[2010] FWA 7803

[2010] FWA 7803

Download Word Document

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Aaron Smith
v
Signature Security Group
(C2010/4571)

COMMISSIONER WILLIAMS

MELBOURNE, 6 OCTOBER 2010

Termination of employment – general protections claim – extension of time.

[1] This matter involves an application by Mr Aaron Smith (the applicant) lodged under s.365 of the Fair Work Act 2009 (the Act) and the respondent is the Signature Security Group.

[2] The application was lodged on the 6 August 2010 and states that the date of dismissal was 19 February 2010.

[3] Section 366 of the Act, which is set out below, requires that an application such as this to deal with a dispute in relation to contraventions of the general protections provisions involving dismissal must be made within 60 days after the dismissal took effect.

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[4] The application was lodged 168 days after the dismissal and so is 108 days out of time. Consequently I wrote to the applicant and invited him to provide information about any relevant circumstances that should be taken into account when deciding whether or not the Tribunal should allow a further period for his application to be made. The applicant has provided information in support of his extension of time application. This information was provided to the respondent and they were invited to make a submission in reply but no response from them has been received.

The applicant’s submission

[5] The applicant explains that an incident occurred on the 31 January 2010 where he had a heated discussion with a client over the telephone. He says this was caused by a build up of ongoing frustrations and stress from within the work environment that had previously been brought to the attention of the alarm response manager Mr Jeremy Hopfmueller.

[6] On 1 February 2010 the applicant wrote an email apologising for the incident that had occurred on 31 January and explaining how he was frustrated and upset with a few issues.

[7] On 2 February 2010 he attended work and was advised by the manager that he would speak to him later about the email and incident. He resumed normal duties that night. However during that shift he was ridiculed within the workplace for another incident that he had previously brought to the attention of the manager whom viewed it as a “minor matter”. He advised his shift senior that he was going home because he was not feeling well due to the continuation of feeling hopeless, frustrated and stressed at work.

[8] The applicant saw his GP who gave him a medical certificate for several days off. During this time he decided he could not let the situation get any more out of hand and sought legal advice on the matter.

[9] On 9 February 2010 he handed in a worker’s compensation form to his manager.

[10] The applicant saw his doctor again who gave him a medical certificate from 11 February 2010 stating that he would benefit from part-time work up to three days per week. Originally rostered for the rest of that week, he was instructed to take the rest of it off after his first medical certificate had expired. He was rostered next for 19 February 2010, and he was told to come in for normal shift duties.

[11] When he arrived he was advised he was to attend a meeting regarding the incident that had occurred on 31 January 2010. During the meeting with Mr Hopfmueller, the room supervisor and the General Manager they discussed the incident and he was asked if he had anything to add in his defence, to which he declined as he felt everything in his email to the manager on 2 February was there and anything he had to add would not help his case. He was then given a letter stating his employment with Signature Security had being terminated due to “serious misconduct”.

[12] The applicant says he was a victim of bullying and harassment and had also witnessed sexual harassment.

[13] In support of extending time for his application the applicants says that:

The reason for the delay was that his organisation skills, judgment and confidence were affected by what had occurred within the work environment. He did however feel strongly that his injuries were sustained within the work place.

There was some delay with the appointments set by the insurer regarding workers compensation. There were a few changes in the appointment times. The first one was finally scheduled for 30 April 2010 and the second on 6 May 2010. Several weeks after the final appointment he was advised his claim had been declined by the insurer. He was represented by Perth City Legal who advised him to proceed further and that it would cost him to see a doctor of his own choosing.

The stresses from within the workplace and having nothing satisfactory done about them did not help his medical condition (depression) and had an impact on his personal life and well being. During this period he found himself in a lot of debt due to the loss of income. He had trouble finding work and also found himself homeless and living out of his car, struggling to maintain his health and overall well being.

He also felt apprehensive towards a confrontation or conference with his previous employer.

[14] With respect to the merits of the substantive application, the applicant believes that his employment would not have been terminated if he had not reacted with a worker’s compensation claim.

Consideration

[15] With respect to the reasons for the delay in lodging this application the applicant says this was because his organisation skills, judgement and confidence were affected by what had happened to him at work. It is however not explained how it is that much earlier than this application was lodged the applicant was taking legal advice and actively pursuing a worker’s compensation claim.

[16] The applicant also says in effect that part of the delay in lodging this application was because of the delays in appointments with the insurer regarding his worker’s compensation claim.

[17] There is however no reason why the applicant could not lodge this application immediately after his dismissal, because it is a separate and independent claim that is not related to any worker’s compensation issues. It may well be the applicant was unaware of this, however, as has often been held before in this jurisdiction the lack of knowledge of an applicant about his legal rights is not an acceptable explanation for delayed lodgement of an application. I also note that the dates mentioned for meeting with the respondent’s insurers were both after the statutory 60 day time limit for this application had passed.

[18] The applicant also says that the stresses in the workplace did not help the depression he was suffering from. While no medical evidence was provided, accepting this on face value there is however no explanation as to why this prevented him from lodging the application within time and given he was actively pursuing his worker’s compensation claim this reason for the delay lacks credibility.

[19] The applicant also points to the difficulties caused by losing his job in terms of becoming indebted and then homeless. These consequences were no doubt significant difficulties however the applicant has not explained how they prevented him from lodging his claim within time nor specifically what part of the more than 15 weeks’ delay these problems caused.

[20] Whilst I have sympathy for the applicant and accept he was struggling with a number of difficulties from the time he was terminated the onus is on him to demonstrate to the Tribunal that the reasons for the delay were ones that would support a conclusion that the applicant’s situation involved exceptional circumstances. Ultimately my view is that the applicant has not discharged the onus on him. I am not satisfied that there is an acceptable explanation for all of the period of the more than 15 week delay in this instance.

[21] The applicant did not take any other action to dispute his dismissal other than the making of this application.

[22] There is no evidence that there would be any particular prejudice to the employer if an extension of time all was to be granted.

[23] In terms of the merits of his case, the letter of termination which was attached to the application explains that there was the meeting that the applicant refers to on Friday, 19 February 2010. The letter goes on to refer to events wherein the applicant lost his temper and verbally abused a customer on 30 January 2010 and that this customer has lodged a complaint with the respondents over this. Next the letter mentions that there is a recording of this conversation between the applicant and the respondent’s client.

[24] The letter also refers to a formal warning in February 2009 which also involved verbal abuse towards an “... employee, customer or client ...” of the respondent. The letter concludes by stating that having reoffended the respondent has lost confidence in the applicant and has decided to terminate his employment.

[25] It is significant that the applicant admits that he did abuse the customer on 30 January 2010 which largely was the stated reason for his dismissal.

[26] Clearly the applicant’s misconduct in verbally abusing a customer is conduct which would provide a valid reason for dismissal.

[27] However it is the applicant’s belief that the lodging of his worker’s compensation claim is what led to his dismissal.

[28] In considering an extension of time application such as this it is not for the Tribunal to make a final determination as to the merits of the substantive case nor to undertake a detailed consideration of the substantive case but rather to consider the apparent merits, given the limited information available, and to decide whether this weighs in favour of granting an extension of time or not. 1

[29] In this instance my view is that the applicant’s case is not a strong one and that the merits of his case do not weigh in favour of granting an extension of time application.

[30] The question of fairness between the applicant and other person’s in a like position does not arise in this case

Conclusion

[31] In this case whilst I accept that since the time of dismissal the applicant has struggled with a number of difficulties that may have explained some part of the delay in the lodgement of this application, he has not discharged the onus upon him to the extent necessary to satisfy me that there is an acceptable explanation for all of the lengthy delay in the lodgement of this application. Further, the applicant has not taken any other steps to dispute his termination and the merits of his substantive application do not weigh in favour of granting an extension of time. Taking into account all of the factors above I am not satisfied that there are exceptional circumstances in this case that warrant an extension of time being allowed to lodge this application.

[32] Consequently this application has been lodged out of time and cannot proceed further. This application is now dismissed.

COMMISSIONER

1 Kyvelos v Champion Socks Pty Limited, Print T2421 at PN 14 per Giudice J, Acton SDP and Gay C.

Printed by authority of the Commonwealth Government Printer