Brendan Howe v Goldruby Homes Pty Ltd

[2015] FWC 5314

[2015] FWC 5314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Howe
v
Goldruby Homes Pty Ltd
(U2015/4944)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 4 AUGUST 2015

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Brendan Howe (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 20 April 2015, though the application was emailed to the Commission after the close of business on 17 April 2015. Mr Howe’s application alleges that the termination of his employment by Goldruby Homes Pty Ltd (the Respondent) on 17 March 2015 was harsh, unjust and unreasonable. On 24 April 2015 the Respondent objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was received thirteen days outside the 21 day statutory timeframe.

[2] Directions were issued on 7 May 2015 setting out the timetable for the filing of submissions and any evidentiary material to be relied on by the parties on the issue of whether there were exceptional circumstances warranting the granting of a further period for the making of the application. That issue was heard on 9 June and 31 July 2015.

[3] At the hearing Mr Howe was represented by his father-in-law, Mr Jim Stanwell, and gave evidence on his own behalf. Mr William Ward appeared with permission for the Respondent, with Messrs Matthew Smith and Jason Dal Broi, both Directors/Owners of the Respondent, giving evidence on behalf of the Respondent.

[4] For the reasons outlined below I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application cannot proceed and is therefore dismissed.

Background

[5] Mr Howe commenced employment with the Respondent in late 2012. It appears that his employment was largely uneventful until March 2015.

[6] In March 2015 Mr Howe had a medical certificate dated 11 March 2015 stating that he was unfit for work for the period 11 to 17 March 2015 as he was suffering from a “medical condition requiring time off work.” Over the weekend of 14 and 15 March 2015 Mr Howe was told by some of his colleagues that he would be dismissed by the Respondent on 16 March 2015. Mr Howe went to his doctor on Monday, 16 March 2015 and was issued with a further medical certificate stating that he was unfit for work from 16 March 2015 until 4 April 2015. Also on 16 March 2015 Mr Howe’s solicitors wrote to the Respondent regarding a number of issues. Among other things, that letter stated that Mr Howe understood that the Respondent intended to terminate his employment and requested urgent confirmation of this if this was the case.

[7] Mr Howe subsequently met with Mr Dal Broi on 17 March 2015 at which time he was summarily dismissed for allegedly stealing ten pallets of bricks. At that meeting, and after he had been dismissed, Mr Howe gave Mr Dal Broi the abovementioned medical certificates.

[8] On 19 March 2015 Mr Howe sent an email to Messrs Smith and Dal Broi agreeing to meet with them on 23 March 2015 to discuss his outstanding employee entitlements. Subsequent developments overtook the need for that meeting.

[9] On 20 March 2015 Mr Stanwell contacted the Respondent indicating that he had been authorised by Mr Howe to negotiate a “friendly settlement” with the Respondent. The Respondent agreed to such discussions. Those discussions which occurred later that day resulted in a settlement involving a number of elements, including that Mr Howe would not continue with his workers compensation or unfair dismissal claims. As part of the settlement the Respondent agreed to make a number of payments to Mr Howe, the last of which was to be paid on 10 April 2015. However that payment was not made as a result of a customer complaint received by the Respondent regarding some brick work performed for the Respondent by Mr Howe’s company. The Respondent estimated the cost of rectifying the brick work as in the vicinity of $20,000. Mr Stanwell sent an email to the Respondent at 7.00 pm on 10 April 2015 stating that Mr Howe had informed him that this final payment had not been made. The Respondent subsequently contacted Mr Stanwell seeking to arrange a meeting to discuss the brick work/non-payment issue but the meeting was never scheduled.

[10] As noted above, Mr Howe’s application was received by the Commission on 20 April 2015, thirteen days outside the 21 day statutory timeframe.

The Relevant Legislation

[11] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(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).

394(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[12] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[13] Mr Howe submitted that the reason for the delay in lodging his application was that he suffered from stress and anxiety as a result of the Respondent’s behaviour towards him both before and after his dismissal. Furthermore, he submitted that he had a medical certificate which declared him unfit for work from 16 March until 4 April 2015 after which he had only three days within which to lodge his application before the expiry of the 21 day statutory timeframe. Mr Howe contended that given his continued illness this was insufficient time.

[14] Mr Howe further cited the agreement reached with the Respondent in relation to his unpaid entitlements and his inability to seek legal advice due to his financial circumstances as further reasons for the delay in lodging his application.

[15] Under cross examination Mr Howe:

• attested that he did not instruct Mr Stanwell to lodge his application until the morning of 17 April 2015 as he was thinking over whether or not to proceed with his application;



• acknowledged that he could have instructed Mr Stanwell to lodge his application on any day before or after 4 April 2015;



• stated that following his dismissal and until his application was lodged he was busy looking for another job;



• acknowledged that during the period 16 March to 4 April 2015 he did inspect some building sites for which he was the licensed builder to ensure the sites were clean and the work that had been undertaken was structurally sound; and



• stated that at no stage was he aware that he had 21 days within which to lodge his unfair dismissal application.

[16] The Respondent highlighted that the material provided by Mr Howe relied on two reasons for the delay – illness and the settlement agreement reached with the Respondent. With regard to the first of these reasons, the Respondent pointed out that Mr Howe’s medical certificate expired on 4 April 2015 which still provided him with three days within which to lodge his application within the statutory timeframe. The Respondent contended that given Mr Howe’s application was not lodged until 17 April 2015 his illness cannot be relied upon to explain the entire delay. As to the second reason, the Respondent relied on the decision of Deputy President Sams in Bernie Ryan v Power & Data Support Services Pty Ltd (Ryan) 1 in which the Deputy President observed that discussions regarding a possible settlement were not a bar to an unfair dismissal application being lodged within time (the Respondent advised the Commission that while the decision in Ryan had been appealed, the abovementioned observation had not been challenged). The Respondent also submitted that no explanation had been provided as to why Mr Howe’s application was not lodged until 17 April 2015 despite Mr Howe being advised by the Respondent on 10 April 2015 that the final payment under the agreement would not be made until such time as the defective brick work was addressed.

[17] The material before the Commission indicates that on 19 March 2015 Mr Howe emailed Messrs Smith and Dal Broi agreeing to a meeting to discuss his outstanding entitlements. This is despite Mr Howe having been declared unfit for work for the period 16 March to 4 April 2015. Further, Mr Howe attested at the hearing on 31 July 2015 that during this period he inspected a number of building sites for which he was the licensed builder. These activities do not suggest that Mr Howe was incapacitated to such an extent that he could not have lodged an application within the 21 day statutory timeframe. Further, no compelling reason was provided as to why Mr Howe did not lodge his application between 4 April 2015 when he was fit for work and 7 April 2015 when the 21 day timeframe expired or for the period from 4 to 17 April 2015.

[18] While Mr Howe also submitted that he continued to suffer from stress and anxiety after 4 April 2015, it is worth noting that stress and anxiety is not an uncommon reaction among persons who have recently lost their job and of itself does not constitute exceptional circumstances.

[19] As to Mr Howe’s submission that he was not aware of the 21 day statutory timeframe, as stated in the decision in Cheyne Leanne Nulty v Blue Star Group (Nulty) 2

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”

[20] By way of background the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in identical terms to s.394(2)(a) of the Act.

[21] Together, these factors weigh very heavily against a finding that the reasons for the delay constitute exceptional circumstances.

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

[22] It is not disputed that Mr Howe was aware that his employment ended on 17 March 2015.

[23] On that basis, I consider this factor to be a neutral consideration.

(c) Any action taken by the person to dispute the dismissal

[24] Mr Howe submitted that at the time of his dismissal he advised the Respondent that he had not stolen the bricks and that they had been given to him by Mr Smith.

[25] The Respondent submitted that Mr Howe took a number of steps to dispute his dismissal, including authorising Mr Stanwell to try and negotiate a friendly settlement on his behalf.

[26] In view of the action taken by Mr Howe to dispute his dismissal, I consider this factor to slightly favour the existence of exceptional circumstances.

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

[27] Mr Howe submitted that the Respondent would not be prejudiced by the Commission granting a further period for the making of his unfair dismissal application.

[28] The Respondent contended that were the Commission to grant an extension of time that it could be prejudiced if it were required to defend both Mr Howe’s unfair dismissal application and a common law court application seeking to enforce the settlement agreement which Mr Howe asserted had been reached between the parties.

[29] I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[30] Mr Howe submitted that the bricks which he was alleged to have stolen were moved to his property due to workplace health and safety reasons and that the Respondent was aware that he was holding the bricks on his block of land. Mr Howe further submitted that Mr Smith consented to him using the bricks for his own purposes. Mr Howe reiterated these contentions in his witness statement 3.

[31] The Respondent submitted that Mr Howe’s application has no merit as he was summarily dismissed for serious misconduct constituted by the theft of several thousand dollars worth of bricks belonging to the Respondent. Further, Mr Smith denied in his witness statement that he gave Mr Howe permission to use the bricks in question 4. Mr Smith reiterated that point in his evidence-in-chief at the hearing on 31 July 2015.

[32] It is clear from the above that the reason for the dismissal is disputed. In those circumstances, I am unable to form a view as to the merits of the application and, as such, consider this factor to be a neutral consideration.

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

[33] Mr Howe did not directly address this factor but submitted that the parties have not reached a settlement agreement in this matter and that the Respondent has not yet paid him his outstanding entitlements.

[34] Similarly, the Respondent did not directly address this factor submitting that as Mr Howe already has a potential remedy in seeking to enforce the settlement agreement he claims was reached, it would be unfair to permit Mr Howe to also pursue his unfair dismissal application.

[35] I consider this factor to be a neutral consideration.

Conclusion

[36] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision Nulty in the following way:

“[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.”

[37] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I find that there are no exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be issued with this decision.

Appearances:

J. Stanwell for the Applicant.

W. Ward for Goldruby Homes Pty Ltd.

Hearing details:

Canberra.

2015:

June 9 and July 31.

 1   [2015] FWC 2430 at paragraphs [15] and [23]

 2 (2011) 203 IR 1

 3   Exhibit H1 at paragraph 9

 4   Exhibit W1 at paragraph 4

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