Warren Carter v Atwood Australian Waters Drilling Pty Ltd

[2016] FWC 6208

[2016] FWC 6208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warren Carter
v
Atwood Australian Waters Drilling Pty Ltd
(U2016/9519)

COMMISSIONER BISSETT MELBOURNE, 6 SEPTEMBER 2016

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

[1] Mr Warren Carter has made an application alleging he was unfairly dismissed from his employment with Atwood Australian Waters Drilling Pty Ltd (Atwood). He seeks relief pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Carter also seeks an extension of time within which to make his application.

[2] Atwood objects to the application on the grounds that Mr Carter has not made his application within the 21 days allowed for by the Act. It says that there are no exceptional circumstances such that an extension of time should be granted. It further says that, even if there are found to be exceptional circumstances, the Fair Work Commission (the Commission) should not exercise its discretion to grant the application for an extension of time as Mr Carter was not dismissed from his employment but rather resigned of his own volition.

Background

[3] Mr Carter was employed by Atwood as a Head Cook on an off-shore platform. In 2014 Mr Carter was off work with a suspected work related injury of carpal tunnel syndrome. It was subsequently determined that Mr Carter did not suffer from carpal tunnel syndrome but from a spinal/neck injury. Mr Carter subsequently went on personal leave.

[4] Mr Carter says he was forced to resign whilst absent from work with this injury. He says that in a meeting with Ms Helen Southgate (a Personnel Officer) and Mr James Brodie (formerly the HSE Regional Coordinator) on 8 May 2015, he was told he could go on salary continuance but he would have to resign as Atwood needed to fill his position on the platform. Mr Carter sent a letter of resignation to Atwood on 7 September 2015 notifying that his resignation would be effective from 30 September 2015.

[5] Mr Carter says that, by the action of Ms Southgate and Mr Brodie, he was given no option but to resign and that he was therefore effectively dismissed from his employment. He lodged his application for relief from unfair dismissal on 18 July 2016.

[6] Mr Carter sought advice from a legal firm on 27 August 2015 and on 29 September 2015 the firm advised him that they would represent him. He says that he spoke to his lawyer about his injury and about his unfair dismissal. He understood that they were looking after everything, including the circumstances surrounding his dismissal.

[7] Mr Carter says that at the second conciliation with respect to his injury claim on 30 June 2016, he asked his lawyer about his unfair dismissal claim. He was told that his lawyer was not dealing with that matter and he should pursue it separately.

[8] Mr Carter says that he did not specifically follow up anything about his dismissal with his lawyer until the conversation of 30 June 2016. He agrees however he was in regular contact with his lawyer from September 2015 through to June 2016.

[9] Mr Carter says that, following the advice from his lawyer, he then looked on the Commission website where he saw that such an application should be made within 21 days of the date of the dismissal. He contacted the Commission and was advised that he could seek an extension of time within which to make the dismissal application. He then printed off the forms, did the necessary research and filed his application for unfair dismissal on 18 July 2016.

[10] Atwood says that on 8 May 2015 Ms Southgate and Mr Brodie had a discussion with Mr Carter following his medical clearance to return to work. It says that in this discussion, Mr Carter advised that he would not be undertaking the underwater helicopter evacuation training (part of the Further Offshore and Emergency Training (FOET) qualification Mr Carter was required to have). FOET is mandatory for all staff working on a mobile off-shore drilling unit. Mr Carter declined to undergo the training as he was concerned that if he received a kick in the head during the training, which had happened during earlier training, he could become paraplegic. Atwood says that resignation was discussed, Mr Carter was advised not to do anything in a hurry and Atwood would examine the effect of resignation on his salary continuance benefit. Atwood also says that at this time, there was a discussion with Mr Carter as to the effect of a resignation on his plans for a food van business.

[11] Atwood says that Mr Carter was not forced nor was he told that he had to resign.

[12] Ms Southgate subsequently followed up on matters associated with Mr Carter’s salary continuance benefit. She wrote to Mr Carter on 11 August 2015 in which she said:

Further to our telephone conversation today, if you are going to Resign, 30 September 2015 would be a good date. 1 (sic)

[13] On 7 September 2015, Ms Southgate received a letter from Mr Carter in which he advised that he intended to resign with effect from 30 September 2015.

Legislation

[14] Section 394 of the Act 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.

(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.

[15] It is accepted that Mr Carter did not make his application for unfair dismissal within 21 days of the date he says the dismissal took effect.

Consideration

[16] In deciding whether to grant an extension of time to Mr Carter, I have had regard to each of the matters set out above.

Reason for the delay

[17] Mr Carter says he raised his unfair dismissal with his lawyers in September 2015, before he ceased employment with Atwood, and that he thought they were dealing with the matter. He agrees that he did not ask his lawyers about his dismissal until 30 June 2016.

[18] This is not a case where the delay can be apportioned to Mr Carter’s lawyers. There is no evidence of any clear instructions having been given by him to his lawyers and, even if I accept that he did give such instructions, he did nothing to ensure his lawyers complied with his instructions for a full nine months.

[19] In Clark v Ringwood Private Hospital 2a Full Bench of the Australian Industrial Relations Commission held, in summary, that:

The question of whether an error by an applicant’s representative constitutes an acceptable explanation for delay in filing an application for relief needs to be considered in the context of the general discretion in s 170CE(8) and having regard to the observations made in Kornicki. In this respect Commission decisions which deal with this question but were decided before Kornicki need to be treated with caution. In our view the following general propositions should be taken into account in deciding whether or not representative error constitutes an acceptable explanation for delay:

(1) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged…

(2) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant…

(3) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of his/her representative and took no steps to inquire as to the status of his/her claim. A different situation exists where an applicant gives clear instructions to his/her representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(4) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted pursuant to s 170CE(8).

[20] In this case, I am satisfied that, even if Mr Carter did give clear instructions to his lawyers in September 2015 to make an application for unfair dismissal, he did nothing for nine months to follow up on those instructions. This is in circumstances where he agrees he was in regular contact with the lawyers; he was not working; and there was only very limited time when he was not available to follow the matter up because he was attending to medical matters or, for two very short periods of time, his food van.

[21] Mr Carter provides no reasonable explanation for the delay, from 30 September 2015 to 30 June 2016, in making his application. Whilst I accept that he had things happening with his injury claim, I am not convinced that, over a nine month period, it was such to explain the delay.

[22] Even if Mr Carter did provide an adequate explanation for the delay, there was a further delay from 30 June 2016 when he heard his lawyer was not dealing with his unfair dismissal application until 18 July 2016 when he lodged his application.

[23] Mr Carter’s explanation for this delay is he had to find information on the Commission website and then contact the Commission. He then had to print off forms (he did not have a printer at home), do the research and get his necessary information together to make his application.

[24] Whilst I appreciate that Mr Carter did take steps to determine his rights, I am not convinced he has taken action with much haste. Having found out that something he thought was being looked after for nine months was not being dealt with by his lawyer, Mr Carter does not appear to have been spurred into hasty action.

[25] It is well established that a person seeking an extension of time must provide a ‘credible reason’ for the totality of the delay in making the application. 3

[26] In this case, I am not convinced that Mr Carter has provided such a credible reason.

[27] This weighs against a finding of exceptional circumstances.

When person first became aware of dismissal

[28] Mr Carter says that he was told in May 2015 he would have to resign.

[29] He tendered his letter of resignation on 7 September 2016 with a date of effect of 30 September 2016.

[30] If it is accepted that Mr Carter was dismissed, he was aware, in advance, of that date.

[31] This is a neutral matter in my consideration.

Action taken to dispute the dismissal

[32] Mr Carter says that he instructed his lawyer to take action to deal with his unfair dismissal.

[33] It is not evidence that Mr Carter took any other action.

[34] This is a neutral matter in my consideration.

Prejudice to the employer

[35] Atwood says that it would be prejudiced in defending a claim due to the effluxion of time and the effect this will have on the ability of those involved to recall events clearly.

[36] Further, it says that Ms Helen Southgate, who was involved in providing personnel advice to Mr Carter, no longer works for Atwood and Mr James Brodie, formerly the HSE Co-ordinator, now works offshore on a 28 off/28 on roster, making it more difficult and/or expensive to ensure he is available.

[37] I appreciate the difficulties that arise for Atwood in defending a claim for unfair dismissal given the effluxion of time. I have noted however, the detail in evidence and submissions provided to the Commission in respect to the extension of time and that apparent recall of key players of the events surrounding the end of Mr Carter’s employment with Atwood.

[38] For the reasons given below, I do not need to decide the weight that should be apportioned to this matter.

Merits

[39] Mr Carter claims that he was forced to resign by the conduct or course of conduct of Atwood and that this amounts to an unfair dismissal.

[40] Mr Carter says that he was given an ultimatum to either return to work (he was off work with an injury) or resign. He says that the requirement to return to work was without due regard to the risk of further injury to his spine.

[41] Atwood submits that a consideration of whether Mr Carter was forced to resign is a relevant consideration with respect to the merits of the matter. It says that there is no evidence that Mr Carter had no option but to resign through the conduct or course of conduct of Atwood.

[42] It submits that Mr Carter had ample opportunity to explore other options available to him as he says he was told to resign on 8 May 2015 but did not put in his letter of resignation until 7 September 2015.

[43] Mr Carter says that the actions of Atwood forced him to resign. He says he was told he could remain on salary maintenance but he had to resign because Atwood needed to fill his position.

[44] In  Austar Entertainment Pty Ltd v Stubbs 4 (Stubbs) the Full Bench of the Commission said:

We do not doubt that Mr Stubbs believed he had good reason to resign. However, the fact that an employee has good reason to resign does not of itself establish that the employment is not voluntarily left by the employee. To constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect...’

[footnote omitted]

[45] In Hastie v Impress Australia Pty Ltd, 5 Senior Deputy President Richards said that:

[48] The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.

[46] If this were not the case, it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignations which are the result of the conduct of the employer. This is because, for all practical purposes, many decisions by an employee to resign their employment will arise from the conduct of the employer, in some manner or form, even if it goes to something as basic as the rates paid for work. That is, employer conduct is causally responsible at some level for many resignations.

[47] I am not convinced that Mr Carter’s employment was terminated at the initiative of the employer or that he was forced to resign by some conduct or course of conduct engaged in by the employer.

[48] I reach this decision because there is just too much time between the date Mr Carter says he was told he had to resign and the date he did resign. There was almost four months between the two events. Mr Carter had a multitude of options to choose from in those ensuing months. He could have sought legal advice as to what he might do. He was in contact with lawyers in August 2015 but does not seem to have sought information or guidance from them; he could have notified a dispute under the enterprise agreement that covered him; he could have undertaken the training necessary for him to return to his work on the platform; or he could have stayed firm to see what steps Atwood would next take.

[49] That representatives of Atwood may have mentioned to Mr Carter that resignation was an option (which of course it was), does not mean that they forced him to resign.

[50] I also accept that, if it had have been the intent of Atwood that Mr Carter should have his employment terminated, there is no reason it would have gone to the lengths it did to attempt to resolve how a resignation might affect his salary continuance payments, it would not be a matter of particular interest to Atwood. By agreeing to investigate that matter for him, Atwood could only have extended the period before Mr Carter did what he says they wanted – that is, force him to resign. There is no logic to such a proposition.

Fairness

[51] No submissions were made in respect to this matter. It is therefore neutral in my consideration.

Conclusion

[52] An extension of time can only be considered by the Commission if exceptional circumstances exist, taking into account those matters is s.394(3) of the Act. Even if exceptional circumstances exist, the decision of the Commission to grant an extension of time remains a discretionary decision.

[53] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group 6 where 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…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.

[54] In this case I have found that there is no acceptable reason for the delay, the delay in making the application is all at the feet of Mr Carter. Even if I do accept that he gave explicit instructions to his lawyer to deal with his unfair dismissal claim, he then did nothing himself to ensure that this was done for nine months, even though he was in regular contact with his lawyer.

[55] Further, there is a real question as to merits of the claim for unfair dismissal in circumstances where it is not clear that Mr Carter was dismissed. Whilst a definitive ruling cannot be made, a preliminary assessment can be and, in this case, there is doubt as to whether Mr Carter was dismissed.

[56] Given these circumstances, I am not convinced that exceptional circumstances exist. Whilst Mr Carter’s situation is not a usual one, that is not the consideration required under s.394(3). It is whether there are exceptional circumstances taking into account those nominated matters. Mr Carter’s personal circumstances cannot outweigh the finding I would otherwise make.

[57] For these reasons, Mr Carter’s application for unfair dismissal was made outside the time limits prescribed by the Act. No extension of time is granted for the making of the application. Mr Carter’s application therefore, was not made in accordance with the requirements of the Act and is dismissed.

[58] An order 7 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

W. Carter on his own behalf.

M. Vallence for Atwood Australian Waters Drilling Pty Ltd.

Hearing details:

2016.

Melbourne

August 29.

 1   Exhibit R4.

 2 (1997) 74 IR 413.

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers, (2010) 197 IR 403, paragraph 21.

 4   Print Q0008, 9 April 1998.

 5   [2008] AIRC 102.

 6   [2011] FWAFB 975.

 7   PR585024.

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