Richard Michael Tanner v Nortec Employment and Training Ltd
[2022] FWC 1805
•11 JULY 2022
| [2022] FWC 1805 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Richard Michael Tanner
v
Nortec Employment And Training Ltd
(C2022/2391)
| DEPUTY PRESIDENT BELL | MELBOURNE, 11 JULY 2022 |
General protections dismissal dispute - application filed out of time –circumstances exceptional – extension of time for filing allowed
This is an edited version (edited for grammatical, typographical and stylistic purposes) of the decision delivered ex tempore and recorded in transcript on Wednesday, 29 June 2022.
Mr Tanner, whom I will refer to as the Applicant, has made an application to the Commission under section 365 of the Fair Work Act for the Commission to deal with a dispute arising out of the Applicant's allegations that he was dismissed from his employment with the Respondent, Nortec Employment and Training Ltd, whom I will refer to as the Respondent.
Subsection 1 of section 366 of the Fair Work Act provides that an application under section 365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The parties agree, and I so find, that the dismissal took effect on 22 March 2022 and the application was made on 13 April 2022, some 22 days after the dismissal took effect. I am therefore satisfied that the application was not made within the 21-day period after the dismissal took effect and it remains to be considered whether it was made within such further period as the Commission will allow.
Under subsection (2) of section 366 of the Fair Work Act the Commission may allow a further period for a dismissal dispute of this kind to be made to the Commission if it is satisfied that there are exceptional circumstances, taking into account the matters specifically listed in that subsection. They are:
(a) the reason for the delay;
(b) any action taken by the Applicant to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
As the Full Bench of the Commission has confirmed in its decision of Stogiannidis v Victorian Frozen Food Distributors, which has a publication number of [2018] FWCFB 901, each of these matters must be considered in assessing whether exceptional circumstances exist.
The first matter is the reason for the delay
The Applicant's evidence regarding the reason for the delay was advanced primarily through his witness statement, supported by various documentary evidence. In short, that is a combination of matters but significantly includes the suffering of ongoing fatigue, medication with side effects, and other matters that were occurring at the time, more of a personal nature, including moving of house.
In relation to the delay the Respondent submitted - and this is by way of broad summary - that the mistake of the date was really one of miscalculation. The Applicant was prioritising various personal matters and in the written submissions that were filed, stated that the medical evidence should not be accepted, certainly on face value, and that evidence was not at the time supported or corroborated by any documentary evidence from the Applicant that might otherwise support the matters that have been alleged.
In relation to medical matters, some further evidence of a documentary kind was subsequently filed and there was some objection to that but I was satisfied that the material was relevant. It is not appropriate to refer to the detail of those matters here but I accept the matters described in those letters, from treating practitioners, as being correct. The conditions described in those documents was a condition I would consider a serious one.
The practitioners were not called but the letters, from certain practitioners in the Gold Coast Hospital as well as its emergency section, were not challenged. Since 2 February 2022, there was a hospital admission, diagnosis and (perhaps relevantly for present purposes) among other symptoms there were strong symptoms of lethargy and general malaise.
A subsequent letter, dated 27 June 2022, from a treating practitioner for the Applicant refers to clinical assessment by that treating doctor on 2 March 2022, where she describes “extreme fatigue” and other symptoms. That letter describes various side effects, including “nausea” and “worsening fatigue”, variously persisting through to - the letter describes – “late April”.
Mr Tanner corroborates those matters by his evidence. I accept his evidence and that has some significance - that is those symptoms were certainly operative during the period from 22 March through to 12 April, when the general protections claim ought to have been filed. Having considered the evidence, I accept that there is some force to the Respondent's submissions that the Applicant was capable of engaging in personal matters. That submission is correct. But equally, the medical evidence, to my mind, shows that the reasons for the delay, including that the Applicant's admitted mistake about the date it was filed, was materially contributed to by the Applicant's illnesses at the time.
The next matter I must consider is the action, if any, taken by the Applicant to dispute the dismissal
The Applicant submitted some actions to dispute the dismissal. Aspects of these were in truth actions prior to the dismissal, which was attempting to take steps to negotiate an exit prior to termination. There was some evidence that during that negotiation process, there was a statement to the effect that, if those negotiations were not successful, a general protections claim would be brought. In one sense, that was foreshadowed.
After termination, it was said by the Applicant that there was a further statement to that effect that was made, although it was made orally and it would appear to be more in passing. Having regard to the evidence, I find that the Applicant took some limited actions to dispute the dismissal but they were not extensive.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
It is not really in dispute, and I so find, that in the circumstances there would be no prejudice to the Respondent if an extension of time were granted. The Respondent did not contend, as I understood it, otherwise.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits application are set out, in part, in the filed materials. Most of the detail is from the Applicant and the Form F8 (filed by the Applicant) refers to an email dated 11 February 2022 titled: 'Allegations of misconduct'.
The alleged behaviour described in that letter included - on the Respondent's account:
anger and outbursts towards those in the Applicant's vicinity,
talking down to persons, often in a condescending way,
frequently yelling at staff under the Applicant's management, and
eroding the confidence of people under his management.
The Applicant disputes those matters and the Applicant says - presumably by way of support of the general protections claim - that they were only raised following the Applicant commencing sick leave on 2 February 2022.
Nonetheless, a meeting with an externally appointed investigator occurred on 21 February 2022. The Applicant's application said this meeting went for about two hours, although he complains that specific allegations were not provided or discussed. Indeed, the Applicant complains that still remains the case.
Then there was a meeting with the CEO, described as occurring on 3 March. From the Applicant's perspective, as outlined in his application, that did not appear to go favourably. He was asked (on his version) if the Applicant might resign and if the employment continued that a formal investigation would follow. Perhaps not unmindful of what might be perceived as commercial realities, the Applicant sought to negotiate an exit arrangement. The details of his negotiation attempts are not necessary but they were unsuccessful from the Applicant's perspective and, on 22 March 2022, the Respondent exercised contractual rights of notice to terminate the contract.
That termination is challenged, the implication being from the Applicant that the reasons proffered by the employer were contrived in relation to the dismissal or at the least the taking of sick leave was an operative substantial factor in relation to the decision to terminate. The Applicant's case that he was terminated due to sickness is, I would observe, not without some challenges. While he raises a number of procedural matters, whatever the validity of those complaints, however, the key question will ultimately appear to be whether the Respondent - through the CEO, it appears, in present case - believed the allegations set out in the letter to be sufficiently founded to exercise its contractual rights.
Unlike an unfair dismissal complaint, the fact that later evidence might show the CEO's beliefs to be factually misplaced - because, for example, the events did not occur as he might have believed them to occur - is of itself not an unlawful reason for dismissal. I note for completeness that the Applicant's salary and package appears to place him above the high-income threshold for unfair dismissal.
These matters indicate that this factor may be against the Applicant as to whether exceptional circumstances might exist and I would also note, although not necessary to do so, even if the termination decision was infected by the fact of an unlawful reason - such as being due to sickness as opposed to the investigation said to have been supported by complaints - that nonetheless suggests that ongoing employment might be limited and any loss would be small.
If it was also the case that those other matters the subject of the investigation either had merit or sufficient merit that would have ultimately resulted in a termination at a later stage in any case.
However, having examined the material and considered the submissions, it is evident to me that the merits of the application will turn quite strongly on contested points of fact, evidence in respect of which would be heard and weighed in hearing of the merits of this matter if an extension of time were to be granted.
In the absence of a hearing of the evidence of this matter, it is certainly not possible or appropriate for me to make a firm or detailed assessment of the merits. The Applicant has an apparent case, certainly supported by a temporal connection to his taking of sick leave, to which the Respondent has an apparent defence, supported in particular by what would be a credible process of an allegations letter and the appointment of an external investigator.
In the circumstances, I find it is not possible to make an assessment of the merits of the application.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
This can be dealt with more shortly. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find therefore there is nothing for me to weigh in my assessment as to whether there are or are not exceptional circumstances.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account each of the matters I have just considered under section 366
As set out by the Full Bench at paragraph 13 in the decision of Nulty v Blue Star Group, which is at [2011] FWAFB 975, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an Applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist (see the Full Bench’s decision in Becke v Edenvale Manor Aged Care at [2014] FWCFB 6809).
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist. See for example the Full Bench decision of Ellikuttige v Moonee Valley Racing Club at [2018] FWCFB 4988 and Weir v Hydro-Chem at [2017] FWCFB 758.
Mere ignorance of the statutory time limits is not an exceptional circumstance, although ignorance in this case was not relied upon. The Applicant said he was aware of the 21-day limit. This is certainly made clear in the Full Bench decision in Nulty v Bluestar Group, referred to above.
As noted by Deputy President Asbury in a different decision, Jalil v BMD Constructions at [2014] FWC 9357, the miscalculation of the required timeframe to lodge an application is not, without more, an exceptional circumstance.
I have referred to the factors above and in my view, they are largely neutral between the parties on the factors relating with action taken to dispute the dismissal, prejudice to the Respondent and fairness as between other persons. It is with some hesitation, given the matters that I have raised, I consider the merits of the matter to be a neutral matter as well. The hesitation was whether that would be neutral or slightly in the Respondent's favour there.
The reasons for delay, however, is a matter I consider in the Applicant's favour. The medical matters raised are, in my view, a fairly serious illness or perhaps illnesses, depending on what the final medical advice ends up being. I consider that to have been an actuating factor. The symptoms certainly included nausea and worsening fatigue, variously persisting through to late April.
Mr Tanner had corroborated those matters by his evidence, which I indicated I accepted, and I find that this impacted Mr Tanner's miscalculation (and it was in my view a miscalculation). He was certainly not absolutely prevented from undertaking tasks, including what the Respondent correctly points out were some tasks in the more ordinary or routine nature, but I do consider that he was seriously impeded.
Having regard to all of the matters listed at subsection (2) of section 366 of the Fair Work Act, I am satisfied that there are exceptional circumstances.
Conclusion
Being satisfied that there are exceptional circumstances, the question is whether to allow a further period for the application to be made. Having regard to them, and the requirement for the Commission to exercise its powers in a manner that is fair and just, given my findings that there were exceptional circumstances, I am satisfied that it is appropriate to extend the period for the application to be made to 13 April 2022.
I order that:
Mr Tanner's application to allow him a further period to make an application for a general protections remedy is granted, and
Mr Tanner may make an application for his application by 13 April 2022, which he has done.
The parties will be contacted in due course as to having the matter referred to a conciliation conference.
DEPUTY PRESIDENT
Appearances:
R Tanner on his own behalf.
K Harrison from the Respondent.
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
29 June.
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