Darrell Barfield v Temples (WA) Pty Ltd

[2015] FWC 7130

[2015] FWC 7130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darrell Barfield
v
Temples (WA) Pty Ltd
(U2015/11542)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Darrell Barfield alleged that the termination of his employment by Temples (WA) Pty Ltd on 9 July 2015 was unfair.

[2] His unfair dismissal application lodged on 2 September 2015 was not made within 21 days of the date of the dismissal.

[3] 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.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where 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]

(a) the reason for the delay;

[5] Mr Barfield gave evidence that Mr David Whitaker, who was an organiser with the TWU, stated at the termination meeting on 9 July 2015 that he was going to make an unfair dismissal application on his behalf. Mr Barfield said that he was not aware of the 21 day time limit, but he assumed there was some urgency with the matter, so in the week following his dismissal, he rang Mr Whitaker to make sure he had submitted the application and Mr Whitaker said he was attending to the matter. Mr Barfield submitted that in the second and third week after his dismissal, he attempted to call Mr Whitaker about three times in each of those weeks to check if he had lodged the claim, however he was unable to contact Mr Whitaker.

[6] Mr Barfield submitted that Mr Whitaker contacted him on 30 July 2015 to arrange a meeting for 6 August 2015 to discuss the progress of the matter. Mr Barfield submitted that Mr Whitaker did not attend the meeting and he was not able to make any further contact with Mr Whitaker, despite attempting to contact Mr Whitaker numerous times after 6 August 2015. Mr Whitaker stopped working for the TWU on 19 August 2015.

[7] Mr Barfield made no attempt to contact the TWU until 2 September when he rang the TWU and he was advised that there was no record of his matter on their database, however when the staff member went into Mr Whitaker’s office, they located some paperwork in relation to Mr Barfield’s matter. The TWU then filed an application for unfair dismissal remedy that day.

[8] It was Mr Barfield’s evidence that he was relying on the TWU to deal with his application in a professional and timely manner.

[9] Prior to Mr Barfield being cross examined, I expressed concern that Mr Barfield’s witness statement in relation to the matters set out in paragraph [5] above were in identical terms to the evidence of another TWU member who applied for an extension of time when Mr Whitaker also failed to lodge his application in time.

[10] It was said that the reason for the identical content was because the situations faced by both members was similar.

[11] It strains credibility to think that both members attempted to contact Mr Whitaker the same number of times in the same number of weeks. However, Mr Barfield was not cross examined on this evidence.

[12] In Robinson v Interstate Transport Pty Ltd, the Full Bench distilled the principles to be considered when dealing with representational error: 2

“[25] The approach in Clark's Case was summarised in Davidson's Case as follows:

"In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted."”

[13] While it is surprising that Mr Barfield did not contact the TWU when Mr Whitaker failed to attend the meeting and failed to respond to his phone calls, I accept that Mr Barfield had a reasonable explanation for the delay. He was entitled to rely upon his representative to lodge his application. He did not sit on his hands but followed up with his representative and it was his uncontested evidence that he was assured the matter was in hand. Whatever reasons Mr Whitaker had for not lodging the application, Mr Barfield was blameless. This weighs in favour of a finding that there are exceptional circumstances.

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

[14] Mr Barfield was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[15] Mr Barfield submitted that at the end of the meeting on 29 July 2015, Mr Whitaker stated to Temples that he would be making an unfair dismissal application on Mr Barfield’s behalf. Therefore, Temples knew on the date the dismissal occurred that Mr Barfield was not simply going to accept the dismissal. However, apart from lodging the application, Mr Barfield did not take any other steps to dispute his dismissal because he relied upon Mr Whitaker.

[16] I consider that this criterion is a neutral consideration in assessing whether there are exceptional circumstances.

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

[17] There were no submissions or evidence of any prejudice to the employer. This weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[18] Mr Barfield was dismissed for misconduct. Mr Barfield agreed that in September 2014 he saw the memo to employees which put them on notice that speeding was unacceptable and that it could lead to dismissal. He accepted that he received a written warning approximately one month later for doing 11 kilometers above the speed limit. He subsequently received another warning for an unrelated matter. Mr Barfield signed that warning but did not accept that it was justified. He was advised that any further breaches could lead to the termination of his employment.

[19] On 7 July 2015, Mr Barfield was advised that the GPS monitor in his truck had recorded him speeding on 22 June, 11 June, 12 June and 16 June 2015. In that letter, he was invited to a meeting to discuss the allegations and to respond to any potential disciplinary action including dismissal.

[20] On 9 July 2015, Mr Barfield met with Mr Scott Formston, the Managing Director, who took notes at the meeting. His record of the meeting was not challenged in cross examination. At that meeting, Mr Barfield challenged the location of some of the alleged incidents. That evidence was not challenged in cross examination. He did accept that he had been speeding but said that he had been slowing down.

[21] In cross examination Mr Barfield accepted that he drove the route regularly and he was aware where the change of speed zones were located.

[22] Mr Barfield disputed one of the incidents and it was accepted that the reading was unreliable.

[23] Mr Barfield said that Temples had not conducted a proper and fair investigation. It was submitted that Mr Barfield denied the allegations but that is not supported by the evidence. Mr Barfield, whilst challenging the data relied upon by Temples, did not in his evidence deny that on some of the occasions he was speeding. Mr Barfield’s representative put to the witnesses for Temples that on some occasions the evidence showed that Mr Barfield was slowing down and that was accepted.

[24] Should this matter go to a hearing, the legitimacy of Mr Barfield’s challenge to the GPS reading will be tested. However, given Mr Barfield did not deny speeding after he had been warned about the disciplinary consequences if caught speeding, it is difficult to see how he can contend that there was not a valid reason for the termination of his employment.

[25] Two matters which were not canvassed in any detail before me, namely whether Temples reliance on the second unrelated warning to find that Mr Barfield had met the “3 strikes and you’re out test” was reasonable in all the circumstances and whether given Mr Barfield was a long standing employee, termination in these circumstances was harsh, may if considered more fully, lead to a finding that the dismissal was unfair.

[26] While I do not consider Mr Barfield has a strong case, it is not unarguable. This weighs in favour of a finding that there are exceptional circumstances.

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

[27] No submissions were made about this criterion.

Conclusion

[28] I consider that there are exceptional circumstances. Mr Barfield has a reasonable explanation for the delay in lodging his application. His claim that his dismissal was unfair is not unarguable and while he had the full 21 days to lodge his application, he took reasonable steps to ensure it was lodged. There is no prejudice to the employer and the other criteria are neutral. Having found that there are exceptional circumstances, I have decided to exercise my discretion to grant Mr Barfield an extension of time.

DEPUTY PRESIDENT

Appearances:

Mr A Dzieciol on behalf of the Applicant.

Mr G Rodgers on behalf of the Respondent.

Hearing details:

2015.

By telephone:

October 14.

 1   [2011] FWAFB 975.

 2   [2011] FWAFB 2728

Printed by authority of the Commonwealth Government Printer

<Price code C, PR572980>