Dawson v Tuckey Mandurah Pty Ltd

[2016] FWC 838

[2016] FWC 838

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Zachariah Dawson
v
Tuckey Mandurah Pty Ltd T/A Tuckeys Mandurah
(U2015/16845)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 8 FEBRUARY 2016
Application for relief from unfair dismissal.

[1]        Mr Zachariah Dawson alleged that the termination of his employment by Tuckey

Mandurah Pty Ltd T/A Tuckeys Mandurah on 13 October 2015 was unfair.

[2]        His unfair dismissal application, lodged on 17 December 2015, was not made within

21 days of the date of the dismissal.

[3]        The 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 [2011] FWAFB 975 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.” [Endnotes not

reproduced]

[2016] FWC 838

(a) the reason for the delay;

[5]        Mr Dawson resigned his employment on 13 October 2015. It is not disputed that that

resignation was accepted and Mr Dawson was paid in lieu of notice. Mr Dawson said that on

21 October 2015, he posted a letter to floor 16, 111 St Georges Terrace, Perth 6000, which is

the location of the Commission offices in Perth. Mr Dawson relied upon the information

provided on the Commission’s website to obtain this address and information provided by

telephone.

[6]        Mr Dawson submitted that the letter was returned to him and he then rang the

Commission and was told by a young man that the Commission does not deal with unfair

dismissals and he should send his letter to the Fair Work Ombudsman. He then resent the

letter on 9 November 2015. That letter was not an application for an unfair dismissal remedy.

It set out his claim that he had been constructively dismissed and asked for “any help and

advice given in regards to the above.”

[7]        Mr Dawson filed two registered mail receipts to prove that he sent the documents.

[8]        On 26 November 2015, Mr Dawson rang the FWO and was advised that he needed to

contact the Commission which he did. He was asked to email the Commission with a full

explanation and include the post receipt and the letters which he had sent. He sent an email to

the Commission on the same date and set out the facts set out above. He included the two

registered mail receipts and he included a copy of the letter.

[9]        On 27 November 2015, Mr Dawson was provided with a Form F2 and a waiver form

but he did not sign the application form until 9 December 2015 and he did not lodge it until

17 December 2015. Mr Dawson gave evidence that he was aware of the time limit of 21 days

for lodging his application. He said the delay in lodging the application was because he

needed to fill it out carefully to ensure it was accurate and he had to deal with the stress of

family life and losing his job. As well it was the end of the school year and there were lots of

activities associated with that.

[10]      Tuckey Mandurah submitted that there is no evidence on which the Commission could

conclude that Mr Dawson lodged a form F2 on 13 October 2015. It notes that the registered

mail receipts do not indicate who the sender or recipient is, nor do they indicate what was

sent. Further, Tuckey Mandurah submitted that on the same web page that Mr Dawson found

the office address, the postal address of the Commission was listed. Tuckey Mandurah noted

that Mr Dawson has not provided a copy of the return to sender envelope, nor the original

application said to have been sent. Tuckey Mandurah said that the Commission should not

accept his evidence that a person at the Commission told him that the Commission did not

deal with unfair dismissals and that the application should be sent to the FWO. Tuckey

Mandurah submitted that there was nothing to prevent Mr Dawson filing his original

application electronically. Further, if he was advised on 26 November 2015 to contact the

Commission, he could have lodged his application any time after that date but did not sign his

application form until 9 December 2015 and he has not provided any explanation for that

delay. Further, there is no explanation of why it took from 9 December 2015 for the

application to be received on 17 December 2015.

[11] I am not satisfied that Mr Dawson has a reasonable explanation for the whole of the

delay. When he first sent his letter to the Commission, he was not making an application but
[2016] FWC 838

was seeking advice. I accept that if that letter had been received by the Commission, it is

likely Mr Dawson would have been contacted and advised that if he wished to make an

application, he would need to complete a form F2. However, when he was finally provided

with that information he did not act promptly in filing his application. He knew there was a 21

day time limit but Mr Dawson took a further 20 days to file his application. Even accepting

that he was not familiar with the process and he wanted to ensure the information was correct,

and that he had other matters to attend to, he did not act promptly in circumstances where his

application was already late.

[12]      This weighs against a finding that there are exceptional circumstances.

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

[13]      Mr Dawson was aware of his dismissal when it took effect. He had the full 21 days to

make an application. This weighs against a finding that there are exceptional circumstances.

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

[14]      Mr Dawson resigned his employment. He did not take any action to dispute the

dismissal. This weighs against a finding that there are exceptional circumstances.

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

[15]      Tuckey Mandurah submitted that it would be prejudiced if an extension of time were

granted as one of its key witnesses is on long service leave and is not available to give

evidence. Further, it submitted that it should not be subjected to the cost and inconvenience of

having to defend the claim. The witness went on leave on 23 October 2015 and will return at

the end of February. As that absence could be accommodated, I am not satisfied that any

prejudice to Tuckey Mandurah is sufficient to weigh against a finding of exceptional

circumstances.

(e) the merits of the application;

[16]      Tuckey Mandurah proposed a change to Mr Dawson’s roster because of a downturn in

the business. The proposed changes would have provided Mr Dawson with 38 hours work per

week. Mr Dawson responded to those proposed changes and as a result, Tuckey Mandurah

proposed that he work Monday to Friday. It accommodated his need to finish early on one

day due to family responsibilities. Tuckey Mandurah responded to Mr Dawson’s view that the

hours offered on Saturday did not make coming in worthwhile and he would prefer to have

Saturday off, by removing both the Saturday and Sunday shifts. In its letter in response,

Tuckey Mandurah explained the reasons for the changes and advised that if the business

improved, they could reconsider their position. He was advised that if he wished to discuss

the matter further they were open to discussion but he would need to put his reasons in

writing.

[17]      As a result, Mr Dawson resigned his employment. He said he could no longer afford to

continue working and he formed the view that they would not be able to resolve the matter by

agreement. He stated in his resignation letter that “it is time for me to move on and take an

opportunity that has arisen to me.” He gave one week’s notice of his resignation. His

resignation was accepted and he was paid in lieu of notice.

[2016] FWC 838

[18]      Mr Dawson said he was forced to resign because his hours were cut. He complained

about the cut to his weekend shifts but it is clear that the removal of his weekend shifts only

occurred as a result of his advice that the hours offered on Saturday did not make working

worthwhile. Mr Dawson did not, after he saw the second proposal, go back to his employer

and advise that he preferred to keep his weekend shifts.

[19]      Mr Dawson said that Tuckey Mandurah had forced out other employees but he

brought no evidence to support this allegation. It was his contention that his hours were

changed as punishment. Mr Tuckey denied this allegation.

[20]      While I am not able to make a final assessment of the merits as there are factual

disputes between the parties that have not been tested, if the evidence remains as it currently

is, it is difficult to see how Mr Dawson could establish that he was forced to resign. I consider

this criterion to be neutral.

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

[21]      No submissions were made on this criterion.

Conclusion

[22]      I am not satisfied that there are exceptional circumstances. Mr Dawson has not

provided a reasonable explanation for the whole of the delay and none of the other criteria

weigh in favour of a finding that there are exceptional circumstances. Mr Dawson’s

application for an extension of time is dismissed and therefore his application for an unfair

dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Z. Dawson on his own behalf.

Mr G. Raptis for the Respondent.

Hearing details:

Melbourne.

Melbourne and Perth (by telephone):

February 4.

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