Tim White v Australia and New Zealand Banking Group Limited T/A ANZ

[2014] FWC 3957

[2014] FWC 3957

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tim White
v
Australia and New Zealand Banking Group Limited T/A ANZ
(U2014/7149)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 13 JUNE 2014

Application for relief from unfair dismissal - extension of time granted.

[1] On 6 June 2014 I advised the parties to this matter that Mr White’s request for an extension of time for the lodgement of this application would be granted. These reasons reflect the background and reasons for that decision.

[2] On 12 May 2014 Mr White lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with Australia and New Zealand Banking Group Limited (ANZ).

[3] Mr Wright, of counsel lodged the application on behalf of Mr White. That application advised that Mr White’s dismissal took effect on 3 April 2014. It advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept the application out of time.  1

• The Applicant has Bipolar Disorder, which will be confirmed by medical reports, from which he has been suffering during the 21 days following the termination of his employment.



• Medical reports to this effect are yet to b e obtained but this application is made without them for the purpose of avoiding further delay in this matter.



• Said reports will be provided at the nearest opportunity.



• The Applicant, as a result of his Bipolar Disorder, was not able to complete the application during the outlined 21 days.



• Due to the relatively short prior of time beyond the set period (15 days) and the reasons for that delay it would not cause the employer prejudice to allow the application.



• Therefore there are exceptional circumstances that allow for an extension of time.

[4] The application was referred to me for consideration. On 13 May 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 26 May 2014. Mr White was required to provide a witness statement and a copy of any document relied upon, by 19 May 2014. As a consequence of communication difficulties with Mr Wright the matter was relisted to 6 June 2014.

[5] The Employer’s Response (Form F3) to the application confirmed that ANZ objected to an extension of time.

[6] The extension of time issue was considered through a telephone conference on 6 June 2014. A sound file record of this conference was kept. Mr White did not participate in this conference but was represented by Mr Wright pursuant to a grant of permission made under s.596(2). ANZ was represented by Ms Manton, an ANZ Manager and Senior Lawyer.

[7] I have considered the extension of time issue on the material provided to me before and during this conference.

[8] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[9] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[10] There is no dispute that, in terms of s.394(2) the application was made outside of the specified 21 day time limit. The application was lodged some 18 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr White’s circumstances can be regarded as exceptional for the purposes of this subsection.

[11] The information Mr White has provided included a statement which refers to his diagnosis with a psychological disorder similar to bi-polar disorder approximately 12 months prior to the termination of his employment. Mr White asserts that when he received notice of his employment termination his condition substantially worsened and he attributes that to the stress associated with the employment termination process. Mr White asserts that he was medically unable to take action to pursue any form of remedy relative to the termination of his employment for approximately 4 weeks. He engaged Mr Wright to represent him on 8 May 2014. Attached to Mr White’s statement is advice from his consulting psychiatrist which confirms that Mr White was unable to lodge the application for in excess of the requisite 21 day period because of the acute symptoms of his psychological condition. This advice confirms that Mr White was seen by that psychiatrist during that time.

[12] Mr White’s advice, combined with the evidence of his medical incapacity to take action until shortly before the application was lodged appears to me to represent acceptable reason for the delay and a circumstance which should be described as exceptional.

[13] On the information provided in Mr White’s application, I am satisfied that he was made aware of the termination of employment decision on 1 April 2014 and this decision was confirmed to him by letter received on 3 April 2014 which I have taken as the date that termination of employment took effect.

[14] I have concluded that Mr White did not take any action, apart from this application, to dispute the termination of his employment but I am satisfied that the evidence of his psychological condition is such that this should not mitigate against an extension of time.

[15] I am not satisfied that the granting of an extension of time would prejudice the ANZ in this matter but do not consider this to represent a basis upon which to found an extension of time.

[16] In terms of the merits of the application, the information before me indicates that the termination of Mr White’s employment occurred because the ANZ concluded that his continuing failures to properly notify management of his absences represented misconduct. I note that this information indicates that previous warnings and directions had been given to Mr White in this respect. Mr White’s position appears to be that his behaviour was a result of his psychological disorder. The information before me does not enable a comprehensive assessment of the merits of the application and hence, for the purposes of this extension of time consideration, I have regarded the merits of the application to be a neutral factor.

[17] Considerations of fairness relative to persons in similar circumstances to Mr White support an extension of time.

Conclusion

[18] For the reasons I have set out above, Mr White’s circumstances support an extension of time. I regard those circumstances as exceptional for the purposes of s.394(3). The request for an extension of time is granted and, accordingly, the application will be referred for conciliation. An Order (PR552035) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

A Wright of counsel for the applicant.

K Manton appearing for the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

June 6.

 1   Form F2, para 1.4

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<Price code A, PR552034>