Peter Wright v Heidelberg General Engineering Co. Pty. Ltd
[2024] FWC 2850
•14 OCTOBER 2024
| [2024] FWC 2850 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Wright
v
Heidelberg General Engineering Co. Pty. Ltd.
(U2024/10572)
| COMMISSIONER PERICA | MELBOURNE, 14 OCTOBER 2024 |
Application for an unfair dismissal remedy
On 9 September 2024, Mr. Peter Wright made an application claiming he was unfairly dismissed from his employment with Heidelberg General Engineering Co. Pty. Ltd (HGE).
BACKGROUND FACTS
Mr. Wright commenced working for HGE in August 2003 as a full-time machinist.
Absence from work since April 2021
In 2021 Mr. Wright ceased working by reason of a work-related injury which Mr. Wright claims was due to “workplace bullying”. Mr. Wright has not been back at work since April 2021.
His WorkCover claim was accepted by HGE’s insurer and he went on weekly WorkCover payments from 16 April 2021. Since that time, Mr. Wright has not returned to work at HGE on a return-to-work plan. HGE’s obligation to supply duties under the Workplace Injury Rehabilitation and Compensation Act 2013 ceased in April 2022.
Mr. Wright in his oral submissions expressed an unwillingness to work at HGE or have any communication with HGE. HGE in its evidence states “the WorkCover insurer has commenced making direct payments of WorkCover monies instead of doing this by HGE. This step is generally taken when an employee informs WorkCover or the WorkCover insurer that they do not want direct contact with the party that employed them”.
Commencement of employment with another employer from September 2021 to April 2023
In his Form F3, Mr. Wright confirms that from “September 2021, a friend of mine let me work for him part time to help me earn some money to support my family. Two months later my WorkCover case was accepted, HGE and WorkCover knew I was working part time to help with my mental health issues. I received no notification that my employment with HGE had ended”. In his oral submissions, Mr. Wright gave evidence that he was employed at that employer from September 2021 to April 2023.
E-mail contact between Mr. Wright and HGE’s human resources consultant.
In late July 2024 Mr. Wright commenced e-mail correspondence with Ms. Suzane Diprose, a Director of the Human Resources firm Performance Advantage, the HR consultant used by HGE. What follows is a summary of the e-mail exchange between Ms. Diprose and Mr. Wright.
30 July 2024
11:14 AM
Mr. Wright emailed Ms. Diprose and asked for “all my entitlements paid out”.
4:28 PM
Ms. Diprose replied “Hi Peter. I will get some figures for this and get back to you. We will also need a resignation date from you – even if hypothetical at this point”.
6:11 PM
Mr. Wright responded to Ms. Diprose, “resignations shall be immediately, thanks” (emphasis added)
31 July 2024
12:55 PM
Ms. Diprose emailed Mr. Wright and stated “Hi Peter. From this email, I take it that your resignation date was yesterday? Please confirm.”
3:44 PM
Mr. Wright replied “Hi, if you would like to use yesterday’s date as an arbitrary date to work out my entitlements that is ok.......I am not capable of work at the moment. Thanks.”.
4:04 PM
Ms. Diprose responded ““Hi Peter. We can calculate your entitlements, but I need a firm day of resignation.” Mr. Wright responded at 4:16PM “Please pick perhaps tomorrow for my 4 weeks as an example.”
4:32 PM
Mr. Wright sent a further e e-mail “ “As fair work have told me, I do not need to provide an exact date of resignation for you to be able to provide me with what my entitlements will be. They say you can calculate these simply by giving me breakdown going from the date I give 4 weeks’ notice, Please just provide this for me.”
4:41 PM
Ms. Diprose emailed Mr. Wright stating that “Hi Peter The work cover consultant will be making the calculations. Expect to hear from them.”
12 August Letter from HGE’s legal representative.
Following this e-mail exchange, Ms. Sarina Cowle of the firm Sarina Lea Cowle & Associates (SLC) sent a letter on behalf of her client HGE which stated:
“We refer to your recent email exchange with Suzanne Diprose, HR Consultant for Heidelberg General Engineering (HGE). I wish to advise that I also act for HGE.
We note that you referred, in that email exchange, to your resignation and suggested that it be taken to be the 30th July, 2024.
We do not accept that your employment with HGE was in existence as of the 30th of July, 2024 by reason that –
1. your 52 weeks of WorkCover expired on the 14th May, 2022;
2. you were employed at another workplace in certain periods post HGE (we understand from 1st September 2021 to April 2023); and
3. you have not worked at or contacted HGE for that considerable period.
Your employment with HGE, in our view and on our legal advice, ceased on 1st September, 2021…”
[The letter went to calculate the gross amounts of Mr. Wright’s entitlements.]
In his oral submissions Mr. Wright conceded that he has a present and ongoing incapacity to work, and he is currently on WorkCover payments.
The contest on the date of the dismissal
Whether there has been a dismissal in this case at all, and the date of any dismissal, is vexed.
HGE argues that there is no dismissal at the initiative of the employer and contends the employment of Mr. Wright came to an end on two alternative dates:
September 2021: The cessation of employment occurred in September 2021 at the initiative of Mr. Wright when he commenced employment with another employer because that constituted a repudiation of the employment relationship with HGE.
30 July 2024: The e-mail correspondence between Mr. Wright and Ms. Diprose “in seeking payment of entitlements Mr. Wright evinced a belief that the employment was already over, and he should therefore he paid his entitlements.” HGE rely on an e-mail which was sent by Mr. Wright on 30 July 2024 at 6:11PM “Hi resignations shall be immediately thanks”. HGE argue this e-mail terminated the employment relationship.
Mr. Wright argues he was dismissed on 12 August 2024 when he was unequivocally notified of the cessation of his employment relationship in the letter of SCL and given a calculation of his gross entitlements.
Out of time application must be considered before a no dismissal jurisdictional objection
The question of whether an application for an unfair dismissal remedy is made outside the required time is not strictly a jurisdictional objection. An unfair dismissal application made outside the time required is not validly made unless and until a further period has been granted.
The Full Bench in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Ltd makes it clear that it is “not a proper approach” to deal with jurisdictional objections “before finding that an application is made within the required period or granting a further period”.[1]
The question whether there was a dismissal is determined after the question of whether a further period should be given if there are exceptional circumstances. If there is a finding that time should be extended, it is open for HGE to make a jurisdictional objection on the basis that there has been no dismissal. The extension of time application must be dealt with first.
Was the Application made within 21 days after the dismissal took effect?
An unfair dismissal application must be made within 21 days after the dismissal took effect, the 21-day period does not include the day on which the dismissal took effect.
I find the dismissal took effect on 30 July 2024 by his e-mail which stated “Hi resignations shall be immediately thanks”. The final day of the 21-day period was 20 August 2024 and ended at 11:59 PM on that day.
Mr. Wright’s application was filed at 12:34 pm on 9 September 2024. It was made 20 days late. I therefore need to consider whether to make an order to extend the period to make the application.
I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:
(a) Mr. Wright’s reason for the delay;
(b) When Mr. Wright first became aware of the dismissal after it had taken effect;
(c) any action taken by Mr. Wright to dispute the dismissal.
(d) prejudice to HGE (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between Mr. Wright and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.
Reason for the delay
Mental health issues
Mr. Wright says the reason for delay is his “mental health does not allow me to respond in a timely manner any normal person would I tend to shut down and it takes me a lot longer to be to take the initiative to follow things up”.
Mr. Wright filed a medical report dated 4 October 2024 from Dr. Kenneth Davidson, a psychologist at Mawarra Psychological Services, who Mr. Wright has seen for 55 sessions from May 2021 to September 2024. In that report, Dr. Davidson states:
“At the beginning of treatment in 2021, Mr. Wright met the DSM criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood. Due to that worsening of his symptoms he currently meets DSM 5 criteria for Major Depressive Disorder with Anxious Distress, Moderate- Severe
Due to his mental health condition Mr. Wright stated that whenever he is in a stressful situation he tends to become very indecisive and procrastinates.
Additionally, he reported that he will often avoid taking action at all and he often neglects responsibilities.
Mr. Wright’s inability to lodge his unfair dismal (sic) claim on time is a direct result of his ongoing mental health issues.”
HGE argues Mr. Wright still had capacity to make a TPD Claim and pursue his entitlements
HGE refutes Mr. Wright’s incapacity due to his mental health because he was able to approach HGE for his entitlements and to instruct Shine lawyers with respect to a total and permanent disability claim (TPD):
“In 2024 the Applicant was able to find and instruct Shine lawyers prior to him filing his application, so as to pursue a TPD application. It argues Mr. Wright was under his own steam able to make contact with the Respondent to seek payment of entitlements. The taking of these steps is evidence that the Applicant’s mental state was such that he could have made the application or instructed lawyers to make a UD application within time. This factor weighs against extending time for his UD application.”
Consideration
Exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not need to be unique nor unprecedented, nor even very rare.
In this case, there is medical evidence Mr. Wright has a “Major Depressive Disorder, Moderate, with Anxious Distress Moderate to Severe”. His treating psychologist opines “Mr. Wright’s inability to lodge his unfair dismissal claim on time is a direct result of his ongoing health issues”.
The argument of HGE is that he was able to instruct lawyers to make a TPD claim and to pursue his entitlements. In my view those activities can be distinguished from lodging of an unfair dismissal claim because they are less time critical. The medical opinion confirms his failure to lodge the dismissal on time is a direct result of his ongoing mental health issues. The fact he was able to perform less time critical tasks does not alter the veracity of that opinion.
The existence of a serious mental illness affecting his capacity to file an application on time is not usual or common. It is out of the ordinary. This factor counts in favour of a finding of exceptional circumstances.
When did Mr. Wright first become aware of the dismissal after it had taken effect?
Mr. Wright was notified of the dismissal on the same day on 30 July 2024 some 41 days before he lodged his unfair dismissal claim. He had the benefit of the full period of 21 days to lodge the unfair dismissal application. Given his medical condition, this is a neutral factor in a finding of exceptional circumstances.
What action was taken by Mr. Wright to dispute the dismissal?
It is not disputed Mr. Wright did not contest his dismissal between being notified of it on 30 July 2024 and the filing of his unfair dismissal claim on 9 September 2024. This counts against a finding of exceptional circumstances.
What is the prejudice to HGE (including prejudice caused by the delay)?
HGE argues if an extension of time were to be granted it would prejudice HGE. It argues:
“In this matter, the Applicant has for 3.5 years by his actions and silence communicated that he could not and did not want to return to work for the Respondent. The Respondent has employed other employees to perform machinist work. The Respondent is aware that the Applicant does not want to work in its workplace or with its management again. To impose on this situation an unfair dismissal construct by virtue of an extension of time, would cause the Respondent the potential prejudice of putting on its books an employee who never wants to work for it, thereby creating an unnecessary administrative and financial burden.”
This is a strong argument that counts as a factor against a finding of exceptional circumstances.
What are the merits of the application?
Mr. Wright’s argument on the merits of the application are as follows: “I think my case should be looked at because HGE has been misleading and are doing this to me to shortchange me from my true entitlements. I believe I have suffered unfairness given the fact that I left the for-workplace bullying, and am still suffering with my mental health”.
HGE argues the application has no merit. It argues:
“Mr. Wright has been absent for years from the workplace and has been clear that he wants no communication, yet alone return to work, with HGE. If there was a dismissal by HGE, which is denied, there was nothing harsh, unjust or unreasonable about the dismissal. Mr. Wright is on WorkCover, pursing a TPD claim and has evinced nothing but disinclination about ever returning to work for the Respondent over several years. The application would be unlikely to be found to be unfair.
Further, even if there was an unfair dismissal, in relation to remedy: clearly reinstatement, being the primary remedy, is not sought or viable by either party;[and] in relation to compensation, so far as HGE is aware the Applicant has no capacity, or desire, to work in its workplace in the foreseeable future or ever.
In that circumstance, given that compensation is based on likely future earnings and those future earnings are zero, any compensation would be zero. Further, even if there was compensation of more than zero available, which is not the case, then it would be reduced by any WorkCover payments. In short, compensation would render no meaningful remedy.”
None of these submissions address whether the dismissal was harsh, unjust or unreasonable or makes an assessment of the evidence relative to merit arguments by reference to ss 385 or 387. The submission of HGE as to the practicality of the proceeding or as to the likelihood of a remedy being awarded does not address the merit question. I therefore cannot make an assessment on the merits for the purposes of this factor. It follows, this factor is neutral to a finding of exceptional circumstances.
Fairness as between Mr. Wright and other persons in a similar position
Neither party made submissions on this issue. There is nothing for me to weigh in my assessment of whether there are exceptional circumstances under s 394(3)(f).
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
· Reasons for Delay: Mr. Wright has serious mental health conditions. His treating psychologist has said “his failure to lodge the dismissal on time is a direct result of his ongoing mental health issues”. The existence of the serious mental health conditions is an exceptional circumstance. Therefore, this factor counts in favour of an extension of time under s 394(3)(a).
· Awareness of the dismissal: Mr. Wright first became aware of the termination of his employment on 30 July 2024. He had the full benefit of the 21-day time limit to bring the application. Given his medical condition this factor is a neutral consideration.
· Action taken to dispute the dismissal: it is not contested that between being given notice of the dismissal on 12 August and the filing of the application on 9 September he took no action to dispute the dismissal. This counts against an extension of time being granted.
· Prejudice to the employer: I accept the arguments of the employer that an extension of time in the circumstances of this case would lead to prejudice to it. This is a significant factor against granting an extension of time.
· Merits: None of the submissions put to me enable an assessment of the merits of this case. It follows the merits of the application are a neutral consideration as to whether an extension of time should be grated granted under s 394(3)(e).
· Fairness between persons No submissions were made on fairness arising between Mr. Wright and other persons in a similar position.
I therefore conclude:
· the reasons for the delay under s 394(3)(a) counts in favour of an extension of time.
· Mr. Wright took no action to dispute the dismissal before he lodged the application. This counts against an extension of time under s 394(3)(c).
· The prejudice to the employer as a result of the application is an important factor against the granting of an extension of time under s 393(3)(d).
· The following factors are neutral:
o Whether he first became aware of the dismissal under s 394(3)(b)
o The merits of the application under s 394(3)(e); and
o Fairness as between Mr. Wright and other persons in similar position under s 394(3)(f).
Only one factor counts in favour of an extension of time being granted. Two factors count against an extension of time being granted and three are neutral. In this case, the prejudice to the employer should an extension of time being granted is a significant and important factor. Therefore, on balance, taking into account all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[3]
COMMISSIONER
Appearances:
Mr. Peter Wright, the Applicant, for himself.
Mr. James Hooper of counsel on behalf of the Respondent.
Hearing details:
11 October 2024
Microsoft Teams
[1] [2022] FWCFB 234.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] PR780198.
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