Steven Coolidge v Lithgow Information and Neighbourhood Centre Limited
[2020] FWC 2655
•25 MAY 2020
| [2020] FWC 2655 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Steven Coolidge
v
Lithgow Information and Neighbourhood Centre Limited
(C2020/49)
COMMISSIONER YILMAZ | MELBOURNE, 25 MAY 2020 |
Application to deal with contraventions involving dismissal.
[1] On 3 January 2020, Mr Steven Michael Coolidge lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Coolidge submits he was employed by Lithgow Information and Neighbourhood Centre Limited (LINC) as a casual disability support worker from August 2018 until he tendered his resignation effective immediately via email on 5 September 2019.
[2] Mr Coolidge submits that he was forced to resign because of his mental state.1 He submits that he approached management about bullying, discrimination and nepotism issues, and as he was treated differently, he felt he was forced to resign.2
[3] LINC submits Mr Coolidge was employed as a casual in the position of disability support worker commencing on 1 August 2018. It submits that in the period of June to August 2019 he lodged several grievances against his general manager. LINC submits that Mr Coolidge did not meet with the general manager to resolve the issues, despite efforts to engage with him.
[4] LINC submits that Mr Coolidge resigned on 5 September 2019 of his own accord. The resignation was accepted by LINC in writing on 6 September 2019 3. The allegations made by Mr Coolidge against his general manager were investigated by an external third party and the findings were communicated to him even though he had left their employment. LINC objects to the application on the basis that there are no exceptional circumstances for an extension of time, that there is no merit to the allegations made and that Mr Coolidge resigned from his employment4.
[5] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 98 days late.
Applicant’s submissions
[6] Mr Coolidge submits he was mistreated, harassed and bullied, offered permanent employment that never eventuated, applied for positions but not given a rejection letter and removed from the roster after he met with the Board to complain about the general manager 5.
[7] Evidence concerning the alleged contraventions was not submitted. Brief submissions were made relating to a question about his race by a fellow co-worker, and he alleged the general manager treated him differently from other staff. Mr Coolidge expressed concern that he was not offered permanent employment and that management instructed that he required ‘buddy shifts’.
[8] Mr Coolidge submits that LINC contravened the following sections of the Act, however, he failed to provide particulars concerning each of the relevant general protections provisions:
• Division 3 Workplace rights - s.340 protection, s.343 coercion and s.344 undue influence or pressure,
• Division 4 Industrial activities - s.346 protection and s.348 coercion, and
• Division 5 - s.351 discrimination.
Respondent’s submissions
[9] LINC submits that there was no contact from Mr Coolidge since his resignation until 19 November 2019 when the Applicant’s wife sent an email stating that he resigned due to stress and that when he resigned, he was not in the right frame of mind. This email, LINC submits occurred well in excess of 2 months after the resignation. LINC submits it was unaware of any medical condition until after the resignation when their workers compensation insurer contacted them on 21 November 2019 6.
[10] LINC submits that Mr Coolidge resigned of his own free will, it denies the allegations made and submits that he failed to demonstrate exceptional circumstances to warrant an extension of time. Despite submitting that the allegations made by Mr Coolidge have no substance, LINC provided a response to each of the allegations.
Consideration
[11] On 31 March 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.
[12] General protections applications involving dismissal must be made within 21 days.
[13] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a) The reason for the delay,
(b) Steps taken to dispute the termination,
(c) Prejudice to the employer,
(d) Merits of the application, and
(e) Fairness between the person and other persons in a like position.
[14] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)7 where it was held that:
“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 regular occurrence, even though it can be a on 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.”8
[15] I now turn to Mr Coolidge’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
[16] The general protections involving dismissal application was lodged with the Commission on 3 January 2020.
[17] In his application Mr Coolidge submits the reason for the delay was psychological impairment and that he was on workers compensation. In his Outline of Argument, Mr Coolidge submits that on the day he resigned he felt forced and under attack by the Board. He further submits that the Board did not follow the grievance policy because they brought in a third party to investigate. To put an end to the stress, as he was feeling unwell and in need of psychiatric assistance, Mr Coolidge resigned. Further, he submits he had no shifts allotted to him at the time of his resignation.
[18] In addition to his outline of argument, Mr Coolidge submitted a medical certificate from a neurosurgeon dated 24 February 2020. This certificate states that Mr Coolidge had been treated for various medical reasons including insomnia, workplace bullying and adjustment disorder with anxiety. The certificate states that Mr Coolidge had regretted his resignation and the medical practitioner states she believes his decision to resign would have been influenced by his medical conditions. The letter does not confirm whether Mr Coolidge was affected by his medical condition at the time of his resignation, nor at any point prior to 24 February 2020. This medical certificate is dated well after the resignation and after this application was made.
[19] The medical certificate does not support the position that Mr Coolidge was unable to make his application within the statutory period nor explain the delay in filing.
[20] A further certificate from a consultant psychiatrist dated 4 March 2020 was filed which states that she was managing Mr Coolidge since 25 September 2019 for adjustment disorder with depressed mood and increased anxiety, it states it is due to work related incidences. This correspondence also has the same limitations as the earlier neurosurgeon certificate in relation to the date it was written and the prognosis.
[21] While Mr Coolidge had an obligation to file within the 21 day statutory period, to grant an extension of time, the onus is on Mr Coolidge to provide reasons for the delay (from termination to the date of filing) and should there be exceptional circumstances relating to the delay in filing on time, an extension may be granted.
[22] There was no submission or evidence provided to explain the delay beyond the statutory 21 days. The March certificate does not confirm examination of Mr Coolidge in the 21 days following his resignation to confirm his inability to file within 21 days, nor does the certificate address the period up to the date of filing. The certificate does not satisfactorily support the submissions made by Mr Coolidge.
[23] I do not consider the reasons given for the delay weigh in Mr Coolidge’s favour.
Steps taken to dispute the termination
[24] Mr Coolidge submits he did not challenge the termination of employment. The letter of resignation provides no details concerning reason for resignation, nor suggests he was forced to resign 9.
[25] This consideration does not weigh in Mr Coolidge’s favour.
Prejudice to the employer
[26] Mr Coolidge does not address this consideration with any detail, he simply submits he does not think his application prejudices his employer as they advertised the position 10.
[27] LINC submit the mere absence of prejudice to the respondent is insufficient to grant an extension of time and rely on Brodie-Hanns v MTV Publishing Ltd [1995]. 11
[28] Submissions do not weigh in favour of an extension, and although LINC do not consider the delay will cause prejudice, I consider this a neutral consideration.
Merits of the application
[29] Mr Coolidge submits his employment was terminated by way of his resignation as he felt forced to do so.
[30] Mr Coolidge submits his resignation followed the complaints he made and his meeting with the Board where he felt he was treated unfairly.
[31] LINC submit the application is without merit and there is no justification for such an application when the applicant resigned from employment. Further LINC submit no adverse action was taken against Mr Coolidge 12.
[32] LINC confirmed that Mr Coolidge lodged numerous grievances between June and August and met with the Board on 29 August 2019. On 5 September 2019, LINC and the investigator wrote to Mr Coolidge requesting to meet to discuss his grievances.
[33] LINC maintains there was no knowledge of any medical condition. Awareness of a medical condition was made when the employer’s workers compensation insurer informed them of a claim in November 2019, well after the resignation.
[34] LINC submits Mr Coolidge was asked to confirm his availability for the roster and to buddy up with an employee to learn how to care for other clients. LINC submitted that Mr Coolidge cared primarily for one client that was transferred out of the facility, and consequently he required buddying up to learn caring requirements for other clients.
[35] LINC further submits that the medical certificates do not support the extension of time, and questions the alleged severity of the mental state of Mr Coolidge, as he was able to lodge a workers compensation claim after his resignation and find employment as a manager, but allegedly could not file this application within the required timeframe.
[36] Mr Coolidge challenged the submission that he filed the workers compensation claim, stating that his medical practitioner filed the claim on his behalf.
[37] LINC submit that Mr Coolidge lodged 14 grievances against the general manager. It submits the independent investigation into the grievances found that it was Mr Coolidge that had engaged in bullying and harassment of the general manager, that he conducted himself in a manner described as vexatious and malicious and breached the organisation’s policies and procedures. It submits the allegations made by Mr Coolidge were unfounded. Further, it submits that allegations of adverse action were not established 13.
[38] Determining a constructive dismissal, or in Mr Coolidge’s words that he was “forced to resign” requires an objective analysis of the employer’s conduct. There were no submissions or evidence relating to the circumstances leading to the resignation to support the position that Mr Coolidge had no option but to resign and thus subject to adverse action. By contrast, LINC submits it engaged an independent investigator to look into the serious allegations made by Mr Coolidge of bullying and discrimination. This action of engaging an independent investigator is not unreasonable management action when serious allegations are made. Unfortunately, Mr Coolidge resigned before the investigation was concluded. It is also apparent that Mr Coolidge did not engage in the process.
[39] I note that the medical evidence presented by Mr Coolidge confirms his mental health condition was frail from at least 25 September 2019 based on the report from Dr Lubna Naaz and confirmed again by Dr Saleh Kashba on 24 February 2020. It is also noted that a workers compensation claim was accepted by the insurer on 21 November 2019. All medical evidence presented does not precede the resignation. Based on probability taking into account the submissions of the parties concerning the period of time leading up to Mr Coolidge’s resignation, there is an arguable position that Mr Coolidge may have been stressed by his perceptions that he was treated unfairly, because of his accusations lodged against the general manager, and the actions taken by LINC to investigate all allegations including the behaviour of Mr Coolidge by an external investigator. However, the medical evidence has its limitations to support both an alleged forced resignation or the incapacity of Mr Coolidge to file the application within the required time frame or justify exceptional circumstances.
[40] While I recognise that the merits were not properly tested, in all likelihood Mr Coolidge would not satisfactorily make a case for his alleged forced resignation. Mr Coolidge relies on his medical condition for feeling stressed and incapable of dealing with the situation or thinking clearly at the time of his resignation. He admits to resigning and not challenging the decision or the acceptance of his resignation. Further, no action was taken by Mr Coolidge other than filing this application. These submissions need to be balanced against the submissions of LINC who contest the allegations made by Mr Coolidge. Consequently, I find in the absence of any compelling evidence from Mr Coolidge, I do not consider his chances of success in merit to be persuasive.
[41] Based on the limited submissions made by Mr Coolidge, this consideration does not weigh in his favour in relation to the granting of an extension of time.
Fairness between the person and other persons in a like position
[42] Mr Coolidge made submissions in response to this consideration in relation to his mental state.
[43] In my opinion neither party responded adequately to this consideration. Consequently, I consider this to be a neutral factor in the present matter.
Conclusion
[44] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. The statutory timeframe is there for a reason, therefore, to grant an extension is a high bar.
[45] I have considered the evidence and submissions against each of the considerations set out in s.366(2), and I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
Mr S. Coolidge and Ms B. Coolidge for the Applicant
Ms L. Commins for the Respondent
Hearing details:
2020
Melbourne (by telephone)
15 April
Printed by authority of the Commonwealth Government Printer
<PR719528>
1 Applicant’s Form F8 at Q3.1 and Outline of submissions at Q1a and, Q1d.
2 Applicant’s Outline of Argument at Q1h.
3 Resignation and acceptance as attached to Respondent’s Form F8A.
4 Respondent’s Outline of Submissions.
5 Oral submissions.
6 Respondent’s Form F8A at Attachment 3.
7 [2011] FWAFB 975.
8 Ibid at [13].
9 Respondent’s Form F8A at Attachment 1.
10 Applicant’s Outline of Argument at Q1f.
11 Respondent’s Outline of Argument at paragraph 32 and 67 IR 298 at 299-300.
12 Respondent’s Outline of Submissions at 33-35.
13 Ibid at 36-39.
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