Rangatira Daniel James Lim v Convatech Pty Limited

[2017] FWC 1805

[2017] FWC 1805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rangatira Daniel James Lim
v
Convatech Pty Limited
(C2017/606)

COMMISSIONER RYAN MELBOURNE, 30 MARCH 2017

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

[1] The Applicant was dismissed from his employment on 4 January 2017 and the Applicant filed a Form F8 – General protections application involving dismissal – on 3 February 2017. The application was filed 8 days (not including the public holiday on 26 January 2017) outside the 21 day time limit prescribed by s.366(1)(a) and the Applicant has sought that the Commission extend the time for filing pursuant to s.366(1)(b) and s.366(2).

[2] Both the Applicant and the Respondent were legally represented and each filed detailed submissions and material in support of their respective cases on the extension of time matter. Both parties agreed that the Commission could determine the extension of time matter on the papers and without the need for a hearing or conference.

[3] The Applicant contended that there were exceptional circumstances 1 in the present matter which warranted the Commission exercising its discretion to extend the time for making an application. The Applicant relied on the following matters:

● Three friends of the Applicant died in separate incidents between 29 November 2016 and 21 December 2016. The first person died when life support was turned off, the second died in a house explosion and the third person, a business partner of the Applicant, committed suicide on his birthday.
● The death of his business partner also required the Applicant to wind up the business and in the process to deal with the demands from the liquidator.
● On 22 January 2017 the Applicant’s 9 year old son became ill and remained ill for several days until he was admitted into hospital on 29 January 2017 suffering from acute suppurative appendicitis. The son had a laparscopic appendectomy on 29 January 2017 and was discharged from hospital on 31 January 2017.
● The Applicant contended that he suffered from mental health issues for a period of time which included from December 2016 to the 3 February 2017. The Applicant’s witness statement identifies that after he had been dismissed he had suicidal thoughts which he expressed to his wife and his mother. The Applicant provided a mental health plan from his treating physician, dated 1 March 2017, which identified that the Applicant was suffering from “mixed anxiety and depression” and which referred the Applicant to a psychologist.
● The Applicant was on holiday with his family at the time he was notified of his dismissal and did not return from holiday until 15 January 2017.
● When the Applicant was advised of his dismissal the Applicant immediately sought work in the same field and devoted considerable time and effort to finding a new job. On 1 and 2 February 2017 the Applicant was booked in to undertake confined space training and induction training for Rio Tinto.
● The Applicant contended that he had a lot of difficulty in trying to obtain professional advice and that he eventually spoke to the Fair Work Commission after the 21 day time limit had expired. As the Applicant put it in his witness statement: “I then spoke to FWC and they guided me in the right direction and advised me that there was a 21 day time limit and I had to submit a form for extension to have my case heard. I did this straight away..”.

[4] The last three points relied on by the Applicant would not be seen as being out of the ordinary in any dismissal matter.

[5] The first four dot points do identify matters which are not usually encountered by a person who has been dismissed. The death of three friends of the Applicant occurred before the dismissal but as the witness statement of the Applicant makes clear these three deaths had an impact on him after the dismissal. The mental health plan was created well after the application had been made in this matter but it has relevance in considering the reasons for the Applicant’s delay in making his application. Whilst the Applicant’s statement as to his suicidal tendencies after his dismissal is insufficient to support a finding by the Commission as to the Applicant’s state of mental health, the mental health plan with its diagnosis of “mixed anxiety and depression” both identifies a mental health illness and provides a basis for considering the Applicant’s statements as to his suicidal tendencies at a time after the dismissal but before the mental health plan was prepared. Whilst having sick children is a routine matter dealt with in any family with children the circumstances described by the Applicant are not usually or routinely encountered. It is uncommon for a sick child to need to be admitted to hospital for an operation.

[6] In the circumstances of the present matter the four issues raised by the Applicant are in combination sufficient to provide an acceptable reason for the delay in making the application in this matter. The four issues raised by the Applicant provide a credible reason for the period of the delay, namely from 25 January 2017 to 3 February 2017.

[7] The Applicant in his witness statement identifies that on the date of dismissal he spoke to Mr van der Burgt, National Human Resources Manager of the Respondent and complained that his dismissal “was unfair and unjust and this is just not right”. This one conversation on the day of dismissal appears to be the only action taken by the Applicant to dispute his dismissal.

[8] The Respondent has contended that it will suffer disadvantage and unfairness if an extension of time is given to the Applicant. However, the Respondent has not provided any evidence as to the prejudice it will suffer if an extension of time is granted. Lack of prejudice to the Respondent does not mean that the extension of time should be granted.

[9] Both the Applicant and the Respondent draw attention to the merits of the substantive application with the Applicant contending that his substantive application had merit which the Respondent contended that the Applicant’s case was completely without merit. The Commission did not embark on a detailed consideration of the substantive case and could not have done so on the papers given the paucity of material provided by both parties. The most that could be said of the substantive application is that each party’s position is tenable. In any consideration as to the existence of exceptional circumstances the issue of the merits of the substantive application has neutral value.

[10] The Commission is required to take into account each of the relevant matters identified in s.366(2). In the present matter there is no criteria in s.366(2) which strongly weighs against a finding of that there are exceptional circumstances but the criteria of the reason for the delay does weigh in favour of a finding that there are exceptional circumstances.

[11] The Commission is satisfied that there are exceptional circumstances, in this matter, having taken into account each of the relevant matters set out in s.366(2). The Commission allows the Applicant until close of business on 3 February 2017 to file his application in this matter. As the application has been filed within the time allowed by the Commission this file will be subject to further proceedings pursuant to s.368.

COMMISSIONER

 1   Nulty v Blue Star Group P/L, [2011] FWAFB 975 at [13].

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