FWA 5878
Fair Work Act 2009
Structural Cranes Pty Ltd
DEPUTY PRESIDENT HARRISON
NEWCASTLE, 12 JULY 2012
Hearing re application out of time - Application admitted
 Mr Wayne Robert Candy (“the Applicant”) was employed by Structural Cranes Pty Ltd (“the Respondent”) from June 2007 as a Level 5 Crane Driver operating a 200 tonne crane.
 In 2010 Mr Candy suffered an injury to his left shoulder which required an operation resulting in his inability to attend work for some five months.
 Mr Candy deposed that his return to work was premature at the insistence of the Respondent.
 Two months after his return to work Mr Candy suffered a further injury to his left shoulder resulting in a further absence of three months. Two weeks after his return from this injury Mr Candy suffered an injury to his right shoulder whilst lifting heavy timbers to position the crane, this injury resulted in an operation in October 2011.
 Mr Candy returned to work in January 2012 on light duties in the office, which Mr Candy deposed was uncomfortable due to the negative attitude of other staff who commented that he should go back to the heavy cranes as the Respondent was having trouble recruiting operators.
 After some time in the office Mr Candy was deployed to operate a crawler crane, a machine that was within his capability. It is put that this posting was curtailed by the client transferring an employee from Queensland.
 Mr Candy was then deployed to operate a 100 tonne crane with the intention of moving to a 200 tonne crane until an 80 tonne crane position became available. Mr Candy deposed that the 80, 100 and 200 tonne cranes were all unsuitable as they all required lifting heavy timber for placement under the outriggers.
 Mr Candy deposed that on 2 February 2012 he approached the Respondent’s Operations Manager, and asked to operate a 15-20 tonne Franna crane which he considered was within his ability. Mr Candy’s evidence is that he was rebuffed.
 Mr Candy then raised his concerns that due to his injuries he felt unsafe driving the large cranes on the road.
 Mr Candy’s evidence is that he offered to take leave or rostered days off, until the matter could be resolved; and if the matter could not be resolved he may need to give notice and leave the Respondent.
 Mr Terry Jones, a supervisor, instructed Mr Candy on 3 February 2012 to take a rostered day off as there was no work for him. Mr Candy missed a telephone call from the Respondent requesting him to work on the next day, Saturday 4 February 2012. Mr Candy deposed he was told on Monday 6 February 2012 that he would be dismissed.
 Mr Candy deposed that he was told that the Respondent had received two phone calls from Boom Logistics to check his work history which led to a conclusion that he was seeking work elsewhere.
 The evidence of Mr Harrison is:
“I told Wayne about the phone call we received from Boom Logistics confirming his employment with Structural Cranes as part of a reference check for a job.” 1
 Mr Candy’s evidence is that he and his father had owned a crane company for a number of years and that Boom Logistics were attempting to contact him in respect to a former employee. This is supported by a Statement of Ms Anne-Keryn Ferris, a Recruitment Consultant for Boom Logistics. 2
 Mr Candy asserts that he was then dismissed.
 The evidence of Mr Mark Harrison, General Manager of the Respondent, refutes the assertion that Mr Candy was dismissed.
 Mr Harrison deposed that Mr Candy tendered his resignation voluntarily to him, in the presence of Lacie Hodges and Abbey Wright, advising Mr Harrison that:
● he did not wish to drive Unit 80 as he was told it was unsafe; and
● he had been offered a job with Borger cranes where his uncle is a supervisor, and at Boom Logistics driving a brand new 350 tonne crane.
 Neither Ms Hodges or Ms Wright were called to give evidence or provided a statement.
 Mr Harrison deposed that he accepted the resignation and on enquiry agreed to wave the three week notice period.
 On 6 February 2012 Mr Candy declined to sign a letter of resignation prepared by the Respondent. Mr Harrison deposed that the letter of resignation was prepared at Mr Candy’s request. Mr Candy denies this.
 Mr Harrison’s evidence is that Mr Candy admitted that he had lied about the other jobs and was incorrect in questioning the safety of Unit 80 which had undergone a 10 year maintenance procedure. Mr Candy refutes this.
 In cross examination by Mr Wormington Mr Harrison could not reconcile the notion that he accepted that Mr Candy was going to drive a 350 tonne crane for Boom Logistics when he knew that Mr Candy was unfit to drive smaller cranes. Mr Wormington questioned why Mr Harrison was prepared to wave the notice period to allow Mr Candy to move on to another company to operate a 350 tonne crane when the Respondent had an apparent need for 100 and 200 tonne crane drivers.
 Having parted company with the Respondent Mr pursued his workers compensation matters and on 16 March 2012 his workers compensation solicitor suggested that he see Mr Wormington.
 The initial meeting with Mr Wormington on 16 March 2012 resulted in a conclusion that the filing of this application should await the conclusion of a workers compensation investigation. Mr Wormington informed Mr Candy that he was going overseas on 17 March for three weeks and that Mr Candy may be better off getting another solicitor.
 Mr Candy was receiving workers compensation payments at the time, however, put that he had to sell his car to make ends meet. Attached to Mr Candy’s witness statement 3 is a remittance advice from Valley Motor Auctions dated 11 April 2012 for the sale of his car.4
 On 20 March 2012 Mr Candy was advised by the insurer that his workers compensation payments were discontinued as he had resigned his employment with the Respondent.
 Mr Wormington was unable to refer Mr Candy to another solicitor who would take the matter without guarantee of payment. An incomplete application was prepared and Mr Candy attached a cheque for payment of the filing fee.
 Mr Candy was then advised to prepare an account of events and meet again with Mr Wormington on 10 April 2012 which was the Tuesday after Easter. Mr Wormington noted that the last day for filing of the application fell on Good Friday and that 10 April 2012 was the next working day. Mr Candy deposed that he forgot to attend this meeting.
 Mr Wormington tried to contact Mr Candy, ultimately locating him and having him attend immediately, resulting in filing of the application by facsimile transmission on 12 April 2012.
 Mr Candy deposed as follows in respect to the reason he failed to keep the appointment with Mr Wormington on 10 April 2012:
“I completely forgot about my appointment on 10 April 2012. For the past 12 months or so I have been getting very little sleep. I get up on average about five times a night because of the pain in my shoulders and I estimate that I only get about two hours sleep per night. I have noticed that I’ve become very forgetful and I can’t seem to concentrate. My mind seems to wander like I’m in a permanent daydream. In addition to my sleeping problem I am suffering from depression. Annexed hereto and marked with the letter ‘C’ is a short report from my Dr confirming my injury.” 5
 Correspondence from a Dr Kuchta 6 confirms that Mr Candy is suffering from reactive depression and anxiety. The evidence of Mr Candy is that he was sleep deprived and continues to be so.
 Mr Wormington relied upon the Decision of a Full Bench in Nulty v Blue Star Group Pty Ltd 7 where the Bench said at para 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. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. 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.
 Mr Bryan acknowledged that the principles enunciated by the Full Bench were those appropriate.
 Mr Bryan submitted that on testing the facts and circumstances of this matter against those principles, grounds for admission of the matter out of time were not made out.
Reasons for delay
 The reasons for the delay in filing of this application may be characterised as a combination of the absence of Mr Wormington on pre-arranged, pre-paid leave; Mr Candy’s inability to obtain another solicitor who would make consideration for his impecunious circumstances; and his state of health, which caused him to miss the meeting of 10 April with Mr Wormington.
 All of these factors are proven.
 I am satisfied on the evidence that Mr Candy forgot to see Mr Wormingtan as arranged due to his poor state of health.
 Whilst any one of these circumstances taken separately might not satisfy the criteria of “exceptional”, taken together in this matter I conclude that the criteria for admission of the application out of time is satisfied.
 Other matters to consider are:
Action taken to dispute the dismissal
 The issue of termination or resignation is a live issue surrounded by the workers compensation matter.
 The evidence of Mr Harrison is contained in a Statement 8 taken by a Mr David Williams on 16 February 2012 for the purpose of what may be described as the workers compensation matters.
 In cross examination by Mr Wormington Mr Harrison confirmed that he was aware that the issue was whether Mr Candy resigned or was dismissed, and that this could be subject to litigation.
 The Respondent was well aware within the time period that the matter was in dispute.
 Mr Candy was actively contesting the termination of his employment. He was put off by an investigation by the workers compensation insurer which took 43 days to 20 March 2012. Mr Wormington submitted that time should run from 20 March 2012 when the termination of Mr Candy’s employment took place and the cessation of workers compensation payments was confirmed by the insurance company.
 It was entirely reasonable for Mr Wormington to advise Mr Candy to await the outcome of the insurance enquiry as the continuation of his employment and entitlements were a prospective outcome.
 This proposition has some attraction but more would need to be known of the nature and circumstances of the enquiry by the insurance company.
 There is nothing in these criteria which would mitigate against an exercise of discretion to admit the application.
Prejudice to the employer
 It is acknowledged that there is no prejudice to the Respondent other than legal costs incurred, which does not impede an exercise of discretion.
Merits of the application
 The merits remain a live issue.
 There remain a number of disputed facts which I do not determine in these proceedings; however, one element is the belief by the Respondent that the enquiries by Boom Logistics supported the view that Mr Candy was seeking other employment.
 This is resolved in favour of Mr Candy by the evidence of Ms Ferris that she was indeed attempting to contact Mr Candy to obtain a reference for one of his former employees.
 I am satisfied that the requirements of s.366(2) of the Fair Work Act have been met and I admit the application out of time.
Mr John Wormington (Applicant)
McDonald Legal Pty Ltd
Mr Matthew Bryan (Respondent)
McDonald Johnson Solicitors
1 Exhibit 5 at para 28
2 Exhibit 4
3 Exhibit 2
4 at Attachment A
5 at para 20
6 at Attachment C
7  FWAFB 975
8 Exhibit 5
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