Craig Gilbert v ESS Engineering Services and Supplies Pty Ltd T/A ESS

[2015] FWC 7096

[2015] FWC 7096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Gilbert
v
ESS Engineering Services and Supplies Pty Ltd T/A ESS
(U2015/10733)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Craig Gilbert alleged that the termination of his employment by ESS Engineering Services and Supplies Pty Ltd on 13 July 2015 was unfair.

[2] His unfair dismissal application lodged on 4 August 2015 was not made within 21 days of the date of the dismissal.

[3] 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.

[4] 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;

[5] Mr Gilbert said he was shocked by his dismissal. Mr Gilbert gave evidence that his application was delayed due to a meeting he had on 29 July 2015 with Mr Chris Wilson, General Manager at ESS, in relation to the termination of his employment. Mr Wilson was located in Queensland and Mr Gilbert who had a prearranged trip to Queensland to visit family took this opportunity to meet with Mr Gilbert in person.

[6] Mr Gilbert submitted he did not want to make a claim before speaking to Mr Wilson because that would be premature and inappropriate.² Mr Gilbert met with Mr Wilson to air his grievances about Mr Tom Stahura. Mr Gilbert did not ask Mr Wilson to reconsider the decision to terminate his employment.

[7] Mr Gilbert returned to Perth on 27 July 2015 and still had until 3 August 2015 to lodge his application. Apart from the time it took him to complete the form, Mr Gilbert had no explanation for why he did not file his application until 4 August 2015.

[8] Mr Gilbert further submitted he had a motorcycle accident on 15 May 2015, after which he was unable to work for one month as he was receiving treatment for his injuries. Mr Gilbert submitted that he has been having on-going medical treatment. This was not disputed by ESS.

[9] Mr Gilbert did not produce any medical reports to support his claim that his medical condition contributed to the delay. Mr Gilbert was at all times represented by a legal practitioner. Correspondence was sent to both Mr Gilbert and his legal practitioner on 10 August 2015 advising that if he relied upon a medical condition to explain the delay, it was necessary to provide a medical certificate or report. No such certificate or report was provided and Mr Gilbert sought to tender such evidence at the hearing. This was opposed and I refused permission for this evidence to be led because Mr Gilbert and his representative were on notice that the medical evidence needed to be provided in advance of the hearing and the medical practitioner who prepared the report was not available for cross examination at the hearing.

[10] In any event Mr Gilbert’s injury occurred whilst he was in employment and he had returned to work on restricted duties at the time of his dismissal. His injuries did not prevent him attending work. Further Mr Gilbert was able to travel to Queensland during this time to meet with friends and family. I am unable to accept that Mr Gilbert’s injuries contributed to the delay in lodging his application.

[11] I do not consider that Mr Gilbert had a reasonable explanation for the delay. Mr Gilbert’s delay was not caused by his meeting with Mr Wilson. Having met with Mr Wilson he could still have lodged his application in time. He has given no reasonable explanation as to why he waited until 4 August 2015 to lodge his claim. This weighs against a finding that there are exceptional circumstances.

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

[12] Mr Gilbert 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;

[13] Mr Gilbert did not dispute his dismissal at the time. Even at his meeting with Mr Wilson he did not seek to dispute his dismissal. He did not ask that the decision be reversed. I consider this criterion to be neutral.

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

[14] In its submissions filed, ESS submitted that if an extension of time was granted it would have to allocate resources to defend the claim and take witness statements which would impact its sales and profitability. In circumstances where Mr Gilbert’s application was one day late I do not consider that there is any real prejudice other than being required to defend the claim. I consider this criterion to be neutral.

(e) the merits of the application;

[15] ESS submitted that the reason for Mr Gilbert’s dismissal was continued poor performance. Mr Gilbert submitted that he believed the reason for his dismissal was due to the injuries he had suffered after a motorcycle accident which had restricted his capacity to perform normal duties.

[16] I am not able to make any final 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.

[17] No submissions were made about this criterion.

Conclusion

[18] I am not satisfied that there are exceptional circumstances. Mr Gilbert has not provided a reasonable explanation for the delay. None of the other factors favour a finding of exceptional circumstances. Mr Gilbert’s application for an extension of time is dismissed and the matter must be dismissed.

DEPUTY PRESIDENT

Appearances:

S. Cohen for the Applicant.

D Jones for the Respondent.

Hearing details:

2015.

Melbourne, Perth and Brisbane (by video link):

12 October.

1 [2011] FWAFB 975.

2 Exhibit A1 at [5]

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