Richard Curie v Australian Federal Police

[2010] FWA 6769

[2010] FWA 6769

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment

Richard Curie
v
Australian Federal Police
(U2010/8293)

COMMISSIONER RYAN MELBOURNE, 31 AUGUST 2010

Application for relief re termination of employment - extension of time.

Decision

[1] The application in this matter for an extension of time to file an application under s.643 of the Workplace Relations Act 1996 (WR Act) is refused.

[2] The application made under s.643 of the WR Act by Mr Richard Curie in this matter is dismissed.

Reasons for Decision

[3] Mr Curie filed an application under s.643(1) of the WR Act on 27th April 2010 seeking relief in relation to the termination of his employment by the Australian Federal Police (AFP) on 24 June 2008.

[4] The application is 21 months out of time and Mr Curie has sought an extension of time in which to make his application. The application for an extension of time is opposed by the AFP.

[5] Written submissions with supporting material were filed by both sides in this matter. No witness evidence was presented by either side.

[6] Mr Curie commenced employment with the AFP on 9 January 2006 as a Probationary Constable located in the ACT.

[7] On or about 13 April 2007 Mr Curie’s performance was being questioned by the AFP and a Performance Management Plan was prepared but Mr Curie refused to sign the plan as he believed that he was performing satisfactorily. The Performance Management Plan was converted into a Time Management Plan.

[8] Coincidentally, it appears that on 16 April 2007 Mr Curie issued a traffic infringement notice (TIN) to Superintendent Grimm of the AFP for speeding (doing 123kph in a 80kph zone). Mr Curie asserted in his written submission that his supervisor Sergeant Rollings was a friend of Superintendent Grimm and that Sergeant Rollings improperly suggested that Mr Curie not proceed with any action against Superintendent Grimm. Mr Curie then reported Sergeant Rollings to relevant AFP authorities. On the 16th or 17 April 2007 a second AFP officer Patrol Sergeant Ghirardello recommended to Mr Curie that it was more appropriate to issue Superintendent Grimm with a caution given that the vehicle Mr Curie had been driving was not ‘speed certified’. Subsequently and independently of the above the TIN was withdrawn and a Traffic Caution Notice was issued to Superintendent Grimm.

[9] Mr Curie acknowledges in his written submission that even before the issue of Performance Management Plans or Time Management Plans was raised with him on or about 13 April 2007 that he had been under stress from being racially vilified and discriminated against and sexually harassed by senior members and team leaders and that he had already requested that AFP management transfer him from his team or from his station.

[10] On 8 May 2007 and 9 May 2007 meetings took place between Mr Curie and Superintendent McCann of the AFP. The AFP written submission identifies that the purpose of these meetings was to address the performance issues raised by the AFP in relation to Mr Curie. Mr Curie asserted in his written submission that the meeting with Superintendent McCann on 8 May and 9 May 2007 was called to have the complaints made against Sergeant Rollings withdrawn. At the same time Mr Curie raised issues concerning his supervisor Sergeant Rollings.

[11] On 11 May 2007 Mr Curie did not attend work due to being unwell. Mr Curie asserts that his inability to work related to the stress he was under associated with recent events at work.

[12] Mr Curie did not return to work with the AFP in the ACT at any time up until his dismissal. Mr Curie asserts in his written submission that he did attend the AFP offices in Melbourne several times for limited work.

[13] Mr Curie was subsequently dismissed in June 2008 although the process leading to his dismissal commenced by written notice to him on 10 April 2008.

[14] Mr Curie has been engaged in proceedings in other jurisdictions in relation to issues arising from his complaints of discrimination, harassment, bullying and in relation to workers compensation.

[15] Mr Curie had been represented by a solicitor, Mr Brian Hatch, but it appears that the solicitor terminated his representation of Mr Curie only 2 days before an AAT hearing in 2008.

[16] Mr Curie has asserted in his application and in his submissions in this matter that he has been suffering from a mental illness caused by his treatment at work with the AFP and that this mental illness has limited his capacity to pursue matters. Mr Curie has asserted that he made this application as soon as he could.

[17] I have no doubt that there are real and serious issues in dispute between Mr Curie and the AFP and most of those go to events which happened during the course of his employment, eg claims of racial vilification, sexual harassment, bullying. Other claims go to the question whether Mr Curie’s health problems are compensable under the relevant workers’ compensation legislation. Most of these matters are already before the competent tribunal or authority.

[18] It is clear that from the time of his dismissal that Mr Curie has asserted that his treatment by the AFP including his dismissal has been harsh unjust and unreasonable. Yet even when Mr Curie engaged a solicitor to act for him no application was made under the WR Act by his solicitor.

[19] If Mr Curie had made an application under s.643 of the WR Act soon after he was abandoned by his solicitor then whilst it still would have been well out of time his prospect of obtaining an extension of time would, in my view, have been relatively good.

[20] This application was made not only 21 months out of time but well over a year after Mr Curie had been abandoned by his solicitor. Even allowing for Mr Curie’s mental health I am of the view that Mr Curie could have made an application under s.643 closer to the date he was abandoned by his solicitor.

[21] Whilst there are unusual circumstances surrounding this application I am not positively satisfied that an extension of time should be granted. I have had regard to the principles for granting an extension of time as articulated in Brodie-Hanns v MTV Publishing Ltd, (1995) 67 IR 298 at 299-300,31 October 1995, Marshall J).

[22] Issues relating to his employment (including its termination) have been and continue to be pursued by Mr Curie through the AAT and HREOC. However insofar as Mr Curie instructed his solicitor to make an application under the WR Act such an application was not made. Mr Curie, after his solicitor abandoned him, did not make an application under the WR Act for well over a year. The mere continuation of the proceedings before other tribunals is not sufficient to positively satisfy me that an extension of time should be granted in this matter.

[23] Whilst I have not tested any of the issues going to merit in this matter I am of the view that the material before me indicates that Mr Curie’s unfair dismissal case in relation to termination of his employment by the AFP about 1 year after Mr Curie ceased to attend for work due to ill health has little merit.

[24] I have considered the issue of any prejudice to the AFP that may arise if an extension of time is granted. In my view no such prejudice would arise but the absence of such prejudice does not persuade me that an extension of time should be granted.

[25] Finally I have taken into account considerations of fairness between Mr Curie and other persons in a like position when considering whether or not an extension of time should be granted. In my view such considerations do not positively satisfy me that an extension of time should be granted to Mr Curie.

COMMISSIONER

Appearances:

Mr R Curie on his own behalf

Ms E Forbes for the Australian Federal Police

Hearing details:

2010.

Melbourne:

20 July

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