Bradley Meier v Apr Energy Australia Pty Ltd T/A Apr Energy

[2016] FWC 1881

[2016] FWC 1881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Meier
v
APR Energy Australia Pty Ltd T/A APR Energy
(U2015/15652)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 MARCH 2016

Application for relief from unfair dismissal.

[1] Mr Bradley Meier alleged the termination of his employment on 17 August 2015 was unfair.

[2] His unfair dismissal application lodged on 18 December 2015 was not made within 21 days of the date of the dismissal.

[3] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said: [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." [Endnotes not reproduced]

S.394(3)(a) The reason for the delay

[5] On 17 August 2015, when making inquiries by email of Ms Annie Brett of Skilled Engineering about the status of his employment, Mr Meier asked “is this something I should take to Fair Work Australia or can you help us in some way?” He asked her to find out if he had been sacked. 1 Mr Meier gave evidence that on the day he was notified of his dismissal, he raised with Ms Brett whether there was anything he “could do like the Fair Work Commission or Government redress” and she told him not that she was aware of and that most people go to a union.2 At the hearing, Mr Meier said that Ms Brett told him that he didn’t have a chance and he was better off going to the union. Mr Meier was not a member of a union.

[6] Ms Brett sent Mr Meier an email on the same day after a telephone conversation between her and Mr Meier in which she said that he was no longer required on site by APR in Port Hedland and he would be retained on Skilled’s books and once he was ready to return to work Skilled would try to find him a casual placement. She said he would be paid one week’s notice. She asked him to notify her when he was available for work again.

[7] On 16 October 2015, Mr Meier sent Ms Brett an email requesting a separation certificate. The initial certificate was provided on 22 October 2015. Mr Meier then sent her an email advising that the certificate was incorrect and asked for it to be changed. Mr Meier, in that email, advised that he was seeking legal advice.

[8] Mr Meier said he accepted what he was told and did not make any further enquiries. It was only later that a friend told him he could lodge an unfair dismissal claim that he decided to make the application. Mr Meier also said that he had to get unemployment benefits and he was under a lot of stress because of the Claremont investigation and because of his wife’s medical condition. Mr Meier said it was only when his children had school holidays in December that he was able to attend to this application. He said he was ignorant of his rights and he received no help from HR from either Skilled or APR.

[9] In correspondence my Chambers sent on 18 December 2015, Mr Meier was told that if he wished to rely on any medical condition he was required to provide a medical certificate or report which explained how his medical condition prevented him from making the application in time. Mr Meier did not provide any medical evidence to support his claim that either his or his wife’s medical condition prevented him from making an unfair dismissal application. The medical certificates filed by Mr Meier all predated his dismissal.

[10] I do not consider that Mr Meier has provided a reasonable explanation for the whole of the delay. Mr Meier was aware of the Fair Work Commission but took no steps to investigate his rights. He accepted Ms Brett’s advice. This is not a case of representative error. Accepting that Ms Brett told him he did not have a case, she was doing no more than expressing her view. Mr Meier could have obtained information from the Commission’s website or from a community legal centre if he could not afford legal representation.

[11] I am also unable to conclude on the evidence before me that Mr Meier’s or his wife’s medical condition prevented him from making an application within the 21 days provided for in the Act.

[12] This weighs against a finding that there are exceptional circumstances.

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

[13] Mr Meier was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

S.394(3)(c) Any actions taken by the person to dispute the dismissal

[14] Mr Meier did not take any steps after being advised of the dismissal to dispute the dismissal. It is clear from his email dated 17 August 2015 that he did not accept that his dismissal was fair. However after that date, while he communicated with Skilled about his separation certificate, he did not indicate in any of those emails that he was disputing the dismissal.

[15] I consider this criterion to be neutral.

S.394(3)(d) Prejudice to the employer (including prejudice caused by the delay)

[16] There was no evidence called by APR of any prejudice it would suffer if an extension of time were granted.

[17] This weighs in favour of a finding that there are exceptional circumstances.

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

[18] APR submitted that it did not employ Mr Meier and therefore the application is bound to fail. Mr Meier accepts that he was engaged by Skilled Engineering but said that this was because at the time of his engagement, APR did not have a facility to pay the employees’ wages. He submitted that he was employed by APR.

[19] A copy of Mr Meier’s contract with Skilled was before me. That contract provided that Mr Meier would work at Skilled’s client, APR. That Skilled was his employer is supported by the fact that Mr Meier sought a separation certificate from Skilled, not APR.

[20] I note a search of the ASIC website discloses that APR was not registered until 28 January 2015 and therefore could not have entered into a contract of employment with Mr Meier in November 2014.

[21] I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[22] There were no relevant submissions that there were any persons in a similar position to Mr Meier.

Conclusion

[23] I am not satisfied that there are exceptional circumstances. Mr Meier did not have a reasonable explanation for the delay in lodging his application. The lack of prejudice to APR is not sufficient to support a finding of exceptional circumstances and none of the other criteria weigh in favour of such a finding. Mr Meier’s application for an extension of time is dismissed as is his unfair dismissal application.

DEPUTY PRESIDENT

Appearances:

Mr Bradley Meier representing himself.

Mr Malcolm Colville and Mr Sean Selleck for the respondent.

Hearing details:

2016.

Melbourne (by telephone):

March 23.

 1   Exhibit A1 at attachment A.

 2   Exhibit A1 at attachment A.

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