Richard Gault v Karara Mining Ltd
[2012] FWA 7965
•13 SEPTEMBER 2012
[2012] FWA 7965 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Richard Gault
v
Karara Mining Ltd
(C2012/3699)
COMMISSIONER SPENCER | BRISBANE, 13 SEPTEMBER 2012 |
General protections - application filed out of time - jurisdictional objection - extension of time
Introduction
[1] The Applicant, Mr Richard Gault, made an application to Fair Work Australia (FWA) pursuant to s.365 of the Fair Work Act 2009 (the Act) claiming a contravention of the general protections provisions of the Act, involving the termination of his employment by Karara Mining Ltd (the Respondent).
[2] The Applicant indicated in his application that the date of the dismissal was 18 January 2012. The Application was lodged on 2 May 2012, 104 days after the dismissal. The Applicant had been employed by the Respondent since 24 June 2011 as a ‘Senior Contracts Administrator’.
[3] The application for relief is to be made within 60 days after the dismissal took effect (s.366(1)(a) of the Act). The application was filed 44 days out of time. In accordance with section 366(1)(b), FWA may allow, under section 366(2), an application within a further period that is determined by FWA. FWA may extend the time for making the application, if it is satisfied that there are exceptional circumstances taking into account certain specified matters.
[4] Directions were set by FWA for the determination of the jurisdictional issue, and the parties were requested to respond as to whether they required a hearing. The parties confirmed a preference for the matter to be determined on the basis of the written submissions without a hearing. The parties filed their material, and whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.
Relevant legislation
[5] The relevant section of the Act is as follows:
365 Application for FWA to deal with a dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.
366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
Submissions of the Applicant
[1] The Applicant commenced employment on 24 June 2011. The Applicant commenced to provide ‘service’ at the Lochada Village Site on 27 June 2011. On 14 November 2011, the Applicant suffered severe pain in his throat which was identified by his General Practitioner (Dr David Sawdon) on 21 November 2011, as having been as a result of a myocardial infarction. 1 The Applicant was at this time dispatched to the Prince Charles Hospital to undergo tests and eventually underwent a heart by-pass operation.
[2] The Applicant submitted that during this period, and up to 18 January 2012, the Applicant and his immediate Supervisor were in regular contact during which time there was no advice that the Applicant’s employment was terminated from the Respondent.
[3] The Applicant submitted that on 17 January 2012, he sent an email to the Respondent and wrote that he ‘was forced by Karara Mining Limited as shown in [his] contract, to, take out W.A. Workers Compensation Insurance and nominate Karara Mining Ltd as Primary beneficiary with a subrogation clause’. 2 On 18 January 2012, the Applicant received a letter from Karara Mining Ltd terminating his employment.
[4] The Applicant submitted that he first accessed the FWA website, including the ‘Guide to General Protections’ and the form F8 application, on 2 March 2012 (within the 60 day period). 3
[5] The Applicant submitted that the reason for the delay in lodging his General Protections application was due to the ‘cognitive disruptions’ he was experiencing caused by a Cholesterol reducing drug Lipitor (Atorvastatin) he had been prescribed. The Applicant submitted that this drug ‘destroyed’ his memory and he was therefore unaware of the dates surrounding his dismissal. A letter from the Applicant’s doctor, forming Exhibit F to the Applicant’s submissions, indicates that the Applicant was prescribed this drug following his surgery in early December 2011 (prior to his dismissal). The letter confirmed that on 23 March 2012 the Applicant complained to Dr Sawdon that he was having memory problems since taking the drug. Dr Sawdon then switched the Applicant to another drug. The Applicant submitted that he suffered memory loss even after 23 March 2012.
[6] In response to the Respondent’s submissions that he was a contractor, the Applicant made submissions relating to the relationship between the parties. He submitted that on the basis of the normal factors considered in assessing whether he was an employee, including the level of control, basis of remuneration and provision of equipment, the relationship was that of employer and employee, regardless of what was stipulated in the contract.
Submissions of the Respondent
[7] The Respondent submitted that the relevant test as to whether “exceptional circumstances” existed, to satisfy the Tribunal, to exercise its discretion to extend time, was to be found in the matter of Baker v R 4. In that matter the Full Court held:
“We must construe exceptional as an ordinary, familiar English adjective, and not as a term of art.....To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
[8] The Respondent noted, that the Applicant’s material, attached multiple documents said to support the assertion that the Applicant was suffering from memory loss as a side-effect of taking the drug Atorvastatin. However it submitted that little or no weight should be given to this material, as it is general in nature and does not provide specific consideration to the Applicant’s case as to memory loss. Particularly the Respondent noted that the material relating to the apparent side effects of the drug were printouts from the internet and should therefore be given little weight.
[9] Similarly the Respondent submitted that the medical certificate from Dr Sawdon does not provide sufficient evidence as to whether the Applicant experienced memory loss or the extent of any such effects.
[10] The Respondent also submitted that the Applicant’s assertion that he accessed the FWA website on 2 March is not supported by the evidence, as the exhibit attached to the Applicant’s submissions is merely a printout of the Fair Work Ombudsman website. The Respondent noted that while the printout notes ‘page last updated: 2 March 2012’ it is unclear whether this date is when the Applicant last accessed the page (prior to making the printout on 20 June 2012) or when the page was last updated by the Fair Work Ombudsman. Either way, the Respondent submitted that little reliance could be placed on that element of the Applicant’s submissions.
[11] In summary, the Respondent submitted that the Applicant did not provide any medical evidence as to the specific extent and impact of the memory loss condition the Applicant complained of, and therefore no exceptional circumstances should be found.
[12] The Respondent also made submissions regarding the status of the relationship between the Applicant and the Respondent. It submitted that on 23 June 2011 the Respondent had entered into an agreement with Advanced Project Managers Pty Ltd (of which the Applicant is the sole director) to provide contract management expertise (the Agreement). From that date until 16 November 2011, the terms of the Agreement were met by Advanced Project Managers Pty Ltd. From 17 November 2011, no further services were provided by that company to the Respondent. 5
Considerations
The reason for the delay
[13] The Applicant relied on the alleged ‘cognitive disruptions’ or alleged memory loss, he stated he experienced as the reason why the application was made outside the 60 day time limit. He submitted as evidence of such, a letter from his doctor, which confirmed that the Applicant complained of memory problems on 23 March 2012 and was thereafter switched to another drug. The Applicant also submitted information, in the form of online journals and discussion boards, which suggested memory loss was a known side effect of the drug in question.
[14] The Respondent acknowledged the evidence provided by the Applicant but noted that it was general in nature and did not specify the effect, if any, the drug had had on the Applicant in the particular circumstances.
[15] I am not satisfied that the evidence provided by the Applicant in relation to memory loss provided a sufficient link to justify the reason for the delay. No persuasive submissions were made as to what matters fell within this category. That is whether he forgot the date of the dismissal or the time frame for filing.
Any action taken by the person to dispute the dismissal
[16] The Applicant did not make substantial submissions on this factor, but did note that he took action to dispute the termination by making the general protections application, which was filed in FWA on 2 May 2012.
[17] The Respondent submitted that it sent a Notice of Termination to Advanced Project Managers Pty Ltd on 18 January 2012, providing 7 days notice of termination of the Agreement (in accordance with the Agreement). The Applicant had replied with an email of 21 January 2012, requesting payment in lieu of the notice period. The Respondent replied on 23 January 2012 to the effect that it would not be making any payment. The Respondent submitted that it was not aware of any further action taken by the Applicant to dispute the termination.
Prejudice to the employer (including prejudice caused by the delay)
[18] The Applicant did not make any submissions on this factor.
[19] The Respondent submitted that it has suffered significant prejudice related to the application, in terms of the time and cost involved in preparing its submissions. It particularly noted this as a burden given their submission, that the Applicant has never been an employee and therefore does not fall within the jurisdiction of s.365 of the Act.
[20] This decision does not deal with the Respondent’s submissions that the Applicant was a contractor, however the Respondent’s submissions regarding associated prejudice of responding to this application in the circumstances where they state they acted in accordance with the agreement is recognised.
The merits of the application
[21] The Applicant submitted that substantial medical evidence supported the contention that the drug Lipitor contributed to memory loss/alteration and this constituted an exceptional circumstance that satisfied the test to extend time. Regarding the merits of the substantive matter, the Applicant submitted that an employer/employee relationship is established, allowing the application to be considered on its merits. He submitted that the Respondent had not denied dismissing the Applicant due to his illness.
[22] The Respondent submitted that there is no merit to the substantive application. It referred to the Agreement made between it and Advanced Project Managers Pty Ltd on 23 June 2011 as a contract for the provision of services. When Advanced Project Managers Pty Ltd ceased providing services to the Respondent, the Respondent exercised its rights under the Agreement to terminate the Agreement, giving the required 7 days notice. The Respondent submitted that the contractual relationship for services, between the parties, would preclude the Applicant successfully pursuing the application.
[23] This jurisdictional decision only deals with the out of time issue however it is acknowledged that in circumstances where this agreement contractor relationship was confirmed and further that the contract was brought to an end in accordance with this agreement the merits of the application would be in question.
Fairness as between the person and other persons in a like position
[24] The Applicant did not make any relevant submissions regarding this factor.
[25] The Respondent submitted that as it had no other employees in a similar position (facing termination) around the time of the termination, this factor was not relevant.
[26] Neither party suggested that this criterion had any application in the particular circumstances.
Conclusion
[27] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. In addressing the issue of ‘exceptional circumstances’, ‘exceptional circumstances’ has been considered in similar terms in relation to s.394 applications. Accordingly I adopt the approach taken by Whelan C in Parker v Department of Human Services 6 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)7 as set out below:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
[Mann v Minister for Immigration and Citizenship [2009] FCAFC 150]”
[28] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 8
[29] The ‘memory issues’ submitted by the Applicant did not provide a commensurate reason on the material provided to the period of the delay. The medical certificate and generic drug side-effect documents do not provide sufficient particularity connected to the individual circumstances of the Applicant’s case or the period of the delay to justify the extension of the time limit for filing.
[30] After a consideration of the legislative criteria in s.366(2) the extension of time for filing the application (permissible under s.266(1)(b)) is not granted. Accordingly the application made pursuant to s.365 is dismissed. I Order accordingly.
COMMISSIONER
Hearing details:
On the papers.
Final written submissions:
Applicant, 26 July 2012.
Respondent, 12 July 2012.
1 Applicant submissions, at [3], exhibit H.
2 Applicant submissions, at [10].
3 Applicant submissions, at [13].
4 (2004) HCA 45.
5 Statement of Phil Pass, dated 11 July 2012, at [8]-[13].
6 Wheelan C, [2009] FWA 1638, [30] and [31].
7 Lawler VP, [2010] FWA 1394.
8 Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].
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