemplated by the classification structure. I am not able to resolve this dispute as the matter was not fully argued. I am prepared to find that the Mr West has an arguable case that he was covered by the Agreement and hence the high income threshold did not apply.

[25] Mr West submitted that the termination of his employment could only be done by the Board. The letter of termination was signed by the Chair of the Board and states that the Board had determined to terminate Mr West’s employment. I am unable to resolve this issue as there is insufficient evidence before me to decide this issue.

[26] Mr West’s employment was terminated for failing to perform his functions as CEO to the satisfaction of the Board. Mr West disputed the findings of the Board and said that the investigative process followed by the Board was unfair and the dismissal was unfair.

[27] While I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested, Mr West’s case is not unarguable and I find that this weighs in favour of granting an extension of time.

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

[28] Mr West submitted that given his medical condition it was understandable that he needed more than 21 days. I do not accept this submission for the reasons outlined above. The Practice submitted that others in similar situations to Mr West have not been granted an extension of time. I consider this criterion to be a neutral consideration.

Conclusion

[29] Mr West does not have a reasonable explanation for the whole of the delay in lodging his application. I do not consider that the strength of his case nor the steps he took to dispute his dismissal outweighs the other criteria. Accordingly, Mr West’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

G Sturman for the Applicant.

S Kemp for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link.

17 February.

 1 F2 filed by Mr West

 2   Exhibit R2

 3   Exhibit A1

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