Roshan Rodrigo v Mawland Quarantine Station Pty Ltd T/A Q Station

[2014] FWC 5766

[2014] FWC 5766 [Note: An appeal pursuant to s.604 (C2014/6471) was lodged against this decision - refer to Full Bench decision dated 30 January 2015 [[2015] FWCFB 376] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Roshan Rodrigo
v
Mawland Quarantine Station Pty Ltd T/A Q Station
(C2014/3612)

DEPUTY PRESIDENT BOOTH SYDNEY, 1 SEPTEMBER 2014

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

[1] Mr Rodrigo was employed as a chef by Mawland Quarantine Station Pty Ltd trading as Q Station from October or November 2010 until the termination of his employment by Q Station on 30 January 2014 on grounds of unauthorised absence.

[2] He lodged an application in the Fair Work Commission pursuant to s.365 of the Fair Work Act 2009 on 21 March 2013.

[3] Q Station lodged an objection to the application on the ground that the application was lodged out of time.

[4] The application was listed before Commissioner Cambridge for conciliation. Conciliation failed to resolve the matter. Commissioner Cambridge cannot issue a certificate pursuant to s.368 of the Act saying that the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, because the application was lodged out of time. Mr Rodrigo cannot take his application any further unless that certificate is issued, because applications that are not lodged within the time period specified in the Act are not considered to have been made.

[5] The issue to be considered is whether Mr Rodrigo should be granted an extension of time.

[6] Mr Rodrigo was self represented in the hearing before me. Q Station made application for permission to be represented by a lawyer. This application was declined.

[7] Before Mr Rodrigo could make his submission or give evidence he became ill and could not continue. I proposed to the parties that a decision be made on the basis of written submissions and both Mr Rodrigo and Q Station agreed to this.

[8] The Act requires an application made pursuant to s.365 of the Act to be made within 21 days after the dismissal took effect unless it is satisfied that there are exceptional circumstances and it is appropriate to exercise its discretion to grant an extension of time. 1

[9] The date Mr Rodrigo’s dismissal took effect is disputed. Q Station wrote to him on 30 January 2014 and the letter of termination said that he was dismissed “effective immediately”. However Mr Rodrigo says that he was overseas at the time, returned to Australia on 10 February 2014 and did not collect the letter of termination until 20 February 2014 when he visited his sister.

[10] He says the 21 day period should be calculated from 3 February 2014, the date presumed to be the earliest likely date a letter posted on 30 January 2014 would arrive. Alternatively, the date the dismissal took effect could be said to be 20 February 2014, the date Mr Rodrigo became aware that the employment relationship had ended. 2

[11] On any analysis Mr Rodrigo’s application is out of time. He lodged his application on 21 March. At best, if his date of dismissal was 20 February, it is was lodged on day 29 after his dismissal and on his own submissions taking his date of dismissal as 3 February it was lodged on day 46 after his dismissal. The number of days an application is out of time is not a factor in determining whether to grant an extension of time 3 and I do not propose to determine the date the dismissal took effect, but rather accept that the application is out of time.

[12] In exercising my discretion in relation to this application I am mindful that when time limitations are set in legislation the applicant for an extension of time has the onus to demonstrate that an exception to the time limit ought to be granted. 4 The Act makes it clear that an extension of time may (my emphasis) be granted by the Commission if there are exceptional circumstances. When there are exceptional circumstances the judgement to be made is still the Commission’s to make.

[13] There are certain matters that are set out in s.366(2)(a) to (e) of the Act that I must take into account in determining whether I am satisfied that there are exceptional circumstances. I will address each of these factors in turn.

Reason for the delay

[14] I must consider the explanation for the entire period from the date of dismissal to the date of lodgement. 5

[15] Mr Rodrigo was on extended authorised leave from Q Station from around 2 April 2013. He was diagnosed with bi-polar disorder with onset from 1 July 2013. In October 2013 he travelled to Sri Lanka to be cared for by his family as his sister would no longer care for him in Sydney. He was on authorised unpaid leave until 28 January 2014. He did not return to Australia until 10 February 2014. Q Station’s efforts to contact Mr Rodrigo around this time were not successful. He says he was homeless when he returned to Australia until he accessed temporary public housing. This is not disputed by Q Station however they question its relevance given the application was lodged much later than his return to the country.

[16] He says he suffers from impairment of cognitive capacity due to anxiety, depression and bipolar disorder and that this contributed to the delay in lodging his application.

[17] A report dated 16 July 2014 from Eva Wong, Psychologist says:

“Clinical interviews and psychometric tests including Depression, Anxiety and Stress Scale 21 (DASS 21) and Beck’s Depression Inventory II indicated that he is suffering from

Major Depression, Chronic, Severe, with Suicidality

Bipolar mood disorder to be ruled out,

Personality traits to be ruled out

Mr Rodrigo’s clinical symptomatology is one at a very severe level . Initial psychological treatment has been started. I have contacted Croydon Mental Health Care Team twice to discuss about his medication regime and attempt to secure him to consult a psychiatrist.
.......

In summary Mr Rodrigo is a 49-year-old male who suffers from severe Major Depression with onset of one year. His emotionality as well is cognition are seen to have adversely affected him causing significant impairment in judgement and decision making as well as impacting on his personal, social and occupational functioning.”

[18] The Q Station says this psychological report addresses his presentation as at 16 July 2014 and is not relevant to his reasons for late lodgement between February and March this year. However I conclude that it has utility in corroborating at least one earlier report. Dr Fang reports on 20 February 2014 that Mr Rodrigo has been a client with St George Community Mental Health Service. Dr Chan reports on 23 April 2014 that Mr Rodrigo has severe obstructive sleep apnoea. A medical certificate from Dr Cung on 28 May 2014 says Mr Rodrigo is unfit for work from 28 May to 11 June 2014 . Q station says that the latter two reports do not explain why Mr Rodrigo could not lodge his application on time. I accept that submission.

[19] I accept that Mr Rodrigo is suffering from mental illness. I think it is likely that he was suffering from this condition at the time of his return to Australia and beforehand. That illness is undoubtedly a great burden and I do consider that it is “out of the ordinary course, or unusual, or special or uncommon”. 6

[20] However there is no evidence that he was prevented or obstructed from making an application to the Commission earlier than he did. He was able to arrange accommodation upon his return to Australia and if he could do this he could have lodged his application to the Commission. This weighs against the exercise of my discretion to grant him an extension of time.

Any action taken by the person to dispute the dismissal

[21] The action Mr Rodrigo took to dispute his dismissal was to lodge this application. He says he had to wait for an appointment with Legal Aid for 3 weeks after he learnt of his dismissal. He lodged his application the day after this appointment. If I accept that he couldn’t begin the process until after he received the letter on 20 February he still took around 8 days before seeking out Legal Aid. It is not an exceptional circumstance to have to wait for an appointment with Legal Aid and he did not have to wait for an appointment with Legal Aid before lodging his submission. This circumstance does not weigh in favour of the exercise of my discretion to grant him an extension of time.

Prejudice to the employer (including prejudice caused by the delay)

[22] There is no submission concerning this factor and I regard this factor as neutral in my decision making.

The merits of the application

[23] Mr Rodrigo is very unwell and it would appear that he is unable to work at the moment. His absence from employment was authorised until 28 January 2013. It extended over a more than 9 month period. This is longer than the 3 month period contained in the Fair Work Regulations 7 that provide that “an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”

[24] Given the material before me I think a general protections court application would have limited prospects of success. This weighs against the exercise of my discretion in favour of Mr Rodrigo.

Fairness as between the person and other persons in a like position

[25] There is no submission concerning this factor and I regard this as neutral in my decision making.

Conclusion

[26] Taking into account all the circumstances of this case, and considering the matters I am required to take into account pursuant to s.366 (a) to (e) of the Act, I have decided against granting Mr Rodrigo an extension of time to lodge his application.

[27] This is a case in which I believe there are exceptional circumstances in the form of Mr Rodrigo’s illness but in all the circumstances I have decided against granting Mr Rodrigo an extension of time to lodge his application.

[28] I order that his application pursuant to s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

R.Rodrigo, the Applicant

Ms Dalton, Accor Hotel Group, for Mawland Quarantine Station Pty Ltd

Ms Clarke, Accor Hotel Group, for Mawland Quarantine Station Pty Ltd

Hearing details:

2014

Sydney

July 14

Final written submissions:

Applicant’s submissions 18 July 2014

Respondent’s submissions 23 July 2014

 1 s.366 Fair Work Act 2009.

 2   Beverly Jean Burns and Aboriginal Legal Service of Western Australia (Inc.) Print T3496.

 3   Ozsoy v Monstamac Industries Pty Ltd 2014 FWCFB 2149.

 4   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [551].

 5   Note 3.

 6   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

 7 Reg 3.01 Fair Work Regulations 2009.

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