Brent Wilson v Garlock Pty Ltd T/A Garlock Sealing Technologies

[2015] FWC 8561

[2015] FWC 8561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Wilson
v
Garlock Pty Ltd T/A Garlock Sealing Technologies
(U2015/14849)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Brent Wilson alleged that the termination of his employment by Garlock Pty Ltd on 13 August 2015 was unfair.

[2] His unfair dismissal application lodged on 9 November 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work 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 1 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]

(a) the reason for the delay;

[5] Mr Wilson’s letter of termination, handed to him on 13 August 2015, advised that a decision to make his role redundant had been made due to financial results being below expectations. The letter advised that the redundancy was effective immediately. It advised there were no other available vacant positions that would suit him.

[6] Mr Wilson gave evidence that it was not until 17 September 2015 that he discovered Garlock had appointed someone else to do his job. Mr Wilson said that person remained in the job for a few weeks and a second person commenced work at Garlock in his previous role on about 30 October 2015. Mr Wilson said he then submitted his application within 21 days of the second person being appointed by Garlock.

[7] Mr Wilson said a previous work colleague assisted him in researching an application to the Commission and he was aware that the 21 day time limit had expired by the time he discovered Garlock had employed the first new employee in his previous role.

[8] Mr Leon Jamieson, Mr Wilson’s friend, advised that he agreed to research the issue for him and he attended the Commission offices on 21 October 2015 to collect the form. He was told he needed to submit the form. However Mr Wilson did not complete the form until 6 November 2015 and it was not received by the Commission until 9 November 2015. This was 53 days after Mr Wilson discovered that someone was doing his job.

[9] Mr Jamieson submitted that the delay was in part caused by the fact that Mr Wilson was not aware of his rights.

[10] I accept that Mr Wilson has an explanation for some of the delay as he did not know someone was doing his job until 17 September 2015. The delay until this date was reasonable. However once he had reason to question the genuineness of his redundancy he was required to act promptly. Mr Wilson did not lodge his application promptly. Even if he thought that time ran from when he discovered that someone was doing his job, he still did not lodge his application within 21 days of that discovery. I do not consider that Mr Wilson has a reasonable explanation for the whole of the delay. This weighs against a finding that there are exceptional circumstances.

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

[11] Mr Wilson was aware of the dismissal when it took effect. However I accept that he did not become aware that the dismissal may not be a genuine redundancy until 17 September 2015. By this time the 21 days had passed. I consider this criterion to be neutral.

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

[12] Mr Wilson did not dispute his dismissal at the time, presumably because he accepted that his position was being made redundant. I consider this criterion to be neutral.

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

[13] Garlock submitted that it would be prejudiced if an extension of time were granted because it had employed a new employee to do some of the work previously being performed by Mr Wilson. Further it would incur additional costs in having to defend the claim. I do not consider the prejudice is sufficient to weigh against a finding of exceptional circumstances.

(e) the merits of the application;

[14] Garlock submitted that Mr Wilson’s position was redundant. While Garlock accepted that it had employed someone to do some of Mr Wilson’s duties, Mr Gary Nulty, the Managing Director, gave evidence that the person employed had a different skill set to Mr Wilson.

[15] Mr Wilson disputes that there was a genuine redundancy and gave evidence that his role is being performed by a new employee.

[16] I am not able to make any 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.

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

[17] No submissions were made on this criterion and I find that it is a neutral consideration.

Conclusion

[18] I do not consider that there are exceptional circumstances. Mr Wilson has not provided a reasonable explanation for the whole of the delay and none of the other criteria weigh in favour of a finding of exceptional circumstances.

[19]
Accordingly, Mr Wilson’s application for an extension of time is dismissed and his unfair dismissal application is also dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

B. Wilson and L. Jamieson for the Applicant.

G. Nulty and L. Mason for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by telephone link:

December 15.

 1   [2011] FWAFB 975.

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