T9840
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Christopher Colin Campbell and Wynyard Ex-Servicemen and Citizen's Club Inc.
Industrial dispute - alleged unfair termination of employment - preliminary matter - application for extension of time - medical condition - consideration of exceptional circumstances - application granted - hearing to be reconvened REASONS FOR PRELIMINARY DECISION [1] On 10 October 2001, Christopher Colin Campbell (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Wynyard Ex-Servicemen and Citizen's Club Inc. arising out of the alleged unfair termination of his employment. [2] The matter was set down for hearing at the Waratah-Wynyard Council Chambers at 10.00am Thursday 1 November 2001. [3] This matter concerns an application for an extension of time for the lodgement of an application alleging an unfair termination of employment. [4] Mr Campbell, was terminated by the employer on 1 August 2001. His application was received in the Commission on 10 October 2001. [5] Section 29[1B] provides that such applications must be lodged within 21 days of the date of termination, or, " if the Commissioner considers there to be exceptional circumstances, such further period as the Commissioner considers appropriate". [6] Mr Campbell's application is 49 days out of time. The question to be determined is whether the reasons advanced by Mr Campbell for the delay constitute exceptional circumstances which justify an extension. [7] After hearing evidence and submissions I issued a decision on transcript granting the extension, indicating that written reasons would follow. [8] Mr Campbell had been employed by the Club since December 1996 in the position of Secretary/Manager. On 24 May Mr Campbell suffered a heart attack and was hospitalised in Burnie for three days. He was then transferred by air ambulance to Calvary Hospital in Hobart for a further eight days. It is likely that he returned home to convalesce on or about 7 June. [9] Mr Campbell's evidence was that he "never had virtually a days sickness" 1 and that this sudden illness came as a major scare. [10] Mr Campbell's doctor had advised him to avoid excessive physical activity and stressful situations. However light exercise [walking] together with dietary modifications were recommended and indeed followed by Mr Campbell. No specific time frame had been placed on these medical requirements. [11] Mr Campbell remained on sick leave until the date of his termination. [12] Mr Campbell said that the delay in lodging the application was because he considered he was not up to the stress associated with lodging the application and subsequent hearing process. In response to a question as to why it wasn't lodged sooner he said:2
(13) Correspondence dated 29 October from Consultant Physician, Dr Bruce Watson reads as follows:3
(14) Certain allegations against Mr Campbell were raised in correspondence from the club dated 18 and 25 July. This followed earlier correspondence proposing a "voluntary redundancy or retirement inducement offer". These allegations came to a head at a meeting with the Club Executive Committee on 1 August. Mr Campbell maintained that he denied the allegations. His employment was terminated effective from that day. (15) Mr Trafford for the employer opposed the extension on the grounds that no adequate explanation had been provided. His submissions can be summarised as follows:
(16) Mr Campbell's evidence in relation to these submissions was as follows:
Finding (17) Mr Campbell's application can be distilled to the avoidance of an unnecessarily stressful situation during a period of recuperation following a heart attack. (18) After an apparent working lifetime of good health it is understandable that Mr Campbell would depict his heart attack as a major scare and be cautious about compromising the recuperation process. On the available evidence I find that Mr Campbell did not do anything inconsistent with his medical advice. (19) There are elements of ambiguity relating to the time frames in which Mr Campbell was advised to avoid stressful situations. His general practitioner did not put a specific time frame on the avoidance of excessive physical activity and stressful situations. (20) The letter from Dr Watson states that he was advised "not to subject himself to any physical or emotional stress in the few months after his myocardial infarction" [my emphasis]. (21) The letter goes on to state:
(22) Surprisingly the letter from Dr Watson makes no mention of the period of hospitalisation in Calvary. Three months from Mr Campbell's return from hospital would take it to approximately 7 September. Even on a narrower construction of Dr Watson's letter, the three months would take it to the end of August. On either construction, an application lodged consistent with Dr Watson's opinion would have been out of time. (23) Importantly, Dr Watson's advice is after the event. On the available evidence neither Dr Watson nor Mr Campbell's GP provided a definitive time frame other than a "few months" during which Mr Campbell was to avoid physical and emotional stress. In the circumstances Mr Campbell's own view as to when he felt able to pursue the application carries considerable weight. (24) I also acknowledge Mr Campbell's contention that it is not simply a matter of lodging an application. The likelihood of a hearing shortly thereafter was, in Mr Campbell's mind, a far more daunting prospect. (25) Mr Trafford did not advance any argument that the employer would be prejudiced by the granting of an extension. (26) Mr Trafford submitted that the applicant had failed to establish a prima facie case. Whilst this is not a requirement of the Act, I do accept that it may have some relevance when considering an application for extension of time. On the face of it Mr Campbell's termination was based on certain allegations raised in correspondence and in the meeting on 1 August. Mr Campbell states that he denies these allegations. Whilst no evidence has yet been called as to the veracity of these allegations, Mr Campbell would, in the normal course of events, be entitled to have these issues tested. (27) Demonstrating exceptional circumstances carries a heavy onus and this case is not clear cut. On balance I am however satisfied with Mr Campbell's explanation for the delay, and the application for the extension of time is granted. ORDER Pursuant to Section 31 of the Act I hereby order that in accordance with Section 29(1B) that the time in which the applicant herein, Mr C C Campbell, may bring an application pursuant to Section 29(1A) concerning his termination of employment on 1 August 2001 by the Wynyard Ex-Servicemen & Citizens Club Inc., be extended up to and including 10 October 2001.
Tim Abey Appearances: Date and Place of Hearing: |