Adam Johnson v Yenckens Hardware Pty Ltd T/A Yenckens Alexandra

[2016] FWC 8688

[2016] FWC 8688

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Johnson
v
Yenckens Hardware Pty Ltd T/A Yenckens Alexandra
(U2016/10548)

COMMISSIONER RYAN MELBOURNE, 9 DECEMBER 2016

Application for relief from unfair dismissal - extension of time.

[1] On 23 August 2016, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Adam Johnson (the Applicant) in relation to the termination of his employment by Yenckens Hardware Pty Ltd T/A Yenckens Alexandra (the Respondent). In his application the Applicant identified the date of dismissal as being 27 June 2016 and the application conceded that the application had not been made within the 21 day time limit required by s.394(2)(a) of the Act. The application provided detailed reasons why the application was delayed beyond the 21 day time limit. Directions were issued to the parties in relation to whether the Commission should grant an extension of time to the Applicant to file his application. Both parties agreed that the extension of time application could be dealt with on the papers in lieu of a hearing.

[2] The Act places a time limit on the making of application for an unfair dismissal remedy. Section 394(2) and (3) are as follows:

“(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[3] The application in the present matter was not filed within the 21 day time limit specified by s.394(2)(a). Therefore the application will only be within time if the Commission allows a further period for the making of the application.

[4] As s.394(3) makes clear an extension of time can only be granted if the Commission is satisfied that there are exceptional circumstances present.

[5] What constitutes “exceptional circumstances” was considered by a Full Bench in Nulty v Blue Star Group P/L: 1

“10. It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s 366(2). In Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s 394(3) and held:

[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s 394(3) of the FW Act.

11. Given that s 366(2) is in relevantly identical terms to s 394(3), this statement of principle is equally applicable to s 366(2).

12. The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295,4 a case involving in s 106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

23. I am of opinion that the expression “exceptional circumstances” requires consideration of all the circumstances. In Griffıths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter “non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane’J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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” in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.

[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.”

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” [references removed]

[6] As can be seen, the decision in Nulty concerned s.366 of the Act and not s.394. Although there is a difference between s.366 and s.394 the difference is not significant and the decision in Nulty is applicable to a grant of extension of time under s.394(3).

[7] The discussion in Nulty, with its reliance on Rares J’s decision in Ho, contains a nuanced outcome which is possible to miss. In Ho Rares J was considering legislation in which the term “exceptional circumstances” was not qualified. The specific provision under consideration in Ho was s.106KA(2) of the Health Insurance Act 1973 which provided as follows:

“(2) If the person under review satisfies the Committee that, on a particular day or particular days during the relevant period, exceptional circumstances existed that affected the rendering or initiating of services by the person, the person’s conduct in connection with rendering or initiating services on that day or those days is not taken by subsection (1) to have constituted engaging in inappropriate practice.”

The conclusion in Nulty at [13] as to the proper meaning of the phrase “exceptional circumstances” is undoubtedly correct. However the nuance in the decision in Nulty is the recognition that when “exceptional circumstances” is used in either s.366(2) or s.394(3) all of the circumstances that have to be taken into account are those enumerated in either s.366(2) or 394(3). The opening sentence of para [13] in Nulty is misleading if the reader does not have regard to the opening sentence of para [15] of Nulty.

[8] In any consideration as to whether or not there are “exceptional circumstances” the Commission must only consider the matters enumerated in s.394(3)(a) to (f) and no other matters. Unlike s.387 (Criteria for considering harshness, etc.) or s.392 (Remedy – compensation), s.394(3) does not permit or require the Commission when considering an extension of time application to take into account “all the circumstances of the case” or “any other matters that the Commission considers relevant”. This point was made very clear in the Explanatory Memorandum to the Act which said of s.394(3):

1572. Subclause 394(2) provides that an application must be made within seven days of a dismissal taking effect. However, FWA has discretion to extend the timeframe for making an unfair dismissal application if it is satisfied that there are exceptional circumstances.

1573. This discretion must be exercised in accordance with subclause 394(3), which provides an exhaustive list of the factors FWA must take into account when determining if there are exceptional circumstances. (emphasis added)

[9] Para [13] of Nulty must always be applied on the basis of only taking into account the matters enumerated in s.394(3) and it is not open to the Commission to take into account all of the circumstances of the case when considering the existence of “exceptional circumstances”. However as the decision in Nulty makes very clear at [15] if “exceptional circumstances” within the confines of s.394(3) exist then the Commission can take into account all of the circumstances of the case when considering whether or not to exercise the discretion to grant an extension of time.

The Applicant’s Case

[10] The Applicant raises two very different arguments in relation to the application being out of time. Firstly, the Applicant contends that the date of dismissal for the purposes of the Act is 15 August 2016. The Applicant contends that while the Applicant was terminated by the Respondent on 27 June 2016, the employment relationship did not come to an end until
15 August 2016 because the Respondent required the Applicant to attend a series of meetings after 27 June 2016 in relation to the Applicant’s employment. The Applicant contends that the employment relationship only ended on 15 August 2016 the date of the last proposed meeting between the Applicant and the Respondent and the date upon which the Applicant “became aware that his relationship with Yenckens was over.” Secondly, the Applicant contends that if the date of dismissal was 27 June 2016 then the conduct of the Respondent in requiring the Applicant to attend meetings in relation to his employment after the dismissal date constituted an exceptional circumstance which would warrant the Commission granting an extension of time to the Applicant.

The Respondent’s case

[11] The Respondent contends that the dismissal of the Applicant was a voluntary resignation’s given by the Applicant in writing on 27 June 2016 “when confronted with the allegations of dishonesty and breach of his Contract of Employment”. The Respondent acknowledges that several meetings occurred after 27 June 2016 between the Applicant and the Respondent but that these meetings “were solely with a view to ascertaining the quantum of the Respondent’s claim for loss and damage against the Applicant and negotiating settlement of the claim.”

Consideration

The date of dismissal

[12] The Applicant provided a witness statement in this matter in which he described events on 27 and 28 June 2016 as follows:

“7. On or about 27 June 2016, Mr James Yencken came to me asking about a delivery docket that listed materials to Swenwick’s Builders as being delivered to an address in Taylor Bay, plus asked to view the receipts of the purchase of materials for the cattle crush which was for my farm and a personal purchased item. I supplied the receipts to Mr. Yenckens for the cattle crush and agreed with him regarding the delivery to Swenwick’s. Mr James Yenckens then said he was firing me then and there. I asked him not to do so, however, he said no. But Mr James Yenckens did say that if I resigned, James Yencken stated, that if I resigned he could protect me and look after me with an amicable parting and pay me more than I was owed.

8. I left the workplace that day, being 27 June 2016. However, I returned to the worksite the next day to collect my belongings, during this time Mr James Yenckens spoke to me and in a way that suggested that I was still an employee.”

[13] The Applicant wrote out and signed a resignation letter on 27 June 2016 in the following terms:

“To Whom it May Concern
I Adam Johnson on 27 – 6 – 2016 formally resign from Yenckens Alexandra.
I appreciate all that has been given to me and it is with great sadness I must do this.
Regards
Adam Johnson”

[14] Mr Scott Buckner provided a witness statement in this matter in support of the Applicant. In his witness statement Mr Buckner recounts a conversation he had with the Applicant at the time of his dismissal as follows:

“Adam Johnson on or about the 27th June, 2016 called me to state he had been sacked from Yenckens, to which he continued to state the following;
Adam Stated to me:
“He was accused of theft, to which he produced receipts to demonstrate this was not the case;”
Adam Stated:
“James Yenckens didn’t care about this and wanted Adam gone;”
Adam Stated:
“James threated to get the Police involved if he didn’t leave;”

[15] The Applicant attended meetings with the Respondent and in relation to a meeting which occurred on 27 July 2016 the Applicant describes that meeting as follows:

“20. We meet at Yenckens again on 27 July 2016 during this meeting James asked me what it was I wanted the outcome to be,” I stated that I wanted my job back” his reply was that will not happen. This was heart breaking for me I had provided answers for all he had accused me of.”

[16] Mr Buckner attended meetings between the Applicant and the Respondent as the Applicant’s support person. Mr Buckner describes the last meeting he attended with the Applicant on 4 August 2016 as follows:

“Upon conclusion of this meeting, James asked what Adam wanted?
Adam stated, “I want my job back.”
James Yenckens stated, “No chance of this happening.”

[17] There is clearly some doubt as to whether the Applicant said that he wanted his job back at the meeting on 27 July 2016 or at the meeting on 3 August 2016 (which is wrongly described by Mr Buckner as being on 4 August 2016).

[18] For the purpose of this extension of time decision the Commission does not need to determine whether the termination was a forced resignation or a voluntary resignation or another form of dismissal. The Commission is prepared to accept that the Applicant was dismissed from his employment by the Respondent. It is only necessary for the Commission to determine the date that the dismissal took effect, as that is the specific trigger for counting the 21 days in which the Applicant could file an unfair dismissal application. What is very clear from the Applicant’s own evidence and from the evidence of Mr Buckner is that the Applicant had no doubt on 27 June 2016 that he had been dismissed on that day. Even his letter of resignation of 27 June 2016 acknowledges that his employment was terminated on that day. The language used by the Applicant (and confirmed by Mr Buckner) at a meeting with the Respondent on either 27 July 2016 or 3 August 2016 was clearly language which acknowledged that the Applicant had previously been dismissed as the Applicant was asking for his job back. On any reasonable reading of the Applicant’s own evidence, and as corroborated by Mr Buckner’s evidence, the dismissal of the Applicant took effect on 27 June 2016.

Extension of time

[19] Any consideration as to the existence or otherwise of exceptional circumstances requires that Commission to take into account each of the matters set out in s.394(3)(a) to (f). The individual matters set out in s.394(3) do not have a set value attached to them and no one of the matters is more important than any other matter. Rather the Commission must take each of the matters into account and must then form a view as to whether there exist exceptional circumstances. Only if the Commission is positively of the view that there are exceptional circumstances can the Commission then consider whether or not to exercise the general discretion in s.394(3) to allow a further period greater than 21 days for the application to be made by the Applicant.

The reason for the delay – 394(3)(a)

[20] The contentions of the Applicant as to the reason for the delay in making an unfair dismissal application, and the evidence of the Applicant in support of those contentions, has to be considered in the context of the relationships which existed between the Applicant and the Respondent. The Applicant describes that relationship over the period of his employment in some detail. None of the key elements of that description were challenged by the Respondent through the witness statement of Mr James Yencken. In summary it appears that the Applicant was employed by the Respondent in 2011 to build the steel business at the Alexandra operations of the Respondent’s business. As that part of the business grew it also changed to incorporate steel fabrication. The Respondent purchased some of the necessary equipment and the Applicant purchased some of the necessary equipment for steel fabrication. In the second quarter of 2015 the Respondent stopped steel fabrication work at Alexandra. The Applicant set up his own business and commenced operating a steel fabrication business out of his own home after hours whilst still employed for the Respondent. The Applicant was using his own equipment to do this. In the third quarter of 2015 the Respondent decided to restart steel fabrication at Alexandra. The Applicant and the Respondent agreed that if the Applicant brought his own equipment back into the Respondent’s business in order to perform the steel fabrication work that the Respondent needed done, then the Respondent permitted the Applicant to fabricate items for his own business on the Respondents premises after hours. The issue which led to the dismissal of the Applicant was an allegation that the Applicant had improperly used the Respondents equipment and stock to manufacture an item and to transport that item to a customer of the Applicant.

[21] The Applicant in his written submission addresses the reason for the delay by dividing the period from the date of dismissal, 27 June 2016, to the date of filing the unfair dismissal application, 23 August 2016, into 3 separate periods. The first period is from 28 June 2016 to about 11 July 2016 (Phase 1). The second period is from 12 July 2016 to 15 August 2016 (Phase 2). The third period is from 16 August 2016 to 23 August 2016 (Phase 3).

[22] In relation to Phase 1 the Applicant explains the delay occasioned by this period as follows:

“29. Requesting a person, who no longer works for the company to attend the company offices for the purpose of explaining to the remaining employees how processes worked in the organisation appears on the face of it to be incongruous. Mr Johnson was not trusted to work for Yenckens yet he was able to instruct Yencken employees on how specific processes, such as steel ordering and invoicing, worked and there was a reliance on Mr Johnson to do this work. Trusted to attend the workplace for the transferring of knowledge yet not trusted to be and employee.

30. We contend that the Employer, Yenckens in initiating the continuation of a relationship between the parties constitutes exceptional circumstances in that it would be seen as either of:

a. Out of the Ordinary Course; or

b. Unusual; or

c. Uncommon.

This was not a former employee initiating a dialogue in the hope of returning to employment, this was an employer who for whatever reasons has used the basis of the previous employment relationship through three different levels of management at Yenckens, to get Mr Johnson to attend meetings to talk about matters that were pertaining to his time as an employee, meetings and discussions that could be seen as end of employment interviews.

31. See Mr Johnson’s statement at paragraph 34 where he states that he considered himself in some ways still an employee and felt that the lodgement of an Unfair Dismissal Application would be to his detriment whilst he was still involved in the investigation. Mr Johnson had the fear that submitted such an application would led to him having no chance of redeeming himself, even though in hindsight he probably had no chance to redeem himself. However, he did not appear to know this at that time.

32. We say that when no relationship exists between the parties, then it is unusual or uncommon or out of the ordinary course for an entity who feels aggrieved to contact and meet with the person whose alleged actions have caused the issue for the that first party. In the current situation it would be like a person who has been robbed to seek a meeting with the alleged robber to discuss the robbery. This would not happen.”

[23] In relation to Phase 2 the Applicant explains the delay occasioned by this period as follows:

“Mr Johnson was involved in the investigation process being undertaken at the Yenckens workplace even providing information that was of a private nature, and only providing this information because Mr Johnson felt he had to.”

[24] In relation to Phase 3 the Applicant explains the delay occasioned by this period as follows:

“33. Phase 3- This is the period from 15 Aug to 23 Aug 2016. Mr Johnson sought legal advice around the date of 15 August 2016 to understand what are his rights for. There was a short delay of week when Mr Johnson:

a. initiated dialogue with a lawyer;
b. Provided the necessary information to enable information to be reviewed;
c. Selecting a course of action; and,
d. Then completing and filing the Unfair Dismissal application.

Please note that both parties live in separate areas of the state at a driving distance of about 2 to 2.5 hours by car and this has made the delivery of instructions between lawyer and client longer than would normally have been and this may have extended the length of time here by a day or two.

34. On or about 15 August 2016 Mr Johnson, through Mr Buckner contacted about whether Gary March Legal could represent him, Mr Johnson, in an unfair dismissal application.

35. I spoke to Mr Johnson on 15 August 2015 and understood at that time that the application was out of time, however, as he stated to me that there had been a series of meetings held between Mr Johnson and his former employer, that this may be exceptional circumstances and allow for an out of time application.”

[25] Having regard to the context in which the dismissal occurred the Applicant provides a comprehensive explanation for the delay in filing an unfair dismissal application.

Whether the Applicant first became aware of the dismissal after it had taken effect 394(3)(b)

[26] Having determined that the dismissal of the Applicant took effect on 27 June 2016 it is clear from the Applicant’s own evidence and from the evidence of Mr Buckner that the Applicant first became aware of his dismissal at the time that it took effect.

Any action taken by the Applicant to dispute the dismissal 394(3)(c)

[27] The Applicant contends that his conduct following the dismissal when he agreed to meet with the Respondent evidences action taken to indirectly dispute the dismissal. The Applicant contended:

“39. Even though Mr Johnson did not directly dispute the dismissal, by his actions, his intent by participating in the investigation was to be re-instated into his position, and as per his witness statement at paragraph 12, he was hoping to redeem himself in the eyes of Yenckens. Overall, the actions by Mr Johnson were to indirectly to dispute his dismissal.

40. In disputing his dismissal, Mr Johnson provided details of his company and its dealings to demonstrate that the allegations made about were false.

41. Lastly, from the day of the dismissal Mr Johnson has disputed the need for himself to be dismissed and has attempted to discuss different options with Yenckens all to no avail. These discussions were about providing evidence that the allegations against him, Mr Johnson, were false and that he should be re-employed.”

[28] The Applicant’s contention is supported by the witness statement of the Applicant, in which he describes the several interactions between himself and Respondent after the 27 June 2016 wherein he responded to requests to meet with the Respondent and to attend the Respondent’s premises, and by the witness statement of Mr Buckner, which contains detailed notes of the meetings between the Applicant and the Respondent that Mr Buckner attended. The Respondent, through the witness statement of Mr James Yencken asserts that “the purpose of these meetings was simply to encourage the Applicant to tell me the extent of his activities and ascertain the loss to Yenckens. I wanted to reach a settlement with him in that regard…”.

[29] The Commission considers that the Applicant was taking action to dispute his dismissal by attending the meetings with the Respondent after the dismissal took effect.

Prejudice to the Respondent (including prejudice caused by the delay) – 394(3)(d)

[30] The Respondent made no contentions that it would suffer any prejudice if an extension of time was granted. The Respondent’s written submission identified that the Applicant’s position had been filled, although no evidence of this was presented to the Commission and neither Mr James Yencken nor Ms Lorraine Parfitt, who provided witness statements in this matter on behalf of the Respondent, addressed this matter in their statements. The Commission could not be satisfied on the material before it that any prejudice would be suffered by the Respondent but the absence of any proven prejudice to the Respondent does not mean that this matter weighs in favour of the Applicant and a grant of an extension of time.

The merits of the application 394(3)(e)

[31] Whilst the merits of the application must be taken into account it is rare for the merits to be explored in any detail during an extension of time matter. 2 In the present case the Respondent has levelled serious allegations against the Applicant in a complaint to the police and the Respondent has, through its lawyers, made claims for compensation against the Applicant and threatened to initiate legal proceedings against the Applicant.

[32] In such circumstances it is not surprising that the Applicant’s written submissions in relation to s.394(3)(e) are as follows:

“45. The information provided here could prejudice Mr Johnson in associated matters and therefore we will only provide limited information at present.

46. The Employer, Yenckens in this instance has acted in a manner that has not been fair to Mr Johnson, in that Yenckens has not provided any natural justice to Mr Johnson and gave him an ultimatum to be sacked or resign, with the benefit that if he resigned then he would receive higher termination monies.”

[33] The material filed by the Respondent, including the witness statements of Ms Parfitt and Mr Yencken contain no more than broad allegations against the Applicant and contain none of the detailed evidence that may be necessary in a substantive hearing of the merits of the unfair dismissal application.

[34] The Applicant contends, and the witness statements of the Applicant and Mr Buckner support the contention, that the Applicant has gone to significant lengths to provide information to the Respondent to address the allegations made by Mr Yencken and that this information satisfactorily refutes the allegations. As part of the material relied on by the Respondent was a letter from the Respondent’s lawyers, Williams Hunt, dated 19 August 2016, to the Applicant requesting information from the Applicant concerning a business he was operating whilst an employee of the Respondent. Two of the requests were for the following information: 6. Bank statements for you and your business Macharrys Run during the period of your employment with Yenckens Hardware Pty Ltd; and 7. BAS Statements for your business activities during your employment with Yenckens Harware Pty Ltd. The Applicant’s lawyer through the Applicant’s reply submissions noted that: “In relation to the documents submitted in support of the respondent’s submission, we would like to note that Mr Johnson has complied with dot .6 and dot .7 of the Williams Hunt letter dated 19 August 2016.” The Applicant’s lawyer through the Applicant’s reply submission also contended that: “Mr Johnson has unequivocally demonstrated in every occasion he has never stolen any materials and has produced receipts for every nut, bolt and steel that he has used.”

[35] In the circumstances of the present matter where the parties have filed with the Commission witness statements which address the merits of the substantive unfair dismissal application but where both parties have agreed that the extension of time application be determined by the Commission on the papers and without a hearing and without any of the witness evidence being tested, then it is not appropriate that the Commission make any findings of fact in relation to contested issues going to the merits of the substantive application. Having said that, the Commission is positively obliged to take into account the merits of the unfair dismissal application when considering whether or not exceptional circumstances exist. In the present matter the Commission is of the view, having regard to the material relied on by both parties in this extension of time application, that the Applicant’s case in relation to the unfair dismissal application has merit.

Fairness as between the Applicant and other persons in a similar position 394(3)(f)

[36] There are clearly no other persons in the same position as the Applicant and therefore this criteria is not relevant to a consideration as to the existence of exceptional circumstances.

Conclusion

[37] In the present matter the criteria in s.394(3)(f) is not relevant and is not to be considered. The criteria in each of s.394(3)(a), (b), (c), (d) and (e) are relevant and must be considered.

[38] Weighing the relevant criteria together leads to the conclusion that there are no exceptional circumstances present.

[39] If the term “exceptional circumstances” in s.394(3) was not limited to the matters enumerated in that section but permitted the Commission to have regard to all the circumstances of the case or to have regard to any other matter that the Commission considers relevant, then it is most likely that the Commission would have been satisfied that exceptional circumstances existed. A significant circumstance of the present matter is the complex relationships that existed between the Applicant and the Respondent. The Applicant was an employee of the Respondent and the Applicant also had a commercial arrangement with the Respondent and that commercial relationship may have been with either or both of the Applicant and the Applicant’s company.

[40] Considering ‘what if’s’ is not the same as considering the specific language of and requirements of the Act. Exceptional circumstances can only be found to exist by taking into account the matters enumerated in s.394(3).

[41] In the present matter the reason for the delay in filing the unfair dismissal application was completely reasonable but it was not a reason which could support a claim as to the existence of exceptional circumstances. Equally, the conduct of the Applicant in disputing his dismissal through attending meetings with the Respondent after the dismissal took effect was completely reasonable but it was not a course of conduct which could support a claim as to the existence of exceptional circumstances.

[42] It is perfectly reasonable for the Applicant, when accused by his employer of having engaged in theft, to put significant effort in establishing that the allegation was baseless. It is perfectly reasonable for the Applicant to have turned to someone who could help with dealing with allegations of theft. As Mr Buckner makes clear in his witness statement he had been a member of Victoria Police for a period of 10 years. For the Applicant to turn to Mr Buckner was eminently sensible when dealing with the allegations of theft made by Mr James Yencken. However, it is not uncommon for employees to be dismissed based on an allegation of theft from the employer. It is all too common for such allegations to be the basis for a dismissal. It is also not uncommon for a person who has been dismissed based upon an allegation of theft to take action to challenge the dismissal by filing an unfair dismissal application whilst at the same time defending themself against an allegation of having committed theft. In the present matter the Applicant chose to put all of his effort into trying to establish that he had not engaged in the alleged theft of materials from the Respondent. The Applicant was free to expend his efforts as he thought best. It is clear from the witness statement of the Applicant that he considered that it was relatively easy to prove his innocence since he could and did produce the necessary proofs to establish that he had not engaged in any theft from the Respondent. Not only was the Applicant confident that he could disprove the allegation of theft, the Applicant was also expecting that once he disproved the allegation of theft that he would be given his job back. The Applicant only abandoned this approach and only commenced the process to get an unfair dismissal application filed when it became obvious that the Respondent was simply making demands for money:

“21. On or about the 10th of August I received a Facebook message from my former manager and friend, Jenny Litherland stating, “Mr James Yenckens had been talking to her and made it clear that I had one last chance to talk to him in regards to a resolution of this matter”, Also she stated, “James said to her that I would go to jail, lose my house and not be able to continue my work in Alexander, if I agreed to pay James $50,000 dollars which I could do on a payment plan this matter would go away and she would get James to call me.” This was bewildering to me as we had gone over every item in detail and there was nothing that was found to be wrong or out of place.

23. It became apparent to me that all James Yencken was interested in was money….”

[43] Coming to the realisation that he had been engaged in a fruitless exercise in having had discussions with the Respondent is simply an insufficient basis upon which the Applicant can establish the existence of exceptional circumstances. As the Applicant’s own case shows, he had at all time the ability to seek legal advice to assist him make an unfair dismissal application. The fact that he sought this advice only in August 2016 does no more than reinforce the fact that it was the Applicant’s choice to put all of his effort into trying to settle matters with the Respondent by engaging directly with the Respondent. Again there is nothing in this which could possibly be considered as giving rise to an exceptional circumstance.

[44] There is nothing in any of the other relevant criteria in s.394(3) which would support a finding as to the existence of exceptional circumstances. The application in this matter was not filed within the time frame specified in s.394(2)(a) and in the absence of exceptional circumstances, within the meaning of s.394(3), the application is out of time and the application must be dismissed. An order to this effect will be issued separately.

[45] For the sake of completeness I make the following observation. This decision does no more than to stop the Applicant from pursuing an unfair dismissal application. It can have no impact on the Applicant’s ability to pursue action under the Fair Work Act in relation to the recovery of underpayment of wages or other entitlements in relation to matters raised by the Applicant as to unpaid out of hours work for the Respondent or the possibility of underpayment of allowances for the provision by an employee of tools required. Nor does this decision have any impact on the ability of the Applicant to pursue any commercial claim against the Respondent in relation to the business arrangements made between them which were separate to any employer/employee relationship.

COMMISSIONER

 1   [2011] FWAFB 975 at para 13.

 2   Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421.

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