Brenton Errington v Access Group Pty Ltd

[2014] FWC 3563

[2014] FWC 3563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brenton Errington
v
Access Group Pty Ltd
(U2014/6284)

DEPUTY PRESIDENT MCCARTHY PERTH, 4 JUNE 2014

Application for relief from unfair dismissal.

[1] Mr Brenton Craig Errington (the Applicant) lodged an Unfair Dismissal Application (the Application) on 7 April 2014 claiming that he was unfairly dismissed from his employment with Access Group Pty Ltd (the Respondent). The Application states that the Applicant’s dismissal took effect on 14 March 2014. The Application lodged stated that the Application had been lodged outside the allowable time and stated that:

“I was under the mistaken belief that the application was WA related only and could be submitted in 28 days because I live in WA. I was unaware of that this application fell under Federal jurisdiction and submissions had to be in within 21 days.”

[2] On 30 April 2014 a letter was sent by the Fair Work Commission (FWC) to the Applicant and the Respondent stating that the Application had been lodged outside the allowable time. The letter also stated that the Applicant would shortly receive a notice of listing for a conference/hearing. As the Application was not allocated to me until 7 May 2014, it is unclear to me on what basis a presumption was made by the unknown person at FWC that I would conduct either a conference, or a hearing, or both. Nor am I aware of the power of anybody other than the President to direct how I deal with a matter (s.582 of the Fair Work Act 2009 (the FW Act)). The unsigned letter from the unknown person, although presumably a staff member in a group of people at the FWC known as the Unfair Dismissal Team, known under the acronym, as the UDT. In any event I decided not to follow the purported direction as to how I deal with the matter.

[3] Rather I decided that the matter would be dealt with more expeditiously and efficiently if I dealt with it on the papers as there did not seem to be any matters of fact that I would need to determine so it seemed appropriate to me.

[4] I therefore sent a fairly standard letter on 9 May 2014 to the Applicant requesting information as to why I should extend the time. The Applicant responded on 11 May 2014. The Applicant stated amongst those reasons and in summary that:

● The trauma of being dismissed for the first time in 44 years of his working life he was not prepared for the physical, emotional and psychological impact on him. This resulted in sleepless nights and a loss of sense of time.
● After considerable time his mind became clearer and he decided he had a reasonable grievance.
● He mistakenly believed he had 28 days to lodge the application.
● He became aware when he spoke of Fair Work Western Australia (clearly the Registry staff at FWC in Perth) on the Monday following when the Application should have been lodged. He claims that he was told that this (the lateness) would have negligible impact on his claim. I have not pursued whether the Applicant was told this or not but for the purposes of this Application I presume that he was.
● The procedure adopted and the nature of meeting conducted was not fair.
● He did not have an opportunity to have a support person present at his interviews.
● He was no given sufficient opportunity to prepare a defence to accusations made against him.
● He was not present at the incident that led to his outburst.
● He was not present at the original incident but was blamed for that incident.
● He had no intention of carrying out the actions he said he would take (to “sort out” a Manager he asserts lied).
● Nevertheless he recognised the inappropriateness of what he said to the Manager.
● He apologised the next day to the Manager and he considered there was an amicable understanding reached by them both.
● He has suffered injuries in the armed forces including a hearing impairment which may have caused him to make a statement loudly to another employee.
● The workplace was unsafe and he was isolated from others and he was under duress for most of the time.

[5] Unfortunately most of the matters raised by the Applicant go to the merit of the Application. Some of the matters the Applicant was requested to give explanations about were not addressed by him.

[6] The Respondent lodged submissions. In summary they submitted that:

● Ignorance of the time limit is not an exceptional circumstance.
● The length of the delay (here being only 3 days) does not provide the basis for an exceptional circumstance.
● The Applicant was made aware of his dismissal the day before it occurred.
● The Applicant took no steps to dispute the dismissal prior to lodgement of the Application.
● There will be no prejudice suffered by the Respondent because of the delay.
● The Application is without merit either substantively or procedurally.
● The Applicant should be treated the same way all other Applicants’ are treated and be held to the statutory time limit.

Consideration and conclusion

[7] The reasons the Applicant gave for the delay was his physical, emotional and psychological condition following the dismissal which in turn affected the clarity of his mind and decision making and his mistaken belief that he had 28 days to lodge the Application. The first of those reasons weighs marginally in favour of an exceptional circumstance being found. However, even if I gave it substantive weight I doubt it would have tipped the balance from my findings below. The second of the Applicant’s explanations being his ignorance of the time limit is regularly cited as a reason for the delay.

[8] The Applicant became aware of his dismissal at the time it occurred. This element does not attract any weight in favour of the Applicant.

[9] The Applicant gave no explanation of any actions he took prior to the date he lodged the Application. This element does not favour the Applicant.

[10] Whilst the Applicant has an arguable case on what has been provided I do not consider the merits of his case favours a finding of an exceptional circumstance, rather I have given this element a neutral weight.

[11] The fairness between the Applicant and other persons in a similar position do not favour the Applicant. As the Respondent correctly points out other employees dismissed are obliged to lodge within the time allowed. I consider it would be unfair to other persons who have been dismissed if the Application is allowed.

[12] I find that exceptional circumstances do not exist. The Application will not be allowed.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 11 May 2014.

Respondent, 23 May 2014.

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