Craig Madgwick v Stratton Brady Pty Ltd T/A Tender Gourmet Butchery
[2016] FWC 5466
•5 AUGUST 2016
| [2016] FWC 5466 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Craig Madgwick
v
Stratton Brady Pty Ltd T/A Tender Gourmet Butchery
(U2016/7499)
COMMISSIONER JOHNS | SYDNEY, 5 AUGUST 2016 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Craig Madgwick (applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his application was lodged on 6 June 2016, that being 24 days after his employment ended with Stratton Brady Pty Ltd (T/A Tender Gourmet Butchery) (respondent) on 13 May 2016 and, consequently, 3 days after the 21 day time limit provided for in the FW Act.
[3] I have deliberately not used the words “termination” or “dismissal” in relation to the cessation of the applicant’s employment because the respondent has a second jurisdictional objection to the application on the basis that it says the applicant was not dismissed at the initiative of the employer but rather resigned from his employment. The applicant says, any resignation was a constructive dismissal. The Commission does not need to consider the 2nd jurisdictional objection unless the applicant is granted an extension of time to make his application.
[4] For the reasons below the Commission, as presently constituted, has decided not to grant the applicant an extension of time. Accordingly, it is unnecessary to determine the second jurisdictional objection.
The extension of time jurisdictional objection
[5] On 6 June 2016 the applicant lodged an application for an unfair dismissal remedy. As stated above, the application was lodged 24 days after the end of his employment with the respondent. At the time of lodging his application the applicant explained the reason for the delay in the following terms:
Applicant was in shock due to physical assault & underwent surgery on 18/05/2016, was unaware of time limit. Also awaiting police investigation interviewed on 18/03/ 2016 (sic).
[6] On 24 June 2016 the Commission wrote to the applicant asking him to provide a written statement explaining why he thought the Commission to decide in favour of extending the time for his application. The applicant was advised that,
Unless you request a hearing in person or request to be heard by telephone or video, this written statement and any documents you supply with it will be what [the commission relies] on when [it considers) your application.
[7] On 4 July 2016 the respondent formally responded to the Application and indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.
[8] On 8 July 2016 the applicant’s representative, Dennis Michael, a solicitor with Kazi & Associates, responded to the Commission’s correspondence of 24 June 2016. Mr Michael submitted that:
a) the Application was not out of time “because it was not until 6 June 2016 that the applicant became aware that his resignation was actually an unfair dismissal when he sought legal advice regarding lodging a worker compensation claim and was advised accordingly. … He did not become aware of his constructively unfair dismissal (of 13 May 2016) until 6 June 2016.”
b) alternatively, if the Commission concludes that there was a delay in the making of the Application, then there was only a short delay and “coupled with the reason … including the exceptional nature of the workplace assault predicate in the unfair dismissal, constitutes “exceptional circumstances” line for leave to be granted lodging a late application.”
[9] The applicant did not request a hearing in person or request to be heard by telephone or video.
[10] On 19 July 2016 the respondent was provided with an opportunity to reply to the submissions made on behalf of the applicant. The respondent was also provided an opportunity to request a hearing in person or by telephone.
[11] On 26 July 2016 the respondent’s representative, Robert Napoli & Co solicitors responded to the submissions made on behalf of the applicant. They did not request a hearing in person or by telephone or video.
[12] The first submission made on behalf of the applicant (that the application is not out of time) is quickly disposed of because ignorance of the law is never an excuse and ignorance of the timeframe for lodgement is not an exceptional circumstance 3. Even though the applicant underwent a medical procedure during the relevant period, between the cessation of his employment on 13 May 2016 and when he lodged his application on 6 June 2016, the applicant had ample opportunity to seek and obtain legal advice about the cessation of his employment including whether the factual circumstances amounted to a constructive dismissal. Consequently the Commission as presently constituted, is satisfied that the Application is 3 days out of time. It therefore becomes necessary to consider whether to grant an extension of time.
Legislative scheme
[13] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(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.
[14] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following in relation to “exceptional circumstances”:
[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. 5
Facts leading up to and relating to the dismissal
[15] The following matters are either common ground between the parties or not otherwise contested:
a) the applicant commenced employment on 21 March 2013;
b) he was employed as a butcher;
c) he earned $764.94 per week;
d) there was a physical altercation between the applicant and a fellow employee on 6 May 2016;
e) the employment ended on 13 May 2016, after the applicant attended the worksite and told the principality of the respondent that “I cannot work here anymore”;
f) the applicant was paid out his annual leave entitlements and was given an additional payment of 2 weeks’ pay;
g) the respondent issued the applicant with a Centrelink separation certificate stating that the employment separation was due to a “shortage of work”;
h) on 14 May 2016 applicant laid a complaint with police about the workplace altercation;
i) on 18 May 2016 the applicant underwent surgery;
j) on 20 May 2016 applicant was certified medically unfit to 1 July 2016;
k) 21 days after the cessation of employment was 3 June 2016;
l) on 6 June 2016 the applicant received legal advice to the effect that he had been constructively dismissed from his employment; and
m) the Application was lodged on 6 June 2016.
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
[16] It is undisputable that there were 24 days between when the cessation of the applicant’s employment took effect and when an application was filed with the Commission.
[17] The applicant says the reason for the delay was he “was not aware that he had been constructively dismissed until it was so advised by his solicitor 6 June 2016 when seeking advice about another aspect of the termination (namely, a workers compensation insurance claim for his finger injury)”.
[18] As stated above ignorance of the law is never an excuse and ignorance of the timeframe for lodgement is not an exceptional circumstance 6.
[19] To the extent that the applicant’s injury and subsequent surgery is also relied upon as a reason for the delay, in my view it does not explain it. An employee needs to provide a credible reason for the whole of the period that the application was delayed. 7 Noting that the applicant had day surgery on 18 May 2016 the following periods are unexplained:
a) 13 May 2016 (the employment ended) – 17 May 2016 (the day before the surgery);
b) 19 May 2016 (the day after the surgery) – 3 June 2016 (the day the 21 day time limit expired); and
c) 3 June 2016 (the day the 21 day time limit expired) – 6 June 2016 (the day the Application was lodged).
[20] The applicant had ample time to seek advice in relation to the cessation of his employment and to file an application within the statutory time limit of 21 days.
[21] Therefore this factor weighs against granting him a further period to make his Application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[22] It is uncontested that the applicant first became aware of the cessation of his employment on 13 May 2016. He disputes that he became aware that it was a dismissal (at the initiative of the employer) until 6 June 2016.
[23] For the reasons already stated above the argument advanced on behalf of the applicant, that his application is not out of time, is rejected.
[24] Therefore this factor weighs against granting him a further period to make his Application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[25] Until the filing of the Application on 6 June 2016 the applicant took no action to dispute the dismissal.
[26] Therefore this factor weighs against granting him a further period to make his Application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[27] The respondent did not submit that it would prejudiced by the delay. It can be accepted that it would not be.
[28] The lack of prejudice weighs in favour of granting the applicant a further period to make his Application.
Paragraph 394(3)(e) - The merits of the application
[29] In the matter of Kornicki v Telstra-Network Technology Group 8the 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 lodgment. 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.” 9
[30] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[31] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[32] The substantive factual contest between the applicant and the respondent is whether there was a dismissal at the initiative of the employer, and, if so, whether the termination was harsh, unjust or unreasonable. This is not a factual dispute that can be resolved at a jurisdictional hearing.
[33] For present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance.
[34] If the applicant can establish to the satisfaction of the Commission that the events of 6 May 2016 which caused him to “resign” on 13 May 2016 amounted to a constructive dismissal then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the applicant’s employment was harsh, unjust or unreasonable.
[35] Because the applicant’s case is not without merit or lacking in any substance, this factor weighs in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[36] The applicant submitted that there was unfair treatment as between him and the other employee involved in the altercation.
[37] The respondent sought to explain the differential treatment on the basis that the other employee was,
…a long-standing employee in a supervisory role who has an excellent employment record. His behaviour is usually exemplary, whereas on the day in question, the applicant had goaded the employee to the point of exasperation, which led to the altercation.
[38] This is another factual dispute as between the parties which cannot be resolved at the jurisdictional hearing stage.
[39] Consequently, this factor is a neutral consideration in determining whether to allow the applicant an extension of time.
Conclusion
[40] For the reasons set out above, on balance, the Commission is satisfied that there are no exceptional circumstances warranting the applicant being allowed a further period for his Application to be made (i.e. being granted an extension of time to lodge his application).
[41] An Order to this effect will be issued with this decision.
COMMISSIONER
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) FW Act.
3 Nulty v Blue Star Group Pty Ltd (2011) 203 IR, 1, [14].
4 [2011] 203 IR 1
5 Ibid [13].
6 Nulty v Blue Star Group Pty Ltd (2011) 203 IR, 1, [14].
7 Cheval Properties Pty Ltd v Smithers [2010] 197 IR 403, 408-409 and Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37].
8 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
9 Ibid.
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