[2010] FWA 3863 Download Word Document FAIR WORK AUSTRALIA DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy John Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group (U2010/5657) COMMISSIONER DEEGAN CANBERRA, 20 MAY 2010 Termination of Employment – extension of time. [1] This matter arises from an application for unfair dismissal remedy filed on 2 February 2010 pursuant to s.394 of the Fair Work Act 2009 (“the Act”) by John Ovenden (“the applicant”) in relation to the termination of his employment by Fortezza Pty Ltd T/A High Country Automotive Group (“the respondent”). [2] On 19 February 2010, the respondent filed a Form F3 – Employer’s response to application for unfair dismissal remedy and objected to the application in that it was filed 26 days out of time. [3] On 23 February 2010, the applicant requested to Fair Work Australia (“FWA”) that the matter proceed to hearing without a conciliation conference. On 26 February 2010, the respondent sought that the question of time be dealt with initially on the papers. [4] On 9 March 2010, I held a directions conference by telephone. It was agreed by the parties that the matter would proceed initially on the papers. The following amended directions were issued on 17 March 2010: Extension of time, s.394 (2) and (3) of the Fair Work Act 2009. 1. The applicant is directed to file in Fair Work Australia, and serve on the respondent full written submissions, affidavits and documentary material relied on by no later than 5:00pm, Tuesday 6 April 2010. 2. The respondent is directed to file in Fair Work Australia, and serve on the applicant full written submissions, affidavits and documentary material relied on by no later than 5:00pm, Friday 23 April 2010. 3. The parties will be advised accordingly should a hearing be required after written submissions are received by Fair Work Australia. [5] Submissions were received by the parties with a final response to the respondent’s submissions being received on 3 May 2010. Legislation [6] Section 394 of the Act relevantly states: Application for unfair dismissal remedy (1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy. Note 1:       Division 4 sets out when FWA 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 14 days after the dismissal took effect; or (b)  within such further period as FWA allows under subsection (3). (3)  FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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. Background [7] The applicant was employed by the respondent from 16 June 2004 until his employment ceased on 23 December 2009. On 30 July 2009 the respondent issued a letter in the nature of a warning to the applicant and required the applicant to proceed immediately on recreation leave. According to the letter the applicant was entitled to a period of 15 weeks leave. [8] According to the affidavits filed by the applicant’s solicitor, during the period of leave the applicant required medical assistance and was issued with medical certificates which he provided to the respondent. On 12 October 2009 the applicant’s doctor corresponded with the respondent concerning the applicant’s health and asked the respondent to assist the applicant with making a worker’s compensation claim. [9] On 2 November 2009 the applicant lodged a complaint about his employer with the Fair Work Ombudsman. [10] The applicant’s recreation leave ended on 15 November 2009. Immediately prior to this date the applicant provided the respondent with a medical certificate from the period 12 November 2009 to 3 December 2009. On 25 November 2009 the respondent’s solicitors wrote to the applicant denying the sick leave claim and requesting a medical authority form to be completed by the applicant, authorising the release of the applicant’s medical information to the respondent. [11] The applicant obtained a further medical certificate certifying his unfitness for work for the period 2 December 2009 to 8 January 2010. [12] By letter dated 10 December 2009 the respondent’s solicitors accused the applicant of abandoning his employment. The applicant’s solicitor responded to the letter on 15 December 2009 advising that the applicant was on sick leave and that office staff of the respondent had refused to accept the sick leave certificates. The letter requested that all further correspondence be addressed to the applicant’s solicitor. [13] On 23 December 2009 the applicant received a letter from the respondent’s solicitors advising him that his employment was terminated from the date of the letter on the basis of “the abandonment of employment provisions of the Award”. That letter noted that a medical certificate had been provided to the company on 11 December 2009 and that the respondent’s lawyers had obtained medical information from the applicant’s general practitioner. The letter also stated “(o)ur lawyers advise us that they can see no evidence in the medical notes of any condition relating to your continuing non-attendance” and noted that the termination was “in light of your continuing failure to provide any explanation for your non-attendance”. [14] The application for relief was filed on 2 February 2010, 26 days after the expiry of the statutory time limit. Submissions The reason for the delay [15] Medical evidence was provided on behalf of the applicant to the effect that he was unable to deal with the notice of termination when it arrived on 23 December 2009 as he was suffering from “depression and anxiety exacerbated by work stress” 1 . It was also stated that the applicant was showing signs of Post Traumatic Stress Disorder and suffered from an intellectual impairment. This was the reason given for the delay in submitting the application. [16] The respondent’s submissions do not raise any doubt as to the validity of the claims concerning the applicant’s medical condition but submitted that it fell short of establishing that the applicant was unable to deal with his situation. In this regard the respondent relied on the decisions in Smith v Canning Division of General Practice Ltd 2 and Wemyss v Mission Australia Employment Services . 3 Whether the person first became aware of the dismissal after it had taken effect [17] The applicant became aware of his dismissal on the day the dismissal took effect. A ny action taken by the person to dispute the dismissal [18] The applicant had challenged the claim of abandonment of employment prior to the termination taking effect. The respondent did not respond to the applicant’s solicitor’s letter of 15 December 2009 but proceeded to terminate the applicant’s employment. Prejudice to the employer (including prejudice caused by the delay) [19] The respondent claims no prejudice. The merits of the application [20] The applicant’s substantive case is set out in some detail by his representative. According to the applicant, he was forced to take annual leave without his consent, disciplined without reason and then had his medical concerns arbitrarily dismissed by his employer, despite his doctor approaching his employer directly. His treatment at the hands of his employer had a deleterious effect on his health, and this was further exacerbated by the employer’s refusal to accept medical certificates and the accusation of abandonment of employment. [21] The respondent notes that the merits are not determinative in an extension of time application It is the respondent’s submission that it “did not accept the applicant’s medical certificates as sufficient justification of the applicant’s continued absence from work, and informed the applicant of such via a letter dated 10 December 2009. Despite being informed of this, no further medical evidence was provided by the Applicant to substantiate his continued absence from work.” [22] The respondent terminated the applicant’s employment in accordance with clause 2(g) of the Vehicle Industry Repair Services and Retail (State) Award. Fairness as between the person and other persons in a similar position . [23] The applicant’s representative was unaware of any other person in the applicant’s position. The respondent did not address this factor. Exceptional circumstances [24] Relying on recent decisions 4 of Fair Work Australia (“FWA”) members, the applicant’s representative submitted as follows: “The Applicant submits his educational and medical history, in combination with the factual matrix of disputed disciplinary action, enforced annual leave, rejected medical certificates and disputed abandonment of employment are not circumstances regularly, routinely or normally encountered. The medical reports identify the Applicant as a person vulnerable to abuse and possibly suffering from Post Traumatic Stress Disorder as a consequence of the Respondent’s conduct. It is this conduct and these circumstances the Applicant submits are exceptional and warranting relief pursuant to section 394 (2)(b) of the Fair Work Act 2009.” [25] The respondent submitted that the onus for making out the existence of exceptional circumstances rested with the applicant and endorsed the same authorities relied upon by the applicant’s representative. Consideration and Conclusion [26] Taking into account all those matter set out in s.394(3) of the Act I am satisfied that “exceptional circumstances” within the meaning of that section exist in this matter and that I should allow the applicant additional time for the filing of the application. [27] The applicant’s case is particularly unusual. The respondent does not deny that the applicant was required to take annual leave, apparently as some type of disciplinary action. Sick leave he applied for during his annual leave was refused by his employer. He was due to return from annual leave in early November 2009 but supplied his employer a sick leave certificate exempting him from work until 3 December 2009. The employer sought authority to access the applicant’s medical records and advised that it would make arrangements for the applicant to be assessed by an independent medical practitioner. The employer, despite being provided with medical certificates covering the applicant until 8 January 2010, suspended any payment for sick leave “pending the determination of this matter”. [28] After advising the applicant that separate correspondence would be sent to him about the independent medical assessment it required him to undertake the respondent appears not to have made arrangements for any such assessment, but on 10 December wrote to the applicant accusing him of abandoning his employment. The applicant’s solicitors responded by letter of 15 December denying any such abandonment but the applicant’s employment was, nevertheless, terminated on the ground of abandonment on 23 December 2009. [29] So far as the reason for the delay in filing is concerned, I am satisfied by the medical evidence supplied that the applicant was in no fit condition to deal with the matter until late January 2010. I am also satisfied that the manner in which the termination occurred, and the fact that the letter was supplied 2 days before the Christmas holiday break, exacerbated the situation. Clearly the employer was aware, upon receipt of the letter of 15 December, that the applicant contested the claim of abandonment of employment. There is no prejudice to the employer caused by the delay in filing. [30] I make no finding as to the merits of the matter but am able to conclude on the basis of the matters put to me that the matter is not totally without merit. [31] I concur with the position of the applicant’s representative that the matter of fairness as between the applicant and other persons in like position has little if any application in this case. I am unaware of any other persons in a similar position. However, I do note that other persons whose employment was terminated as a consequence of being temporarily absent for illness or injury would have grounds for an application under s.365 of the Fair Work Act 2009 . In such a case the time for the filing of the application is from the date the termination took effect. [32] For the above reasons time is extended for the filing on the application until 2 February 2010. [33] The application will proceed to arbitration. COMMISSIONER 1 Applicant’s Affidavit Annexure T53 Psychologists letter. 2 [2009] AIRC 959 . 3 [2010] FWA 1798 . 4 Parker v Department of Human Services [2009] FWA 1638 , Johnson v Joy Manufacturing Co Pty Ltd [2010] FWA 1394 . Printed by authority of the Commonwealth Government Printer <Price code C, PR997322>