Brian Reid v Toll Transport Pty Ltd
[2018] FWC 3320
•6 JUNE 2018
| [2018] FWC 3320 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brian Reid
v
Toll Transport Pty Ltd
(U2018/2435)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 6 JUNE 2018 |
Application for an unfair dismissal remedy - extension of time.
[1] On 8 March 2018, Mr Brian Reid (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to the application is Toll Transport Pty Ltd (Respondent) (Toll).
[2] The Applicant commenced employment with the Respondent on 17 August 2015. He was employed as a tanker driver. He says that his employment came to an end on 31 January 2018. Toll submitted that the Applicant was dismissed on 30 January 2018 with immediate effect.
[3] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application will be dismissed.
Preliminary matters
[4] Mr Reid named the Respondent to this application as ‘Toll Holdings t/a Melbourne Fuels’. On 16 April 2018, he filed a Form F1 seeking to amend the name of the Respondent to ‘Toll Transport Pty Ltd’. During the hearing, the Respondent submitted that the correct name of the entity should be ‘Toll Transport Pty Ltd’ and did not object to the application.
[5] On the evidence before me, I am satisfied that the name of the Respondent in this matter is Toll Transport Pty Ltd. I have utilised the discretion in s.586 of the Act to amend the application accordingly.
[6] Mr Reid’s application stated that his dismissal took effect on 31 January 2018. Toll submitted that Mr Reid was dismissed in a meeting on 30 January 2018 and that the dismissal took effect that day.
[7] On cross-examination Mr Reid confirmed that he had been dismissed during this meeting and handed a letter of termination. This letter of termination, addressed to Mr Reid and dated 30 January 2018, provides as follows:
“…we have decided to terminate your employment with two weeks’ notice period to be paid out effective from today’s date.” 1
[8] Accordingly, Mr Reid’s dismissal took effect on 30 January 2018. The application was therefore lodged 16 days out of time.
Legislative Scheme
[9] 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 outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[10] Section 394(3) of the Act provides as follows:
“394 Application for unfair dismissal remedy
…
(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 person first 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.”
[11] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 2where 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]
[12] The onus of establishing exceptional circumstances is on the Applicant. 3
[13] This point was emphasised by the Full Bench in the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 4 which contained the following statement:
“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:
“[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …” (emphasis added)
[30] This extract must be read in its entirety. The decision goes on to state:
“[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.”
[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”
Background
[14] On 9 March 2018, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.394(3) of the Act. The matter was listed for hearing on 27 April 2018.
[15] Mr Luke McCrone, who is neither a paid agent nor a lawyer, represented Mr Reid. The Respondent was represented by Ms Laura Dobson, Senior Manager - Employee and Industrial Relations.
Matters to be taken into account pursuant to s.394(3)
[16] 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.
s.394(3)(a) the reason for the delay
[17] Mr Reid submitted that he was terminated in a meeting conducted on 30 January 2018. His evidence was that he was accompanied by both a TWU delegate and TWU organiser who, following the dismissal, instructed him to lodge an unfair dismissal application. 5
[18] Mr Reid submitted that he had made a bona fide attempt to lodge his application on 7 February 2018 and genuinely believed that he had been successful in doing so. 6 In support of his contention, Mr Reid filed in the Commission a screenshot of what he says is his browser history, showing that he had visited the Commission’s Online Lodgement Service on 7 February 2018 at 11:12am.7 Mr Reid also filed an email that he had purportedly sent to his TWU organiser advising that the application had been lodged.8 Toll objected to this email evidence on the grounds that the document filed was not a copy of the original email and lacked any identifying features such as sender, recipient details or a date.
[19] Mr Reid submits that on 2 March 2018 he contacted the Commission to enquire about the date of his conciliation and was informed that his application had not been received. When questioned as to why he waited almost a month to follow up on the status of his application, Mr Reid submitted that he was unaware of the Commission’s processes and how long things would take.
[20] He submitted that he proceeded to re-complete the application over the weekend and attempted to email it to the Commission on 4 March 2018. 9 Mr Reid’s oral evidence was that he was unable to complete the application prior to 4 March 2018 as his printer was not working and he needed to get someone else to download and print the form for him.
[21] Mr Reid submitted that on 4 March 2018 he had sent the application to an incorrect email address. His oral evidence was that he had sent it to a ‘.com’ email address instead of a ‘.gov’ email address. Upon receiving a bounce back notification, Mr Reid submitted that he rechecked the email address and filed his application to the correct email at 2am on 5 March 2018. 10 This email was not however sent to a correct address, and was instead sent to ‘[email protected]’.
[22] A review of the Commission’s file management system shows that the Commission did not receive Mr Reid’s application until 3.54pm on 8 March 2018. Mr Reid sent his application by email to the Melbourne Registry at ‘[email protected]’, forwarding on the email and attachment he says he had sent to ‘[email protected]’ on 5 March 2018 at 2:09am. This application form is missing the first page, and notes on the Commission’s file management system indicate that Commission staff contacted the Applicant’s representative at 12:02pm on 9 March 2018 to advise of this. The completed application was subsequently received at 2:57pm on 9 March 2018.
[23] Toll submitted that information readily available on the Commission’s website includes reference to the required time frames for filing an application and reference to the fact that an email confirmation is sent by the Commission following the submission of the online lodgement form. 11
[24] Mr Reid denied having read that an email confirmation would be received and denied having seen the ‘frequently asked questions’ on the Commission’s website.
[25] Toll submitted that the alleged enquiry made by the Applicant on 2 March 2018, which was 23 days after he had attempted to lodge an application and 31 days after his dismissal, represented an unreasonable delay particularly in light of the 21 day time limit prescribed by the Act. 12
[26] In response to Mr Reid’s contention that he lodged his application on 5 March 2018, Toll submitted that sending an email to the address that Mr Reid used generates an immediate ‘undelivered’ response, however despite receiving this they submitted that Mr Reid did not send the application to the Commission for a further 3 days. 13
[27] Toll submitted that the Commission’s website outlines a number of methods through which the Commission can be contacted, including relevant email addresses for filing documentation and contact phone numbers. They submitted that the correct information was readily available to and reasonably obtainable by Mr Reid. 14
[28] Toll also noted that the application filed by Mr Reid was dated 1 March 2018, one day prior to the date he submitted that he contacted the Commission. 15 Mr Reid’s oral evidence was that the date on his application was an error which he had made due to the extensive shiftwork he has worked.
[29] Toll submitted that Mr Reid had not provided an adequate reason for the delay between the date of the application and the first attempt to file (1 to 5 March 2018); the date he made enquiries of the Commission and the first attempt to file (2 to 5 March 2018) or the date of his first attempt to file and the date the application was actually filed (5 to 8 March 2018). 16
[30] If an applicant is able to provide a credible explanation for the entirety of the delay this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances. 17
[31] Mr Reid says he became aware on 2 March 2018 that his application had not actually been filed. Mr Reid claims to have sent emails on the 4 and 5 March 2018 to wrong email addresses. I note that although Mr Reid provided the screen shot of what he says is his computer it is absent any identifying features and he did not file the email he says he sent to the wrong email address on 4 March 2018 in support of his claim. However he did file the email dated 5 March 2018. Mr Reid did not present as evidence any of the email bounce back messages informing him that his emails were unable to be delivered.
[32] Even if I were to accept that Mr Reid had attempted to file an unfair dismissal application within time, I am not satisfied that Mr Reid has provided a reasonable explanation that would go towards exceptional circumstances explaining the period of delay between 2 and 8 March 2018. Mr Reid was aware of the timeframes for lodging his application and waited until at least 4 March 2018 before making a second attempt. Mr Reid would have immediately been notified that his attempt at filing that application had failed yet it took Mr Reid a further 4 days before he successfully lodged his application.
[33] In the absence of the supporting evidence I am not persuaded by Mr Reid’s oral evidence that he attempted to file an application on 4 March 2018, and even if he had done so I am not satisfied that Mr Reid acted in haste to refile his application after his third unsuccessful attempt on 5 March 2018. I am not satisfied the reasons provided by the Applicant constitute an acceptable reason for the delay. This weighs against a finding of exceptional circumstances.
s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[34] Toll submitted that Mr Reid became aware of the dismissal on the date that it took effect. He attended a meeting with a support person on 30 January 2018 and was informed of the termination of his employment with immediate effect. Mr Reid was also provided with a letter of termination at that meeting which confirmed said termination. 18
[35] Mr Reid had the full 21 days from the date of termination to lodge his application. This weighs against a finding that there are exceptional circumstances.
s.394(3)(c) any action taken by the person to dispute the dismissal
[36] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 19
[37] There was no submission that Mr Reid took any action to dispute his dismissal other than lodging the application currently before me. This weighs against a finding that there are exceptional circumstances.
s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)
[38] Prejudice to the employer will go against the granting of an extension of time. 20 Mr Reid submitted that Toll was a very large employer and had not been prejudiced in any way by the delay in lodging the application.21
[39] Toll submitted that they did not contend that they would suffer any prejudice if an extension of time was granted, however contended that the mere absence of such prejudice is an insufficient basis on which to grant an extension of time. 22
[40] Absent of any evidence of any real or actual prejudice to Toll, I am satisfied that such absence favours the Applicant.
s.394(3)(e) the merits of the application
[41] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 23 it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
[42] Mr Reid submitted that in terminating him, Toll relied on a warning that was issued to him during a previous period of employment. He also submitted that Toll had relied on a warning for failing to correctly perform a task which he was not trained to perform and for which he had been advised he would not receive a warning. 24
[43] Further, Mr Reid submitted that Toll had relied on inaccurate measurements to determine that he had made the incorrect delivery for which he was terminated. 25
[44] Toll submitted that the application lacks merit. They submitted that Mr Reid’s employment was terminated for repeated misconduct after he had received three written warnings for misconduct on 4 March 2016, 15 November 2016 and 2 February 2017. 26
[45] They submitted that Mr Reid’s employment was terminated on 30 January 2018 for further misconduct related to delivering fuel to the incorrect tank contrary to instructions. 27
[46] Toll submitted that at all times they followed a fair process in investigating this misconduct and during the process of terminating Mr Reid’s employment. 28
[47] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 29 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.30 I have not done so. Accordingly, 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 find this criterion to be neutral.
s.394(3)(f) fairness as between the person and other persons in a similar position.
[48] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 31 as follows:
“[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
[49] There was no submission that there is, or has been, any persons in a similar position to Mr Reid. I therefore find this criterion to be neutral.
Conclusion
[50] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.394(3) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.
[51] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 32
[52] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Mr Reid’s application to be made. Accordingly, the application is dismissed.
[53] An order 33 to that effect will accompany this decision.
COMMISSIONER
Appearances:
L. McCrone for the Applicant;
L. Dobson for the Respondent.
Hearing details:
2018
Melbourne
27 April
Printed by authority of the Commonwealth Government Printer
<PR607891>
1 Exhibit R1, Annexure A
2 [2011] FWAFB 975
3 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403
4 [2016] FWCFB 349
5 Exhibit A3, 1-3
6 Exhibit A1, 7
7 Exhibit A2
8 Exhibit A3, Annexure BR1
9 Ibid. 4
10 Exhibit A3, 4, Annexure BR2
11 Exhibit R1, 10
12 Ibid. 11
13 Ibid. 12-13, Annexure B
14 Ibid. 14
15 Ibid. 15-17
16 Ibid. 19
17 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [45]
18 Exhibit R1, 33-34
19 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
20 Ibid.
21 Exhibit A1, 8
22 Exhibit R1, 36
23 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C
24 Exhibit A1, 9
25 Ibid., 9
26 Exhibit R1, 37-39
27 Ibid. 40
28 Ibid. 41
29 Haining v Deputy President Drake (1998) 87 FCR 248, 250
30 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
31 [2015] FWC 8885 at [29]
32 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975
33 PR607892
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