Ashley Williams v Gemini Accident Repair Centres Pty Ltd t/a Micra Hobart

[2018] FWC 6500

[2018] FWC 6500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashley Williams
v
Gemini Accident Repair Centres Pty Ltd t/a Micra Hobart
(U2018/8972)

DEPUTY PRESIDENT COLMAN MELBOURNE, 25 OCTOBER 2018

Application for an unfair dismissal remedy – jurisdictional objection – application filed out of time – circumstances not exceptional – application dismissed

[1] This decision concerns an application by Mr Ashley Williams for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Mr Williams was employed by Gemini Accident Repair Centres Pty Ltd (Gemini). He was dismissed for allegedly having stolen company products. Mr Williams denies the allegation and submits that his dismissal was unfair.

[2] Gemini objects to Mr Williams’ unfair dismissal application on a jurisdictional ground, namely that the application was not lodged within 21 days after the dismissal took effect, as required by s 394(2)(a) of the Act.

[3] Gemini’s jurisdictional objection was heard before me on Friday, 19 October 2018. Ms Melissa Hann appeared and gave evidence for the company. Mr Williams appeared for himself and gave evidence, together with his partner, Ms Kaycee Drake.

Extension of time

[4] Mr Williams was dismissed on 24 July 2018. His unfair dismissal application was lodged on 31 August 2018. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on Tuesday, 14 August 2018. Mr Williams’ application was lodged 17 days late. He asks the Commission to allow a further period for the application to be made.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),2 where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.3 The decision in Nulty concerned the expression ‘exceptional circumstances’ in the context of s 365 of the Act, however its reasoning is applicable also to s 394(3). 

[6] Section 394(3) requires the Commission to take into account the following:

(a) the reason for the delay;

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

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

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

(e) the merits of the application; and

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

[7] As the parties were unrepresented, I read out these considerations during the proceedings, and invited the parties to make any further submissions in relation to them and the question of whether there were exceptional circumstances. I will deal with the above matters in turn.

Reason for the delay

[8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable 4 or reasonable explanation.5 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd aFull Bench noted that the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.6

[9] In respect of the reason for delay in lodging his application, Mr Williams submitted that, following his dismissal, Ms Drake was heavily pregnant and ill. Ms Drake gave evidence that from 6 August 2018, when she commenced maternity leave, until 19 August 2018, she was at home and unwell, and that Mr Williams was caring for her and their two year old son during this period. Mr Williams said that on 13 August 2018 he commenced a new job on a casual basis, working full-time hours, five days a week. On 19 August 2018 Ms Drake was hospitalised for several days. Mr Williams also said that immediately following his dismissal, his priority was to find employment and that he was looking for work. In addition, he submitted that his grandmother had passed away in the week of his dismissal and that he attended her funeral on 3 August 2018.

[10] I accept that Mr Williams was caring for his wife and son from 6 August 2018. From 13 August 2018, he was working full-time. His life was very busy, especially from 19 August, when Ms Drake was hospitalised, and he was in effect in the position of a single parent with a full-time job. But many people are in such a position. The evidence does not establish that these circumstances prevented or seriously impeded Mr Williams preparing and lodging his unfair dismissal application. Further, while I appreciate that Mr Williams was under pressure to find alternative employment, this is a routine circumstance that arises when a person has been dismissed. There is nothing out of the ordinary in this regard. I also recognise that Mr Williams was dealing with the loss of his grandmother, and that he attended her funeral on 3 August 2018. However I do not consider that this constitutes or contributes to an acceptable explanation for the delay.

[11] Mr Williams did not contend that preparing and lodging his application was an onerous or time-consuming task, nor do I apprehend any reason why this should have been the case. He did not establish how the various circumstances affected his ability to lodge an unfair dismissal application within the 21 day period or how they otherwise constituted a reason for the delay. I do not consider any of the reasons cited by Mr Williams to provide an acceptable or reasonable explanation for his delay in lodging his unfair dismissal application, nor do I consider that the combination of the above matters provides such an explanation.

[12] The lack of an acceptable or reasonable explanation for the delay in Mr Williams lodging his unfair dismissal application weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[13] Mr Williams’ application states that he was notified of his dismissal on the same day that it took effect. The company agrees. As a consequence, Mr Williams had the full period of 21 days to lodge an unfair dismissal application. This is not a case where the person became aware of the dismissal after the date on which it took effect, and therefore did not have the full benefit of the 21 day period for lodging an unfair dismissal claim. This consideration therefore does not weigh in favour of an extension of time.

Action taken to dispute the dismissal

[14] Mr Williams was suspended from his employment on 20 July 2018 pending an investigation into the allegations that he had stolen company products. Mr Williams submits that he denied these allegations, and also that he told Mr Davidson, his supervisor, that he thought his dismissal was unfair. Ms Hann said that the human resources department did not hear from Mr Williams after his employment ended. However, I accept Mr Williams’ evidence that he disputed the fairness of the dismissal. This is a consideration that tells in favour of granting an extension of time.

Prejudice to the employer

[15] I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. However, the mere absence of prejudice is not itself a factor that would warrant or necessarily point in favour of the grant of extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[16] The Act requires me to take into account the merits of the application in considering whether to allow a further period for the application to be made.

[17] Ms Hann gave evidence that the company was told by another employee that Mr Williams had taken company paint thinning products from the premises. The company conducted an investigation. It viewed CCTV footage that showed Mr Williams taking products off a shelf in the paint mixing room and placing them on his tool trolley. Mr Davidson, the workshop manager, considered that Mr Williams had no reason to be in the paint room. The company determined that thinning product had gone missing from the premises, and that it was premium, expensive product. The company considered that Mr Williams had stolen it.

[18] Mr Williams strongly denied the allegation. He gave evidence that he would often go into the paint room to get thinner which he used in connection with a filling agent in his panel beating work. Mr Williams said that he had transferred thinner into different containers to minimise the risk of it spilling, and that he had placed these containers on his trolley. He said that he had not taken the containers off the premises. Mr Williams also said that, although the company showed him the CCTV footage, it did not reveal to him the identity of the co-worker who had accused him of having taken the products. Mr Williams contends that there was no valid reason for his dismissal, and that he was denied procedural fairness.

[19] These matters, and the merits more generally, would need to be tested, including under cross-examination, if an extension of time were granted and the matter were to proceed. Much would depend on findings of fact. There is insufficient material before me to make any detailed assessment of the merits. I consider that Mr Williams’ application is not without merit; he has an arguable case that his misconduct was not proved and that his dismissal was therefore unfair. However, the company too has an arguable position.

[20] Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell for or against an extension of time. I consider the merits to be a neutral consideration. 

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

[21] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Mr Williams and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[22] The time limit that applies to the exercise of a person’s right to bring an unfair dismissal application reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[23] Having regard to all of the matters that I am required to take into account under s 394(3), I am not satisfied that exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application, which weighs against the granting of an extension of time. Save for Mr Williams disputing the dismissal by telling his supervisor that he considered it to be unfair, the other factors do not weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[24] I decline to grant an extension of time under s 394(3). Accordingly, Mr Williams’ application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Ashley Williams, for himself

Ms Melissa Hann, for Gemini Accident Repair Centres Pty Ltd

Hearing details:

2018

Melbourne

Tasmania (by telephone)

19 October

Printed by authority of the Commonwealth Government Printer

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 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [14]

 2   [2011] FWAFB 975

 3   Ibid at [13]

 4   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

 5   Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP, at [16]

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39]