David Patrick Thompson v HA Jacob & Sons Pty Ltd T/A Jacob Group of Companies
[2022] FWC 877
| [2022] FWC 877 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Patrick Thompson
v
HA Jacob & Sons Pty Ltd T/A Jacob Group of Companies
(U2022/3251)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 14 APRIL 2022 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit – no exceptional circumstances present – extension of time not granted – unfair dismissal application dismissed.
Introduction and background
This decision concerns an application made by Mr David Thompson (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by HA Jacob & Sons Pty Ltd T/A Jacob Group of Companies (the Respondent) from 29 February 2016[1]. At the time of his dismissal the Applicant was employed as a full-time Vehicle Detailer at the Respondent’s Toyota dealership in Wodonga, Victoria.
The Applicant asserts in his Form F2 application that his employment with the Respondent was terminated with effect from 16 February 2022. The unfair dismissal application was lodged via express post and received by the Fair Work Commission (the Commission) registry on 17 March 2022.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(2) of the Act. As the dismissal took effect on 16 February 2022 the period of 21 days ended at midnight on 9 March 2022. The application was therefore filed 8 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.
As there are contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. After taking into account the views of both parties, I considered it appropriate to hold a conference pursuant to s.399 of the Act. The conference was held on 13 April 2022 at which the Applicant appeared and gave evidence on his own behalf. Mr Neville Jacob (Managing Director) appeared for the Respondent and called Mr Brad Hatfield (Sales Manager) to give evidence.
Consideration
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare[2]. Exceptional circumstances may 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[3].
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 9 March 2022. The delay is the period commencing immediately after that time until 17 March 2022, although circumstances arising prior to that day may be relevant to the reason for the delay[4].
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances[5]. An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[6].
The Applicant gave evidence that he believed the Commission had an office in Albury for the purposes of filing an application. He realised that this was not the case on or about 13 March 2022 at which point he then filed his application via express post. He also contends that prior to lodging his application he was waiting to receive a separation certificate and written confirmation of his final pay as he believed the Commission may have required this information. He concedes that he received the separation certificate on or about 26 February 2022. He also states that he thought the 21-day period was based on business days as opposed to calendar days.
While the Applicant may have mistakenly believed that the Commission had a local office in Albury where an application could be lodged or that the 21-day period was based on 21 business days: ignorance is not an acceptable reason for delay. Information on the timeframes for filing an application, Commission office locations and how an application could be filed was available on the Commission’s website which the Applicant agreed he had accessed when he downloaded a copy of the Form F2.
I also do not accept the reason for the delay advanced by the Applicant that he was waiting for a copy of his separation certificate. That document was not required for the purposes of lodging an unfair dismissal application with the Commission (although the Applicant may not have been aware of this fact). In any case, evidence adduced by the Respondent confirms that the Applicant’s final pay of one working day was processed on 17 February 2022, was paid to him on 24 February 2022 and that the separation certificate was also forwarded to him via email on 24 February 2022[7].
While stating that he did not read his emails regularly, the Applicant confirmed that he was at least aware of having received his separation certificate on or about 26 February 2022. Were I to accept the Applicant’s evidence of what he claims to be the delayed receipt of his separation certificate on or about 26 February 2022, he still had sufficient time at that point to seek further information on how an application could be lodged and subsequently file his application in the Commission by the expiration of the 21-day statutory deadline of 9 March 2022.
Having regard to the foregoing, I am unable to accept the explanation provided by the Applicant as to having been unable to lodge the application on time or at a time earlier than the date on which this application was lodged. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find, that the Applicant was notified of his dismissal on the same day that it took effect on 16 February 2022 and therefore had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
It is not apparent that the Applicant took any action to contest his dismissal after it took effect on 16 February 2022, other than lodging his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
It is not in dispute, and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time.
The Applicant states he was terminated for serious misconduct[8] after a complaint was made to the Respondent by a customer claiming the Applicant had abused their partner online via Facebook messenger.
Evidence provided by the Applicant indicates that at 10:20 pm on 26 December 2021, he sent a Facebook message[9] to a lady who had advertised a free trampoline on Facebook, asking whether the free trampoline was still available. He claims his message was not responded to until 14 February 2022 when he sent a further message in the following terms: “why did u reply to a pussy but a dick” and “I do have kids u know u dumb just cause I’m a man fuck u stupid bitch”[10].
After a further exchange of Facebook messages on 14 February 2021 between the Applicant and the lady who had advertised the trampoline, the Applicant then sent a message in the following terms: “Fuck u bitch and fuck urself u stupid dumb slutty bitch”[11]. The Applicant explained that he was prompted to send these expletive laden messages after he was told by a female friend that she had received a response within a few minutes of enquiring about the trampoline while he had to wait 2 months for a reply. He found this delay annoying and attributed it to his being a male.
The Applicant concedes that his employment status with the Responsible was visible on his Facebook profile. He also agreed that he had received previous warnings regarding his behaviour which culminated in a final written warning that was issued to him on 6 December 2017[12] which made clear that any further breaches of “policies and/or unprofessional conduct within the workplace will lead to termination” of his employment.
The Applicant had received a copy of the company’s Social Media Policy and Code of Ethics when he commenced employment with the company in 2016[13], although he says he has since misplaced the Employee Handbook which contained those policies. He contends that the previous warnings issued to him were not in relation to the Social Media Policy, that he was only required to sign for the policy documents and that the Facebook exchange in question occurred while he was at home and outside his normal hours of work. For all of these reasons, he says he should have only received a warning regarding the Social Media Policy breach rather than termination of his employment. The Applicant further claims that at the very least, he should have been provided with notice of termination or payment in lieu considering his length of service of over six years.
The Respondent rejects the Applicant’s contentions. It states that the Applicant’s actions towards a customer of the business, as outlined above at [21]-[22], were in direct breach of its Social Media (Private Usage) and Code of Ethics policies which the Applicant had acknowledged receipt of when he commenced in 2016. He also received an update of the Social Media Policy in 2021[14]. In respect of these policies, the Respondent contends that the Applicant’s actions posed a serious risk to the health and safety of the customer, as well as to the reputation and profitability of the business, thereby justifying his summary dismissal.
It is evident to me that while the merits of the Application turn on contested points of fact, which would need to be tested if an extension of time were granted, the Applicant does not appear to have a strong case based on the material filed. This tells against the granting of an extension of time.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
D Thompson, Applicant.
N Jacob for the Respondent.
Hearing details:
2022.
Melbourne (By Microsoft Teams):
April 13.
[1] Exhibit R6, Letter of Offer – Full Time Vehicle Detailer, dated 29 February 2016.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Ibid at [40].
[7] Exhibit R7, Email to Applicant re Separation Certificate, dated 24 February 2022.
[8] Exhibit R9, Termination Letter, dated 16 February 2022.
[9] Exhibit A6, Facebook message, dated 26 December 2021.
[10] Exhibit A7, Facebook message, dated 14 February 2022.
[11] Ibid.
[12] Exhibit R4, Written warnings dated 16 February 2017, 22 June 2017 and Final Warning dated 6 December 2017.
[13] Exhibit R3, Applicant’s acknowledgement of receipt of Employee Handbook, dated 22 March 2016.
[14] Exhibit R5, Email dated 12 February 2021 to Respondent employees re Social Media Policy Refresher.
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