Brady v Kennedy

Ms J Willingham, Employee Relations Adviser of the STA (Respondent) File Number(s): IRC 1333 of 2010

DECISION Background 1Mr Sanawaz Burtaleea commenced his employment with the State Transit Authority ("STA") in October 2006 as a Trainee Bus Operator. He finished his traineeship and was subsequently employed on a full time basis as a Bus Operator at Waverley Depot. He was still in that position as of 16 July 2010 when the STA says Mr Burtaleea was deemed to have abandoned his employment. 2On 18 November 2010 the Australian Rail, Tram and Bus Industry Union, NSW Branch ("the RTBU"), lodged an unfair dismissal application on behalf of Mr Burtaleea under section 84 of the Industrial Relation Act 1996. 3On 30 November 2010 the STA filed its response to the RTBU's application and raised a jurisdictional issue that there was no dismissal within the meaning of the Act and also said the application was out of time and there was no basis to extend the time for lodgement. 4The matter was listed for conciliation before Tabbaa C on 13 December 2010. The matter was not resolved by conciliation and the out of time question was listed for hearing by the Commission as currently constituted on 21 February 2011. 5At the hearing the RTBU was represented by one of its officials, Mr R Baonza, and tendered an affidavit from Mr Burtaleea (exhibit 1). The STA was represented by Ms J Willingham, Employee Relations Adviser. The STA tendered affidavits from Ms Pamela Reid, Health Services Officer, Eastern Region, Mr Nick Lazarou, Depot Manager at Waverley Depot from April 2007 to January 2011, and Mr Steve Merrill, Staff Manager at Waverley Depot from April 2010 (exhibits 2, 3 and 4). 6There was cross examination of Mr Burtaleea, Ms Reid and Mr Merrill. Mr Lazarou was on leave and therefore not available to be cross examined. Evidence 7The facts are largely not in dispute although there are a few areas of disagreement. The Commission has set out a general chronology of events taken from the material before it. Those areas in which there is a particular conflict or dispute are also identified below. 8Mr Burtaleea commenced employment with the STA on 21 October 2006 and has worked at Waverley Depot as a Bus Operator since 2008. 9In late 2009 he developed a problem with his left eye that required surgery. He took leave from 22 December 2009 to undergo surgery by Dr Downie, eye surgeon. He eventually exhausted his leave entitlements and stayed on leave without pay for the period of his convalescence. 10On 17 February 2010 Mr Burtaleea contacted Ms Reid and told her he had surgery on his left eye but was now certified fit for suitable duties. She told him he would need to supply a medical certificate. 11A certificate from Dr Downie dated 11 February 2010 was supplied to Ms Reid stating Mr Burtaleea had decreased vision, was able to remain on light duties but should not drive buses or use heavy machinery etc from 11 February 2010 to 10 March 2010. 12On 24 February 2010 Mr Burtaleea advised Ms Reid that he required further surgery on his left eye and she advised him to contact her again when he was certified as fit for work. 13On or around February 2010 Mr Burtaleea advised the STA that he had moved from an address in Sans Souci to an address in Banksia. Mr Burtaleea produced the group certificates issued to him by the STA for the years ended 30 June 2009 and 30 June 2010 that show the Sans Souci and Banksia addresses respectively. 14On 5 May 2010 Mr Burtaleea gave Ms Reid a certificate from Dr Downie dated 28 April 2010 stating that Mr Burtaleea was able to return to work and gave the vision readings. In the certificate Dr Downie said 'I feel he is safe to return to drive a bus, even though his left vision is a little below the statutory requirement'. 15Ms Reid discussed the contents of the medical certificate with Mr Lazarou and then advised Mr Burtaleea that the STA required him to undergo an eye assessment with a Dr Lose. The appointment was arranged by the STA for the next day - 6 May 2010. 16On 6 May 2010 Mr Burtaleea attended the appointment with Dr Lose. However, due to a crack to the left lens of his glasses, he was unable to undergo an eye test. A further appointment with Dr Lose was arranged by the STA for 17 May 2010. 17On 17 May 2010 Mr Burtaleea attended the appointment with Dr Lose and an eye examination was conducted. Dr Lose provided a certificate dated 17 May 2010 to Ms Reid stating Mr Burtaleea's vision readings and stated that he was fit to perform non driving duties around the depot. 18In the certificate Dr Lose also noted that Mr Burtaleea disputed the reading and wanted to be tested again. Dr Lose recommended that, as he had only basic eye testing facilities and Mr Burtaleea wished to dispute his findings, the visual acuity and fields of Mr Burtaleea should be checked by an independent eye specialist. 19Mr Burtaleea maintains that Dr Lose cleared him to resume work. In cross examination he said Dr Lose told him after the test was finished that 'its good, the left eye is good'. He said he had never seen the certificate dated 17 May 2010 from Dr Lose. He said the day after the examination Mr Burtaleea told Ms Reid of the positive result but was required to undergo another examination. 20Ms Reid made an appointment for Mr Burtaleea to be examined by an eye specialist, Dr Duke, on 1 June 2010. 21On 1 June 2010 Mr Burtaleea attended the appointment with Dr Duke. At the appointment Dr Duke wanted to examine both eyes, but Mr Burtaleea refused as it was his left eye that was the cause of the problem and the reason for the test. Dr Duke ended the appointment and advised him to speak to Ms Reid whom he said he would also contact. 22Ms Reid states that, after speaking to Dr Duke, she arranged a second appointment for 11:30am on 10 June 2010 and told Mr Burtaleea she would send him the details of the appointment in the mail. She sent a letter to Mr Burtaleea dated 2 June 2010 with the appointment details. The letter was sent to Mr Burtaleea at the Sans Souci address. She also gave a copy of the letter to Mr Lazarou. 23Mr Lazarou states that he met with Mr Burtaleea on 2 June 2010 and discussed the details of the second appointment on 10 June 2010 with Mr Burtaleea who apparently agreed to have both eyes examined. 24Mr Burtaleea gave evidence that he attended Waverley Depot after the appointment with Dr Duke. In his statement he said it was the same day but during cross examination could not recall if it was that day or the next. His evidence was that he spoke to Ms Reid and was told that a second appointment with Dr Duke would be made and the details mailed to him. He did not recall anyone verbally or otherwise giving him the details of the appointment date and time. He also gave evidence that it was his own experience that there can be considerable delays in getting appointments with medical specialists. 25On 10 June 2010 Dr Duke advised the STA that Mr Burtaleea had not attended the appointment. 26Mr Lazarou stated he was informed by email on 10 June 2010 by Abdi Emly, the person acting in Ms Reid's position at the time, that Mr Burtaleea had not attended the appointment with Dr Duke. Mr Lazarou further stated that Mr Emly advised him in an email dated 11 June 2010 of a number of unsuccessful telephone attempts to contact Mr Burtaleea on 10 and 11 June 2010, including one occasion on which it is alleged Mr Burtaleea answered and hung up when the caller identified himself as an STA employee. 27Mr Merrill stated in his evidence Mr Emly advised him on 10 June 2010 that Mr Burtaleea had not attended the appointment with Dr Duke. Mr Merrill attempted to contact Mr Burtaleea on his mobile phone on 10 and 11 June 2010 but was unsuccessful. He gave evidence that the number he called was one that he had successfully used in the past to contact Mr Burtaleea. 28In his evidence Mr Burtaleea denied that he spoke to anyone from the STA around this time on the telephone or received any calls from a person identifying themselves as from the STA. He confirmed that his mobile phone was a work issued one and the number was the same throughout the period. 29On 21 June 2010 Mr Merrill decided, in the absence of any contact from Mr Burtaleea, to commence abandonment of employment proceedings under the State Transit Authority Division of the Government Service Bus Operations Enterprise (State) Award 2009 ("the Award"). 30On 21 June 2010 Mr Merrill wrote to Mr Burtaleea to advise him of the commencement of abandonment of employment proceedings against him and asked him to contact him. The letter was sent to Mr Burtaleea at the Sans Souci address. There was no response from Mr Burtaleea. 31On 29 June 2010, Mr Merrill states he again tried to contact Mr Burtaleea by his mobile telephone and left a voicemail message asking him to call. There was no response from Mr Burtaleea. 32On 8 July 2010 Mr Merrill wrote to Mr Burtaleea advising him that his employment was in jeopardy and asking him to contact him. The letter was sent to Mr Burtaleea at the Sans Souci address. There was no response from Mr Burtaleea. 33On 16 July 2010 Mr Merrill wrote to Mr Burtaleea advising him that his employment was deemed to have been abandoned. Among other things the letter detailed how letters dated 21 June 2010 and 9 July 2010 had been sent to his last known address at Sans Souci. The letter was sent to Mr Burtaleea at the Sans Souci address. There was no response from Mr Burtaleea. 34Mr Burtaleea states that after waiting about a month and a half to hear about the second appointment, and after he had been on leave without pay for many months, he called Mr Lazarou to ask why he had not been paid. He states Mr Lazarou told him the STA would not pay him to sit at home. He states he responded by saying it was not his fault if the STA required three medical opinions before allowing him back to work. Mr Lazarou does not refer to such a telephone conversation in his statement. 35On 6 August 2010 Mr Burtaleea faxed two documents to Ms Reid - a certificate from his diabetes specialist (not included in the material before the Commission) and a spectacle prescription from his optometrist. He did not receive a response. 36On 20 August 2010 Mr Burtaleea faxed a document to Ms Reid - a certificate dated 13 August 2010 from Dr Downie. In the certificate Dr Downie states Mr Burtaleea's vision readings and says he 'has mildly decreased vision' and 'is able to continue to hold a licence to drive a bus'. He did not receive a response. 37On 13 September 2010 Mr Burtaleea sent a letter, dated 3 September 2010, by Express Post to Ms Reid, on the advice of the RTBU delegate at Waverley Depot, Ms Wirth. In the letter Mr Burtaleea: says he had not received details of the further appointment; refers to the certificates he faxed on 6 and 20 August 2010; maintains that despite being certified fit he is still 'sidelined'; and requests the inaction cease and that he receive a response in a reasonable time. He did not receive a response. 38Ms Reid confirmed in response to the Commission's questions that she recalled seeing the certificates and letter. She said she believed at the time she received it that he was a former employee, she did not respond herself and referred it to her manager. 39Mr Burtaleea states that he waited some time to receive a response from the STA and then spoke to Ms Wirth about the matter. She advised him to come and see her at the Depot. 40On 28 October 2010 Mr Burtaleea saw Ms Wirth at Waverley Depot. Together they met with Mr Lazarou. Mr Burtaleea wanted to know when he could return to work. Mr Lazarou informed him that his employment had been deemed abandoned on 16 July 2010 and letters sent to him to advise him of it. Mr Burtaleea informed Mr Lazarou he had not received the letters. Mr Lazarou states that it came to his attention that the letters had been sent to Mr Burtaleea's previous address and not his current address. 41On 18 November 2010 Mr Burtaleea states that he attended the Commission in person to file his unfair dismissal application but was advised by the Registry that it was not filled out correctly. He attended the offices of the RTBU where the unfair dismissal application was completed and lodged on his behalf the same day. 42In his statement of 9 February 2011 Mr Lazarou acknowledged that there was an administrative error on the part of the STA by sending the letters to Mr Burtaleea's previous address. As a result he states he approved an offer of reinstatement being made to Mr Burtaleea, pending medical clearance, on 15 December 2010. 43Mr Burtaleea did not accept the offer of reinstatement and has indicated to the Commission that he is seeking compensation in lieu thereof. Submissions Applicant 44In final submissions the RTBU said Mr Burtaleea had been off work for a long period of time because of an operation on his left eye in late 2009. During that period there had been numerous communications between Mr Burtaleea and the STA over the appropriate medical clearance required. Essentially there was a dispute between the two parties concerning his fitness to drive a bus. 45Following on from Mr Burtaleea's non-attendance of the appointment with Dr Duke on 10 June 2010 the STA says he ultimately abandoned his employment because he ignored the subsequent correspondence he was sent. But the STA, via the Depot, was sending the letters to the wrong address - the Sans Souci address. It was clear that the STA had the correct address - the Banksia address - as evidenced by the group certificates. 46Mr Burtaleea denied receiving any calls from the STA or hanging up on anyone and telephone contact is an uncertain method at the best of times which is why the Award requires the various notices to be sent in writing. Again, it is unfortunate that the STA sent the letters to the wrong address. 47While Mr Burtaleea waited to be advised of the next appointment date with Dr Duke, knowing from his own experience that arranging appointments with specialists can take a long time, he continued with his treatment and rehabilitation through his own medical specialists. As he obtained further clearances he sent the information to Ms Reid by fax and then Express Post. However, after some patience he eventually contacted his RTBU delegate to chase up the matter. As a result he met with Mr Lazarou on 28 October 2010 and for the first time learnt that the STA considered him to have abandoned his employment. 48On 18 November 2010, exactly 21 days after he learnt the STA considered his employment had ended, he lodged an unfair dismissal application through the RTBU with the Commission. Therefore the application should be seen as lodged in time. Respondent 49In final submissions the STA relied on its filed written submissions and said Mr Burtaleea had provided no reasonable explanation for the delay or any other matter. 50For the period from 16 July 2010 to 28 October 2010 he was not receiving any pay and there was no explanation, if he considered he was still employed, for his waiting four months in those circumstances before contacting the STA. There was also no explanation as to why he hung up on Mr Emly and to do so would suggest he was avoiding contact with the STA. 51The STA maintained that the medical certificates etc that Mr Burtaleea believed cleared him as fit for duty did not actually do so, including the initial certificate from Dr Downie of 28 April 2010. 52The STA conceded that the letters were sent to the wrong address, but had offered reinstatement as a consequence and Mr Burtaleea had refused that offer. 53There was no explanation for his failure to contact the STA between July and October 2010, there was no evidence of hardship, the STA had acted throughout in good faith while it believed Mr Burtaleea had not cooperated fully. 54In short, he abandoned his employment on 16 July 2010 and therefore there was no dismissal by the STA. There were genuine grounds for the decision to be made that he had abandoned his employment. In any event his application was 105 days late taking 16 July 2010 as the termination date. And there was no basis under section 85(3) of the Act to extend the time for lodgement. Reply 55In reply, the RTBU submitted that, at the very least, the STA had a moral responsibility towards Mr Burtaleea for what had happened. Consideration 56Section 85 of the Act provides: "(1) An application under this Part must be made not later than 21 days after the dismissal of the employee. ... (3) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a)the reason for, and the length, of the delay in making the application; and (b)any hardship that may be caused to the applicant or the employer if the application is or is not rejected; and (c)the conduct of the employer relating to the dismissal." 57The general principles applying to the exercise of discretion under section 85(3) are established from a line of well known cases including Director General of Education and Training v Bond [2009] NSWIRComm 40; Hurrell v Queensland Cotton Corporation Ltd (2003) 125 IR 145; and Brady v Kennedy (t/as Sardines ) (1999) 91 IR 258. Those principles have been helpfully summarised in a number of other cases, including by Bishop C in Syed Rizvi and South Eastern Sydney and Illawarra Area Health Service [2009] NSWIRComm 1084 at [60] as follows: "1 The Commission's power to accept out of time applications is discretionary. 2 The onus rests on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application. 3 It is inappropriate to establish a rigid definition of what constitutes a "sufficient reason". Each case must be considered on its own facts and circumstances. 4 There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit of twenty-one days; just as there is a definite purpose in the legislature establishing time limitations for filing. 5 There is a public interest in the prompt institution and prosecution of litigation before the Commission. 6 The discretion to allow out of time applications is directed towards ensuring that justice is afforded to both parties. 7 Each of the subclauses (a), (b) and (c) in s.85 (3) should be addressed and an explanation provided. It is only necessary to establish a sufficient reason for the Commission's discretion to be exercised. 8 Ignorantia legis neminem excusat (ignorance of the law and excuses no one)." 58These principles have to be applied to the facts as found to exist by the Commission. The evidence in this matter was largely uncontested but there were a few points of dispute, especially surrounding Mr Burtaleea's knowledge of the scheduled appointment on 10 June 2010 and whether he hung up on a phone call from Mr Emly. 59Mr Burtaleea, Ms Reid and Mr Merrill gave oral evidence at the hearing. The Commission accepts Ms Reid's and Mr Merrill's evidence without reservation. Mr Burtaleea appears to have difficulties in recalling some matters and clearly holds certain strong opinions of what he considers to be correct - such as his interpretation of Dr Downie's medical certificate of 28 April 2010; and that Dr Lose commented that his left eye was good at the end of the examination - which may tend to colour his perception of actual events. However, the Commission is satisfied he is generally a witness of truth and any deficiencies in his evidence are a result of problems of recall, genuine reconstruction etc rather than any dishonesty on his part. Because the evidence from the three witnesses was tested in cross examination, the Commission has accorded more weight to their evidence than to the written material before it. 60The evidence establishes that Mr Burtaleea under went surgery on his left eye on 22 December 2009, and again sometime after 24 February 2010, and took leave to convalesce. Eventually his paid leave was exhausted and he remained off work on leave without pay. 61In or around February 2010 Mr Burtaleea moved from his address in Sans Souci - the old address - to an address in Banksia - the current address. Mr Burtaleea notified the STA of the change of address. 62From 5 May 2010, while he was still off work a dispute arose with the STA as to his fitness to drive a bus and whether he could be allowed to resume his normal duties as a Bus Operator. The STA sent him first to Dr Lose and then Dr Duke to ascertain whether after the operations his vision was at the required level for driving a bus. 63There was an appointment with Dr Duke on 1 June 2010 that did not proceed due to Mr Burtaleea's objection to the examination covering both eyes. He recalled speaking to Ms Reid about a new appointment, the details of which she said she would mail to him, and waited from that point for the details to arrive. The Commission does not doubt that Mr Lazarou spoke to Mr Burtaleea on 2 June 2010 and he may have told him the appointment details. However, if so, Mr Burtaleea did not absorb that information but was instead focussed on receiving written details of an appointment as promised by Ms Reid. Because of an administrative error the appointment details were posted to an old address. Mr Burtaleea was not aware that a new appointment was arranged for 10 June 2010 and did not attend. The STA was unsuccessful in reaching Mr Burtaleea, despite several attempts, by telephone on 10 and 11 June 2010 to try and discuss his failure to attend the appointment. The Commission accepts the evidence of Mr Burtaleea that he does not recall hanging up around that time on anyone from the STA. 64As a result of his failure to attend the appointment and the lack of success making telephone contact, the STA utilised the deemed abandonment of employment process contained in Clause 79 - 'Abandonment of Service' -of the Award. The last letter in that series was dated 16 July 2010 and advised him that the STA now deemed his contract of employment abandoned in accordance with the Award. Unfortunately, due to administrative error, all of the letters to Mr Burtaleea were sent to the old address. 65Mr Burtaleea remained off duty on leave without pay. He attended his own eye specialist and optometrist in relation to his left eye. After obtaining other medical certificates he faxed them to Ms Reid on 6 and 20 August 2010. He followed up the faxes with a letter to Ms Reid dated 3 September 2010, and sent by Express Post on 13 September 2010, enclosing copies of the certificates and expressing his concern at the delay in arranging another appointment and resolving the fitness for duty issue. Ms Reid received the material but, as she considered him a former employee, did not issue replies but referred the material to her manager. Mr Burtaleea never received any responses. 66On 28 October 2010 Mr Burtaleea attended the Depot with the RTBU delegate, Ms Wirth, to chase up what was happening with the appointment / fitness for duty issue. They met with Mr Lazarou who advised them that Mr Burtaleea was deemed to have abandoned his employment as of 16 July 2010. It was at this meeting that Mr Lazarou realised that the STA had been using the old address to send letters to Mr Burtaleea. 67On 18 November 2010 the RTBU lodged an unfair dismissal application on behalf of Mr Burtaleea. 68It is clear that all the crucial letters to Mr Burtaleea from the STA - the appointment details for 10 June 2010 and the series of letters under Clause 79 of the Award - were by mistake, on the part of the STA, sent to the old address. As a result, Mr Burtaleea was not aware that the STA deemed his employment to have been abandoned until he spoke to Mr Lazarou on 28 October 2010. 69Mr Burtaleea then took action to lodge an unfair dismissal application through the RTBU. That application was lodged by the RTBU on 18 November 2010, on the 21 st day after Mr Burtaleea first became aware of the deemed abandonment of his employment. 70It is difficult from general principles to see why a time limit, such as the one in section 85(1), should commence to run until the person (employee) has been notified or otherwise been made aware of the action or decision (dismissal) that gives rise to the right of appeal. In John Coates v Work Cover Authority of NSW [2008] NSWIRComm 20 at [47], Sams DP held, in a case involving abandonment of employment, that for the 'clock to start ticking' the employee must be aware of the termination. 71As Mr Burtaleea was not made aware of his deemed abandonment of employment (on 16 July 2010) until 28 October 2010 then, on the face of it, the application lodged on 18 November 2010 by the RTBU was lodged within time. As such, the application is competently before the Commission and can proceed to arbitration for a hearing on the merits and to consider the further jurisdictional issue as to whether there was a dismissal. 72Alternatively, if the application is more properly considered to have been lodged late (as calculated from 16 July 2010), there is sufficient reason in all the circumstances of this matter for the Commission to accept the late application. 73Although the length of time of the delay is not inconsiderable (105 days), the delay in making the application is readily explained by Mr Burtaleea being unaware until 28 October 2010 that his employment was deemed to be abandoned. Once aware of the matter he took immediate steps to lodge the application and did so by the RTBU within 21 days. 74The delay is clearly one of the employer's making. The STA had, within the organisation as a whole, the correct, updated details of Mr Burtaleea's address in Banksia at all relevant times. However, due to an error the STA sent the crucial letters to Mr Burtaleea's old address at Sans Souci. 75The STA submitted that Mr Burtaleea should have realised there was a change in his employment status because he was no longer getting paid from 16 July 2010 and then took until 28 October 2010 to do anything about it. His lack of contact was not consistent with a belief that he was still an employee. However, that is not a the true picture of the situation. 76Mr Burtaleea's evidence, and there was nothing to the contrary from the STA, was that during the course of his convalesce and time off duty while his fitness was in dispute he exhausted all his paid leave and had been on leave without pay. He was on leave without pay for 'many months' prior to his speaking to Mr Lazarou about a month and a half after the 1 June 2010 appointment. Mr Burtaleea did make further contact with the STA - on 6 August, 20 August and 13 September 2010 - by faxes and letter. It was the STA who did not response to this material. And Mr Burtaleea ultimately pursued the lack of response by attending the Depot in person on 28 October 2010. 77In short, it is clear that the employer's conduct in this matter, particularly the error with the address, directly contributed to the delay in an unfair dismissal application being filed on behalf of Mr Burtaleea. 78There is no evidence before the Commission that either Mr Burtaleea or the STA would be caused any hardship, other than that normally associated with unfair dismissal applications, if the late application were or were not rejected. 79It is clear that if the late application is accepted there will be a further jurisdictional issue or hurdle to be faced in relation to whether Mr Burtaleea was dismissed by the STA or if it is a case of an abandonment (deemed or otherwise) of employment. 80However, because of the error with the addresses by the STA, and noting that Clause 79 of the Award specifies (at Cl.79.2) that various letters are to be sent to the employee's last known address, Mr Burtaleea appears to have at least an arguable case against his being deemed to have abandoned his employment on 16 July 2010. 81Similarly, Mr Burtaleea has an arguable case against having generally abandoned his employment, given the background dispute concerning his fitness for duty, the error with the addresses, the leave without pay issue and his contacts with the STA in August, September and October 2010. 82In short, the Commission does not believe the application has such poor prospects of success that it should not be accepted out of time. 83Having considered the points discussed above, the Commission has concluded that there is sufficient reason to accept the application out of time. Conclusion 84The application is competently before the Commission under section 85 of the Act and it can proceed to arbitration for a hearing on the merits. M Oakman Acting Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2011