Anthony Goodman v Karridale Crossdale General Store & Licensed Post Office T/A Karridale Crossdale General Store

[2014] FWC 7140

[2014] FWC 7140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Goodman
v
Karridale Crossdale General Store & Licensed Post Office T/A Karridale Crossdale General Store
(U2014/11353)

COMMISSIONER WILLIAMS PERTH, 16 OCTOBER 2014

Termination of employment - extension of time.

[1] The applicant in this matter, Mr Anthony Goodman (Mr Goodman or the applicant), has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Karridale Crossdale General Store & Licensed Post Office T/A Karridale Crossdale General Store (the respondent).

[2] Mr Goodman was dismissed on 8 April 2014. The application was made on 31 July 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to permit a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“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.”

[5] Submissions have been provided by Mr Goodman regarding allowing a further period for his application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] Relevantly the submissions and information provided by Mr Goodman are that having been terminated on 8 April 2014 he contacted the respondent on 15 April 2014 providing his bank details for his termination payment and also requesting a letter that would acknowledge the work he had been doing for the last three and a half years.

[7] He subsequently received his termination payment but did not receive the letter of acknowledgement he had requested. On 23 April 2014 he emailed the respondent thanking them for his termination payment.

[8] I note at this point that 21 days from the date of the applicant’s dismissal had ended on 29 April 2014.

[9] On 9 May 2014 he emailed the respondent requesting a separation certificate. He did not receive a separation certificate from the respondent.

[10] On 28 May 2014 he had a telephone interview with Centrelink regarding the Newstart Allowance and was informed that they had received a separation certificate and warning letter from the respondent and based on this were imposing an eight week suspension of the Newstart Allowance.

[11] Mr Goodman says this was the first knowledge he had that the respondent had characterised the reasons for his termination of employment as misconduct.

[12] The applicant then initiated a series of appeals of the decision by Centrelink to delay payment of the Newstart Allowance.

[13] On 23 July 2014 he had a telephone hearing with the Social Security Appeals Tribunal.

[14] The week after the conclusion of his appeal he contacted the Commission and expressed his intention to make an unfair dismissal application and submitted that application the following week.

[15] He received the final decision from the Social Security Appeals Tribunal shortly after it was posted to him on 30 July 2014. The outcome of the appeal was that Mr Goodman is not subject to the eight week non-payment period for the Newstart Allowance.

[16] Mr Goodman submits the exceptional circumstances in his case were that it was not until 28 May 2014 that he became aware his employment had been terminated due to alleged misconduct. In addition his first priority was to resolve the issues with Centrelink because he was without income and suffering financial hardship. His dealings with Centrelink were not straightforward and took a considerable amount of his time and he felt he had to deal with one process at a time.

[17] It is clear from Mr Goodman’s application that prior to his dismissal the respondent sought to provide him with a first and final warning letter which referred to alleged breaches of policies regarding harassment, discrimination and bullying. Mr Goodman refused to sign or accept this. As a result of subsequent events he was dismissed sometime later.

[18] Considering his correspondence with the respondent shortly after his dismissal he did not challenge the dismissal. Mr Goodman’s complaint about his dismissal only arose when from 28 May 2014 he became aware that the respondent had identified on the separation certificate that the reasons for his dismissal was “misconduct”. Mr Goodman views the labelling by the respondent of what occurred as misconduct as besmirching his reputation and making it difficult for him to gain future employment.

[19] I accept as a general proposition that where an employee only becomes aware of the true reasons the employer had dismissed them after the 21 day period has passed and the true reasons relied upon by the employer are sufficiently different from what the employee could reasonably have understood at the time of dismissal, this circumstance could arguably be an acceptable reason for a delay in making an application.

[20] Considering the specifics of this case however whilst Mr Goodman may not agree that the reasons for his dismissal can correctly be characterised as misconduct he does not seem to be disputing what those reasons of the respondent were. Mr Goodman is not suggesting that the respondent at the time of his dismissal disguised or withheld the true reasons for which he was dismissed.

[21] Even if I did accept that in this case there was an acceptable reason for the application not having a being made before 29 April 2014, from 28 May 2014 Mr Goodman was aware that the respondent viewed the reasons for his dismissal as having been misconduct and he could be then expected to have promptly made this application.

[22] Mr Goodman however did not make his application until two months after he had become aware of the fact his employer had dismissed him for misconduct. The reason for this was he chose to focus on his difficulties with Centrelink and felt he could only pursue one process at a time. In my view the situation Mr Goodman found himself in was far from exceptional for an employee who has been dismissed by their employer. Rather it will be quite common for employees to have to work through issues with Centrelink having been dismissed and it will be similarly quite common that employees will be subject to a suspension of payment of the Newstart Allowance because the employer has characterised the dismissal reason as being for misconduct and so they will be similarly caught up in appeal processes as a result.

[23] Consequently I do not agree that there is an acceptable reason for the delay that occurred after 28 May 2014 in making this application.

[24] I note in particular that there is no explanation for the delay between 24 July 2014, the day after the telephone hearing regarding Mr Goodman’s Centrelink appeal, and when the application was made on 31 July 2014.

[25] In summary considering the explanations for the delay in making this application I am not satisfied that there is any acceptable reason for all of the delay in this instance.

Any action taken by the person to dispute the dismissal

[26] The applicant has not otherwise sought to dispute his dismissal.

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

[27] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[28] Considering the application and the F3−Employer’s Response there is considerable dispute between the parties about the facts leading up to the respondent’s decision to dismiss Mr Goodman. Consequently the question of merit is a neutral factor for the determination of the extension of time question.

Fairness as between the person and other persons in a similar position

[29] This is not a relevant factor in this matter.

Conclusion

[30] The onus is on Mr Goodman to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the submissions and information provided. In this case there is no acceptable reason for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[31] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[32] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 18 August 2014

Printed by authority of the Commonwealth Government Printer

<Price code C, PR556435>