Travis Shipperlee v Flexi Personnel Australia Pty Ltd T/A Flexi Personnel

[2020] FWC 570

[2020] FWC 570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Travis Shipperlee
v
Flexi Personnel Australia Pty Ltd T/A Flexi Personnel
(U2019/13250)

COMMISSIONER BISSETT MELBOURNE, 10 FEBRUARY 2020

Application for an unfair dismissal remedy – jurisdictional objection – extension of time – no exceptional circumstances - application dismissed.

[1] Mr Travis Shipperlee (Mr Shipperlee or the Applicant) was dismissed from employment with Flexi Personnel Australia Pty Ltd T/A Flexi Personnel (Respondent) on 30 September 2019. Mr Shipperlee says that he was unfairly dismissed from his employment and has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Shipperlee agrees that the dismissal took effect on 30 September 2019 although was advised in writing of the reasons for dismissal by letter dated 2 October 2019.

[2] Mr Shipperlee lodged his application for relief from unfair dismissal on 27 November 2019.

[3] Whilst Mr Shipperlee’s representative says the application was made 56 days “after the written dismissal took effect” on 2 October 2019, I am satisfied that Mr Shipperlee was advised at a meeting on 30 September 2019 (this is not disputed) that his employment was terminated with effect from that day and that this was confirmed in writing on 2 October 2019. Mr Shipperlee’s application was made 58 days after the date the dismissal took effect meaning his application was made 37 days outside the time frame established by the FW Act.

[4] At the commencement of proceedings, being satisfied that the requirements of s.596(2)(b) of the FW Act were met in the case of the Applicant and s.596(2)(c) of the FW Act in the case of the Respondent I granted permission to each party to be represented by a lawyer.

[5] Having heard from the parties I determined that the application should be dealt with by way of hearing.

[6] The parties agreed and I am satisfied that the Applicant is protected from unfair dismissal.

Legislative requirements

[7] Section 394(2) of the FW Act requires that an application for relief from unfair dismissal must be made within 21 days after the dismissal took effect.

[8] The Fair Work Commission (Commission) has the discretion, pursuant to s.394(3) of the FW Act to extend the time within which an unfair dismissal application is made. Section 394(3) states as follows:

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.

[9] I have considered each of these issues under s.394(3) below.

Evidence and submissions

[10] Evidence in these proceedings was given by Mr Shipperlee and Ms Lisa Shipperlee on behalf of the Applicant and Mr Wayne Fleming and Ms Kim Edwards for the Respondent.

[11] Mr Shipperlee gave evidence that he had injured himself at work in June 2018. The injury was being treated with physiotherapy and medication including for pain associated with the injury and for treatment of depression and anxiety brought on by the injury.

[12] On 29 August 2019 Mr Shipperlee was at work with a host employer when his injury flared up. He contacted the Respondent, left the workplace and attended his doctor.

[13] As a result of things said by Mr Shipperlee to Ms Edwards of the Respondent and conduct observed of the Applicant on 29 August 2019 he was called to a meeting with the Respondent on 13 September 2019. Mr Shipperlee attended the meeting with his union representative. At that meeting allegations were put to the Applicant with respect to the information provided to the Respondent on 29 August 2019 and the surveillance information of the Applicant taken that day. Mr Shipperlee’s employment was suspended that day. He said in evidence that the suspension caused him stress which then caused more pain from his injury which effected his memory.

[14] A further meeting was held with Mr Shipperlee on 25 September 2019. He attended that meeting accompanied by his lawyer and his mother. At that meeting he partially responded to the allegations. A further meeting was scheduled and held on 30 September 2019. Mr Shipperlee was accompanied by his mother and provided further responses to the allegations and recalls that he was then given information as to why his employment was being terminated. Mr Shipperlee said that he was ‘distraught’ at, and following, that meeting.

[15] Mr Shipperlee said he remembered that his lawyer told him that he had 21 days within which to make an application for unfair dismissal. His evidence however is that he ‘had a breakdown,’ he thinks he had one or two conversation with his lawyer prior to the expiration of the 21 days but remained ‘indecisive’ because he was scared, and that he had a conversation with his lawyer the day before the 21 days expired but remained ‘unsure’ as to what to do.

[16] Mr Shipperlee agreed that he had provided a certificate of capacity from 25 September 2019 which indicated he had ‘capacity for suitable employment’ from 28 September 2019 to 4 October 2019 and a further certificate of capacity from 15 November 2019 which indicated that he had capacity for suitable employment from 16 November to 13 December 2019.

[17] Mr Shipperlee provided a report from Dr Helen Grogon, his treating General Practitioner (GP), dated 17 December 2019 prepared at his request.

[18] The report stated that:

•  On 13 September 2019 Mr Shipperlee attended his GP in an agitated state. He had been advised there were serious allegations against him and he was to attend a meeting in that regard. He did not attend work that day due to anxiety;

•  On 16 September 2019 Mr Shipperlee again attended his GP and advised that he had been told at the meeting with his employer that an investigator had taken photos of him playing kick to kick football. He was in a ‘bad mental state’ and the GP called Mr Shipperlee’s mother to collect him and take him home;

•  On 17 September 2019 Mr Shipperlee again attended his GP. He was supposed to attend a further meeting with his employer that day but did not feel capable of doing so;

•  On 20 September 2019 Mr Shipperlee again attended his GP;

•  On 25 September 209 Mr Shipperlee again attended his GP. He said he had attended a meeting with his employer but ‘had been unable to read the evidence against him or watch the videos and look at the photographs.’ He had been accompanied to that meeting by his mother and his lawyer;

•  On 4 October 2019 Mr Shipperlee advised his GP that he had been terminated ‘on the grounds that he had lied to [his employer] about where he went after work’ and that the was not sure about pursuing an unfair dismissal claim; and

•  On 18 October 2019 Mr Shipperlee again attended his GP. The report noted that Mr Shipperlee had been put on new medication by the pain clinic which ‘could also effect his cognitive state’. He was ‘stressed about not receiving work cover payments’.

[19] The report of the GP concluded that her diagnosis was that Mr Shipperlee suffered from ‘reactive anxiety and depression to first being accused of something and then terminated.’ She said that she did not think Mr Shipperlee ‘had the mental capacity to make decisions regarding his legal affairs’.

[20] Ms Lisa Shipperlee is the Applicant’s mother. She gave evidence that she was contacted by the Applicant’s GP on 16 September 2019 and asked to attend the surgery where her son currently was. The GP informed Ms Shipperlee that she considered her son was having a breakdown and provided her with correspondence to give to a hospital should Mr Shipperlee need to be admitted because of his mental state. The GP suggested that Ms Shipperlee should look after medication prescribed to Mr Shipperlee.

[21] Ms Shipperlee said that the GP advised her (based on what Mr Shipperlee had told the GP) that Mr Shipperlee had been accompanied by his union representative to his first meeting with the Respondent on 13 September 2019 but the union representative had suggested that Mr Shipperlee should get a lawyer. Acting on this information Ms Shipperlee arranged the lawyer who attended the second meeting with the Respondent on 25 September 2019.

[22] Ms Shipperlee said that the lawyer did not attend the meeting with the Respondent on 30 September 2019 but Ms Shipperlee rang the lawyer after the meeting who returned her call ‘one to six days later’. In this conversation the lawyer advised Ms Shipperlee that her son had 21 days to make an application to the Commission.

[23] Mr Fleming gave largely uncontested evidence in relation to the process leading up to the dismissal of the Applicant. He said that the decision to terminate the Applicant was not made until after the meeting of 30 September 2019 and that the reason for termination was that the Applicant misrepresented his medical condition. Mr Fleming said that the Respondent relied on the certificates of capacity provided to it by the Applicant.

[24] Ms Edwards’ evidence was not contested.

Without prejudice communications

[25] The Respondent sort to table with the Commission correspondence received by it from the Applicant’s lawyer.

[26] The Applicant objected to the tender of that letter on the grounds that it is without prejudice communication “in connection with an attempt to negotiate a settlement” and hence excluded from admissibility under s.131(1)(a) of the Evidence Act 1995 (Cth). The Respondent said that it did not seek to rely on the communication for the purpose of the settlement proposal but rather to evidence that the Applicant was capable of providing instructions to his lawyer and that it is admissible for this purpose.

[27] I indicted that I would issue my decision on admissibility with this decision. If I found that the correspondence was not admissible I would not have regard to evidence or submissions that went to that correspondence.

[28] For the reasons given below I have determined that it is not necessary for me to decide if I can and, if so, should consider this communication. For this reason submissions in relation to the correspondence and what I should draw from it that were presented have not been considered in this decision.

Extension of time

(a) Reason for the delay

[29] Mr Shipperlee says that he was unable to properly comprehend his situation and provide instructions to his lawyer within the 21 day period immediately following his dismissal. He does not say that his dismissal caused his depression but that it came about because of his injury in 2018 and was exacerbated by dismissal.

[30] Mr Shipperlee acknowledges that the report from Dr Grogon only reports on her attendance on him until 18 October 2019 but submits that the report is dated 17 December 2019 such that the Commission can accept the report as indicative of his state of mind until that date.

[31] The Respondent submits that the reasons given by the Applicant for the delay in making his application are inconsistent with the evidence given by him. It says that the evidence demonstrates that the Applicant was aware of the 21 day time period within which his application should be made prior to the expiration of that time period. In any event it submits that the Applicant did not make his application for a further 37 days after the expiration of the 21-day period and no explanation has been given for that delay in making the application.

[32] The Respondent submits that the report of the Applicant’s GP indicates his medical state only until 18 October 2019. Further, the report indicates that the Applicant was consciously considering an unfair dismissal application on 4 October 2019 and could comprehend the impact of not receiving his WorkCover payments on his rent when he visited on 18 October 2019. These comments by his GP with respect to these days suggest that Mr Shipperlee could comprehend what was occurring and consider actions or consequences of those within the 21 day time period.

[33] Mr Shipperlee was dismissed from his employment on 30 September 2019. To have made his application within the 21 day time period specified in the FW Act he would have been required to make his application by 21 October 2019.

[34] Whilst Mr Shipperlee has sought to explain why his application was not made within 21 days of the date of his dismissal he has provided nothing to explain the delay beyond the first 21 days. Instead, what Mr Shipperlee asks that I do is infer that the assessment of his GP based on his presentations to 18 October 2019 applies up until the GP’s report was written on 17 December 2019.

[35] I am not prepared to draw such a conclusion from the limited report before me. The report of Mr Shipperlee’s GP makes strong points as to Mr Shipperlee’s mental state up until 25 September 2019. Beyond that date however the medical report suggests that Mr Shipperlee was capable of considering matters rationally. The report says that on 4 October 2019 he was ‘not sure about pursuing an unfair dismissal claim’. There is nothing in the notes from this consultation that suggests Mr Shipperlee was not capable of making a decision as to whether or not to pursue such a claim but just that he was ‘not sure’. At this point in time Mr Shipperlee had another 17 days within which he could make an application within time.

[36] By 18 October 2019 (still within the 21 day time limit), while commenting on the effect Mr Shipperlee’s new medication might have on him, the GP report does not suggest that his cognitive state was effected at all. Rather the report suggests an apparently rational concern to the non-receipt of WorkCover payments.

[37] Taken at its best the GP report provides an explanation only until 18 October 2019 as to why Mr Shipperlee had not made his application for unfair dismissal. It provides no explanation beyond that date.

[38] As to the conclusion in the report that the GP did not think Mr Shipperlee had the ‘capacity to make decisions regarding his legal affairs based on the above’ this conclusion can only be in regard to the period of treatment covered by the report – that is until 18 October 2019. There is nothing in the report that would allow me to reach any conclusion as to Mr Shipperlee’s state of mind post 18 October 2019, regardless of when the report was written. The submissions of Mr Shipperlee that I should accept the GP’s conclusion as being based on information the GP had at the time she wrote the report (that is, up until 17 December 2019) cannot be accepted. The report covers a defined period that ends at a consultation on 18 October 2019 and there is no basis to find the GP took anything further into account in making her assessment. For this reason I am not convinced that the report gives me licence to conclude that it is relevant to Mr Shipperlee’s mental state until 17 December 2019.

[39] If I did accept the submissions of Mr Shipperlee on this point I would need to find that Mr Shipperlee’s actions belied the assessment of his GP as he did make his unfair dismissal application on 27 November 2019, prior to 17 December 2019, when the Applicant would have me conclude he was not capable of making such a decision.

[40] Whilst I accept that an Applicant does not need to explain the totality of the delay in making his application, in this case Mr Shipperlee has provided no reason for any part of the delay in making his application after 21 October 2019. It was a further 37 days before Mr Shipperlee made his application and no reasonable explanation is given for any or all of that period.

[41] I would add that Mr Shipperlee’s certificate of capacity dated 25 September 2019 for the period 28 September 2019 – 4 October 2019 and his certificate of capacity dated 15 November 2019 for the period 16 November 2019 – 13 December 2019 both indicate that he was capable of undertaking work in the periods specified. In such circumstances where he was fit for suitable employment it is difficult to comprehend why he could not, at least in the periods covered by these certificates, submit his application to the Commission. The only diagnosis at that time was a soft tissue injury (sustained in 2018). Whilst an application submitted during either of these periods would still have been out of time, it would not have been so long out of time as currently confronts the Commission. At least for these periods Mr Shipperlee offers no explanation as to why he could not make his application for unfair dismissal.

[42] This weighs against the grant of an extension of time.

(b) Whether the person first became aware of the dismissal after it had taken effect

[43] Mr Shipperlee became aware of his dismissal at the time it took effect on 30 September 2019. Whilst this was confirmed in writing on 2 October 2019 Mr Shipperlee was aware that his employment was terminated on 30 September 2019.

[44] The Respondent made no submissions in relation to this.

[45] I consider this factor a neutral consideration.

(c) Action taken to dispute the dismissal

[46] There is no evidence of any actions on the part of Mr Shipperlee to dispute the dismissal other than to make this application.

[47] No submissions are made by the Respondent in relation to this matter.

[48] This factor is given no weight in my consideration.

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

[49] The period of the extension sought by Mr Shipperlee is 37 days. He says that the Respondent is a large company and would not be prejudiced by the delay. Further, Mr Shipperlee submits that there is no prejudice to the Respondent caused by the delay as the threat of an application is always there – even if it is made outside the statutory time frame of 21 days.

[50] The Respondent submits that the delay of 37 days is substantial but in any event the absence of a lengthy delay is an insufficient basis on which to grant an extension of time. Further, the Respondent submits that in circumstances where no application was made within time the Respondent was entitled to consider that the matter was finalised when an application was not made within the 21 day period.

[51] I do not accept the argument of the Applicant that because the threat of making an application was ever present there can be no prejudice to the Respondent. If this was the case this criteria would be rendered meaningless.

[52] An employer, having decided to terminate the employment of an employee is entitled to reasonably consider that, once the 21 day time period for the making of an application for unfair dismissal has passed, that the matter of the dismissal is ended. Of course, that an application is late does not automatically mean that there is any prejudice to the employer but, by the same logic, that an application can be made late and permission granted for the delay cannot mean that any delay cannot create prejudice.

[53] While I accept in this matter that the Respondent considered the matter at an end once the 21 day period had passed, I do not consider that there has been any great prejudice caused by the delay. Whilst the delay is not overly long – 37 days beyond the 21 day period – it is of some length and not to be ignored. In this case however, the employees of the Respondent responsible for managing the Applicant including through his injury, who were involved in the meetings leading up his dismissal and who were responsible for the decision to dismiss the Applicant are still employed with the Respondent.

[54] For this reason, I consider the prejudice to the Respondent by the delay to be balanced such that it neither adds nor takes from my consideration as to the existence of exceptional circumstances.

(e) Merits of the application

[55] The letter of termination dated 2 October 2019 suggests that Mr Shipperlee’s employment was terminated due to inconsistencies between his response to queries of the Respondent following his advice as to aggravation of his injury and surveillance evidence and certificates of capacity (in relation to fitness for work).

[56] Mr Shipperlee submits that there is merit to the claim as there is no valid reason for his dismissal. In particular he submits that the Respondent had no medical evidence which could challenge the validity of the certificate of capacity Mr Shipperlee received from his doctor on 29 August 2019. Further, he submits that a lay person’s opinion as to whether the conduct of a person is inconsistent with a certificate of capacity is not acceptable. Mr Shipperlee also submits that his right to sick leave cannot be questioned and the FW Act prevents an employer from dismissing an employee for taking sick leave.

[57] Mr Shipperlee also suggests that he was denied procedural fairness in the process adopted by the Respondent leading up to his dismissal.

[58] The Respondent filed substantial material including two witness statements that go to the merits of the case. In brief those submissions are that:

•  Mr Shipperlee made misrepresentations to Ms Edwards of the Respondent on 29 August 2019 which provided a valid reason for his dismissal. This misconduct was also contrary to the terms and conditions of Mr Shipperlee’s employment; and

•  Mr Shipperlee was not denied procedural fairness – he was notified of the reasons for dismissal in meetings on 13 September 2019, 25 September 2019 and 30 September 2019 and by the letter of 2 October 2019. He was given an opportunity to respond in the meetings on 25 and 30 September 2019. Mr Shipperlee was provided with sufficient information to enable him to understand the nature and specifics of the allegations against him to enable him to prepare for and articulate his response.

[59] On the basis of the information before me I could not conclude that Mr Shipperlee’s case is totally devoid of merit. I make this observation despite there being no evidence and limited submissions before me as to the merits of the claim of unfair dismissal from the Applicant. This was a hearing for the purpose of determining an extension of time and while a determination of the merits of the case is unnecessary at this stage this does not excuse the lack of material as to the merits put before me by Mr Shipperlee. It is a matter to be considered and is relevant to my determination. It would appear that little thought has been given as to how the Commission might consider the merits of the application in the context of determining if exceptional circumstances exist that would warrant an extension of time.

[60] The material put on the merits of the case by the Respondent, on the other hand, were considered and detailed and provided a useful insight to the Commission on the merits of the claim.

[61] Suffice it to say that, unless a case is totally without merit little weight will be put on this factor in determining if exceptional circumstances exist. This is because there are factual issues to be resolved that cannot be determined in a hearing for an extension of time.

[62] The material before me on merits weighs slightly against a finding of exceptional circumstances.

(f) Fairness

[63] Both parties agreed that this is not a relevant consideration.

Consideration

[64] An extension of time can only be considered by the Commission if exceptional circumstances are found to exist taking into account those matters outlined in s.394(3) of the FW Act.

[65] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group Pty Ltd (Nulty) 1where the Full Bench of Fair Work Australia found:

[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, 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.

[66] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the delay.

[67] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)² the Full Bench of the Commission said that:

[38] …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.

[68] As to the period of the delay the Full Bench found:

[40] To the extent that the proposition at [29] of the Decision [in Cherval Properties]is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[41] The “reason for the delay” is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.³

[69] The determination as to the existence of exceptional circumstances as that term is understood from the decision in Nulty requires a consideration of all of the circumstances set out above.

[70] I have decided that exceptional circumstances do not exist such that I should grant Mr Shipperlee an extension of time within which to make his application for unfair dismissal.

[71] I do accept that, for at least some and possibly all of the period covered by the medical report from his GP, Mr Shipperlee’s mental health condition provided an explanation for not filing his unfair dismissal application within the 21 day time period. However, this does not explain the totality of the delay. It is apparent that, towards the end of the period covered by the medical report Mr Shipperlee was engaging critically in matters related to his employment including whether to make an application for unfair dismissal and the effect of the loss of WorkCover payments on his ability to meet his rent costs. This, however, does not provide a credible explanation for the extended delay (accepting that he does not explain the totality of the delay) in making his application. The evidence does not support any explanation for a failure by Mr Shipperlee to take action to make his application any time after 18 October 2019 and before 27 November 2019 when it was finally made.

[72] The failure to provide any credible reason for the delay in making his application beyond 21 October 2019 (when it would have been within time) until it was made on 27 November 2019 and the length of that delay is fatal to Mr Shipperlee’s application for an extension of time.

[73] I would observe that I would have reached the conclusion that an extension of time should not be granted even if I found the merits more evenly balanced or in favour of the grant of an extension of time. This is so because the period unexplained in the delay in making the application is 37 days (beyond the 21 day time period). Whilst Mr  Shipperlee suggested that this period was not ‘significant’ I cannot agree. Where the Parliament has considered 21 days a long enough period within which to make an application a delay beyond this of 37 days in circumstances where no credible explanation is given is substantial.

[74] In these circumstances I do not need to determine if I should admit and consider the without prejudice communication.

Conclusion

[75] I am not satisfied in this case that there are exceptional circumstances such that I should consider an extension of time within which Mr Shipperlee can make his application for unfair dismissal.

[76] Mr Shipperlee’s application is therefore not made in accordance with the requirements of the FW Act and is dismissed. An order 4 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR716401>

Appearances:

J. McIntyre for the Applicant.

J. Zhou, of counsel, for the Respondent.

Hearing date:

2010.

Melbourne:

January 24.

 1 (2011) 203 IR 1.

2 (2018) 273 IR 156.

3 Evans v Bartlam [1937] AC 473; Kostokanellis v Allen [1974] VR 596; Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] 2 VR 505; Dix v Gims Compensation Tribunal [1993] 1 VR 297 at 301-302 per Brooking J (with whom Fullager and Tadgell JJ agreed); Esso Australia Pty Ltd v AMWU[2015] FWCFB 210 at [58]-[59].

 4   PR716530.