David Leslie v Wormall Civil Pty Ltd

[2019] FWC 2138

[2019] FWC 2138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Leslie
v
Wormall Civil Pty Ltd
(U2019/322)

DEPUTY PRESIDENT BEAUMONT PERTH, 26 APRIL 2019

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – application dismissed.

[1] Mr Leslie applied for an unfair dismissal remedy having been dismissed by Wormall Civil Pty Ltd (Wormall). Wormall objected to the application on the basis that it was filed outside the 21 day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).

[2] Mr Leslie had worked for Wormall for some 15 years as a machine operator. He was dismissed for falling asleep whilst filling his water truck. Mr Leslie disputes he fell asleep.

[3] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[4] It is not contested that Mr Leslie’s application was made out of time. However, in order for Mr Leslie’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable that an extension should be granted.

[6] Mr Leslie advanced several reasons why I should find that there were exceptional circumstances. In short, he relied upon:

a) his actions to dispute his dismissal;

b) that the time of dismissal resets to 21 December 2018 because there were discussions disputing the dismissal on 21 December 2018;

c) his inability to confirm his employment status until 28 December 2018 or 2 January 2019 when he spoke to a staff member of payroll to ascertain his employment status;

d) his dismissal occurring close to Christmas thereby rendering it difficult to obtain advice;

e) his unsettled condition that made it difficult for him to understand the advice he was given concerning the dismissal; and

f) literacy difficulties.

[7] A hearing was held by telephone on 2 April 2019. Mr Leslie was represented by Mr Munforti, a friend, and Mr Winchester, the HSE/HR Manager of Wormall, represented Wormall and gave evidence on its behalf.

[8] Having heard the matter, I decline to grant an extension of time under s 394(3). Accordingly, Mr Leslie’s application for an unfair dismissal remedy is dismissed. My reasons follow.

Background

[9] Mr Leslie started work with Wormall on 15 November 2003 and his employment ended on 17 December 2019 for ‘[s]leeping whilst in charge of heavy plant on construction site’.

[10] His employment record was not unblemished having received a warning on 25 October 2018 for failing to ensure the watercart he was in charge of was in a controlled state at all times. The water cart had, on this occasion, tipped on its side.

[11] On 14 December 2018, Mr Leslie said that he was stood down before lunch. On 15 December 2018, he received a letter by courier that informed him he was to attend the Wormall office. Mr Winchester confirmed that a letter was provided to Mr Leslie that set out what it was Mr Leslie was alleged to have done, instructions to attend a meeting on 17 December 2018, and that Mr Leslie was welcome to bring a support person.

[12] Mr Leslie complied with that instruction, and on 17 December 2018, attended Wormall’s office. Present at the meeting was Mr Mitchell, Superintendent, Mr Winchester, and Mr Leslie. Mr Winchester gave evidence that he provided Mr Leslie with an opportunity to respond to why he should not be terminated for a serious safety breach. Namely, falling asleep whilst operating the water truck. Mr Leslie provided a written document in which he denied the allegations. However, Mr Leslie’s response was contrary to Wormall’s evidence, and Wormall made the decision to terminate Mr Leslie’s employment. Mr Winchester said that this was communicated to Mr Leslie at this meeting.

[13] Mr Leslie gave evidence that from 17 December 2018 until 21 December 2018, discussions took place about the dismissal. 1 However, the evidence indicates that any discussion held occurred only on 21 December 2018. In this respect, Mr Leslie said that he called Mr Wormall on 21 December 2018 and asked him to reconsider the decision to dismiss him.2 Mr Wormall was the ex-Managing Director of Wormall and still acted in a supervisory capacity. According to Mr Leslie, Mr Wormall committed to discuss the matter with Mr Winchester and asked that Mr Leslie give Mr Winchester a call later.3

[14] Mr Winchester gave evidence that on or around 21 December 2018 he had a discussion with Mr Wormall in which Mr Wormall suggested that Mr Winchester may like to reconsider Mr Leslie’s employment. Mr Winchester’s evidence was that he informed Mr Wormall that if that instruction was coming from Mr Wormall, he would do so. Subsequently, Mr Winchester called Mr Leslie two or three times and finally managed to reach him. Mr Winchester said that he informed Mr Leslie to come and see him at the end of January, on or around 29 January 2019, to have a discussion about Mr Leslie’s future employment. Mr Winchester said that he was very clear that there was no offer of employment made.

[15] Mr Leslie’s evidence was that he spoke to Mr Winchester shortly after speaking to Mr Wormall on 21 December 2018. His evidence was that Mr Winchester informed him that Mr Wormall had asked Mr Winchester to give Mr Leslie another chance. Mr Winchester said to Mr Leslie that he believed the dismissal was lawful and ‘can’t have it happening again’. 4 Mr Leslie’s evidence was that Mr Winchester instructed him to ‘keep the keys and call into the office on 29 Jan at 7am’.5

[16] Having had he discussion with Mr Winchester, Mr Leslie’s evidence was that ‘nothing was clear in this action’ and that he ‘felt under pressure because my status was still unclear’. 6 However, Mr Leslie said that he had concluded that as of 21 December 2018, he was reinstated or had been rehired by Mr Wormall and Mr Winchester. 7

[17] On 28 December 2018, Mr Leslie contacted a payroll staff member who confirmed that Mr Leslie’s employment had been terminated, and that he was coming back to Wormall in February 2019. Mr Leslie said it was at this stage that he realised he needed to make an unfair dismissal application. The payroll staff member was not called to give evidence.

[18] On 9 January 2018, Mr Leslie filed his application for an unfair dismissal remedy.

[19] Mr Winchester gave evidence that Wormall received the application on or around 9-10 January 2019. Mr Winchester’s evidence was that he rang Mr Leslie and asked why he was putting in a Commission application when a discussion was going to be had toward the latter part of January regarding re-employment with Wormall. Mr Winchester reported that Mr Wormall was very upset as he felt the company had bent over backwards to help Mr Leslie.

Extension of the 21 day period

[20] Consideration turns to whether to extend the 21 day period within which Mr Leslie’s unfair dismissal application was to be brought. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 8

[21] Consideration is given to whether Mr Leslie has provided a credible reason for the whole of the period that his application was delayed. 9 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application.10 It does not include the period from the date of the dismissal to the end of the 21 day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.11

[22] In decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time. 12 Whilst it considered the general protection provisions of the Act, the reasoning in Nulty is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[23] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 13 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 can be considered exceptional.14

[24] In the recent decision of the Full Bench in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters clarification was provided regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1) the observation remains relevant here:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 15

[25] At the commencement of the hearing, the parties, who were unrepresented, were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

Reason for the delay

[26] In Aaron Pottenger v Department of Caffiene T/A Two Feet First, 16 the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable,17 or a reasonable explanation.18 It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable or for that matter credible explanation.19

[27] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 20 Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. 21

Date of dismissal to the 21 day period

[28] The evidence shows that Mr Leslie was informed of his dismissal on 17 December 2018. In his witness statement there were said to have been discussions about his dismissal between 17 December 2018 and 21 December 2018. On the evidence however, I have found that two discussions were held concerning the dismissal on 21 December 2018. This finding accords with evidence that was provided by both Mr Leslie and Mr Winchester at hearing. Mr Leslie and Mr Winchester presented as credible witnesses. Clearly, they held different perceptions on what had occurred during the course of their discussion on 21 December 2018. But, it is not the case that I consider either sought to provide erroneous information to the Commission.

[29] I believe Mr Leslie’s evidence that he had a discussion with Mr Wormall, and that Mr Wormall committed to discuss the dismissal with Mr Winchester. However, it is apparent from Mr Leslie’s evidence that there was no express reversal of the decision to dismiss him in that discussion. All that Mr Wormall had committed himself to do was to have a discussion with Mr Winchester about the dismissal.

[30] Both Mr Leslie and Mr Winchester gave evidence of the discussion that was held between them on 21 December 2018. While Mr Winchester committed to discuss with Mr Leslie future employment with Wormall come late January 2019, there was no indication that there had been a reversal of the dismissal decision. Further, on any objective view there was simply no ambiguity around Mr Leslie’s dismissal on 17 December 2018. The employment status of terminated remained unchanged.

[31] While Wormall had extended Mr Leslie an opportunity to discuss future employment in late January 2019, that offer could not by any means be construed to indicate reinstatement, or a reversal of the decision. Mr Leslie stated that because Mr Winchester had informed him to keep some Wormall keys and not hand them back until his return on 29 January 2019, this led him to believe he was still an employee. However, having considered the evidence of both Mr Leslie and Mr Winchester, it is not open to find this on the evidence given.

[32] On the evidence before me I am not satisfied that the discussion on 21 December 2018 was an acceptable reason, in part, for the delay.

[33] The timing of the dismissal was said to have contributed to the delay because it was difficult to obtain advice during the Christmas and New Year period. Mr Leslie gave evidence that he sought legal advice straight after he was dismissed. However, his evidence was that the provider informed him that they could not represent him as they were not going to be available for the Christmas period. The name of the provider was not clear and there was no evidence provided regarding any other attempts Mr Leslie made to obtain advice. Admittedly, there are several public holidays during period in question. However, Mr Leslie was sufficiently sensible to access legal advice through a provider on or around 17 December 2018. Some five business days before the first public holiday. While he received a set-back when informed that advice would not be forthcoming, it remained open to him to obtain advice or guidance from alternative providers whether private or public based. There was no evidence before this Commission that he had done so. I do not consider that the circumstances described in this instance give rise to an acceptable reason for part or all of the delay.

[34] Mr Leslie gave evidence that it was not until either 28 December 2019, or alternatively, 2 January 2019, that he had a discussion with a staff member from Wormall payroll, and that following that discussion he realised he was still terminated. According to Mr Leslie that gave him only six days in which to make his application. However, as I have already found, on any objective basis, it was evident that the Mr Leslie’s dismissal took effect on 17 December 2018 and there was no ambiguity regarding this. There was no evidence to suggest that at any point he had been reinstated, re-employed, or that the decision had been reversed. As it was there was no credible explanation as to why in those remaining five days (Mr Leslie says there were six) he could not have made the application.

Expiry of the 21 day period

[35] Reliance was placed on Mr Leslie suffering poor health and stress arising from episodes of being bullied in the workplace. While a medical certificate was provided it was evident that medical practitioner was not consulted until 18 February 2019. Further, the medical certificate simply recited what it was that Mr Leslie communicated to the medical practitioner about this health and circumstances. Given the date when the medical certificate was obtained and in light of its contents, I do not consider that poor health and stress was a reasonable excuse for the delay.

[36] In furtherance of his argument that there was plausible reason for the two day delay, Mr Leslie relied upon a learning disability. However, there was no evidence put before the Commission that substantiated what was merely an assertion.

[37] I have concluded that the lack of credible explanation for the delay weighs against a finding of exceptional circumstances.

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

[38] It is not the case that Mr Leslie was unaware of his dismissal. While he purports that he was confused as to the date of dismissal, I have found on the evidence that on any objective basis the dismissal date of 17 December 218 was unequivocal. Mr Leslie documents this as the date of his dismissal in the Application.

Action taken to dispute the dismissal

[39] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 22

[40] While Mr Leslie appeared to have requested that Mr Wormall re-consider his dismissal, and there was the subsequent discussion with Mr Winchester on 21 December 2018, I am unpersuaded that Mr Leslie’s request for reconsideration of the dismissal decision constituted a circumstance excusing the delay in lodging the application. 23 In addition, it did not, as Mr Leslie asserted, reset the termination date to 21 December 2018. A further review of the decision could have been made after the application had been lodged, or while Mr Leslie was preparing, or arranging for someone to prepare, the application. I consider this to be a neutral factor in the present case.

Prejudice to the employer

[41] I cannot identify any particular prejudice that Wormall would accrue if an extension of time were to be granted and at the hearing, Wormall’s submissions did not touch on this point. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[42] When the Commission considered the principles applicable to the extension of time discretion under s 170CE(8) of the Workplace Relations Act 1996 (Cth) in Telstra-Network Technology Group v Kornicki, it said:

If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 24

[43] Concerning the substantive application, the merits have not been fully tested. The factual contentions, and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. As it was, the evidence of both parties was not particularly compelling. This is understandable as evidence on the merits is rarely called at an extension of time hearing. It is the case that the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to make their Application.  25 I have adopted this reasoning.

[44] I am not able to make a final assessment of the merits as there are clearly factual disputes between the parties that have not been tested. As such, I consider this a neutral factor.

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

[45] The criterion of fairness between the applicant and other persons in similar positions is concerned with the application of consistent principles in cases of this kind with a view to ensuring fairness between an applicant and others in similar positions. 26 Consideration may relate to matters currently before the Commission, or matters which had been previously decided by the Commission.

[46] There were no submissions that there were other persons in a similar position to Mr Leslie, from either party. Therefore, I consider this to be a neutral factor.

Conclusion

[47] The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found it must be determined whether it is fair and equitable that time should be extended.

[48] Having regard to all of the matters that I am required to take into account under s 394(3), I am not satisfied that exceptional circumstances exist. There was no acceptable explanation for the delay in making this application. Arriving at this conclusion I have considered the events between the date of dismissal and the requisite time for making the application. It is the case that I consider the reasons for the delay implausible.

[49] The other factors do not weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional when considered together, and I have concluded that it is not fair and equitable to grant an extension.

[50] I decline to grant an extension of time under s 394(3). Accordingly, Mr Leslie’s application for an unfair dismissal remedy is dismissed. An Order to that effect is published concurrently with this decision. 27

DEPUTY PRESIDENT

Appearances:

Mr J Munforti for the Applicant

Mr R Winchester for the Respondent

Hearing details:

By telephone, Tuesday 2 April 2019

Printed by authority of the Commonwealth Government Printer

<PR706417>

 1   Witness Statement of David Leslie (Leslie Statement) [6].

 2   Ibid[17]-[20].

 3 Ibid [21].

 4 Ibid [25].

 5 Ibid [26].

 6 Ibid [28].

 7 Ibid [33].

 8   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 9   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 10   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 [10].

 11   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].

 12   [2011] FWAFB 975 [15].

 13 Ibid [13].

 14   Ibid.

 15   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.

 16   [2018] FWC 3403.

 17   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9].

 18   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64 [16].

 19   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWFB 901.

 20 Ibid [39].

 21   Ibid.

 22   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299 – 300.

 23   Z Gao v Department of Human Services[2011] FWAFB 5605.

 24   Print P3168 (22 July 1997) Ross VP, Watson SDP, Gay C.

 25   Kyvelos v Champion Socks Pty Ltd, Print T2421 (10 November 2000), [14].

 26   Morphett v Pearcedale Egg Farm[2015] FWC 8885 [29].

 27   PR707060