Wayne McCaig v DP World Melbourne Limited T/A DP World

[2016] FWC 4264

[2016] FWC 4264

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne McCaig
v
DP World Melbourne Limited T/A DP World
(U2016/7261)

COMMISSIONER ROE MELBOURNE, 1 JULY 2016

Application for relief from unfair dismissal - extension of time.

[1] Mr McCaig was employed by DP World from 23 August 1999 until his summary dismissal on 1 October 2015. It is not contested that Mr McCaig was advised of the dismissal on that date and that he was aware that the dismissal was effective from that date. The dismissal was due to conduct relating to recording and distributing private conversations to which Mr McCaig was not a party. The conduct was alleged to be in breach of company policy. DP World concluded following investigation that the allegations were substantiated on the balance of probabilities. The present application for unfair dismissal remedy was made on 27 May 2016. It is therefore approximately 7 months late.

[2] The following time line is not contested:

● On or about 16 October 2015 Mr McCaig made an unfair dismissal application (U2015/13668).
● That application was withdrawn on 17 November 2015 by a notice of discontinuance signed by Mr McCaig.
● Mr McCaig on 19 November 2015 sought to withdraw the notice of discontinuance.
● In a decision dated 4 December 2015 DP Gooley dismissed the application to set aside the notice of discontinuance. 1 In that decision DP Gooley pointed out that application could be made to the court to set aside the notice or that it was open to Mr McCaig to make a new application and seek an extension of time.

●On or about 4 January 2016 Mr McCaig was charged by police with using a listening device to record a private conversation to which Mr McCaig was not a party and without the consent of the parties and that he communicated the conversation.

●On 20 May 2016 the prosecution withdrew the charges against Mr McCaig.

[3] Section 394 of the Fair Work Act 2009 provides that I may allow a further period for the application if I am 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.

[4] Mr McCaig submitted that he was dismissed for being charged and that those charges took time to process through Court and that those charges were subsequently dismissed. 2 In the proceedings the Applicant’s representative acknowledged that this was incorrect. The police charges occurred three months after the dismissal. The fact that the police charges arose from similar allegations to those which led to the dismissal is irrelevant. The police charges were eventually withdrawn. The criminal charges are determined on a standard of proof which is beyond reasonable doubt whilst an unfair dismissal matter is determined on the balance of probabilities. The employer in the dismissal letter makes it clear that they considered the allegations substantiated on the balance of probabilities and this was the basis for the dismissal. The fact that the criminal charges were withdrawn says little about the validity or merits of the decision by the employer to terminate Mr McCaig’s employment. I accept that the reasons for dismissal also included an assessment by the employer that the conduct was contrary to law but this does not suggest that the employer was concluding that Mr McCaig would be found guilty based on the criminal standard of proof. I am not satisfied that the police charges and their eventual discontinuance provide a reason for the seven month delay in making the application.

[5] The medical evidence in this matter is the following:

a. A certificate from a psychologist of 24 November 2015 stating that Mr McCaig will require up to another 9 sessions to ensure optimum recovery.

b. A report from a psychiatrist, Mr Entwisle, dated 26 October 2015 that Mr McCaig has a major depressive illness and features of traumatisation (avoidance, emotional liability, reliving events and incidents, vigilance). This was diagnosed as an aggravation of an existing condition. He was not fit for any work.

c. A report from a psychiatrist of 22 February 2016, Mr Stern, that Mr McCaig was suffering from major depressive disorder with anxiety. That report also observed that memory and concentration were reduced but orientation was intact and intelligence and insight were normal.

[6] The Applicant did not give evidence that he was unable to make an application due to incapacity. He does state that:

“Throughout this process, I was psychologically unstable and unable to afford legal representation….I was under immense pressure and overwhelmed by the process.” 3

[7] I accept Mr McCaig’s evidence that he was under severe pressure and felt overwhelmed by the processes. The report of Mr Stern does not suggest any significant change in Mr McCaig’s condition and capacity between 26 October 2015 and 22 February 2016. I accept that Mr McCaig felt distressed and stressed immediately following the decision to dismiss him and in circumstances where shortly after that time a police investigation commenced. In these stressful circumstances, Mr McCaig was able to and did make an unfair dismissal application on 16 October 2015 and was able to participate in a conciliation process concerning that application in mid November 2015. Mr McCaig was then able to seek to have his notice of discontinuance set aside on 19 November 2015. In support of that application he engaged in numerous telephone conversations with the Fair Work Commission and provided written submissions and materials in support of his application to reopen the matter. Given Mr McCaig was fit to make an unfair dismissal application on 16 October 2015, participate in settlement discussions in mid November 2015 and actively participate in proceedings seeking to set aside his notice of discontinuance in the second half of November 2015, I cannot see why I should conclude that he was not fit to make a further unfair dismissal application in response to the decision of DP Gooley on 4 December 2015.

[8] There was no medical evidence relating to the period from 22 February 2016 until 26 May 2016 which relates to the capacity to make an unfair dismissal application. It is accepted that Mr McCaig is still on workcover payments and is not fit to work.

[9] I do not consider that Mr McCaig was incapable of making the application for medical reasons.

[10] Taking all these matters into consideration I do not consider that Mr McCaig’s illness is an adequate explanation for the whole of the period of the delay. The impairment due to his medical condition as evidenced by the medical reports and his direct evidence may provide an adequate explanation for a period of delay of some weeks but not for a period of delay of seven months.

[11] Mr McCaig also submits that he did not have the psychological capacity or financial resources to properly deal with a Fair Work Commission proceeding and the criminal proceeding simultaneously. I accept that the pressure of criminal proceedings when combined with psychological illness might have affected the capacity of Mr McCaig to respond to matters in a timely manner. I also accept that the end of criminal proceedings would have reduced the pressure on Mr McCaig although there is no medical evidence that there has been any change in his psychological condition. However, I am not satisfied that this is a reason for delay which supports a finding of exceptional circumstance for four reasons:

● This cannot explain the delay between 22 October 2015 and 4 January 2016 when the police charges were laid. DP Gooley’s decision which made it clear that Mr McCaig needed to lodge a new application if he wanted to pursue unfair dismissal (unless he wished to proceed to seek that the notice of discontinuance by set aside in the court) was issued on 4 December 2015. There is no explanation for the period of delay from 4 December 2015 until 4 January 2016.

● The capacity to lodge an application and the capacity to lodge materials in support of the application and attend proceedings are two different matters. If Mr McCaig had lodged an application but then had difficulties managing both the criminal proceedings and the unfair dismissal proceedings he could have made an application for adjournment or for additional time to deal with that eventuality. Mr McCaig was able to lodge the first unfair dismissal application and to participate in the process of seeking to set aside the notice of discontinuance.
● As discussed earlier, Mr McCaig has provided medical reports which demonstrate his incapacity to perform his previous work duties. Those reports are dated 26 October 2015 and 22 February 2016. These reports do not establish incapacity to complete an unfair dismissal application during that period or subsequently.

● There is no requirement for an employee to be represented to make an unfair dismissal application and the filing fee can be, and commonly is waived, in case of financial difficulty. I accept that due to his illness Mr McCaig may have perceived that it was difficult for him to represent himself. Mr McCaig gave evidence that he received four weeks’ notice pay and in addition has been receiving weekly workcover payments of $1700 per week gross. In these circumstances I am not satisfied that lack of financial resources provides an explanation for the period of delay.

[12] The Applicant alleges that he was coerced or unfairly influenced to discontinue his first unfair dismissal application. The evidence he gives in support of this is: “Throughout this process I was psychologically unstable and unable to afford legal representations…. I was under immense pressure and overwhelmed by the process.” 4 The Applicant does not provide any basis for the allegation of coercion or unfair influence. I am not satisfied that the Applicant was coerced or unfairly influenced. I can accept based on Mr McCaig’s evidence and the medical documentation attached to that evidence, that Mr McCaig was stressed and under pressure and not functioning at full capacity. However, there is not sufficient evidence to conclude that Mr McCaig’s psychological state led him to discontinue whilst not in fit or proper mind. However, Mr McCaig clearly had the capacity to dispute the notice of discontinuance and participate in the process which led to DP Gooley’s decision of 4 December 2015. Even if I was to accept that Mr McCaig’s psychological illness led to the notice of discontinuance, the lack of capacity would only explain the period of delay until 4 December 2015 when DP Gooley clearly determined that Mr McCaig would need to lodge a new application or challenge in the court if he wanted to pursue an unfair dismissal remedy.

[13] I am not satisfied that the reasons for delay for the whole period of the delay provide a basis for a finding of exceptional circumstances.

[14] Section 394(3)(b) is a neutral consideration given that Mr McCaig was aware of the dismissal at the time it took effect.

[15] Section 394(3)(c) is also a neutral consideration. Mr McCaig did challenge the dismissal by lodging an application within time. However, between the decision of DP Gooley on 4 December 2015 and the lodging of the second application on 27 May 2016 he took no action to dispute the dismissal. Given the length of this period of time I do not consider that there have been significant or consistent efforts to dispute the dismissal. I consider this to be a neutral factor.

[16] Section 394(3)(d) stands against a finding of exceptional circumstances. There is clearly some prejudice to an employer in a circumstance where the period of delay in making the application is so lengthy. I accept the evidence of Mr McClusky and Mr Hulme for DP World that important witnesses have since left the business including Mr McCaig’s manager who was a key decision maker in the dismissal process. This combined with the impact the length of delay may have on the recall of witnesses could prejudice the employer. However, this is not a strong factor in the circumstances of this case given that the employer would have the capacity to defend the case given its size and level of resources and the extent of contemporaneous documentation including the availability of a number of police witness statements.

[17] Section 394(3)(e) is a neutral consideration. It is not appropriate to embark on a detailed consideration of the merits of the case as that would involve an effective hearing prior to determining the extension of time. The time and expense involved in such a process would not generally be consistent with the objects of the Act and Part 3-1 in particular. For the reason discussed earlier the withdrawal of the criminal case does not suggest any obvious weakness in the employer’s case given the civil rather than criminal standard of proof which will apply. I have not heard the detailed evidence of either party. I am not able to conclude that the case is without merit.

[18] It is acknowledged that another employee was dismissed at the same time as Mr McCaig but they have not lodged an unfair dismissal claim. I am not satisfied that this would affect the application of consistent principles in cases of this kind. I am not satisfied that granting or refusing an extension of time in the circumstances of this case would be particularly inconsistent with earlier decisions of the Fair Work Commission. Section 394(3)(f) is a neutral factor.

[19] The length of the period of delay which causes some prejudice to the employer and the lack of a strong reason for the whole of the period of the delay are the two most relevant factors in this case. Considering all of the factors in Section 394 leads me to conclude that there are no exceptional circumstances which would justify an extension of time in this case.

[20] The application is dismissed.

COMMISSIONER

Appearances:

Ms J Garcia appeared for the Applicant.

Ms S Williams appeared for the Respondent.

Hearing details:

2016

Melbourne

June 24

 1   [2015] FWC 8415.

 2   Applicants submissions at paragraph 9.

 3   Exhibit A2 at paragraph 25.

 4   Applicant’s statement at paragraph 25.

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<Price code C, PR582183>