Tiernan v Leighton Contracting

[2016] FWC 1499

[2016] FWC 1499

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Brendan Tiernan
v
Leighton Contracting
(U2016/3592)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 8 MARCH 2016
Application for relief from unfair dismissal.

[1]        Mr Brendan Tiernan resigned from his employment on 7 May 2015. He alleged he

was constructively dismissed.

[2]        His unfair dismissal application lodged on 7 January 2015 was not made within 21

days of the date of the dismissal.

[3]        The Commission can extend time for the lodging of an unfair dismissal application if

it is satisfied that there are exceptional circumstances. In assessing whether there are

exceptional circumstances the Commission must have regard to certain matters. Only if it is

satisfied that there are exceptional circumstances can it then exercise its discretion to decide

whether to extend time.

[4]        The meaning of "exceptional circumstances" was considered in Nulty v Blue Star

Group Pty Ltd [2011] FWAFB 975 where the Full Bench said: [13] 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."

[Endnotes not reproduced]
[2016] FWC 1499
S.394(3)(a) The reason for the delay

[5]        Mr Tiernan gave evidence that since he last worked on 30 October 2014 he has been

without income and has suffered extreme financial and emotional stress. He said he suffers

from a number of mental health conditions and he has not been capable of contemplating an

unfair dismissal claim. He said his brother had been acting as his guardian and he has been

attending to correspondence with his previous employer.

[6]        Mr Tiernan provided a medical certificate which advised that he had been treated for

these medical conditions since December 2014. The certificate was undated. Mr Tiernan said

he obtained it just before he lodged his application in January 2016.

[7]        CPB Contractors Pty Limited (CPB) submitted that during the time since his dismissal

Mr Tiernan had engaged legal representation and commenced discussions with the CFMEU.

Both were capable of acting on his behalf and lodging an application. Further Mr Eamonn

Tiernan, who was acting as his guardian, could have acted on his behalf. Ms Corica, CPB’s

representative questioned Mr Tiernan’s medical report as she had contacted the surgery who

had told her that the doctor had not worked there since 2015. Mr Tiernan undertook to provide

information from the clinic about when the certificate was issued.

[8]        Mr Tiernan provided a further medical certificate which advised that the earlier

certificate had been completed on 17 December 2015. It advised that Mr Tiernan had a

workers compensation certificate for the period May 2015 to 17 December 2015 advising that

due to his medical condition he was unfit to work for the entire period. The certificate

provided that Mr Tiernan was unable to perform intermediate cognitive functions.

[9]        The 17 December 2015 medical certificate advised that Mr Tiernan’s condition had

improved and that his condition was stable.

[10]      CPB asked that the medical certificate be verified and copies of the two medical

certificates were forwarded to the medical clinic. The clinic advised that both medical

certificates were fraudulent. A copy of this correspondence was provided to Mr Tiernan to

comment but he advised that he would not provide any further information or response.

[11]      Given the advice that the medical certificates were fraudulent, I am unable to accept

any of Mr Tiernan’s evidence about his medical condition. He provided no other explanation

for the delay in lodging his claim. I am not satisfied that Mr Tiernan had a reasonable

explanation for the delay in lodging his unfair dismissal application. This weighs against a

finding that there are exceptional circumstances.

S.394(3)(b) Whether the person first became aware of the dismissal after it had taken

effect

[12]      Mr Tiernan resigned from his employment on 7 May 2015. He was aware of the

dismissal when it took effect. This weighs against a finding that there are exceptional

circumstances.

[2016] FWC 1499

S.394(3)(c) Any actions taken by the person to dispute the dismissal

[13]      Mr Tiernan advised his employer in his resignation email that he had no option but to

resign. It cannot be said that CPB was unaware that Mr Tiernan disputed his dismissal.

S.394(3)(d) Prejudice to the employer (including prejudice caused by the delay)

[14]      CPB submitted that it would suffer prejudice if the extension of time were granted

because it would have to incur costs and time in defending the proceedings. While a

significant period of time has elapsed since the resignation, CPB did not give evidence that

relevant witnesses were not available or that their memory of events had been impacted by the

delay. I am not satisfied that any prejudice suffered by CPB weighs against a finding that

there are exceptional circumstances.

S.394(3)(e) The merits of the application

[15]      Mr Tiernan resigned from his employment after a protracted dispute centered on his

ability to return to his pre-injury duties at the location he had been working. Mr Tiernan said

he resigned to avoid bankruptcy as he had been without income for a significant period of

time. Mr Tiernan said that CPB’s failure to provide his with alternative work meant he had no

choice but to resign. He gave evidence that this enabled him to access his accrued leave and

severance benefits.

[16]      It is clear that at the time of his resignation Mr Tiernan was legally represented. CPB

was not a self-insurer. Decisions about Mr Tiernan’s workers’ compensation payments were

determined by the insurer. Mr Tiernan had rights under workers compensation legislation if

he disputed any of those decisions. The decision about alternative employment was of course

the decision of CPB but again if there was suitable alternative work then Mr Tiernan could

have pursued that under workers’ compensation legislation.

[17]      While I am not able to make any assessment of the merits as there are factual disputes

between the parties that have not been tested, I do not consider that Mr Tiernan’s claim that

he was constructively dismissed is strong. I consider this criterion to be neutral.

S.394(3)(f) Fairness as between the person and other persons in a similar position

[18] There were no submissions that there were other persons in a similar position to Mr

Tiernan. I consider this criterion to be neutral.
[2016] FWC 1499

Conclusion

[19]      I am not satisfied that there are exceptional circumstances. I am extremely concerned

that Mr Tiernan provided fraudulent documents to the Commission to support his claim. His

application for an extension of time is refused and his application for an unfair dismissal

remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Brendan Tiernan representing himself.

Ms Jessica Corica representing CPB Contractors Pty Limited

Hearing details:

2016:

Melbourne;

February 23.

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