Daniel Thorpe v Standard Communications Pty Ltd

[2014] FWC 1085

[2014] FWC 1085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Thorpe
v
Standard Communications Pty Ltd
(U2013/15809)

COMMISSIONER WILLIAMS PERTH, 14 FEBRUARY 2014

Termination of employment - extension of time.

[1] Mr Daniel Thorpe, the applicant in this matter has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Standard Communications Pty Ltd.

[2] The respondent objects to the application on the grounds that it has not been made within the 21 day period prescribed by the Act.

[3] The applicant was dismissed on 18 October 2013. The applicant was notified of his dismissal and his dismissal took effect on this day. The application before the Commission was emailed to the Commission registry on 13 November 2013.

[4] The application has apparently been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[5] Section 394 (3) of the Act allows the Commission to allow a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC 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 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[6] Submissions have been provided by the parties regarding allowing a further period for this application to be made.

Are there are exceptional circumstances?

The reason for the delay

[7] The applicant says:

“On the 3rd of November I sent my completed F2 document through the FWC efiling service. I made sure the document was attached in the window box and then submitted it. I submitted the document and then soon after I received an email confirming myself as an efiling user "as below".

I was sure that this receipt meant that I had followed the procedure correctly but to make sure I then went back to the Efiling submission page and the page stated whether I would like to file a second document to the FWC. This confirmed to me that my original document had been filed correctly.

Unfortunately the payment section that the Efiling redirected me to did not allow any payment to be made as it seemed to hang for many hours. I then logged out and back in and then the whole site was not working so I had to make a payment at a later date.

Staff at the Perth FWC office then contacted me to resend the document as they said they had a record of payment but did not have a copy of the document. I then explained that I had sent it successfully and had received an Efiling receipt to verify it and they said that that was fine and if I resent the original document by email the submission would go ahead.”

[8] The applicant attached an email dated Sunday, 3 November 2013 4.58 p.m. from the Commission’s efiling system the subject being “Acknowledgement of registration” and which states :

“This is to acknowledge you have been registered on the FWA web site as an efiling User with contact details as set out below.”

[9] The respondent says:

“We do not believe the applicant has demonstrated exceptional circumstances as prescribed by Section 394 (3) of the Fair Work Act.

Whilst there is evidence the applicant registered to use the FW online application lodgment service, the only evidence that documents were lodged is 10days later and outside the required timeframe as prescribed by Section 394 (2) (a).

There is no evidence the applicant experienced difficulties with lodgment.

The applicant is highly computer literate, even stating so in his resume (see attachment “A”). He has the capacity to understand and use an online system, particularly one such as the FW website which is quite user friendly, with many options available for assistance either through the main website or by direct contact.

We reject the applicant’s excuses that he thought he had lodged when he registered for the reasons above as well as the fact his version of events is contradictory to how the online system operates.

EG:

1. To register, a user must set up a log in that is then used to access the online lodgment service. On successful registration, the screen displays as shown in attachment “B”. The applicant was therefore aware the email sent merely advised of successful registration.

2. Also, on submission of an application, the system displays red warning messages if documents are not detected (see attachment “C”).Similarly successful lodgment is advised. Therefore, the applicant would have been aware at the time of lodgment if it was successful or not.

Further the applicant is vague as to when payment was made, merely stating “at a later time” and still fails to demonstrate any exceptional circumstances for the lengthy delay.”

[10] The applicant’s resume states he has “High computer literacy”.

[11] The Commission’s file for this application, which I note is available for inspection by the parties, includes a file note from the Commission registry which says an efiling payment was received from the applicant on 11 November 2013. The Commission’s registry rang the applicant because they could not find a corresponding application and the applicant rang back on 13 November 2013 and then emailed his application that same day.

[12] I note the application immediately above the applicant’s signature is dated 03/11/2013.

[13] Considering the material before the Commission I find that the applicant was dismissed on 18 October 2013. The 21 day statutory time period within which the applicant was required to make his application ended on Friday, 8 November 2013.

[14] The “Acknowledgement of registration” email provided by the applicant is clear evidence that the applicant was interacting with the Commission’s efiling system on 3 November 2013 which is the same date that appears above the applicant’s signature on the Form F2−Application from Unfair Dismissal Remedy that the applicant later emailed to the Commission on 13 November 2013.

[15] I further find that on Monday, 11 November 2013 the applicant made a payment for an application through the efiling system.

[16] The Commission has no record of an application having been made earlier by the applicant than the application he emailed to the Commission’s registry on 13 November 2013.

[17] I accept the applicant apparently is computer literate and that generally the efiling system is reasonably user-friendly. The facts I have found above however do support the explanation given by the applicant for the delay in making this application.

[18] I accept the applicant’s explanation that on 3 November 2013 he believed he had lodged his application correctly through the efiling system. Further I accept that the applicant believing this application had been filed made payment for this application on 11 November 2013 again through the efiling system. And finally I find that as soon as the applicant was made aware by the Commission’s registry staff on 13 November 2013 that no application had been received he immediately emailed an application to the Commission.

[19] In conclusion I am satisfied that as a result of either the applicant’s errors in using the Commission’s efiling system or due to faults in the operation of the efiling system the applicant’s mistakenly believed he had made his application within the 21 day time limit however when he was advised that no application had been received he immediately emailed his application to the Commission.

[20] In these circumstances I do accept the reasons for the five day delay in making this application are acceptable reasons for all that delay.

Any action taken by the person to dispute the dismissal

[21] The applicant did not take any other action to dispute his dismissal.

When the applicant first became aware of the dismissal

[22] The applicant was made aware of the dismissal on the day it took effect.

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

[23] There is no suggestion that there is any prejudice to the respondent employer if a further period to apply was granted and given the shortness of the delay in making the application I accept there is no such prejudice.

The merits of the application

[24] The application explains that the respondent provided the applicant with a letter of termination of employment for serious misconduct which stated that this decision by the respondent had been taken because of the applicant’s actions in threatening a fellow employee.

[25] The application explains that the threat the respondent refers to was apparently a phone message the applicant left on a colleague’s phone. The applicant says he had been trying to contact his work colleague by phone to discuss with him allegations that had been made about the applicant which were being investigated by the respondent. The message the applicant left on his colleague’s phone was to the effect that his fellow employee had better call the applicant back as soon as possible or the workplace investigation would be the least of his worries.

[26] The applicant says the phone message was not a threat and disputes his actions amounted to serious misconduct. The application also explains that in his view the respondent’s reaction to dismiss him was disproportionate and ignored his record of three years exemplary service and the decision to dismiss him is inconsistent with the lack of action by the respondents in instances of inappropriate behaviour by other employees.

[27] The respondent has not provided any submissions regarding the merits of the application.

[28] For the purposes then of considering whether there are exceptional circumstances I accept that there is real merit in this application but note that this view is based on the only information that has been provided to the Commission which is what was contained in the application.

Fairness as between the person and other persons in a similar position

[29] There is no information before the Commission about other persons in a similar position.

Conclusion

[30] The onus is on the applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[31] I have considered the information provided and the submissions by both parties on the relevant factors and having found that there was an acceptable explanation for the delay in making this application and that there is some merit in the substantive application I am satisfied that there are exceptional circumstances.

[32] Consequently I am persuaded that I should exercise the discretion available to allow a further period for this application to be made. An order to that effect will be issued in conjunction with this decision.

[33] The parties will be notified of a date and time for a conciliation conference dealing with the substantive application in due course.

COMMISSIONER

Final written submissions:

Applicant, 18 December 2013

Respondent, 26 January 2014

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