Darryl Black v Ron Finemoore Transport Pty Ltd

[2018] FWC 5817

[2018] FWC 5817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darryl Black
v
Ron Finemoore Transport Pty Ltd
(U2018/7662)

DEPUTY PRESIDENT DEAN SYDNEY, 20 SEPTEMBER 2018

Application for an unfair dismissal remedy – extension of time

[1] Mr Darryl Black was employed by Ron Finemoore Transport Pty Ltd (Ron Finemoore) until 27 March 2018.

[2] On 24 July 2018 Mr Black lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act)claiming that he had been unfairly dismissed by Ron Finemoore. His application was made 98 days outside the 21 day period prescribed by s.394(2) of the Act.

[3] The matter was listed for hearing on 20 September 2018 to determine whether Mr Black should be granted an extension of time pursuant to s.394(3) of the Act to make his application. At the hearing Mr Black appeared on his own behalf. Mr A Deardon appeared with permission on behalf of Ron Finemoore and Mr B McFarlane gave evidence on behalf of Ron Finemoore.

[4] Section 394(3) of the Act provides:

(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.

[5] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Mr Black.

[6] 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.”

[7] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[8] Mr Black submitted that the principle reason for the delay in filing his application was that he had been “extremely ill advised by the transport workers union”.

[9] At the hearing, Mr Black confirmed the matters set out in his written statements of 2 and 10 August 2018 and expanded on some aspects of those statements. He gave evidence that he had also contacted some law firms and then “took time to think about it” before lodging his application.

[10] He indicated in his oral evidence that he was aware there was a timeframe in which to lodge his application.

[11] In response, Ron Finemoore submitted that:

“To the extent the Applicant claims he was ill advised by the TWU, this does not warrant “exceptional circumstances” including because:

(a) The Applicant submits that the advice he received from the TWU concerned the merits of the case, rather than the time frames for the filing of an unfair dismissal application;

(b) The Applicant has not put forward any evidence or submissions with respect to other steps he took during the relevant period to obtain advice on the Application; and

(c) In any event, this does not provide a credible reason for the delay of the whole period of 98 days.”

[12] Mr Deardon made further brief oral submissions on behalf of Ron Finemoore during the hearing which supplemented its written submissions.

[13] Having considered the evidence and submissions, I find that Mr Black’s reasons for the delay in lodging this application weigh against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[14] There is no dispute that Mr Black’s employment ended on 27 March 2018. I find that this this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[15] At some time the Transport Workers Union made contact with Ron Finemoore on behalf of Mr Black in an attempt to get his job back. This was unsuccessful. There is no suggestion that Mr Black took any further action to dispute his dismissal until the present application was lodged. I find that this weighs against the granting of an extension of time.

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

[16] I am not persuaded that granting an extension of time would result in a prejudice to Ron Finemoore. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of granting an extension of time.

The merits of the application

[17] For the purpose of determining whether to grant an extension of time for Mr Black to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’²

[18] Mr Black maintains that he was unfairly dismissed as he believes that other employees in his same situation were not dismissed and still have their jobs.

[19] There is also a dispute as to whether Mr Black resigned or was dismissed.

[20] On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

[21] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4

[22] The parties have a different view as to whether there were persons in a similar position to Mr Black. Ron Finemoore says that there was one other employee with a discrepancy in their log book. This was due to the time difference between NSW and Queensland resulting from daylight savings. Ron Finemoore submitted that this was a different situation to that of Mr Black. On the other hand, Mr Black asserted that there were other employees in a similar position (ie with discrepancies in their log books) who were not dismissed. There is insufficient evidence before me to form a concluded view about this criterion and so I find this to be a neutral consideration.

Conclusion

[23] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an extension of time to Mr Black. His circumstances are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[24] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

D Black, on his own behalf.

A Deardon, for Ron Finemoore Transport Pty Ltd

Hearing details:

2018.

Sydney:

September 20

Printed by authority of the Commonwealth Government Printer

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 1   [2011] FWAFB 975.

2 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 3   [2015] FWC 8885.

 4 Ibid at [29].