Adrian Bestwick v Group Training South West Inc T/A the Apprentice and Traineeship Company

[2015] FWC 6631

[2015] FWC 6631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Bestwick and others
v
Group Training South West Inc T/A The Apprentice and Traineeship Company
(U2015/6218, U2015/6219 and U2015/6220)

COMMISSIONER LEE MELBOURNE, 30 SEPTEMBER 2015

Application for unfair dismissal remedy – extension of time – Fair Work Act 2009 – s.394.

[1] This matter involves applications made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Messrs’ Bestwick, Tomlinson and Trigg (the Applicants) claim that they were unfairly dismissed from their employment with Group Training South West Inc. trading as The Apprentice and Traineeship Company (the Respondent).

[2] The applications were made by the Applicants on 1 July 2015. The Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy, lodged by the Respondent on 17 July 2015, objected to the application on two grounds. Firstly that the application had been made outside the statutory time limit and secondly that there was no dismissal.

[3] Two of the applicants, Mr. Bestwick and Mr. Tomlinson were dismissed following a meeting with Mr. Liaros the Chief Executive Officer on 22 May 2015. The third applicant, Mr. Trigg, was not at the meeting and it is not disputed that he did not know of the dismissal until Monday 25 May 2015.

[4] For Mr. Bestwick and Mr.Tomlinson, as they were dismissed on 22 May 2015, their applications should have been lodged by 12 June 2015. Mr. Trigg, who was dismissed on 25 May 2015 should have lodged his application by 15 June 2015. The applications were lodged on 1 July 2015. This means that the applications for Bestwick and Tomlinson are 18 days out of time and the application of Mr. Trigg is 16 days outside the statutory timeframe.

[5] The matters were allocated to me for jurisdictional determination on the question of whether to allow a further period of time for the lodging of the applications pursuant to s.394(3) of the Act. The matter was listed for Jurisdictional Conference/Hearing (Extension of Time) on 4 August 2015 in Melbourne with a video link to Perth. The Applicants were represented by Ms. Higgs. Ms. Higgs was not a lawyer or paid agent. Mr Liaros, the Chief Executive Officer appeared on behalf of the Respondent.

The Law to be applied

[6] The Act provides that;

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[7] As noted above, the applications were not lodged within the statutory period. Therefore the matter can only proceed if a further period under section 394(3) of the Act is allowed.

Evidence

Background

[8] Most of the factual circumstances surrounding the dismissal of the Applicants is not in dispute. The Applicants were employed as business development officers by the Respondent. It is clear that the Applicants were terminated by letters in near identical terms on 22 May 2015 (although not received by Mr Triggs until 25 May 2015). The letters were attached to each of the Applicants Form F2 – Unfair Dismissal Application. The first sentence of the letters reads: The purpose of this letter is to confirm termination of your employment effective 22 May 2015. The termination letters did not state the reason for the dismissal. The letters make clear the following;

● for Mr. Tomlinson, that he was paid 5 weeks in lieu of notice and was paid out his annual leave and long service leave;

● for Mr. Bestwick, that he was paid four weeks in lieu of notice and paid out his annual leave; and

● for Mr.Trigg, that he was paid four weeks in lieu of notice and paid out his annual leave.

[9] Other than the amounts of payments made to the men, reflecting their respective individual entitlements, the letters are virtually identical. None of the letters set out the reason their employment was terminated. It is quite clear that the Applicants were terminated by the Respondent. The Respondent’s claim that they had not been dismissed is clearly at odds with the facts.

[10] The three men performed similar roles for the Respondent. The Respondent was unsuccessful in a tendering process and as a result, the Applicants jobs with the Respondent were to become redundant from 30 June 2015. The Applicants were advised of this fact by Mr. Liaros on 28 April 2015. At that same meeting, Mr. Liaros advised the Applicants that he knew who the successful tenderers were and he had commenced negotiations with them about securing positions with them for his outgoing staff, including the Applicants. It is clear that Mr. Liaros made positive representations to the successful tenderers about the abilities and performance of the Applicants in an endeavour to secure employment for them. The Applicants did not want Mr. Liaros to negotiate on their behalf as they felt they were capable of doing this themselves. However, the Applicants submitted that they did not raise this with Mr. Liaros as they were afraid this would upset him and that would have repercussions for them.

[11] The Applicants then made arrangements to meet with one of the successful tenderers and discuss employment with them. These negotiations were successful and each of the Applicants secured employment with “BUSY At Work”. The offers of employment and acceptance with “BUSY at Work” were made on 18 May 2015. The Applicants told “BUSY at Work” that they wanted there to be a separation from their previous employer, including working in a different location.

[12] The Applicants then advised Mr. Liaros that they had secured other employment. Mr. Liaros advised them that he had also been negotiating with “BUSY at Work” and that he understood that the Applicants would co locate with the Respondent’s employees. After learning of this the Applicants contacted “Busy at Work” and advised them they would withdraw their acceptance of employment if colocation with the Respondent was to be an outcome. “BUSY at Work” clearly wanted to secure the Applicants as employees and advised them that they would employ them on the basis that they would not co locate with the Respondent.

[13] It is this condition (of not co locating with the Respondent), that the Applicants insisted on as a term of their employment with “BUSY at Work”, that clearly upset Mr Liaros and underpinned his decision to dismiss them. Mr. Liaros made clear that this outcome meant that his organisation was going to take a “$30,000 hit per annum in leasing arrangements…”. 1 Mr. Liaros was clearly upset about both the financial impact of this decision combined with the realisation that the Applicants had directly negotiated arrangements with “BUSY at Work” without his knowledge.

[14] Subsequently, Mr. Liaros arranged a meeting on the 22 May 2015 with Mr. Bestwick and Mr. Tomlinson. Mr. Trigg was unable to attend the meeting. The evidence as to what occurred at the meeting was broadly consistent. According to the Applicants, the meeting was very short and they said little. The Applicants submit that Mr. Liaros was angry and his outburst was littered with expletives. They described his behaviour as aggressive, abusive and unprofessional. It was submitted that Mr. Liaros was upset that the Applicants had undermined his negotiations and the Respondent’s position. As a result he told them he had lost confidence in them. Mr. Liaros agreed that he used expletives and did not deny that that he was angry and abusive. 2

[15] Subsequent to that meeting, Mr. Liaros claimed that he reflected over the following weekend and decided he now needed the Applicants as employees and that he would offer them re-engagement. So, 6 days later, on 28 May 2015 Mr. Liaros wrote an email to each of the Applicants offering to re-employ them. How long that employment was going to last is uncertain given that only weeks before Mr. Liaros had indicated that they would be made redundant.

[16] In any case, it is clear that the Applicants received that email offering re-employment but none of them responded to it. Mr Tomlinson gave evidence that he received the email but did not respond to it because he found it confusing. 3

[17] When there was no response to the email, Mr. Liaros wrote further to the Applicants stating that the offer of continuing employment was genuine; that he was disappointed that no-one had responded; that he would take advice as to what course of action was available to him and that the Applicants had now abandoned their employment. 4

Consideration - exceptional circumstances

[18] Section 394(3) of the Act provides that the Fair Work Commission may allow a further period for the application to be made if the Commission is satisfied there are exceptional circumstances taking into account the criteria set out in s.394(3)(a) - (f) of the Act.

[19] The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd⁵, where the Full Bench stated that;

“[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.

...

[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.”

[20] While Cheyne Leanne Nulty v Blue Star Group Pty Ltd considered the term exceptional circumstances in relation to section 365 of the Act, the discussion is applicable to the term in section 394. I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

[21] I will deal with each criterion of section 394(3) of the Act in turn.

(a) the reason for the delay;

[22] Mr. Tomlinson made a statement as to reason for the delay as follows:

“…There were 3 people terminated under similar circumstances, two (myself and Adrian Bestwick) on May 22, 2015 and a colleague (Glenn Trigg) on May 25, 2015. None of us were made aware of a valid reason for being instantly dismissed so we met with Mr Tony Harris at the Fairwork Ombudsman office in Bunbury on May 28, 2015, for advice. Our understanding was that we were speaking with the correct authoritative body in relation to taking action for unfair dismissal. Unfortunately we were not made aware that the Fairwork Ombudsman and the Fairwork Commission were different entities. Crucially, we were not made aware of the existence of the 21 day rule in which to lodge an appeal against unfair dismissal.

We followed the advice of Mr Harris to go to the Fairwork Ombudsman website for information about engaging a lawyer and, after speaking with four non-metropolitan lawyers, we spoke to an industrial lawyer from Perth who said they would consider our case. We subsequently provided the information in writing they requested, over a period of a few days, and were then told that they would offer us no advice whatsoever until we had paid $4500 to begin advice. We were told that the payment of $4500 was to read the documents we had supplied as requested and did not take into consideration further advice or time. Any time subsequently spent would be charged at up to $400 per hour. We had just been terminated and felt we were not in a position to do this.
I placed calls on four occasions – on May 29, June 2, June 3 and June 8 to the Employment Law Centre of WA - but these attempts to source advice proved futile. Email inquiries are not accepted by the ELC and the only response to my phone calls was a pre-recorded message which, although confirming I had called on the correct days at the correct time, explained that limited funding meant some calls were not answered.

We also sought independent advice from two other lawyers in Bunbury and one from Rockingham who considered some of the circumstance of our dismissal but advised us it was not their area of expertise.

We first became aware the existence of the 21 day rule on Friday, June 26, 2015, when, by way of a chance meeting, we were able to speak with Ms Karen Blackshaw from the Fairwork Ombudsman office in Perth, who happened to be giving a presentation at some training we were attending. She explained that we had missed the deadline but went on to explain that under some circumstances the Commission could consider such a situation outside the 21 day rule. She encouraged us to consider making this application. While she cannot verify any of the misinformation or omission of information we received prior to meeting her, she indicated her availability to verify our conversation on June 26, 2015.

The task of accessing and applying the information we have needed in the process leading to making this application has been a complex one. It was made more difficult, in part, by misinformation or omission of information along the way. We believe we applied due diligence to the task of speaking to many government agencies and individuals in an attempt to navigate the complex realm of industrial law of which we had no prior knowledge or experience. This was also in circumstances underpinned by the stress of being unfairly dismissed. We therefore respectfully request that the Commission accept this application and allow our case to be heard. Thank you.” 6

[23] Mr Triggs and Mr Bestwick gave identical statements, save that they attested to Mr. Tomlinson’s efforts on their behalf.

[24] On the day of the hearing, the three men gave evidence about their interaction with the Fair Work Ombudsman. All three men gave evidence that they discussed with the Fair Work Ombudsman the options of pursuing a payment for redundancy or an unfair dismissal application. However, their evidence on this point was inconsistent.

[25] Mr. Tomlinson claims that Mr. Harris of the Fair Work Ombudsman brought up the issue of redundancy 7 and that the men were advised that they were entitled to redundancy.8 However, Mr. Tomlinson went on to say that Mr. Harris said, “…we should look at the unfair dismissal and what that means to us and that redundancy was something to look at for a later time.”9

[26] Mr. Triggs said when asked what advice he sought of Mr. Harris, his response was, “…one was we believed that we were entitled to a redundancy. We also believed that we were dismissed unfairly. So that’s really the approach that we made to Mr. Harris”. 10 Mr. Triggs said that Mr. Harris “sort of led us down the path of looking for a redundancy payment.”11

[27] Mr. Bestwick said the advice he was seeking from the Fair Work Ombudsman was “…in regards to probably looking at redundancy at that stage and you know whether we were unfairly dismissed.” Mr Bestwick said that Mr. Harris told them they would be better off going down the redundancy line, then looking at unfair dismissal. 12

[28] There is some inconsistency in the evidence of the three men as to whether they were pursuing an unfair dismissal or a redundancy payment. It is quite possible they were not appraised by the Fair Work Ombudsman as to the time limit for lodging an unfair dismissal. However that is not surprising if the focus of the conversation was on pursuing a redundancy payment as per the evidence of Mr Triggs and Mr Bestwick.

[29] However, it is clear in any case that the Fair Work Ombudsman referred the Applicants to the Fair Work Ombudsman website for the purposes of engaging a lawyer. If the men were pursuing a claim for unfair dismissal they would have found a reference to the 21 day time limit for lodging unfair dismissal applications in the opening paragraphs of the Fair Work Ombudsman information on unfair dismissal, along with a clear explanation that the Fair Work Commission deals with unfair dismissals.

[30] There is no evidence that any of the Applicants had made any attempt to lodge an unfair dismissal application prior to 1 July 2015. Nor did they direct anyone to lodge an application on their behalf. Their efforts were directed at securing legal representation and failing to do so. It is clear that after giving up on contacting the Employment Law Centre of Western Australia on 8 June 2015 the Applicants made no further attempt of any kind to take action to lodge an unfair dismissal application and there is no acceptable reason apparent for them failing to do so. It is not until 26 June 2015 when the Applicants had a “chance” meeting with a representative of the Fair Work Ombudsman that they took action to lodge an unfair dismissal application.

[31] The Applicants claim that they were ignorant of the time frame for lodging an unfair dismissal application. This is not an acceptable reason for the delay. 13

[32] In any case, irrespective of their ignorance of the timeframe, it is evident that the Applicants had no intent of lodging a claim for unfair dismissal from 8 June 2015. They had given up. Where it not for the chance meeting with a representative of the Fair Work Ombudsman it seems likely on their own evidence that they would have continued in that state. Having considered all of the evidence in this matter, I am not satisfied that there is an acceptable reason for the delay. This weighs against granting an extension.

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

[33] It is not in dispute the Applicants became aware of the dismissals on 22 May and 25 May 2015. This is a neutral consideration

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

[34] It is clear that the Applicants took some action to dispute the dismissal by way of visiting the Fair Work Ombudsman. However, having done so, it is not apparent that they sought to pursue a claim for unfair dismissal and more likely a claim for redundancy payment.

[35] Further, the offer of the Respondent to re-employ the Applicants needs to be considered. The Applicants were entitled to ignore the offer of re-employment and no doubt given the behaviour of Mr. Liaros and the fact that they had secured future employment it was reasonable to do so. However, an application for unfair dismissal has reinstatement as a primary remedy. Also, in a consideration of compensation, it may be considered as a failure to mitigate loss. 14 In circumstance such as these, where an application for an extension of time is sought and the Applicants have, prior to making the application, been offered re-employment but taken no action to respond to the offer at all, this becomes a relevant consideration in deciding whether to grant an extension of time.

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

[36] The Respondent did not provide any evidence to suggest that there was prejudice to them as a result of the delay. However the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 15 This is a neutral consideration.

(e) the merits of the application

[37] The applications have significant merit. It is clear that the Applicants were dismissed. The claim of the Respondent that they had abandoned their employment is baseless. It is apparent on the evidence that there was no reason for the termination other than the claimed loss of trust and confidence as a result of the Applicants seeking particular arrangements for their future employment against the background of having been told they would be made redundant within a short time. This claimed loss of trust lacks credibility given the offer to re employ them 6 days later. Beyond that issue there is no other reason for the termination. Their termination was apparently devoid of any process. While the Applicants were advised that they were to be made redundant on 1 July, they were not yet redundant on the day they were dismissed. A detailed consideration of the merits is not appropriate in an extension of time hearing. However, on what I have before me the Applicants have a more than reasonable case. This weighs in favour of granting the application.

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

[38] Neither party raised this as an issue. Overall, this factor is a neutral consideration.

Conclusion

[39] For the reasons given, I am not satisfied there is an acceptable reason for the delay. This weighs against allowing an additional period for the application to be made.

[40] The factors related to when the Applicants became aware of their dismissal, and prejudice to the employer and fairness to persons in similar position are all neutral considerations.

[41] The lack of significant action taken to dispute the dismissal, including failing to respond to an offer of reemployment, weighs against granting an extension.

[42] The application does have considerable merit and this weighs in favour of granting the application.

[43] Taking into account all of the relevant factors, it is only the merit of the application that weighs in favour of granting the extension. There is the absence of any acceptable reason for the delay and failure to act upon an offer of re-employment. Taking into account all of the factors, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for the making of an application for an unfair dismissal remedy. The applications are dismissed and orders 16 to that effect will be issued.

COMMISSIONER

Appearances:

N Higgs appeared for the Applicants

S Liaros appeared for the Respondent

Hearing details:

2015

Melbourne and Perth (by video link):

August 4

 1   PN332

 2   PN335

 3   PN150 - 155

 4   Attachment to Form F3 – Employer Response Form – email dated 2 June 2015

5 [2011] FWAFB 975

 6   Applicant’s Outline of Argument: Extension of time – Mr Gregory Tomlinson at q.4

 7   PN154

 8   PN157

 9   PN161

 10   PN264

 11   PN265

 12   PN302-303

 13   Cheyne Leanne Nulty v Blue Star Group Pty Ltd, [2011] FWAFB 975, [14]

 14   Biviano v Suji Kim Collection (unreported, AIRFB, Ross VP, O’Callaghan SPD, Foggo C, 28 March 2002) PR915963 [45]; citing Brace v Calder [1895] 2 QB 253

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

 16   PR572474, PR572473 and PR572472

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