Joshua Cortes v WorkCover Authority of New South Wales

Application by Joshua Cortes re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 20 1 Mr Joshua Cortes ('the applicant') had been employed by the WorkCover Authority of New South Wales ('the respondent') since May 1991. His last position with the respondent was as an Administrative Officer (Grade 3/4) in the Premiums Branch at the respondent's Head Office in Gosford. He is 60 years of age. 2 On 17 August 2007, the applicant filed a claim of unfair dismissal pursuant to Pt 6 Ch 2 of the Industrial Relations Act 1996 ('the Act'). When the matter was listed for conciliation and directions on 30 August 2007, Mr P Devine for the respondent, raised two jurisdictional issues which he said were fatal to the applicant's claim proceeding to arbitration. Firstly, the applicant had not been dismissed, but had abandoned his employment as at the 1st of May 2007. Secondly, the applicant's claim had been filed outside the 21 day time limit set by s 85(1) of the Act and, more importantly, the Commission would not exercise its discretion to extend the time period for filing of the claim as provided for in s 85(3). 3 Notwithstanding these jurisdictional difficulties, and having regard for the applicant's self representation, two attempts at settling the matter were undertaken. Unfortunately, these proved unsuccessful and a finding of unsuccessful conciliation was made pursuant to s 87 of the Act. The matter proceeded to hearing. Chronology of Events 4 A largely uncontested chronology of events emerged from the evidence adduced by the applicant and the respondent. At this juncture, it is noted, that the evidence of WorkCover's Return to Work Coordinator, Mr Mark Gregory, the only witness for the respondent, was not subject to cross-examination. The chronology is as follows: 5 Unbeknown to the respondent, the applicant consulted a Dr R Wu in June 2006 for the treatment of anxiety and depression. A medical certificate dated 8 August 2007 was later provided to that effect. On 12 September 2006, the applicant provided a further medical certificate from a Dr Grandjear-Thomsen for depression. It certified him unfit for duty from 30 August 2006 to 29 September 2006. Mr Gregory spoke to the applicant to remind him of the Employee Assistance Program (EAP) and to offer any additional assistance. 6 The applicant had earlier applied for, and was granted, recreation leave from 3 October 2006 to 5 December 2006, as he was intending to travel overseas to Spain - his country of origin - to visit relatives, and particularly, his ill mother. He had an open ticket, left no forwarding address or contact numbers. 7 Before leaving for overseas, the applicant provided a further medical certificate from Dr Grandjean-Thomsen certifying him unfit for duty from 4 October 2006 to 4 April 2007. He was diagnosed as suffering "major depression". This sick leave was not approved and the applicant made no attempt to contact the respondent about the matter. Both medical certificates were sent to Mr Gregory through the internal mail system. As this second period of sick leave was for six months, Mr Gregory followed up the matter by attempting to contact the applicant by phone. However, as there was no answer, he left a message for the applicant which was not responded to; presumably because the applicant had left for Spain with his wife on the 4th or 5th of October. On 23 October 2006, the applicant suffered a heart attack in Spain and was hospitalised for five days in the city of Marbella. The respondent was not made aware of this incident. The applicant said he was advised to spend six months recovering. 8 Mr Gregory phoned the applicant's home number on numerous occasions during this period - 7 January, 9 February, 23 February and daily from 26 March 2006 to 4 April 2007. On each occasion the calls were unanswered and it appeared the phones' message bank was full. Registered letters were also sent to the applicant's last known address requiring him to present for an assessment by Health Quest. These letters were returned unopened. 9 Mr Gregory said that on one occasion between 5 and 13 April 2007, when he phoned the applicant's number, a male person with a strong foreign accent and poor command of English answered the phone. Mr Gregory asked if he could speak to the applicant and was told to "hang-on". Another male person answered and said "Joshua isn't living at this address anymore, he moved to Brazil last year". 10 On 5 April 2007, (the day after the expiry of his earlier six month medical certificate) the applicant obtained a medical certificate in Spain certifying him unfit for a further six months. Unsurprisingly, the certificate was in Spanish. The applicant claimed he sent the certificate to the respondent, but without any covering letter. The respondent denied receiving it until some time after 1 May 2007. 11 On 17 April 2007, Ms Moira Heath, WorkCover's Director - Human Resources, wrote to the applicant, at his last known address, and directed him to contact the Employment Relations Officer and advise of his return to work. He was warned that any "ongoing unexplained absence may be viewed as an abandonment of employment". No response was received. On 1 May 2007, Ms Heath advised the applicant, at his last known address, that as he had abandoned his employment, his employment was at an end. 12 The applicant said he received the above two letters from Ms Heath on 1 June 2007, in Spain via his wife, who was in Brazil at the time. On 5 June 2007, he emailed Ms Heath seeking a reversal of the decision to terminate his employment. This request was denied on 25 June 2007. The applicant returned to Australia around 1 August 2007. He attended the office at Brazel Moore Lawyers on 13 August 2007, and a claim of unfair dismissal was lodged on 17 August 2007. Applicant's Other Evidence 13 There was other evidence advanced by the applicant to support his two claims that he had not abandoned his employment and he had a 'sufficient' reason for the Commission accepting his claim of unfair dismissal out of time. 14 The applicant said he had 16 years of unblemished service in the New South Wales Public Sector and had a variety of experience as a qualified librarian, including finance and accounting, information technology, sales and marketing. He said he had a high level of interpersonal, negotiating and networking skills, a strong commitment to outstanding customer/client service, could meet deadlines and work under pressure, both independently, and in a team. 15 The applicant deposed that at the time he left for Spain in October 2006, he had accumulated 42.32 days of recreation leave, 119 days sick leave and 58.08 days of extended leave. Shortly before going overseas, he had applied for a position to Grade 7/8. However, the position went to a younger, local casual female. He said the shock was so great that he developed acute depression because WorkCover doubted his personal and professional worth. He claimed that this was the "straw that broke the camel's back" and caused him severe depression. In oral evidence, he described himself as very unhappy and unmotivated after losing the promotion. The applicant said his doctor recommended he go overseas. He did so because he wasn't physically incapacitated. 16 The applicant said that he obviously didn't receive any phone calls or letters when he was overseas and recovering from his heart attack. The applicant claimed that he did not receive the two letters threatening his dismissal, and his actual dismissal, because a person sent the letters to Brazil in error (where he had family) and it took 15 to 20 days to arrive in Spain. He added that the respondent had made no contact with him by registered mail, email or personally to find out why he had not returned to work , ask him to return, or tell him he would be terminated if he didn't return to work. The applicant maintained that he had not repudiated his contract of employment nor wilfully refused to carry out his duties. The circumstances reasonably prevented any contact with the employer. His termination of employment was at the employer's initiative and was, therefore, a dismissal. 17 As to the out of time application, the applicant said he tried to get a return airline ticket in the European high season, but it was difficult. He also had an expectation that he would be re-employed and he was reluctant to take legal action against his employer. 18 In oral evidence, the applicant deposed that it had never occurred to him to contact the respondent about the second doctor's certificate which gave him six months sick leave. He said he had mailed the certificate to WorkCover before he went overseas. He had not left a forwarding overseas address and had an open return ticket. He said he had no idea when he would be returning to Australia, as his mother was very sick. He returned to Australia, via Brazil where his wife had been, and she had remained there. However, his wife was with him when he had the heart attack in Spain. 19 The applicant said that despite the seriousness of his illness, it had not occurred to him to make contact with WorkCover or arrange for his wife or anybody else to do so. He believed the six month certificate would have covered him and he was concentrating on getting well. The applicant conceded approval was necessary for sick leave in excess of three days, but he believed that 'implicitly' he had approval. It never occurred to him that his illness might be covered by workers' compensation. 20 The applicant deposed that the day after his first six month medical certificate expired (5 April 2007) he attended a doctor in Spain who gave him a further six months off duty. He claimed he sent the certificate to WorkCover, but couldn't recall if it had a covering letter. It hadn't occurred to him to send a covering letter. The applicant assumed the respondent had not received the certificate by 1 May 2007, because it wasn't mentioned in the letter terminating his employment. He agreed it was "probably wrong" not to have contacted the respondent. Marbella had phones and email facilities. He agreed he had been able to email later, after the letter of termination had arrived. 21 The applicant said he received the two letters from Ms Heath of 17 April and 1 May on 1 June 2007 from his wife, who had received them in Brazil. On 5 June 2007, he emailed Ms Heath asking her to reconsider her decision. This was the first time he had contacted the respondent since October 2006. 22 Despite the second medical certificate, he agreed he had travelled back to Australia in late July 2007. He was able to do so because he wasn't physically disabled. 23 The applicant deposed that he believed he had provided WorkCover with both an email and forwarding address, but couldn't recall when or to whom. 24 Mr Mark Gregory provided affidavit and oral evidence, but was not required for cross-examination. Mr Gregory's affidavit dealt largely with the chronology of events earlier referred to. Mr Gregory is responsible for the management of all aspects of the respondent's return to work policy with respect to absences of officers on sick leave and workers' compensation. He reports to the Director - Human Resources, Ms Moira Heath. Mr Gregory had responsibility for managing the applicant's return to work program. 25 Mr Gregory said that when he received the applicant's first six month medical certificate he was concerned that there had been no personal contact from him, despite the excessive length of time that he was certified unfit for duty. It was Mr Gregory's usual practice to make direct contact with employees in these circumstances. However, all attempts at doing so were unsuccessful. He had intended to arrange for the applicant to be assessed for fitness for work by Health Quest. 26 Mr Gregory said that he was now aware the applicant had been unsuccessful in a job application in 2006 and was diagnosed as suffering from "major depression". However, this was never documented by the applicant prior to his leaving for overseas. Attached to Mr Gregory's affidavit were copies of the various letters sent to the applicant at his last known address. 27 In oral evidence, Mr Gregory outlined the usual process an employee undertook when applying for leave. Notification of sick leave must be made to the supervisor before 10:00am on the day of the leave, and upon return to work a sick leave application is filled out. Mr Gregory said that he had not previously seen the Spanish medical certificate. It would have usually gone to Human Resources and then to him if further follow up was necessary. Mr Gregory said he had made enquiries with the applicant's other supervisors as to his email address, but no reply had been received. SUBMISSIONS Out of Time Application 28 The applicant referred to s 85(3) of the Act and the authorities for establishing a 'sufficient reason' for the Commission to exercise its discretion to accept his application out of time: See Hurrell v Queensland Cotton Corporation Limited (2003) 125 IR 145 and Griffith Ex-Services Club Ltd v Federated Liquor and Allied Industries Employees Union of Australia (NSW Branch) (1993) 51 IR 186. 29 The applicant said that he had difficulty returning to Australia when he was advised of his termination of employment and he had been reluctant to take legal action against his employer of 16 years. He had an expectation of being re-employed. He said there would be no hardship for the employer if his claim was accepted, whereas he was experiencing considerable personal and financial hardship. The applicant said that he had asked the respondent to reconsider its decision, but it had refused. 30 Mr P Punch, for the respondent, submitted that the applicant had not established a 'sufficient reason' for his application for unfair dismissal being 87 days after the statutory 21 days time period. Mr Punch put that the respondent would suffer hardship and additional costs if the applicant's claim is accepted out of time. He relied on Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Zerafa and Fairfield City Council [2004] NSWIRComm 103 and New South Wales Independent Teachers Association v New England Girls School (1975) AR (NSW) 321. 31 Moreover, Mr Punch said the length of the delay was significant, even if the Commission accepts the applicant had not received the letter terminating his employment until 1 June 2007. It still leaves over two months before he lodged his claim. The Commission would also consider the weakness in the applicant's case that he was not dismissed unfairly or otherwise, but he had abandoned his employment. Was the termination of employment unfair? 32 The applicant submitted that his dismissal was unfair in light of the steps taken by the respondent prior to the termination of employment: See Little v Commissioner of Police (No. 2) (2002) 112 IR 212; Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 and Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385. 33 The applicant believed that despite his 16 years of exemplary service, he was treated the same as persons found by the Independent Commission Against Corruption (ICAC) to have engaged in corruption. 34 The applicant relied on Arun Karki v Kingston Gardens Aged Care (unreported AIRC, PR938761, 2 October 2003), a decision in which the Commissioner decided that continuous stress leave was not abandonment of employment. He said the respondent had made no contact with him to find out why he had not returned to work, did not ask him to return to work and did not tell him that if he did not return to work, he would be deemed to have abandoned his employment. 35 The applicant claimed he was under severe stress and had suffered humiliation and financial hardship. He also claimed procedural unfairness. 36 The applicant said his dismissal was harsh and compounded by the fact that it took place while he was on sick leave. The respondent had not considered his lengthy unblemished service and loss of earnings. 37 The applicant claimed he had been denied a job he was fit and qualified for, and that the respondent's selection procedures were open to nepotism and favouritism. The applicant believed that he was expected to "go quietly" and sign a release from further litigation against the respondent. 38 In a reply statement, the applicant put that he did not provide Dr Wu's initial certificate to the respondent because it was too personal to disclose. He said that over four months the respondent had made contact with his home, knowing full well he was overseas and could not respond. 39 The applicant sought the following remedies for his unfair dismissal: s The maximum financial compensation and costs allowed by the Industrial Relations Act 1996. s The respondent is to pay interest to the applicant on the amount so found due and owing calculated at the time of termination of employment in accordance with section 94 of the Supreme Court Act. s Furthermore this would include all remuneration that the applicant would have received from the respondent if I had remained employed for a further period of nine months January 2008 including so as not to limit the foregoing; employer's superannuation contributions, Long Service Leave and accrued Annual Leave and Lick Leave. Please note (1). s The deletion of the wording, Abandonment of Employment from any WorkCover records. s Any compensation order pursuant s 89(5) for "hurt and humiliation" that the Commission considerers (sic) relevant, based on the applicant's period of employment since the date of the termination or such other amount the Commission deemed to be fair. 40 Mr Punch traced the history of the matter and submitted that the applicant's failure to achieve promotion, and his distress and upset over this failure, was a factor in the approach he adopted towards the respondent. Moreover, he did not submit Dr Wu's certificate until months later, and only after he hadn't secured the promotional position. Immediately before going overseas, the applicant obtained a six month doctor's certificate and simply posted it to WorkCover without any explanation. The applicant provided no email contact, nor forwarding address. 41 Mr Punch said that after the two months recreation leave, the applicant had not received approval for his sick leave and the respondent took extraordinary and continuous steps to try and contact him. Mr Punch said that even if the first six month certificate had some force, it expired on 4 April and there was still no contact from the applicant - a period in excess of six months. 42 Mr Punch submitted that the respondent was entitled to rely on the Public Sector Guidelines dealing with unauthorised absences. The letters of 17 April and 1 May 2007 reached the applicant, but Mr Punch questioned why the earlier letters did not. In the end, the respondent really had no choice. Mr Punch put that the employer did not move earlier (after the expiry of two months) when it was plainly open for it to do so. 43 While the respondent accepted that the applicant was unwell, he had conceded that he knew how to email, but did not do so. The evidence was that the applicant was intending to return to Australia, but he had an open ticket and did not know when he would return. The applicant had an obligation to at least keep his employer informed as to his situation and not merely send a Spanish medical certificate, without any explanation. The applicant had also failed to seek approval for his sick leave when he was fully aware of what was required. CONSIDERATION Out of Time Application 44 It is not without some hesitation, but in light of my final determination of this matter, that I am prepared to accept the applicant's unfair dismissal claim outside the 21 day time limit prescribed in s 85(1) of the Act. Section 85(3) permits the Commission to exercise its discretion to accept an out of time application, subject to the Commission being satisfied that a sufficient reason for the delay has been established by the applicant. The section is expressed as follows: (3) The Commission may accept an application that is made out of time if the Commission considers there is a 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. 45 In considering this question, both the applicant and Mr Punch referred to various well known authorities on out of time applications and I need not repeat them. They establish the following principles which I summarise as follows: · The Commission's power to accept an out of time application is discretionary; · There is a definite purpose in the power of the Commission to exercise its discretion in extending the time limit of 21 days; just as there is a definite purpose in the legislature establishing time limitations for filing; · There is a public interest in the prompt institution and prosecution of litigation before the Commission;

48 I am prepared to give the applicant the benefit of the doubt in that he claimed he first became aware that he was regarded as having abandoned his employment on 1 June 2007. As Mr Punch correctly put, this still places the application 57 days out of time. Further, I am prepared to accept the applicant's evidence that he had difficulty returning the Australia; he was unaware of his rights and was reluctant to take action against his employer of 16 years. In addition, it would seem that the applicant did not accept his termination of employment. He challenged Ms Heath's decision and asked her to reverse it in an email dated 5 June 2007. The fact that he did so reasonably promptly, raises other considerations to which I later refer. 49 For these reasons, I am satisfied that the applicant has established a sufficient reason for the Commission to exercise its discretion to allow the applicant's application for alleged unfair dismissal to be lodged out of time, pursuant to s 85(3) of the Act. Did the applicant abandon his employment? 50 Understandably, this question was the central focus of both parties' arguments. I begin consideration of the question by reference to the relevant Public Sector Guidelines in this regard. The Personnel Handbook describes the process to be undertaken by an employer when it becomes aware of an employee's unauthorised absence. The relevant extract is as follows: 4-9.5 Absent from duty without notice 4-9.5.1 Unauthorised absence An employee who appears to have abandoned employment, that is, one who is absent without authorisation, is to be mailed or couriered a certified letter to their last known address: s requesting the reason for the absence; s directing the employee to resume duty within a specified time; and s advising of the prospect of termination of employment if the direction is not followed. 4-9.5.2 Failure to comply with direction to resume duty If the employee referred to in the previous paragraph does not resume duty within the specified period, or fails to reply, or fails to provide a satisfactory reason for their unauthorised absence, the following action should then be taken: s officers whose whereabouts are known should be dealt with in accordance with the Procedural Guidelines governing misconduct (see Chapter 9 Conduct); s officers whose whereabouts are not known should be dealt with under section 60 of the PSEM Act 2002; and s the services of departmental temporary employees should be dispensed with in accordance with section 30 of the PSEM Act 2002 (see 4-9.1.2 Dispensing with services - section 30 of the PSEM Act.) 51 There was no serious challenge to the proposition that the respondent strictly complied with its obligations under the Public Sector Guidelines. On one view, it was entitled to initiate the process immediately after the expiry of the applicant's two months recreation leave, as the applicant's six months sick leave had not been approved. However, it continued its efforts to contact the applicant by phone and letter until 1 May 2007 - a period of some six months. In my view, the respondent acted more than reasonably and sympathetically. One might reasonably ask what more could the respondent have done? It was faced with the following circumstances: · the applicant had provided no email or telephone contact while overseas; · the applicant had provided no forwarding address to either the respondent or Australia Post (as one letter was returned); · the respondent had only the applicant's home number and last known address; · the respondent had one confusing phone contact with a person at the applicant's home who said he no longer lived there and had gone to Brazil; · the respondent was unaware that the applicant had secured a further six month medical certificate in Spain; · the applicant made no attempt to explain his first six month doctor's certificate, let alone the second one; and · the applicant did not provide any information to the respondent of when he would be returning to work. 52 That said, during these proceedings, the applicant made a credible attempt at presenting his case as an unrepresented litigant. No doubt due to his past work experience, his formal case was well researched and presented. Unfortunately, however, his case fell well short of convincing the Commission that he had not abandoned his employment. His written submissions read like an essay on unfair dismissal, rather than a defence of his own position. Regurgitating numerous authorities is not particularly helpful unless these cases have a direct relevance to the facts and circumstances of his own case. CONCLUSION 53 It is curious that the applicant could make no contact with the respondent from 4 October 2006 until 5 June 2007 when he knew he was now regarded as abandoning his employment. In my view, he had an unavoidable obligation to do so. I am left with the distinct impression that it was not only possible and necessary for the applicant to have contacted the respondent earlier, but that he wilfully and knowingly chose not to do so until he was informed his employment was in grave jeopardy. Oddly enough, he was able to send an email four or five days after Ms Heath's final letters arrived in Spain. 54 Amazingly still, it was a further five weeks before the applicant returned to Australia and a further two weeks before he commenced re-agitating the unfairness of what had occurred. For someone who desperately wished to retain his employment, he demonstrated a rather strange way of showing it. 55 Further, I ask if the applicant was so keen to continue his employment, why did he make reference in his submissions to the Federal Government's redundancy scheme and only sought significant monetary compensation, well beyond the amounts available as compensation under s 89 of the Act? 56 The applicant's case was further undermined when he claimed that following his hospitalisation for five days in October 2006, he was told to convalesce for a further six months. Yet on his own evidence, it wasn't until 5 April 2007 that he obtained a doctor's certificate in Spain for a further six month period. He claimed he sent this certificate in Spanish, without any covering note or explanation to the respondent. On any view, if this was true, it was an extraordinary and utterly unacceptable means of keeping his employer properly informed of his circumstances. However, I believe, on the balance of probabilities, that the certificate was not sent until much later than the applicant claimed. 57 It is also astonishing that the applicant failed to advise his employer of the full extent of his anxiety and depression from May 2006, when he first saw Dr Wu to when Dr Wu issued the certificate for the condition on 8 August 2007 - some 15 months later. 58 What is further exercising my mind, is the fact that the applicant left Australia on an open ticket, with no forwarding address and, on the way back to Australia, he went via Brazil. Moreover, he knew he was required to get approval for sick leave in excess of three days. Neither he, nor his wife, nor anyone else, made any effort to contact anyone at WorkCover to advise of what had happened. I do not accept his explanation that he thought his six month medical certificate of October 2006 covered his absence. The applicant had not received approval for the leave and he knew approval was required. 59 In my opinion, the applicant's extraordinarily cavalier approach to his employment and his reluctance to make contact with his employer until it was too late, was brought about primarily, if not exclusively, by his failure to secure a position for which he considered himself far more qualified and experienced. He described it as the "straw that broke the camel's back". He felt his work and integrity was in question and said he felt very unmotivated and unhappy. There is even a hint of sexism in his evidence when he said "the fact it was given to someone with less experience, a female - a temporary female working in that particular area". Further, in his written submissions, he put that "in the last four years under John Murray's management, sixteen female staff were selected in a biased and discriminatory manner." This allegation was made without a shred of evidence or explanation. 60 In one sense, I can well understand why the applicant, in this frame of mind, would apply for extended recreation leave to "get away from it all" and reassess his career. Ultimately, however, he took his rejection and resentment way too far and placed himself in a precarious position for which he only had himself to blame.

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