Craig Fitzpatrick v T S and D E Cowcher Farms Pty Ltd T/A Derek Murray and Co

[2015] FWC 3600

[2015] FWC 3600 [Note: An appeal pursuant to s.604 (C2015/4122) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 10 August 2015 [[2015] FWCFB 5119] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Fitzpatrick
v
T S & D E Cowcher Farms Pty Ltd T/A Derek Murray & Co
(U2015/1468)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Craig Fitzpatrick alleged that the termination of his employment by T S & D E Cowcher Farms Pty Ltd (Cowcher Farms) on 2 February 2015 was unfair.

[2] Mr Fitzpatrick’s unfair dismissal application lodged on 1 April 2015 was not made within 21 days of the date of the dismissal.

[3] I refused permission for Cowcher Farms to be represented by a lawyer. It was submitted that permission should be granted because the matter had some legal complexity and the respondent would benefit from representation. This matter was listed to determine if Mr Fitzpatrick should be given an extension of time. There was no explanation of what was legally complex in this matter. Without more, I was unable to conclude that representation would enable the matter to be dealt with more efficiently given the complexity of the matter. Also, the mere fact that a party would benefit from representation is not sufficient. There was no submission that Mr Hand could not represent Cowcher Farms effectively.

[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 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;

[6] There was a dispute between the parties about when Mr Fitzpatrick was dismissed. Mr Fitzpatrick had a traffic accident on 27 January 2015. It was Mr David Hand, the Operations Manager’s evidence that he attended the site of the accident and after inspecting the site and speaking to Mr Fitzpatrick he said; “As a driver for Derek Murray and Co, you are no longer required.” He said while he did not use the word “sacked,” he was very clear that Mr Fitzpatrick’s employment was over. 2 Mr Tim Cowcher, a Director of the company, gave evidence that Mr Hand told him that night or the next day that he had finished Mr Fitzpatrick up because there had been speed involved in the accident. Mr Hand exhibited a file note signed by him and dated 28 January 2015 in which it stated he told Mr Fitzpatrick that “he was no longer required as a driver.”

[7] Mr Fitzpatrick gave evidence that when Mr Hand arrived at the scene of the accident he was very angry and his first words to him were “you are through here.” He said to Mr Hand “I know.” 3 Mr Fitzpatrick said he did not understand that Mr Hand was terminating his employment. He gave evidence that Mr Hand subsequently asked him about how the accident occurred and asked him to help salvage part of the load. It was his evidence that if he had understood that his employment was terminated, he would have left the site and not assisted Mr Hand further. Mr Hand said he did not ask Mr Fitzpatrick to remain at the site but he did ask him to help cut the tarp from the trailer.

[8] Mr Fitzpatrick was injured in the accident and his doctor said he had no capacity to work until 16 April 2015. No medical certificate was provided to the Commission and there was no evidence that Mr Fitzpatrick contacted his employer about this prior to the termination of his employment. Mr Fitzpatrick did not attend work for the rest of the week.

[9] Mr Fitzpatrick attended work on 2 February 2015 to complete the end of month paperwork. After completing the paperwork, Mr Fitzpatrick said Mr Hand told him that he was no longer required because they did not have a truck for him to drive as his truck had been written off after the accident. Mr Fitzpatrick said this was the date of his dismissal. 4 Mr Hand did not dispute that there was a discussion that day about why Mr Fitzpatrick had been dismissed.

[10] Mr Fitzpatrick waited to see if he was going to be paid his entitlements.

[11] He said he thought he had 28 days to lodge the application form.

[12] On 23 February 2015, he called the Fair Work Commission about lodging an unfair dismissal application and was told he needed to lodge it that day as it was the last day to file within the 21 day time limit. He said he would come into the office but he was told that the application could be lodged electronically up to midnight that day. He completed a Form F8 (general protection) and uploaded it. The final step of the lodgment process was a payment gateway which failed to accept his credit cards. He tried a number of different web browsers and three different credit cards but none of them worked. His application was then lodged the next day. 5

[13] On 26 February 2015, Mr Fitzpatrick was told he required an extension of time to lodge his general protections application and directions were issued for the parties to file evidence and submissions by 12 March 2015. He filed material in support of his extension of time and on 26 March 2015 he made inquiries about his unfair dismissal application. On 31 March 2015 he was told that he had submitted the incorrect form for an unfair dismissal and on 1 April 2015 he discontinued his general protections application and lodged an unfair dismissal application.

[14] Mr Fitzpatrick did not review the forms after he lodged them. In response to a question from me, he accepted that he thought the F8 form was weird but he had not had to file an application before and was unaware of the different forms. He said he did not know why he used an F8. His only explanation was that at the time, he was on pain medication for his back.

[15] Mr Fitzpatrick’s general protection application clearly was based on an allegation that his termination was unfair. It was his uncontested evidence that he always intended filing an unfair dismissal application.

[16] It was submitted by Cowcher Farms that Mr Fitzpatrick knew he was dismissed on 27 January 2015. It further submitted that Mr Fitzpatrick’s ignorance of the time limit does not weigh in favour of extending time. It was submitted that Mr Fitzpatrick provided no evidence to support his claim that the Commission website would not accept his credit card. It was submitted that he could have taken a screen shot as evidence.

[17] It was submitted that technical difficulties are not unusual and the fault lay with Mr Fitzpatrick who chose to wait until the last day to lodge his application form.

[18] It was also submitted that making one application and then deciding to make another application is not exceptional. Cowcher Farms relied upon a number of authorities. I do not consider that these cases are authority for the proposition put forward by Cowcher Farms. The matter before Commissioner Simpson, 6 whose decision was upheld on appeal, involved an applicant who changed his mind about which application to pursue. In Chacko v Compass Group (Australia) Pty Ltd7the applicant made multiple applications and subsequently changed his mind about which one he wished to pursue.

[19] In Rezaee v Felav Pty Ltd 8 there was no submission that the applicant filed the form by mistake, rather it was an argument that she filed it as a result of representative error.

[20] I accept that Mr Hand terminated Mr Fitzpatrick’s employment on 27 January 2015. This is supported by Mr Hand’s note and Mr Cowcher’s evidence. It is also supported by Mr Fitzpatrick’s evidence.

[21] I do not accept that Mr Fitzpatrick did not understand that his employment was terminated on that day. The accident occurred on 27 January 2015 which was a Tuesday. Mr Fitzpatrick made no contact with his employer until 2 February 2015. This is not consistent with an understanding that he was still employed.

[22] I accept that Mr Fitzpatrick at all times meant to lodge an unfair dismissal application. His error in filing the wrong form explains part of the delay in lodging his application. I do not accept the submissions of Cowcher Farms that the technical problem faced by Mr Fitzpatrick was not unusual. It is unusual for the Commission website to refuse to accept a payment. Mr Fitzpatrick is entitled to rely on the website to lodge his application.

[23] I accept that Mr Fitzpatrick had a reasonable explanation for some of the delay, but even if he had filed the correct form on 23 February 2015, he would not have filed his application within 21 days of the dismissal taking effect. Given I have not accepted his submission that he was not dismissed until 2 February 2015, this weighs against extending time.

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

[24] I have not accepted that Mr Fitzpatrick was not aware of the dismissal until after it took effect. This weighs against extending time.

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

[25] Mr Fitzpatrick asked Mr Hand why he was being dismissed. They spoke about this for 15 minutes. He told him that he needed four weeks termination pay, one week’s sick leave and his holiday pay. He said that Mr Hand told him that they do not pay severance pay. He waited until 13/14 February to see if he got his pay slip. When he did not receive a pay slip, he sent an SMS to Mr Hand about his pay. Once he was aware he was not going to get paid what he was due he started to look into lodging an unfair dismissal claim.

[26] I am satisfied that Mr Fitzpatrick disputed his dismissal at the time. His dispute about what he was paid however was not a dispute about the dismissal. Further, Mr Fitzpatrick lodged a general protections claim. Cowcher Farms has been on notice that Mr Fitzpatrick disputed this dismissal. This weighs in favor of extending time.

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

[27] Mr Hand said that there would be prejudice to the company because one of the people involved was no longer employed. Mr McCone, who had made a complaint against Mr Fitzpatrick, no longer worked for the company. Further, it submitted that it had had to engage representatives to file material in the general protections application and will now need to defend a claim on different terms.

[28] I accept that there will be prejudice to the employer and that weighs against an extension of time.

(e) the merits of the application;

[29] Mr Fitzpatrick was terminated because Mr Hand formed the view that he was responsible for the accident on 27 January 2015. He had regard to the previous complaints received by Cowcher Farms about Mr Fitzpatrick’s driving. Mr Hand gave evidence of verbal warnings given to Mr Fitzpatrick and he exhibited file notes to support this. He also referred to written warnings and a written warning dated 5 January 2015 was exhibited. There is some inconsistency in the documents filed about this incident.

[30] Mr Fitzpatrick denied causing the accident and questioned the validity of the complaints relied upon by Cowcher Farms.

[31] I am not able to make any 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.

[32] No submissions were made on this criterion.

Conclusion

[33] I do not consider that there are exceptional circumstances. Mr Fitzpatrick does not have a reasonable explanation for the whole of the delay. Mr Fitzpatrick was dismissed on 27 January 2015 and while some of the delay was caused by a failure of the Commission’s website, even had he lodged his application on 23 February 2015, he would still have not lodged it within 21 days of the date of the dismissal. This is not a case where the merits of the matter outweigh the lack of a reasonable explanation for the whole of the delay. An extension of time will not be granted and the matter must be dismissed.

DEPUTY PRESIDENT

Appearances:

C. Fitzpatrick on his own behalf.

D. Hand on behalf of the Respondent.

Hearing details:

2015.

Melbourne and Perth (video hearing) and via telephone:

May 22.

 1   [2011] FWAFB 975.

 2 Exhibit R1 at [29].

 3 Exhibit A4 at [2].

 4 F2 filed by the Applicant.

 5   Exhibit A4 at [7]-[10].

 6   Burke v Department of Agriculture, Fisheries and Forestry - Australian Quarantine and Inspection Service[2011] FWA 1386.

 7   [2010] FWA 7418.

 8   [2010] FWA 5178.

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