David Taylor v Kalang Respite Care Centre

[2014] FWC 6040

[2014] FWC 6040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Taylor
v
Kalang Respite Care Centre
(U2014/9863)

COMMISSIONER SPENCER BRISBANE, 15 SEPTEMBER 2014

Jurisdictional objection - out of time - no exceptional circumstances - application dismissed.

[1] This decision relates to an application under s.394 of the Fair Work Act 2009 (“the Act”) by Mr David Taylor (“the Applicant”) who alleges that the termination of his employment with Kalang Respite Care Centre (“the Respondent”) was harsh, unjust and unreasonable.

[2] The Respondent filed a Form F3 (Employer’s Response) making a jurisdictional objection on the basis that the Applicant had failed to make the Application within 21 days as required by the Act.

[3] Pursuant to s.394(2)(a) the application must have been made within 21 days after the date the dismissal took effect. In this matter, the dismissal took effect on 13 May 2014 and the Application was filed on 6 June 2014. Therefore, the Application was 3 days out of time.

[4] At the Directions conference the “exceptional circumstances” test was explained to the Applicant and the Applicant was advised the material he had filed to date would be considered. Directions were set for the filing of further submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties. Both parties relied upon their written submissions.

[5] The parties agreed to the matter being determined on the papers, after further material was provided.

[6] Not all of the submissions are referred to in this decision; however, all have been considered in making the determination.

Relevant Provisions of the Legislation

[7] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

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.

Summary of Submissions for the Applicant - Extension of Time

[8] The Applicant submitted a Statutory Declaration dated 15 July 2014 with a written summary outlining the reasons he believes that the extension of time for the filing of the Unfair Dismissal Application should be granted under s.394 (3) of the Act.

[9] The Applicant’s submission stated:

“Reason for delay was that F. Barney called me in for as I would believe to be a feedback on the progress, actions taken against me to achieved a outcome under Kalang’s HR procedure act 4.2. The matter should of been within 21 days, however it was seven weeks. I had no feedback, no resolve from committee investigations, by that time he F. Barney called me in on the 9th of the 5th (May) I was under medication for depression and stress. Thinking there would be some sort of mediation however he informed I was to be terminated without any conflict resolution, information regarding board meetings, mediation nor counselling or advocacy support. By the time I related to my own well being, I contacted my Union Rep Cheryl Mills who was in Sydney on other matters and could not make it back in time to assist me with the unfair case and paper work to submit. I was not in a stable mind to complete it on my own shocked by the treatment I had received. I did leave messages on her phone from the 26-5-14 and received contact from her on the 3-6-14. This is why my submission was a little late.”

[10] In the Applicant’s further submissions, the Applicant stated:

“a. The reason for delay I was depress[ed] and suffering acute anxiety following my stand down orders on the 28 May 2014. I received no advice regarding my rights, responsibilities or proper process. I had no adherence or directive as to where this matter was heading;

b. After seven weeks I was called in to see Mr Barney thinking I had my right of appeal, but I was terminated without my rights taken away from me, no documented papers were reported of the complaint including the original complaint details, no investigation, conversation summaries with the complainant;

c. I had no access about the types of complains and no access of appeals, no outcomes and no identity issues that arose from these complaints;

d. There was and is a degree of prejudice to myself. In the event of a unresolved complaint between two parties, information on conflict resolution, meditation, counselling and advocacy services were never provided to me;

e. I feel I have strong merits regarding my dismissal as they breached Kalang’s H.R. Resource management procedure

f. There was no fairness about the dismissal at all. I had not natural justice. Mr Barney is self appointed HR and Co-ordinator......”

Summary of Submissions for the Respondent - Extension of Time

[11] The Respondent submitted that the Applicant has not placed before the Commission any fresh or independent material that would strengthen the Applicant’s position or meet the ‘exceptional circumstances’ test contemplated by the criteria set out in s.394(3) of the Act.

[12] The Respondent submitted that the Applicant was suspended on 21 March 2014 on full pay whilst an investigation was carried out by management upon the complaint of the client. He was informed that the conduct, if proved, would be viewed as serious misconduct by the employer. The severity of the complaint was outlined in the correspondence to the Applicant on 21 March 2014. His dismissal took place on the 13 May 2014.

[13] The Respondent maintains the jurisdictional objection and states the Application is out of time and in any event the Applicant was a casual employee at the time of his dismissal.

Consideration

[14] The Act requires the Commission to be satisfied that there are ‘exceptional circumstances’ in order to extend the period of time for a person to make an unfair dismissal application.

[15] In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 1 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)2 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 3

[16] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 4

[17] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. Each of those criteria are considered below.

s.394(3)(a) - the reason for the delay

[18] The Applicant submitted that he had no information on his rights of appeal and he was suffering acute stress and anxiety as a result of the termination of his employment. However, there is no medical evidence to support the Applicant’s complete inability to act during the period following his dismissal. The Applicant’s submissions regarding his fragile mental state are recognised; however, many applicants experience personal and psychological effects as a result of a dismissal and are able to file an application during the 21 day period.

[19] Further, the Applicant stated that he had sought assistance from his union representative but not received any response until 3 June 2014. An application made on this day would have been made on the final day but within time. The application was not made by the union. There is no information provided by the union regarding the reasons for the delay. Whilst this reason was considered, the application was lodged three days later. In addition, prior to contact with the union, the reasoning for that period did not equate with the delay.

s.394(3)(b) - whether the person became aware of the dismissal after it had taken effect

[20] The Applicant complained about the lengthy period of time after being suspended. However, this does not relate to the period after termination. He became aware of the dismissal on the day it was communicated to him (13 May 2014).

s.394(3)(c) - any action taken to dispute the dismissal

[21] After the dismissal, the Applicant sought assistance from his union representative. Even taking into account the delay attributable to his union representative’s response, this does not account for the full 21 day period. Reasons for the delay commensurate with the 21 day period have not been provided.

s.394(3)(d) - prejudice to the employer

[22] No particular submissions regarding prejudice to the employer have been filed. The statutory time period for filing is set to allow for the certainty of the parties.

s.394(3)(e) - the merits of the application

[23] Limited material was provided on the merits of the application. The Applicant submitted that he was unfairly dismissed and states he was provided with insufficient evidence in the Respondent’s findings as to why he was dismissed. The Respondent submitted that the Applicant was dismissed for serious misconduct. The merits of this case could only be properly considered on the basis of sworn evidence, and therefore this matter has been considered as neutral in the considerations.

s.394(3)(f) - fairness as between the person and other persons in a similar position.

[24] The Applicant listed six other staff members who have been terminated by the Respondent, however no information is provided on how their cases are similar to the Applicant’s. Accordingly, this consideration has not been attributed any weight in this extension of time matter.

Conclusion

[25] The reasons for delay set out above do not meet the ‘exceptional circumstances’ test in s.394(3) of the Act. It is clear the Applicant was made aware of his dismissal as it was communicated to him directly on 13 May 2014. The termination date is not in dispute and the Applicant took no action to dispute his dismissal until well into the 21 day time period.

[26] Having considered all the matters raised by the Applicant, there is a lack of reasoning and evidence equating to exceptional circumstances. An extension of time cannot be justified and on that basis the application made pursuant to s.394 must be dismissed. I Order accordingly.

COMMISSIONER

 1  Wheelan C, [2009] FWA 1638, [30] and [31].

 2   Lawler VP, [2010] FWA 1394.

 3   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 4   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

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