Christopher Jessiman v Seymour Timber & Hardware

[2016] FWC 1947

[2016] FWC 1947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Jessiman
v
Seymour Timber & Hardware
(U2016/3725)

COMMISSIONER BISSETT MELBOURNE, 4 APRIL 2016

Application for relief from unfair dismissal - Extension of time application – Nothing unusual in time taken for mail delivery of application - Application dismissed

[1] Mr Christopher Jessiman has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. Mr Jessiman was employed by Seymour Timber & Hardware (Seymour Timber). He commenced employment in October 2013 and his employment was terminated on 17 December 2016.

[2] Mr Jessiman’s application for unfair dismissal was received by the Commission on 11 January 2016, 25 days after the date the dismissal took effect and four days outside the statutory time specified in the Act required for filing a submission.

[3] Mr Jessiman filed a second Form F2 on 25 January 2015 providing some additional information that had not been provided in his first application.

[4] Mr Jessiman seeks an extension of time within which to make his application. Seymour Timber objects to the extension.

[5] Seymour Timber also says that Mr Jessiman filed a Notice of Discontinuance with respect to his application for unfair dismissal and that notice of discontinuance should stand such that there is no longer an application before the Commission.

[6] Before dealing with the notice of discontinuance I will consider the extension of time matter.

Extension of time

[7] Section 394(2) of the Act requires that an application for unfair dismissal must be made within 21 days of the time the dismissal took effect. Mr Jessiman made his application 25 days after the date his dismissal took effect meaning his application was made four (4) days out of time.

[8] The Commission has the power, pursuant to s.394(3), to extend the time within which an application can be made if it 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.

[9] I shall first consider each of these and then decide if exceptional circumstances exist.

Reason for the delay

[10] Mr Jessiman says that there was a delay in getting his application in on time because he needed to get some advice from friends and family including a lawyer friend. He says it was difficult getting in touch with people in the lead up to Christmas and he finally got the assistance he required soon after Christmas and the New Year.

[11] Mr Jessiman completed his application and signed it on 5 January 2016. He says he took it to the Post Office that day at about 4.30pm and posted it. He figured it would be received by the Commission within two to three days.

[12] Mr Bower says that, the day before his employment was terminated, Mr Jessiman sent a text message to a co-worker at the store that read:

Spoke 2 1 of my mates form Melbourne who is a solicitor I’m got good case in court in suing Allan bower 4 unfair dismissal & Allan Hatfield 4 workplace bullying spoke 2 Allan bower getting sacked tomorrow (sic).

[13] The co-worker showed the text message to his manager and it was copied.

[14] Mr Bower also says that Mr Jessiman should have known that the Post Office had introduced three classes of mail and sent his application so that it arrived on time with the Commission.

[15] Mr Jessiman says he sent the text the day before he was dismissed because Mr Bower had said he was going to come to meet with him and he would probably be dismissed – a matter disputed by Mr Bower.

[16] Mr Jessiman says that, while he said in the text message he had spoken to a solicitor he had, in fact, not done so but it was on his plan if he was dismissed.

When person first became aware of dismissal

[17] It is not disputed that Mr Jessiman became aware of his dismissal on the day it took effect, that is 17 December 2016.

Action taken to dispute the dismissal

[18] No other action was taken by Mr Jessiman to dispute his dismissal except lodging his application with the Commission.

Prejudice to the employer

[19] Mr Bower says that he would be prejudiced if the extension of time was granted as he would have to spend more time and money dealing with the matter. He said that ‘disruption costs’ is an acceptable reason for disallowing an extension of time.

[20] Mr Jessiman says there would be no prejudice (or disadvantage) to the business as it was in a sound financial position.

Merits of the case

[21] Mr Jessiman says that his dismissal was unfair as he was not given any notice and in the meeting he had with Mr Bower and Mr Hatfield he was spoken over and his explanation was not listened to.

[22] Mr Bower said there was little merit to Mr Jessiman’s case. He had been subject to extensive warnings over two years and he just never listened. He agreed that he requested the meeting that led to his dismissal as he wanted to talk to Mr Bower about being bullied by his manager

[23] He said the meeting on 17 December 2015 was called at Mr Jessiman’s instigation and he used the opportunity to talk to him about a number of matters that had been raised about his performance.

[24] Mr Bower said he checked with the code (which I understand him to mean the Small Business Fair Dismissal Code (the Code)) and, under it, the dismissal was fair.

[25] Mr Bower said that Mr Jessiman was dismissed for on-going serious misconduct and that was why his employment was terminated without notice.

Fairness

[26] No submissions were put to me on the question of fairness.

Consideration

[27] An extension of time can only be considered by the Commission if exceptional circumstances exist taking into account those matters outlined above.

[28] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench of Fair Work Australia found:

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…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.

[29] I accept that Mr Jessiman mailed his application to the Commission on 5 January 2016. The envelope is date stamped by the Post Office on 5 January 2016. It was received on 11 January 2016.

[30] Was it reasonable of Mr Jessiman to assume that his application would be received by the Commission in Melbourne two days later, by 7 January 2016 (making it within time)? Mr Jessiman said that he was aware that Australia Post had different standards of delivery but still thought a letter sent by regular post would be received two or three days later. I do note that, at the time he posted his application, the new postage standards had been in place for less than a week but Mr Jessiman says he was aware of these.

[31] It took Australia Post four working days to deliver Mr Jessiman’s letter. It was not put that this delivery period was unusual or out of the ordinary. In circumstances where Mr Jessiman says he was aware of the changes in Australia Post’s delivery standards he does not appear to have taken the delivery standards into account in delaying the posting of his application until 5 January 2016. He just assumed – without checking – that his application would arrive within two to three days of posting. It is not unreasonable, in my opinion, to expect that a person should take into account the delays that may be occasioned by the method they chose to deliver their application to the Commission. Mr Jessiman had three options for posting his letter and he chose the slowest of these.

[32] Mr Jessiman says the delay was also caused because he needed to get advice prior to making his application. The advice he sought was from family and a friend who was a lawyer. Whilst I accept that there may have been some issues in getting in touch with his friend over the Christmas period the text message sent by Mr Jessiman to a work colleague on the day before his dismissal suggests that he was already in contact with a lawyer. Mr Jessiman stated that this text was a bit of bluff and he had not been in contact with a lawyer prior to the date of his dismissal. I do not consider this relevant except to the extent that it clearly indicates Mr Jessiman knew, at that time, that there was action he could take if he was dismissed.

[33] Whilst the delay in getting further advice from his friend may have been occasioned by Christmas this does not explain any of the delay of Mr Jessiman making his application and does not explain the totality of the delay.

[34] The merits of the matter are disputed. Whilst Mr Bower says the dismissal was fair under the Code I am not convinced that this is the case for dismissal for serious misconduct. The Code defines serious misconduct as including ‘theft, fraud, violence and serious breaches of occupational health and safety procedures’. Given the definition of serious misconduct and the disputed facts in relation to the reason of for the dismissal I am not able to find that this matter weighs in favour of the granting or otherwise of the application.

[35] I do not consider there is any prejudice to the employer in the grant of the application for an extension of time. The delay in making the application was four days. Seymour Timber has been aware of the application from around this date. There is no suggestion that the delay has resulted in records being destroyed or witnesses having moved away and not being available should the matter go to hearing. Certainly to defend such a case Mr Bower would need to spend time on it but the delay is not such that this cost would be any more than it would have been had the application been made on time.

[36] Having carefully weighed the issues before me I am not satisfied that there are exceptional circumstances such that I should grant an extension of time to Mr Jessiman within which he may make his application. The time taken for delivery of the mail was not unusual and the application could have been made without the advice from a friend who was a lawyer. That the merits cannot be determined at this time does not create exceptional circumstances that otherwise do not exist.

[37] Mr Jessiman’s application is therefore made outside the time period allowed for under the Act. The application is therefore dismissed. An Order to this effect will be issued in conjunction with this decision.

Notice of discontinuance

[38] Having determined that there are no exceptional circumstances such that an extension of time should be granted it is not necessary for me to consider if Mr Jessiman did, in fact, discontinue his application.

COMMISSIONER

Appearances:

C Jessiman the Applicant.

A Bower from Seymour Timber & Hardware.

Hearing details:

2016

Melbourne:

23 March

 1 (2011) 203 IR 1.

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