Bruce Thompson v Colliers International

[2016] FWC 4750

[2016] FWC 4750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bruce Thompson
v
Colliers International
(U2016/7573)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 JULY 2016

Application for relief from unfair dismissal.

[1] Mr Bruce Thompson alleged that the termination of his employment by Colliers International was unfair. Colliers denies the allegation.

[2] Prior to the hearing, I refused permission for Colliers to be legally represented. I did not accept the submission that it would enable the matter to be dealt with more efficiently given the complexity of the matter. This application did not involve any complex factual matters and the legal principles are well settled and not complex. I advised that if Colliers wished to press any other grounds for representation, it could do so. No further application was made.

[3] Given his dismissal took effect on 29 March 2016, Mr Thompson’s unfair dismissal application lodged on 10 June 2016 was not made within 21 days of the date the dismissal took effect.

[4] 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.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd¹ 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;

[6] Mr Thompson said that at the time he was dismissed there were many issues he needed to deal with associated with his company being placed into administration. Further, he submitted that he was suffering stress which prevented him making the application.

[7] On 11 April 2016, Mr Thompson’s lawyers sent Colliers a letter of demand seeking that he be paid a redundancy payment. Mr Thompson’s lawyers made reference to the Fair Work Act 2009 in this correspondence. At this time, Mr Thompson was within the 21 days provided for him to lodge his application. He gave Colliers 10 days to respond. On 19 April 2016, Colliers rejected his claim for redundancy pay. However his application was not lodged until 10 June 2016.

[8] Mr Ali Qamar, a co- director of Mr Thompson’s business, put to Mr Thompson that, until early May 2016, while the company had some financial difficulties, it was expected that it would survive with an injection of monies from the shareholders. Mr Thompson did not dispute this description of events. Mr Qamar gave evidence that the company was not put into administration until 10 May 2016. Mr Thompson said he was, even before his employment was terminated, very concerned about the company and his responsibilities as a director. He said it caused him a great deal of stress and he needed to see the monthly figures and examine them carefully. He said he was completely distracted by the company going into administration.

[9] I am not satisfied that Mr Thompson has provided a reasonable explanation for the delay. Mr Thompson was given notice of termination on 24 February 2016. He was not so distracted by the financial situation of his company that he was not able to pursue his claim for unpaid redundancy. It was clear from his lawyer’s letter that he alleged that there was not a valid reason for the termination of his employment. He knew by 19 April 2016 that this claim was rejected. Had he lodged his application on that day he would have been in time. Further, it is clear that his company did not go into administration until 10 May 2016 which was after the time Mr Thompson should have lodged this application.

[10] His lack of a reasonable explanation for the delay 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 Thompson 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.

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

[12] Mr Thompson did not dispute the decision to terminate his employment when he was notified of the dismissal on 24 February 2016. He did dispute the amount he should receive on termination. The first time he disputed the validity of his dismissal was in his letter of 11 April 2016. He alleged his position had been made redundant.

[13] I consider this criterion to be a neutral consideration.

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

[14] Mr Qamar gave evidence that Colliers would be prejudiced as its staff would need to attend to the claim which would take them away from the business. I am not satisfied that Colliers would suffer any real prejudice. I consider this criterion to be neutral.

(e) the merits of the application;

[15] In the matter of Kornicki v Telstra-Network Technology Group² the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. 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."³

[16] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case."⁴ 

[17] Colliers submitted that Mr Thompson’s application was bound to fail as he earned more than the high income threshold. Mr Thompson was initially employed as the Director, Technology, Operations, and Project Management & Sustainability and subsequently as Director –Strategic Building Solutions. It submitted that the Real Estate Industry Award 2010 does not apply to Mr Thompson. No job description was provided.

[18] Mr Thompson said his position was redundant and his employment was terminated to avoid paying him his redundancy entitlements. Mr Thomson submitted that he would have been classified as a property management supervisor.

[19] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I consider this criterion to be a neutral consideration.

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

[20] There were no submissions that there were any persons in a similar position. I consider this criterion to be neutral.

Conclusion

[21] I am not satisfied that there are exceptional circumstances. Mr Thompson has not provided a reasonable explanation for the delay. None of the other criteria weigh in favour of a finding that there are exceptional circumstances. Therefore Mr Thompson’s application for an extension of time is dismissed and so is his unfair dismissal application.

DEPUTY PRESIDENT

Appearances:

B. Thompson on his own behalf.

A. Qamar for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

14 July.

1 [2011] FWAFB 975

2 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

3 Ibid

4 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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