Drew Westfield v National Australia Bank T/A NAB

[2015] FWC 5814

[2015] FWC 5814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Drew Westfield
v
National Australia Bank T/A NAB
(U2015/9142)

COMMISSIONER RYAN MELBOURNE, 21 AUGUST 2015

Application for relief from unfair dismissal - jurisdiction - out of time.

[1] The Applicant filed an application pursuant to s.394 of the Fair Work Act 2009 (the Act) on 7 July 2015 in relation to the termination of his employment by the National Australia Bank on 18 December 2013.

[2] The application was filed almost 19 months after the termination and is therefore well outside the 21 day time limit set by s.394(2)(a) of the Act. The Applicant seeks an extension of time pursuant to s.394(2)(b) of the Act.

[3] The jurisdictional objection was listed for 21 August 2015. The notice of listing included within it directions to the parties for the filing and service of material in relation to the extension of time. The Applicant was to file his material by 27 July 2015. The Respondent was to file its material by 13 August 2015.

[4] The Applicant filed his material late, on 13 August 2015. It is clear that the Applicant in filing his material was doing so in response to the directions issued within the notice of listing and as such would have been aware of the time and date of the hearing.

[5] The Respondent did not comply with directions and, upon investigation, it was established that the contact person for the Respondent named in the F2 application was on long leave and therefore the Respondent had not become aware of this matter until my chambers contacted Mr John O’Brien in the industrial relations department.

[6] At the hearing on 21 August 2015 the Respondent was represented by Mr J O’Brien. The Applicant made no appearance at the hearing. The Applicant was telephoned immediately before proceedings commenced at 2.00pm and given the opportunity in a voice message to provide the reason for his non attendance at the hearing. The Applicant was also emailed following the hearing and again given the opportunity to make contact with my chambers. At the time of issuing this decision, the Applicant did not provide any good reason for his non attendance.

[7] During proceedings the Respondent contended that no exceptional circumstances exist which warrant the Commission exercising its discretion under s.394(2)(b) of the Act and that a grant of an extension of time would result in considerable prejudice to the employer given that this is not a case where the application has been filed only a matter of days or even weeks outside the requisite period.

[8] The matter was adjourned on the basis that the Commission was providing the Applicant with the opportunity of being heard in relation to his non attendance.

Legislation

[9] Section 394(3) provides as follows:

"(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."

[10] Section 394(2)(b) permits the Commission to grant an applicant an extension of time in which to make an application for an unfair dismissal remedy but only if the Commission is satisfied that there are exceptional circumstances warranting an extension of time. A consideration of the existence of exceptional circumstances requires the Commission to take into account the criteria set out in s.394(3). Whether any single circumstance or set of circumstances is exceptional requires that the circumstances "must be out of the ordinary course, or unusual or special or uncommon but need not be unique, or unprecedented or very rare". 1

[11] The Applicant contends that he only decided to make the application in this matter after seeing media reports of a decision of the Commission in which an employee who was dismissed for engaging in sexual harassment at a work Christmas function was found to have been unfairly dismissed. The decision was in the matter of Keenan v Leighton Boral Amey NSW P/L, 2 issued on 26 June 2015.

[12] In support of his application for an extension of time the Applicant identifies that he was not aware of his right to pursue an unfair dismissal claim at the time of the termination of his employment. Whilst this may be the case it is not an exceptional circumstance.

[13] The Applicant resigned his employment on 18 December 2013 after being approached by senior management with an offer that could resign and that if he didn’t he would be dismissed. The reason for any dismissal was the conduct of the Applicant at a Christmas function hosted by the Respondent on 7 December 2013. The Applicant makes frank admissions as to the nature of his conduct at the Christmas function even though the Applicant admits that he was so intoxicated that he could not recall his conduct.

[14] On 19 December 2013 the Applicant contacted the Respondent in writing explaining some mitigating factors in relation to his conduct and asking the Respondent to reconsider its decision to terminate the employment relationship and asking the Respondent to explore options other than termination of the employment relationship. The Respondent replied on 23 December 2013 advising the Applicant that the Respondent would not reverse its decision to accept the Applicant’s resignation.

[15] The Applicant’s account of his conduct and actions after he resigned ranges from describing himself being in a state of denial shortly after the termination through to moving on with life through looking for new employment and ultimately moving into a new business venture with a friend. The Applicant maintained contact with some former colleagues and managers at the Respondent. This contact included references being made to possible future employment of the Applicant with the Respondent.

[16] Whilst the Applicant was motivated to make his unfair dismissal application because of the reported decision in Keenan v Leighton Boral Amey NSW P/L, the facts in that decision would appear to be very different from what appears to the circumstances involving the Applicant at a Christmas function. Whilst the Commission does not engage in a detailed examination of the facts relied on by the Respondent to justify the termination of the Applicant the Applicant’s own account of what happened very strongly suggests that the Applicant’s case on the merits is not highly meritorious. 3

[17] The Respondent contends that it will suffer more than the usual prejudice from an out of time unfair dismissal application as some of the key persons involved in the matter in December 2013 no longer work for the Respondent.

[18] The Commission has taken into account each of the relevant matters enumerated in s.394(3) of the Act and concludes that there are no exceptional circumstances present in relation to this matter.

[19] The Commission refuses the application for a grant of an extension of time in this matter.

[20] As the application in this matter was not filed within the time limit specified by s.394(2)(a) of the Act the application is out of time and is dismissed.

COMMISSIONER

 1   Nulty v Blue Star Group P/L[2011] FWAFB 975 at para 13.

 2   [2015] FWC 3156.

 3   Kyvelos v Champion Socks Pty Limited , Print T2421 at para 14.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR571113>