Ben Simpson v Ace Contractors Group Pty Ltd

[2019] FWC 6512

[2019] FWC 6512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ben Simpson
v
ACE Contractors Group Pty Ltd
(U2019/8240)

COMMISSIONER MCKINNON MELBOURNE, 18 SEPTEMBER 2019

Application for an unfair dismissal remedy – application made out of time – extension of time granted.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 6 September 2019.

“I am satisfied that there are exceptional circumstances warranting the grant of additional time in this matter. In reaching that conclusion I have had regard to the following matters: firstly, the reason for delay. The delay in processing of the applicant's final pay by seven or eight days in a manner that in my view may also contravene the National Employment Standards is I think a reasonable basis for the applicant to explain some part of the delay. The applicant has indicated in his submissions that he was querying his entitlement to redundancy pay on completion of the contract. Therefore, waiting to know what the breakdown of his final pay was, was a reasonable action.

Also, I am cognizant of the fact that he did take action promptly, in his own words, "straight after", once payment had been received and well within the 21-day period to challenge the dismissal but unfortunately he did so in a misdirected attempt to seek a remedy through the application to DismissalsDirect.com.au. Now, that may seem odd or curious, I think was the word you used, Ms Cossenas, but the Commission has in the past had occasion to express concern about third-party organisations such as Unfair Dismissals Direct specifically causing confusion or having the potential to cause confusion as a result of the use of the phrase, "Fair Work", in their public profile.

I am referring to two recent decisions in 2018 and 2019 of the Commission. In the first decision, in 2018 1, website issues and communications failures were found to have contributed to the delay in instructions being received and acted upon in lodging a claim. In 20192, the Full Bench found that the applicant was confused and under the impression that his interaction with Unfair Dismissals Direct would result in there being a claim against the respondent made within the required time and in each case, those matters are relevant because there are some parallels with what has happened in this case.

I have noted the evidence of the applicant that the website that he was engaging with was that when he searched "Fair Work" in Google, that was one of the websites that came up, that it had an inquiry section that he filled out. He did so on 12 July 2019, well within time. After some back and forward between he and Unfair Dismissals Direct there was a delay in advice to him until 22 July 2019 that it was not able to help, but no advice as to the actual organisation to whom an application might be made. I accept the applicant's evidence that he only realised that there was an error in the materials on 25 July 2019 and that he acted then promptly to make the application the same day and that matter weighs in favour of the grant of additional time.

In relation to whether the applicant first became aware of the dismissal after it had taken effect, I do not consider that matter to be relevant. It is apparent on the material before me that the applicant was aware of his dismissal on the day that it took effect, that being 3 July 2019, when it was clearly communicated to him, both verbally and in writing. That date of dismissal is not in dispute between the parties. As to any action taken by the applicant to dispute the dismissal, this matter overlaps with the matters I have already discussed in relation to reasons for the delay. In my view, the applicant took prompt action to challenge his dismissal, albeit with the incorrect agency.

That error should not be held against him in the circumstances, where I accept he was under the impression he had made the appropriate inquiry and it was only some significant time later that the error was brought to his attention. Once that error was made known to him, he promptly called the Commission and filed his application immediately. As with the reasons for delay, this matter weighs in favour of a grant of additional time.

As to prejudice to the employer, including prejudice caused by the delay, I am not persuaded that there is any relevant prejudice to the employer. The matters raised by the respondent in this regard go generally to the doubt and uncertainty of dealing with unfair dismissal claims and whether fixed term or task contracts should be within the scope of the unfair dismissal jurisdiction.

Those are concerns about the operation of unfair dismissal laws, rather than concerns about prejudice arising from an application made one day late. There is no evidence of actual prejudice arising, other than on a general basis. So the balance of convenience on this matter weighs with the applicant, in my view, because the potential prejudice to him is a loss of an entire cause of action if an extension of time is not granted.

In relation to the merits of the application, that matter is difficult to assess because the merits of this matter have not been heard. I am not in a position to hear those matters today because the parties have not been asked to attend a full hearing at this stage and nor has it been allocated to me for that purpose.

But on the face of the record, the questions likely to need resolution seem to turn on, among other things, whether the applicant's employment was for a fixed term or task and if so, whether it was brought to an end earlier than the effluxion of time by some action of the respondent. Without having heard the evidence properly tested I am unable to conclude whether the merits weigh one way or the other so that is a neutral consideration in these circumstances.

Finally, as between fairness between the person and other persons in a similar position, that matter does not appear to me to be relevant on the material disclosed on the face of the record so I will regard it as a neutral consideration.

From what I have now said it is apparent that each of the mandatory criteria to be considered under section 394(3) either weigh in favour of the applicant in this case or are neutral considerations. The question then is whether having considered those matters there are exceptional circumstances warranting the grant additional time. As I have indicated I am satisfied that such circumstances exist in the present case. While it is not out of the ordinary for an application to be filed one day late, the matters of a seven-day delay in the final payment being made, together with the misdirection that I am satisfied that he experienced from Unfair Dismissals Direct, constitute exceptional circumstances.

As I said earlier, the delay in payment is likely to have been in contravention of the National Employment Standards. There was no reason for payment to be withheld on termination and it was reasonable for the applicant to wait until he knew the status of his payment before taking next steps. In addition, the Commission has now had cause to formally express concern on more than one occasion about the Unfair Dismissals Direct approach to advertising for its services, including its website and email address and its involvement with communication delays with clients or potential clients. That it appears those concerns may have fallen on deaf ears with the result that the applicant has also been disadvantaged is regrettable.

The time for filing of the applicant's unfair dismissal application is therefore extended to the date the application for a remedy under section 394 was filed in the Commission.”

[2] An Order giving effect to this Decision is issued separately in PR712535.

COMMISSIONER

Appearances:

B Simpson on his own behalf.

A Cossenas with O Alansari for ACE Contractors Group Pty Ltd

Hearing details:

2019.

Melbourne:

September 6.

Printed by authority of the Commonwealth Government Printer

<PR712534>

 1   Catherine Motteram v Serco Australia Pty Ltd [2018] FWC 2087 (13 April 2018)

 2   Jason Cannon v Quad Services [2019] FWCFB 2097 (29 March 2019)