Damien Simpson v Dongwha Timbers

[2016] FWC 1818

[2016] FWC 1818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damien Simpson
v
Dongwha Timbers
(U2016/4527)

COMMISSIONER GREGORY MELBOURNE, 8 APRIL 2016

Application for extension of time.

Introduction

[1] Mr Damien Simpson was employed by Dongwha Timbers on 15 February 2015 in the position of National Sales Manager. He had previously worked for the business for an extended period between 2000 and 2011 and rejoined the business after a series of offers were made to him. However, Mr Simpson then resigned from his position on 5 November, but claims he was “constructively dismissed” because Dongwha Timbers left him with no option but to resign.

[2] He subsequently lodged an unfair dismissal application with the Commission on 12 February 2016, being 99 days after the date of his resignation, and 78 days after the standard 21 day time for making application. He now seeks to have the Commission exercise its discretion to extend the time in which to make application.

[3] Mr Simpson appeared on his own behalf. Dongwha Timbers was represented by Mr Jaenam Noh, its Sales Executive and by Mr Dongjin Lee, the HR Manager.

The Issue to be Determined

[4] Section 394(3) of the Act provides that the Commission may extend the time for making an unfair dismissal application if it believes there are “exceptional circumstances” to warrant an exercise of this discretion, taking into account the following considerations:

“(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.” 1

[5] As indicated, Mr Simpson’s unfair dismissal application was lodged 78 days after the expiry of the standard 21 day time period. Therefore, are there “exceptional circumstances” to warrant an exercise of the Commission’s discretion to grant Mr Simpson additional time in which to make application?

The Evidence and Submissions

[6] Mr Simpson said he originally worked with Dongwha Timbers until 2011 over a period of more than 11 years. He said that he then agreed early in 2015 to return to take up the position of National Sales Manager after receiving several offers to rejoin the business. He said he also agreed to bring forward his commencement date to 15 February in order to help out the business after previously having agreed to commence work on 1 March.

[7] However, after commencing employment he said he was told a decision was about to be made about whether his National Sales Manager role would be based in Sydney or Melbourne. He said this came as a complete surprise as he handed previously understood he would be able to be based primarily from an office at his home in Colac and/or from an office based in Melbourne. He said he was then told it had been confirmed he would be required to be based in Sydney, and this placed him in a situation where he was either required to relocate to Sydney, which was not an option as far as he was concerned, or to commute to Sydney on a regular basis, bearing the cost of his own travel expenses.

[8] He said the issues involved with this continual travel to Sydney eventually became intolerable and he described himself as being “mentally and physically drained.” In addition, he said he could no longer afford the cost of travelling to Sydney on a regular basis, particularly as these costs would inevitably increase during the forthcoming Christmas period. He said these circumstances finally left him with no option but to resign his employment, which he did verbally on 4 November, and confirmed in writing on the following day. His resignation letter stated:

“I am formally advising you of my intention to tender my resignation as verbally communicated to Jaenam on Wednesday 4th of November 2015. Given the conditions of my employment based permanently from the Sydney office NSW and my place of residence being Victoria; this is impractical and untenable for the long term.

I believe I have offered my best commitment since recommencing my employment with Dongwha Timbers on the 16th of February 2015, this after 13 years of service from 1998 to 2011. I am extremely disappointed I have had to make the decision to leave the company and feel circumstances have been changed without due consideration and consultation. The conditions of my employment as communicated by the Dongwha Timbers will remain unchanged therefore I believe I have no choice other than to look for alternate opportunities.” 2

[9] Mr Simpson said he then contacted a firm of Solicitors to discuss making an unfair dismissal application and was told to make application to the office of the Fair Work Ombudsman within 21 days of his termination, which he said he did on 24 November. He said he then made several attempts to contact the Ombudsman by telephone throughout November and December, but was kept “on hold” for an extended period on both occasions and eventually ended the calls without speaking to anyone.

[10] He also said that during this time he had no personal internet access and was unable to check the Ombudsman’s website, or any other websites, to view information about how to make an unfair dismissal application.

[11] He also said he was under significant “mental duress” during this period because of the fact he was not working and was endeavouring to find ways to support his family. 3

[12] Mr Simpson said he finally made a formal complaint to the Ombudsman’s office about the fact he had not had any response to his application, and he said he did then receive a reply containing information about making an unfair dismissal claim, including the requirement for claims to be filed with the Fair Work Commission. He said he then filed his unfair dismissal application with the Commission on 12 February. He explained that this further delay occurred because he was extremely busy in January and early February, as he had been able to find some work, but was also making efforts to find a more suitable long term position.

[13] Dongwha Timbers submits, in response, that Mr Simpson resigned from his employment and was not dismissed. It submits he provided a verbal resignation to his Manager on 4 November, and then provided a written resignation by email to the HR Manager on the following day. It said confirmation of its acceptance of his resignation was then provided to him by email on 6 November. It submits in this context his unfair dismissal application has no merit because he resigned and was not dismissed.

[14] It also submits Mr Simpson has not provided a credible reason for the delay in making his unfair dismissal application. It continues to submit the Ombudsman’s website clearly states the Fair Work Commission deals with cases of unfair dismissal and applications must be made to the Commission within 21 days after the dismissal takes effect. It also notes that a link to the Fair Work Commission’s website is also provided.

[15] It continues to submit that after Mr Simpson was advised that his application should have been directed to the Fair Work Commission there was a further long delay before he actually made application, given it was not filed until 12 February.

Consideration

[16] As indicated, in considering an application for an extension of time the Commission must have regard to each of the matters set out in s.394(3) of the Act in determining whether “exceptional circumstances” exist to warrant an exercise of its discretion. A number of decisions of this Tribunal and its predecessors have also considered what is required to find “exceptional circumstances” exist to justify an extension of time. The Full Bench decision in Nulty v Blue Star Group (Nulty) 4 was handed down in the context of a general protections application, however, the principles established in the decision have been held to be of broader application. Relevant extracts from the Full Bench decision in the context of the present application are set out at [13] to [14] in the following terms:

“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.

Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 5

[17] The decision accordingly makes clear “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.394(3) I must have regard to.

(a) the reason for the delay

[18] Several factors contributed to the reason for the delay in making application. Mr Simpson says he was originally told, mistakenly, that he should make application at the office of the Fair Work Ombudsman and he did so within 21 days after he resigned. He then tried to contact the Ombudsman’s office on two occasions after receiving nothing in response, but on both occasions after being kept on hold for an extended period, he ended the calls without speaking to anyone. After then making a complaint to the Ombudsman’s office he received advice that his application should have been directed to the Fair Work Commission, however, a further period of several weeks then lapsed until he finally made application to the Commission. He explained that this delay was due to the fact he had found some work, and was also continuing to try and find a more suitable, long-term position.

[19] I note in response that previous decisions of the Tribunal have emphasised the importance that the legislation places upon applications being made within the standard time limit, and obviously it is only in “exceptional circumstances” that it is appropriate for the Commission to exercise its discretion to extend time in which to make application.

[20] Previous decisions have also dealt with the circumstances in which an Applicant claims to be ignorant or unaware of the processes involved in making an unfair dismissal application. For example, in Patrick Dyer v Aarya Alliance Pty Ltd T/A Mona Lisa Cafe Bar Restaurant 6 Senior Deputy President Hamberger dealt with the circumstances of an Applicant who was dismissed from his employment, and then made various enquiries to attempt to ascertain what avenues of redress, if any, he might have. The Senior Deputy President indicated at paragraph [14]:

“Any suggestion that ignorance of the law relating to unfair dismissal can constitute exceptional circumstances should be treated with caution. For an ordinary layperson to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon, rather (perhaps sadly) it is a situation that is quite frequently encountered. The fact that Mr Dyer was unaware of his rights in respect of his termination of employment in these circumstances is not exceptional.” 7

[21] The Tribunal has also considered the circumstances in which an Applicant claims the failure to make application within the standard time limit is due to their mental state as a consequence of their dismissal. For example, in the decision of Ms Susan Rose v BMD Constructions Pty Ltd 8Commissioner Roe dealt with a situation in which the Applicant was ignorant of the relevant time limits. The Applicant had also provided a medical certificate stating her dismissal had produced anxiety and depression. Commissioner Roe indicated in response at paragraph [9] of the decision:

“The evidence of the Applicant does not suggest that she was incapable of taking any action in respect to her dismissal during the two weeks following her dismissal. She was not hospitalised. She says that she was shocked and traumatised but there is no suggestion of incapacity. The Applicant provided a medical certificate dated 16th December 2010 stating that ‘Susan Rose tells me she was dismissed from her job in September 201 and has reported to me this has produced anxiety and depression…’ This is not strong evidence of incapacity to act during the two week period immediately following the dismissal.” 9

[22] He continued to state at paragraph [11]:

“Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.” 10

[23] I accept that Mr Simpson was distressed and upset as a consequence of the circumstances leading up to and following his decision to resign his employment in November. However, having had regard to the above authorities I am not satisfied his lack of understanding about where to make application, and/or his mental state at the time, necessarily provides sufficient reason for him not to have made application within the required time period. I am also not satisfied they constitute evidence of “exceptional circumstances.” As the decisions referred to again emphasise, ignorance of the applicable law and procedures and feelings of stress and anxiety, while they might be quite understandable reactions, are by no means exceptional circumstances in terms of the Tribunal’s experience in dealing with these matters.

[24] It is also significant that even after it was made clear to Mr Simpson about where his application should have been filed he then delayed for a further period of several weeks before actually making a new application to the Fair Work Commission. It could have been expected in such circumstances that once he had been informed that his application had not been lodged with the appropriate body that he would have acted promptly to make a fresh application. Again, I understand that he was preoccupied at the time with obtaining work elsewhere, but equally this is not an uncommon or “exceptional circumstance” for someone who has recently left their previous employment.

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

[25] This is of limited significance as Mr Simpson acknowledges he resigned from his employment.

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

[26] The principal action taken by Mr Simpson is the making of this application.

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

[27] Neither party made submissions about the relevance of this consideration. However, Mr Simpson is now seeking to pursue his application 14 weeks after he left his employment with Dongwha Timbers. Inevitably, there will be some additional prejudice for his former employer if he is now able to make application as it will be required to prepare and respond to the application. The passage of time might also make this task more difficult if, for example, witnesses are no longer available.

(e) the merits of the application

[28] This consideration represents an additional issue for Mr Simpson. There is no dispute he resigned from his employment, however, he claims it was a case of “constructive dismissal” in that in all the circumstances he was left with no option but to resign. In his submission this was due to the fact the responsibilities and location of his role ended up being very different from what was described to him at the time he accepted the position of National Sales Manager. In particular, Dongwha Timbers required that he be based in Sydney, whereas he claims he was told at the time of his appointment he would be able to be based at his home office in Colac, and/or from an office in Melbourne. He submits these circumstances were compounded by the fact he was not in a position to be able to relocate to Sydney, and was not provided with any travel expenses to cover his travel to Sydney. This meant he was required to bear those costs himself.

[29] Section 386(1)(b) of the Act extends the definition of “dismissed” to include a situation where a “person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.” Clearly, it is open to Mr Simpson to argue that despite his resignation he was “dismissed” from his employment at Dongwha Timbers. However, these circumstances inevitably add additional complexity to the pursuit of his unfair dismissal application. Dongwha Timbers also rejects any suggestion he was forced to resign and will presumably raise this as a jurisdictional objection if Mr Simpson is allowed to pursue his application.

[30] However, it is also noted that previous decisions of this Tribunal have decided that the Commission is not required in proceedings of this kind to come to a concluded view about the respective merits of an application.

[31] For example, in the decision in Kyvelos v. Champion Socks Pty Limited 11a Full Bench of the then Australian Industrial Relations Commission concluded that:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 12

[32] The Full Bench continued:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 13

[33] In the absence of detailed evidence and submissions going to the contested facts I am also not now in a position to make findings about the merits of the present application, and the decision of the Full Bench makes clear that it is not necessary to do so at this point. However, as indicated already Mr Simpson’s application, based on a claim of constructive dismissal, provides additional complexity in terms of him being able to establish the merits of his application.

(f) fairness as between the person and other persons in a similar position

[34] Neither party made submissions suggesting this consideration was of any particular relevance in the context of the present matter.

Conclusion

[35] I have no reason to doubt Mr Simpson was extremely upset and disappointed about the circumstances that unfolded in his most recent period of employment with Dongwha Timbers, and by the position he found himself in after leaving that employment. He is clearly of the view that he was not told he would be required to be based in Sydney when he accepted the National Sales Manager’s role early last year. However, the proceedings at this point are concerned about whether an extension of time should be granted to enable him to make his unfair dismissal application. As indicated, his failure to make application within the standard time limit was due to a combination of factors, including his ignorance of the appropriate processes for making application, an inability to make timely contact with the office of the Fair Work Ombudsman, and further delays on his part in then making application to the Commission because of his emphasis and preoccupation with finding employment elsewhere.

[36] I have considered all of the evidence and submissions provided by the parties in this matter. I have also had regard to the considerations in s.394(3) that I must take account of, and the authorities I consider relevant to the determination of this matter. In conclusion, I am not satisfied the reasons for the delay in making application relied upon by Mr Simpson constitute “exceptional circumstances” that provide justification to exercise the discretion to extend the time period. In coming to this decision I have had particular regard to “the reasons for the delay” and “the merits of the application.” The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr Damien Simpson appeared on his own behalf.

Dongwha Timbers was represented by Mr Jaenam Noh and Mr Dongjin Lee.

Hearing details:

2016.

Ballarat:

22 March.

 1   Fair Work Act 2009 (Cth) at s.394(3)

 2   Email from Damien Simpson to Jaenam Noh, 5 November 2015, submitted to the Commission by the Respondent

 3   Applicant’s Outline of Argument: Extension of Time, at question 4

 4   [2011] FWAFB 975

 5   Ibid at para 13 to 15

 6   [2010] FWA 8895.

 7   [2010] FWA 8895 at [14].

 8   [2011] FWA 673.

 9   [2011] FWA 673 at [9].

 10   [2011] FWA 673 at [11].

 11   Print T2421

 12   Ibid [14]

 13   Ibid [14]

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