Daniel Byrnes v South Coast Agencies and Accessory Supplies Pty Limited T/A South Coast Agencies
[2012] FWA 9264
•29 OCTOBER 2012
[2012] FWA 9264 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel Byrnes
v
South Coast Agencies & Accessory Supplies Pty Limited T/A South Coast Agencies
(U2012/9290)
DEPUTY PRESIDENT BOOTH | SYDNEY, 29 OCTOBER 2012 |
Termination of employment - unfair dismissal - extension of time.
[1] In this matter Mr Daniel Byrnes (the Applicant), asks Fair Work Australia (FWA) to exercise its discretion under s.394 of the Fair Work Act2009 (the Act) to grant an extension of time in relation to the lodgement of an application for an unfair dismissal remedy.
[2] The application for an unfair dismissal remedy was made on 1 August 2012 and was listed for a telephone conciliation on 21 August 2012. On the same day a Form F4 - Objection to Application for Unfair Dismissal Remedy was lodged with FWA by Mr Lawrence Davis on behalf of South Coast Agencies and Accessory Supplies Pty Limited (the Respondent) on the grounds that the application was made out of time. The matter was listed for hearing on 5 October 2012 however did not proceed due to the non appearance of both parties. The matter was relisted for telephone hearing on 15 October 2012 and proceeded on that day. Both parties were self represented, a Notice of Representative Ceasing to Act having been received from Mr Jake Boghossian, Solicitor, Connect Legal on 20 September 2012 in relation to the earlier representation of the Applicant. The Applicant was provided with the opportunity to file further submissions subsequent to the telephone hearing. The submissions were received on 19 October 2012 and the Respondent’s response was received on 25 October.
[3] In coming to my decision I have considered the content of the application of 1 August 2012, including the submission appended to it, the Applicant’s submissions made during the hearing on 15 October 2012 , his additional submissions received on 19 October 2012, the submissions made by Mr Davis during the hearing on 15 October 2012 and his response to the Applicant’s submissions received on 25 October 2012.
Background
[4] The Applicant was employed by the Respondent on 18 July 2011 as a casual picker and packer of automotive spare parts and workshop equipment. On 8 February 2012 he was engaged in a full-time position. He was dismissed on 11 July 2012 receiving two weeks pay in lieu of notice and his accrued entitlements.
[5] The Applicant advised his then legal representative, Connect Legal, that he was dismissed on 19 July 2012. This date was cited in his application that was made on 1 August. However, in the proceedings before me his Employment Separation Certificate was referred to stating that the date employment ceased was 11 July 2012 and both the Applicant and the Respondent agreed that his dismissal had in fact occurred on that date. Therefore, his application was made 21 days after his dismissal or 7 days out of time.
The relevant statutory framework
[6] An application to FWA for an unfair dismissal remedy must, pursuant to s.394 of the Act, be made within 14 days after the dismissal took effect or within such further period as FWA allows. Section 394 reads as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[7] It is well established that a limitation provision is the general rule and an extension of time is the exception to it. An applicant has the positive burden of demonstrating that an extension of time is justified. 1 To exercise my discretion in favour of the Applicant under s.394(3) of the Act I must be satisfied that there are exceptional circumstances justifying the exercise of that discretion. 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.2
[8] In determining whether there are exceptional circumstances I must take into account all the circumstances, including the matters listed in s394(3)(a)-(f) of the Act.
Consideration
[9] I will deal with those matters in turn.
(a) the reason for the delay
[10] In the course of proceedings before me the Applicant submitted that on the occasion that he sought legal advice in relation to his dismissal he gave the date of either 21 or 19 July 2012 as the date of dismissal. 3 The legal representative cited 19 July in the application. Although he could not recall exactly when he had first contact with his then legal representative he thought it was after 15 July but before the expiry of two weeks from the date of dismissal.4 Given that he said he told them that he had been dismissed on either 19 or 21 July it is reasonable to infer that it was subsequent to either of those two dates. He said that he did not know about the 14 day period and had no recollection of any advice about a 14 day period of time within which the application was to be made. He agreed that the legal representative was working on the date of dismissal provided by him.
[11] In this circumstance representative error does not appear to be a ground of the application and was not advanced by the Applicant. This leads to the conclusion that the error was that of the Applicant himself and his late application was a result of the information he gave to his legal representative who drafted and lodged the application on his behalf.
[12] Such a circumstance does not meet the test of an exceptional circumstance. As found by the Full Bench in Nulty v Blue Star 5 mere ignorance of the statutory time limit is not an exceptional circumstance and the onus is on the aggrieved individual to seek out any remedy they may have in a timely fashion. Accordingly, I am not satisfied that the reason given by the Applicant for the delay in making his application contributes positively to the exercise of my discretion in his favour.
(b) whether the person first became aware of the dismissal after it had taken effect
[13] The Applicant confirmed that he was aware he had been dismissed at the time of the meeting during which his employment was terminated by Mr Davis. In this circumstance there is no contribution one way or the other to the exercise of my discretion.
(c) any action taken by the person to dispute the dismissal
[14] The Applicant demonstrated that he disputed his dismissal by seeking legal advice and representation to contest the dismissal. That he sought that advice some time, said to be within two weeks, after the dismissal does not detract from the conclusion that he did take action to dispute the dismissal. The contribution this circumstance makes to the exercise of my discretion in this matter is neutral.
(d) prejudice to the employer (including prejudice caused by the delay)
[15] Mr Davis did not submit that there would be any particular prejudice against him if an extension of time was granted, beyond what he regarded as the prejudice of the application itself. 6 The contribution this circumstance makes to the exercise of my discretion in this matter is neutral.
(e) the merits of the application
[16] The Applicant contends that throughout his employment with the Respondent he performed his duties diligently and performed all lawful directions. He says he was co-operative in performing overtime when needed, received compliments and promotions. He said that he was the subject of workplace bullying and harassment and had made a complaint to Mr Davis whose response was to move him from one area to another. In relation to the dismissal itself, the effect of his submission was that he was not afforded procedural fairness in that he was not provided with an opportunity to have a support person present in his termination meeting, nor given an opportunity to adequately respond to the reasons given for his dismissal.
[17] Mr Davis submitted that when he engaged the Applicant as a full-time employee following a period of casual employment he did so to give him a chance. 7 He said that the Applicant had been a “reasonable worker and there were no problems”.8 However, during the five months of his full-time employment Mr Davies formed the view that the Applicant “had a problem with authority” and he was shifted laterally rather than promoted.9 The reasons he cited for dismissing the Applicant were that he was not integrating into the team; he had a problem with authority; he was bypassing his immediate supervisor; there was a lack of focus on the task at hand by getting easily distracted and failing to perform his duties effectively; poor punctuality and lack of attendance.10 He conceded that the Applicant had only received verbal warnings and that the termination meeting itself was all oral with nothing given to the Applicant to respond to in writing.
[18] I make no findings in regard to the competing contentions. No evidence was led and I am not in a position to favour Mr Byrnes’s or Mr Davis’s account of the situation. Taking these contentions and the manner of the dismissal itself into account I conclude that there is enough in both sets of contentions to demonstrate that there is a case to be made out and rebutted in relation to unfair dismissal, were it not for the application being made out of time. However, the Applicant’s prima facie case is not so compelling as to encourage me to put aside the time limit for the making of such applications.
(f) fairness as between the person and other persons in a similar position
[19] There were no other individuals in a similar position to the Applicant on the occasion of his dismissal so this matter is not relevant to my consideration of his application for an extension of time.
Conclusion
[20] I have weighed the Applicant’s circumstances, including in relation to each of the matters contained in s394(3)(a)-(f) of the Act and on balance I am not satisfied that there are exceptional circumstances justifying the exercise of discretion to grant him an extension of time. The application is dismissed and an order will issue to that effect.
DEPUTY PRESIDENT
Appearances:
D Byrnes, the Applicant
L Davis, South Coast Agencies & Accessory Supplies Pty Limited T/A South Coast Agencies
Hearing details:
2012.
Telephone:
October 15.
Final written submissions:
25 October 2012
1 Brisbane South Regional Health Authority v Taylor (1996) CLR 541
2 [2011] FWAFB 975
3 Transcript PN13
4 Ibid PN66
5 [2011] FWAFB 975
6 Transcript PN160
7 Ibid PN128
8 Ibid
9 Ibid PN133
10 Ibid PN134
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