Eamonn Darcy v Ecocentric Energy Pty Ltd

[2016] FWC 1586

[2016] FWC 1586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eamonn Darcy
v
Ecocentric Energy Pty Ltd
(U2016/4611)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 MARCH 2016

Application for relief from unfair dismissal.

[1] Mr Eamonn Darcy alleged that the termination of his employment on 16 November 2015 was unfair.

[2] His unfair dismissal application lodged on 15 February 2016 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]

S.394(3)(a) The reason for the delay

[5] Mr Darcy said that from 19 November 2015 until 29 January 2015 he was unfit for work. His medical certificate, dated 24 February 2016, noted that he had multiple proceedings with Ecocentric and that “it is unlikely that he would have been able to cope successfully with further demands of this nature.” Mr Darcy had lodged a workers compensation claim in this period as well as a claim for unpaid commissions. He was, in this period, able to successfully negotiate a settlement of some of his claims.

[6] Mr Darcy received clearance to return to work on 29 January 2016 and he said he was still suffering anxiety. He said he took a further ten days to lodge his application because he was in the process of settling his other claims and, at that time, Eccocentric were seeking a release from him in relation to all other claims. He was concerned that if he lodged this claim, Ecocentric would not pay his outstanding entitlements. Once Mr Darcy was confident that he would be paid the settlement monies he lodged this claim.

[7] Ecocentric did not challenge Mr Darcy’s medical evidence.

[8] While I accept that Mr Darcy was unwell in the period until 29 January 2016 he was, during this period, capable of lodging his claim for his outstanding entitlements. Mr Darcy made a choice about the priority he gave to his various legal options. He said he could not handle three matters. When it was put to him that completing an unfair dismissal application is not difficult he said he was unaware of the process and whether he would be required to attend to matters flowing from that claim immediately. However, there was no evidence that Mr Darcy made an inquiry about the process.

[9] Even if I accept Mr Darcy’s evidence, once he received his medical clearance he was obliged to act promptly because any application would already be out of time. Mr Darcy’s desire to settle his entitlements claim prior to lodging his unfair dismissal claim was a strategic decision he made as he was concerned that if he made the claim prior to settlement his claim would not be settled. That decision caused his unfair dismissal claim to be further delayed.

[10] Mr Darcy posted his application which was signed on 11 February 2016. It was not received until 15 February 2016. Mr Darcy could not explain why it took Australia Post four days to deliver his application. Given Mr Darcy was already late, a more prudent approach to avoid further delay would have been to email or fax the application.

[11] I am not satisfied that Mr Darcy’s explanation for the whole of the delay was reasonable. Once Mr Darcy was well enough to pursue his claim, it was incumbent on him to lodge his application promptly. I do not accept that it was reasonable for him to delay lodging this application because he feared Ecocentric would not settle his other claims. His failure to do so weighs against a finding that there are exceptional circumstances.

S.394(3)(b) Whether the person first became aware of the dismissal after it had taken effect

[12] Mr Darcy was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

S.394(3)(c) Any actions taken by the person to dispute the dismissal

[13] Mr Darcy said he told one of the owners of Ecocentric that the decision to terminate him was wrong and that he would contest the dismissal. However he took no steps to dispute his dismissal until he lodged this application. Mr Darcy had communication with Ecocentric during this time over other matters and did not advise them that he intended disputing his dismissal.

[14] I consider this criterion to be neutral.

S.394(3)(d) Prejudice to the employer (including prejudice caused by the delay)

[15] Ecocentric is a small business with limited resources. It submitted that this matter is taking key staff away from the business and is having an impact on the business and it was also affecting morale.

[16] Mr Darcy submitted that there would be no prejudice to Ecocentric because of the workers’ compensation claim, all information would have already been collated. He further submitted that the matters would be fresh in the minds of Mr Wilson, one of the co-owners.

[17] I accept that there would be prejudice to Ecocentric if it was required to respond to an unfair dismissal claim, however I am not satisfied that the prejudice would be such as to weigh against a finding of exceptional circumstances.

S.394(3)(e) The merits of the application

[18] Mr Darcy submitted that his dismissal was unfair. He was denied procedural fairness and he denied that there had been performance issues. He submitted that the real reason he was dismissed was because he was a potential whistleblower.

[19] Ecocentric submitted that Mr Darcy was not protected from unfair dismissal because he had not served the minimum employment period. It was submitted that he was dismissed for performance issues and that was consistent with the Small Business Fair Dismissal Code.

[20] Mr Darcy submitted that his situation was unusual and he has raised serious allegations against Ecocentric. However it is not unusual for dismissed employees to allege that the reasons for their dismissal are unrelated to the reasons given by their employer.

[21] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

S.394(3)(f) Fairness as between the person and other persons in a similar position

[22] There were no submissions that there were any persons in a similar position.

Conclusion

[23] I am not satisfied that there are exceptional circumstances. Mr Darcy did not have a reasonable explanation for the whole of the delay and none of the other criteria weigh in favour of such a finding. Mr Darcy’s application for an extension of time is dismissed and accordingly his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Eamonn Darcy.

Mr Tim Bray representing Ecocentric Engergy Pty Ltd.

Hearing details:

2016;

Melbourne (by telephone):

March 9.

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