Stephen Clark v Liebherr-Australia Pty Ltd

[2019] FWC 5493

[2019] FWC 5493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Clark
v
Liebherr-Australia Pty Ltd
(U2019/4819)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 7 AUGUST 2019

Unfair dismissal application – jurisdictional objection – late application – exceptional circumstances – extension of time granted.

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Stephen Clark a further period for his unfair dismissal application (Application) to be made against Liebherr-Australia Pty Ltd (Liebherr).

Hearing

[3] On 30 July 2019, a hearing, by telephone, was conducted in relation to Mr Clark’s application for an extension of time. Prior to the hearing, I issued, at my own instigation, an Order for the Production of Documents to Mr Clark, requiring him to produce copies of all email and text message communications between himself and Mr Keenon Endacott of the CFMMEU, in the period from 29 March 2019 to 29 April 2019. Mr Clark complied with that order and a number of those emails were subsequently tendered into evidence.

[4] Mr Clark tendered a number of documents and gave oral evidence in support of his application.

[5] Liebherr cross examined Mr Clark, and made submissions opposing the granting of an extension of time.

Legislative scheme

[6] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[7] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3

[8] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”   

Consideration

Paragraph 394(3)(a) - reason for the delay

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6

[10] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 7 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,8the Full Bench explained (at [31]) the correct approach by reference to the following example:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[11] A credible explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s 394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided a credible explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 9

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[12] As to credible explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 10

Relevant chronology of events and reasons for delay

[13] On 27 March 2019, Mr Clark participated in a telephone discussion with representatives from Liebherr, at which time he was told he would no longer have a job and he needed to attend a meeting on 29 March 2019, but he was not told when his employment would come to an end.

[14] On 29 March 2019, Mr Clark attended a meeting with his union representative, Mr Keenon Endacott of the CFMMEU, and representatives from Liebherr. At this meeting, Mr Clark was provided with a letter which stated that his employment would terminate on 29 March 2019.

[15] There is no dispute between the parties, and I am satisfied on the evidence, that Mr Clark’s employment with Liebherr came to an end on 29 March 2019.

[16] The 21 day time period for Mr Clark to make his Application expired on 20 April 2019. 11 Given that Mr Clark filed his Application on 29 April 2019, the Application was filed 9 days late.12

[17] In accordance with the principles summarised in paragraphs [10]-[11] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 20 April 2019 to 29 April 2019. However, the circumstances from the time of the dismissal on 29 March 2019 must be considered when assessing whether there is credible explanation for the delay, or any part of the delay, beyond the 21 day period.

[18] The relevant timeline of events after Mr Clark’s dismissal on 29 March 2019 were as follows. Immediately after the meeting, Mr Clark spoke with Mr Endacott about filing an unfair dismissal application. Mr Clark gave evidence, which I accept, that Mr Endacott informed him that an unfair dismissal application had to be filed in the Commission within 21 days of the dismissal, Mr Endacott would take care of preparing the application, and Mr Endacott needed to speak to Mr Tim Coulter, a former employee of Liebherr, about the instructions given to employees about fatigue management.

[19] On about 4 April 2019, Mr Clark attended the CFMMEU’s offices in Cessnock, at which time Mr Endacott took a statement from him. At that meeting, Mr Clark gave evidence, which I accept, that Mr Endacott informed him that he needed to get into contact with Mr Coulter, and once he had all the information he needed, he would speak to his boss to make a decision about filing an unfair dismissal application on Mr Clark’s behalf.

[20] On about 5 April 2019, Mr Clark gave evidence, which I accept, that he spoke to Mr Coulter by telephone and Mr Coulter was willing to assist. Mr Clark then spoke to Mr Endacott by telephone on about 8 or 9 April 2019 and informed Mr Endacott that he had spoken to Mr Coulter and he was willing to assist.

[21] On 9 April 2019, Mr Clark was informed that he would need to have surgery on his neck on 11 April 2019.

[22] At 10:19am on 9 April 2019, Mr Clark sent an email to Mr Endacott in which he informed Mr Endacott of the following: “I’m having my surgery on Thursday this week the 11^th so I won’t be contactable for a few days after.” 13 Mr Endacott replied at 11:33am on 9 April 2019 in the following terms:14

“Hi Steve

Thanks for the update below. A decision has to be made about filing your application.

I have phoned and left two messages for Tim Coulter. He has not returned my call. Can you please chase him up to give me a call. For us to make a decision about your application, I need to speak with Tim. The issues he had with fatigue are required.”

[23] Mr Clark accepts that by the time he read this email from Mr Endacott he was aware that Mr Endacott needed to speak to Mr Coulter before a decision could be made as to whether the CFMMEU would file an unfair dismissal application on Mr Clark’s behalf.

[24] I accept Mr Clark’s evidence that he made a number of attempts, without success, to have Mr Coulter call Mr Endacott. Mr Clark’s evidence in this regard is supported by his email to Mr Endacott sent at 10:07am on 15 April 2019. I address this email in further detail below.

[25] On 11 April 2019, Mr Clark was admitted to Gosford Private Hospital, at which time Dr Parkinson performed an operation known as “C4/5 foraminotomy” on Mr Clark’s neck. The operation was complicated for two reasons, as Dr Parkinson explained in his post operative progress report: 15

“Firstly, during the surgery I inadvertently commenced the operation on the incorrect side [of Mr Clark’s neck] (the right side). Approximately half way through decompressing the nerve, I recognised this and proceeded to complete the surgery as planned on the left [side of Mr Clark’s neck]… it is unlikely this will cause any long-term complications for Stephen…

Secondly, five days postoperatively, Stephen developed a significant wound infection. He was admitted to Royal North Shore Hospital and taken back to theatre for wound debridement. Cultures grew methicillin-sensitive Staph aureus and he was given flucloxacillin, initially intravenously for one week and then orally for another week. He has recovered completely from this infection by all evidence…”

[26] On 12 April 2019, Mr Clark was discharged from Gosford Private Hospital but continued to take pain killing medication.

[27] At 8:45am on 15 April 2019, Mr Endacott sent an email in the following terms to Mr Clark:

“Hi Steve

Sorry to disturb you as I know you recently underwent surgery, however I was wondering how you were going with Tim Coulters. As I indicated in my earlier email, he has not got back to me and I have tried him twice.

We need to make a decision about whether or not we are going to progress the matter no later than Wednesday, 17 April 2019.”

[28] Mr Clark responded to this email at 10:07am on 15 April 2019:

“Hi Keenon

I tried calling him before my surgery I’ll try again today and tonight and let you know how I went…”

[29] By the evening of 15 April 2019, Mr Clark’s condition had deteriorated to a significant extent as a result of his wound infection. On the morning of 16 April 2019, he was readmitted to Gosford Hospital and on 17 April 2019, was transferred to Royal North Shore Hospital, by which time Mr Clark was in and out of consciousness.

[30] At 2:26pm on 16 April 2019, Mr Endacott sent an email in the following terms to Mr Clark:

“Hi Steve

I still have not heard from Tim. It’s imperative he contact as we need to know what evidence he is prepared/information he may provide for us to form an assessment as to whether or not we file the application in the Fair Work Commission.”

[31] In light of Mr Clark’s medical condition at the time, I accept Mr Clark’s evidence that he does not recall receiving or reading this email. I also accept Mr Clark’s evidence that his wife responded (in Mr Clark’s name) in the following terms to this email at 1:48am on 18 April 2019:

“Hi Keenon

Had a mishap with surgery so I’m down at rns for about a week I’ll see if I can sort it while I’m in if not I’ll do it when I get out.

Thanks

Steve Clark”

[32] At 12:07pm on 18 April 2019, Mr Endacott sent an email in the following terms to Mr Clark:

“Hi Steve

Sorry to hear about your mishap.

With respect to your unfair dismissal application, as I indicated when you came into the office, we were still to decide whether or not we would pursue the unfair dismissal on your behalf. The principle outstanding issue of that consideration was the fatigue and the application of the policy from the workshop, not from your home.

The discussion with Tim was vital to form a final view of this. As you are aware I have tried to contact Tim a couple of times and I have been emailing you to get him to contact me.

As the application is required to be filed within 21 days, that means a decision has to be made today. Therefore I inform you that we won’t be progressing your unfair dismissal application on your behalf. I have discussed your matter with both the Vice President, Jeff Drayton, and the President of the District.

Obviously it is your right to pursue it without the Union representing you and for your assistance I have attached the draft of the application that has been prepared.

Obviously as you are aware filing of the application was subject to me speaking with Tim Coulters who may have been able to provide information about the application of the fatigue requirements that would have assisted you.

If you require any further clarification, please give me a call.”

[33] I accept Mr Clark’s evidence that he did not read this email until 25 April 2019.

[34] On 20 April 2019, Mr Clark was transferred from Royal North Short Hospital back to Gosford Hospital. Notwithstanding the Discharge Summary from Gosford Hospital showing a discharge date of 24 April 2019, 16 I accept Mr Clark’s recollection that he was discharged from Gosford Hospital on ANZAC Day (25 April 2019). A number of entries on the Discharge Summary state that Mr Clark was “to be discharged on 24/4/2019”. I consider it likely that the Discharge Summary was prepared on 24 April 2019, at which time it was expected that Mr Clark would be discharged on that day but the discharge did not in fact happen until the following day. I also accept Mr Clark’s evidence that he was still on heavy painkilling medication at the time he was discharged on 25 April 2019, as a result of which he was “really foggy” and was not coherent enough until 29 April 2019 to read documents and make a decision about whether to commence unfair dismissal proceedings against Liebherr.

[35] On 29 April 2019, Mr Clark read Mr Endacott’s email dated 18 April 2019, made some minor amendments to the draft unfair dismissal application prepared by Mr Endacott, and filed the Application in the Commission.

[36] In light of the operation Mr Clark underwent at short notice on 11 April 2019, the complications which arose from it, and the heavy painkilling medication Mr Clark took following his operation, I accept Mr Clark’s evidence that in the period from 11 April 2019 until 29 April 2019 he was not in a position to be able to make a decision to commence proceedings against Liebherr or to file an application in the Commission. In all the circumstances, I accept the evidence given by Mr Clark in support of his application for an extension of time and am satisfied he has provided a credible explanation for the delay in filing his Application from 11 to 29 April 2019. As to the period from 29 March 2019 to his admission to hospital on 11 April 2019, I am satisfied that Mr Clark took reasonable steps to have his Application prepared and filed in the Commission. Those steps included attending a meeting with Mr Endacott, providing relevant information to Mr Endacott, speaking with Mr Coulter, attempting to arrange for Mr Coulter to speak to Mr Endacott, and communicating with Mr Endacott by telephone and email. Although Mr Clark did not have a back-up plan in place to deal with the possibility that his union might decide not to file an unfair dismissal application on his behalf and he might be unable to file such an application within 21 days of his dismissal, I do not consider that it was reasonably foreseeable that Mr Clark would or might have complications of the type which arose from his surgery and which prevented him from submitting his Application within 21 days of his dismissal. I accept Mr Clark’s evidence that had he not been in hospital and unable to prepare and submit his Application in the period from 11 to 29 April 2019, he would have filed his Application in the Commission within the 21 day period if he was aware that his union had decided not to file such an application on his behalf. Further, in light of the evidence set out above, I do not consider this to be a case where there has been any representative error on the part of Mr Endacott or any other person from the CFMMEU. What transpired can fairly be described as an unusual set of events which were out of the ordinary.

[37] For the reasons given, this factor (s 394(3)(a)) weighs in favour of granting Mr Clark an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[38] Mr Clark agrees that he became aware of the dismissal on the day it took effect (29 March 2019).

[39] This factor (s 394(3)(b)) weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[40] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 17

[41] There is no evidence that Mr Clark took any step prior to 29 April 2019 to dispute his dismissal.

[42] This factor (s 394(3)(c)) weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[43] Prejudice to the employer will weigh against granting an extension of time. 18 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.19

[44] A long delay gives rise “to a general presumption of prejudice”. 20

[45] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 21 Liebherr did not adduce any evidence on the issue of prejudice.

[46] Noting that the delay was 9 days, I am satisfied that there would be no greater prejudice to Liebherr caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

[47] The letter of termination states that the following conduct on the part of Mr Clark constituted serious and wilful misconduct:

•  failure to report an injury in a timely manner;

•  failure to comply with fatigue management expectations (work and travel) extending to over 14.5 hours per day; and

•  failure to undertake pre-start vehicle inspections including non-completion of 103 log books.

[48] Mr Clark denies that he failed to report an injury in a time manner, contends that he complied with Liebherr’s fatigue management expectations (insofar as they were explained to him) and concedes that he had been lack-lustre in his completion of pre-start vehicle inspection documentation, but says the majority of Liebherr’s employees engaged in the same practice and his conduct in that regard did not warrant termination.

[49] I am not able to make an assessment of the merits at this time because there are factual disputes between the parties relevant to the ultimate question of whether Mr Clark’s dismissed dismissal was harsh, unjust or unreasonable; detailed evidence and cross examination of relevant witnesses would be required in order to make findings in relation to such disputes. In all the circumstances, I consider this criterion (s 394(3)(e)) to be neutral.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[50] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 22 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[51] I am not satisfied that the issue of fairness as between Mr Clark and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor, it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[52] Having considered and weighed each of the factors under s 394 of the Act, I am satisfied that there are exceptional circumstances in this case. In reaching this state of satisfaction, I am particularly persuaded that Mr Clark’s circumstances were out of the ordinary course, unusual, and uncommon, because he was required, at short notice, to undergo surgery on 11 April 2019, as a result of which there were complications which meant that Mr Clark was not in a position to be able to make a decision about commencing unfair dismissal proceedings, or file his Application, prior to 29 April 2019. As soon as he was able to do so (29 April 2019), Mr Clark finalised and filed his Application. The exceptional circumstances threshold having been met, I am also satisfied, for the same reasons, that it is appropriate to exercise my discretion to extend time.

[53] Accordingly, the application for an extension of time is granted. The jurisdictional objection is dismissed. I will issue an order extending time to 29 April 2019 [PR711110].

DEPUTY PRESIDENT

Appearances:

Mr M Clark, on behalf of himself.

Mr Abela, Human Resources Advisor, on behalf of Liebherr-Australia Pty Ltd.

Hearing details:

2019.

Newcastle:

30 July.

Printed by authority of the Commonwealth Government Printer

<PR711109>

 1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) of the Act.

 3   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 4 [2011] 203 IR 1.

 5   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

 6   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v

Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605

 7   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 8   [2016] FWCFB 349

 9   [2018] FWCFB 3288 at [35]-[45]

 10   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 11   That is, 21 days from 29 March 2019 (not including 29 March 2019) is 19 April 2019, which was a public holiday (Good Friday) and the Commission was closed on that day, so the 21 day period concluded on the following day, 20 April 2019.

 12   29 April 2019 is 9 days after 20 April 2019.

 13   Ex A5

 14   Ibid

 15   Ex A3

 16   Ex A2

 17   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 18   Ibid.

 19   Ibid.

 20   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 21   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

 22   [2016] FWCFB 6963