Damian Roetz v BridgePro Engineering Pty Ltd T/A BridgePro

[2016] FWC 1373

[2016] FWC 1373

The attached document replaces the document previously issued with the above code on 8 March 2016.

The paragraph numbering has now been corrected.

Katrina Alviano

Associate to Deputy President Gooley

Dated: 8 March 2016

[2016] FWC 1373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damian Roetz
v
BridgePro Engineering Pty Ltd T/A BridgePro
(U2016/4074)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 MARCH 2016

Application for relief from unfair dismissal - extension of time.

[1] Mr Damien Roetz alleged that the termination of his employment by BridgePro Engineering Pty Ltd T/A BridgePro was unfair.

[2] Mr Roetz lodged an application for unfair dismissal on 28 January 2016 and noted that termination of his employment came into effect on 1 January 2016. BridgePro contests this and say his employment was terminated with immediate effect on 24 December 2015. In either circumstance, the application has been lodged outside of the 21 day time frame.

[3] BridgePro sought to be represented by a paid agent. Ms Lane submitted that the matter involved a jurisdictional objection and the Commission had accepted that such matters involved some complexity. I do not agree. Most extension of time matters involved no legal or factual complexity. Parties seeking to rely upon s.596(1)(a) of the Fair Work Act 2009 need to explain the complexity. Merely asserting that the matter involves a jurisdictional objection is insufficient to enable the Commission to find that matter involves complexity. BridgePro submitted, in support of an application under s.596(1)(b) of the Act, that it would be able to make a more striking impression if it were permitted to be represented. Again that did not address the criteria in s.596(1)(b) of the Act. Mr Boon who is a HR Consultant, and therefore also a paid agent, submitted that given the owner of BridgPro was overseas and he had performed the HR function at the business for some time, the business would not be able to effectively represent itself. Mr Roetz did not oppose permission being granted. I accepted the submission of BridgePro that, given the absence of the owner, it was not able to represent itself effectively and it would be unfair not to permit it to be represented.

[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]

S.394(3)(a) The reason for the delay

[6] Mr Roetz accepted that he had been verbally notified of his dismissal on 24 December 2015 and it took effect immediately.

[7] Mr Roetz said that the delay in filing his application was due to the Christmas break and because he had to wait to get legal advice. He said that he was stressed as a result of the termination and that he did not receive the termination letter until 8 January 2016 and separation certificate until 12 January 2016. Mr Roetz was unclear as to when he saw the lawyer at the Community Legal Centre. He initially said that he saw the lawyer around 14 January 2016. When asked why he then took another 14 days to lodge his application he said it took him that time to complete the paper work. He then said he must not have seen the lawyer until around 28 January 2016.

[8] Mr Roetz said he was not aware of his unfair dismissal rights. This is inconsistent with his evidence where he accepted that, at a meeting in December prior to the dismissal, his support person said that if BridgePro dismissed him he would pursue unfair dismissal. Mr Roetz said he was unaware of the unfair dismissal process and was not aware of the timetable.

[9] Mr Roetz said that his stress was caused by his dismissal but he was not able to explain how his stress prevented him from making an unfair dismissal application. Mr Roetz did not see a counselor until after the 21 days had elapsed.

[10] In response to BridgePro’s submission that he could have obtained advice elsewhere Mr Roetz said he was computer illiterate and could not have looked up the information on a computer.

[11] I accept Mr Roetz submission that he was stressed as a result of his termination and that the Christmas break made obtaining legal advice more difficult. Mr Roetz had until 14 January 2016 to lodge his application. While normally a delay caused by seeking legal advice is not exceptional, I accept that being dismissed at 6.30pm on Christmas Eve made obtaining legal advice more difficult. I therefore accept that Mr Roetz has a reasonable explanation for some of the delay. Mr Roetz posted his unfair dismissal on 19 January 2016. It appears that he did not have the correct postal address and that may explain why it took Australia Post until 28 January 2016 to deliver an express post envelope. However by the time Mr Roetz posted his application he was beyond the 21 day time limit.

[12] Even accepting Mr Roetz was computer illiterate he was aware in December that there was such a thing as unfair dismissal. Even accepting he did not know of the process there was no evidence that he took any steps to find out what he needed to do. For example he could have rung the Commission if he could not access the Commission’s website.

[13] It is not unusual for employees to be unaware of their unfair dismissal rights. Further it is not unusual for employees to have difficulty getting an appointment with a lawyer within 21 days of their dismissal. It is also not unusual for employees to be stressed as a result of their dismissal. Mr Roetz did not produce any medical evidence to support his submission that his medical condition prevented him from lodging his application in time.

[14] Mr Roetz was on notice from 16 December 2015 that his employment was at risk. It was not disputed that the reason the dismissal took place on 24 December 2015 was because Mr Roetz’s representative at the meeting on 23 December 2015 had requested a decision before Christmas.

[15] Mr Roetz evidence about when he saw the lawyer was confusing. However given he posted his application on 19 January 2016 it is more likely that he saw the lawyer on or about 14 January 2016 as he originally said in his evidence.

[16] Mr Roetz should have lodged his application that day. It was not reasonable for Mr Roetz to then take an additional 5 days to complete the application form. Mr Roetz caused further delay by misaddressing the envelope.

[17] I am not satisfied that Mr Roetz has provided a reasonable explanation for whole of the delay which weighs against a finding of exceptional circumstances.

S.394(3)(b) Whether the person first became aware of the dismissal after it had taken effect

[18] Mr Roetz was notified of his dismissal on the day it took effect. He had the full 21 days to lodge his application. This weighs against a finding of exceptional circumstances.

S.394(3)(c) Any action taken by the person to dispute the dismissal

[19] Mr Roetz told BridgePro in meetings that it would be unfair to dismiss him. Mr Roetz took no action other than lodging this application to dispute the dismissal after it occurred. It cannot be said that BridgePro was unaware that Mr Roetz intended taking steps to dispute his dismissal.

[20] This weighs in favour of a finding that there are exceptional circumstances.

S.394(3)(d) Prejudice to the employer (including prejudice caused by the delay)

[21] BridgePro says that it would be prejudiced should the Commission grant an extension of time to Mr Roetz. It says that Mr Roetz was dismissed for serious misconduct following an investigation. It says that it now has to defend a claim for unfair dismissal, which it says has no merit.

[22] While defending an unfair dismissal claim will cause prejudice to BridgePro, I am not satisfied that this prejudice is sufficient to weigh against a finding of exceptional circumstances.

S.394(3)(e) The merits of the application

[23] BridgePro submit that it had a valid reason for the termination of Mr Roetz’s employment. It says that Mr Roetz used the business’ fuel card for an unauthorised purchases. BridgePro investigated the allegations and provided Mr Roetz with an opportunity to respond to the allegations.

[24] Mr Roetz denied the allegations saying that the fuel purchased was used for work purposes. Mr Roetz denied the other allegations put to him by BridgePro.

[25] The allegations against Mr Roetz are serious and given there are factual disputes between the parties that have not yet been tested, I am unable to make a final assessment of the merits and I consider this criterion to be neutral.

S.394(3)(f) Fairness as between the person and other persons in a similar position

[26] BridgePro submits that it would be unfair if Mr Roetz was granted an extension of time because the reasons he has provided to the Commission do not amount to exceptional circumstances. It submits that it is not uncommon for terminated employees to experience stress following termination of their employment.

[27] There was no submission that there were any other persons in a similar position to Mr Roetz. I consider this criterion to be neutral.

Conclusion

[28] I am not satisfied that there are exceptional circumstances. While I accept Mr Roetz has a reasonable explanation for some of the delay he has not provided a reasonable explanation for the whole of the delay. Apart from Mr Roetz disputing the dismissal no other factors weigh in favour of a finding of exceptional circumstances and accordingly Mr Roetz application for an extension of time is dismissed. His unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Damien Roetz representing himself.

Ms Caitlin Lane and Mr Greg Boon representing BridgePro Engineering Pty Ltd.

Hearing details:

2016:

Melbourne by telephone;

March 4.

 1   [2011] FWAFB 975.

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