Gary Gould v Erceg & Co Pty Ltd T/A Erceg Transport

[2016] FWC 547

[2016] FWC 547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Gould
v
Erceg & Co Pty Ltd T/A Erceg Transport
(U2015/16683)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 JANUARY 2016

Application for relief from unfair dismissal.

[1] Mr Gary Gould alleged that the termination of his employment by Erceg & Co Pty Ltd on 4 August 2015 was unfair.

[2] His unfair dismissal application lodged on 11 December 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work 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 1 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]

(a) the reason for the delay;

[5] Mr Gould was stood down from his employment from 4 August 2015. He was told that an allegation about a stolen forklift was referred to the police and he could not return to work until that investigation was complete. Mr Gould gave evidence that on the same day, he contacted his employer to arrange for all his outstanding entitlements to be paid. He denied that he resigned his employment. On 1 September 2015, Mr Gould approached Erceg to obtain a separation certificate. That certificate advised that his employment had ended due to a shortage of work. Mr Gould said his employment ended on 4 August 2015 and that he did not make an application within 21 days as he was waiting for the outcome of the police investigation.

[6] Erceg submitted that there was no dismissal and that Mr Gould was suspended on 4 August 2015, pending a police investigation. It said Mr Gould informed Ms Shannon Kent on 5 August 2015 that he was not returning to his employment. 2 Mr Tom Erceg, the Managing Director, accepted this as Mr Gould’s resignation.

[7] Mr Gould gave evidence that he was cleared by the police on 28 November 2015 and when asked why he did not file his application until 11 December 2015, he said that he had never been through such a thing and it took him some time to get the information and advice.

[8] I am not satisfied that Mr Gould has a reasonable explanation for the whole of the delay in lodging his application. I do not accept that Mr Gould’s employment only came to an end when the police advised him that they were taking no further action. Mr Gould was aware, at least from early September 2015, that his employment with Erceg had ended. The separation certificate made that clear. That there was a police investigation did not prevent him from lodging his application. Further, that he needed to get information and advice is not unusual. 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;

[9] If Mr Gould was dismissed, and assuming he was notified of that dismissal on either 4 August 2015 or 1 September 2015, Mr Gould was aware of the dismissal when it took effect and had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[10] Mr Gould said that he asked why he was being stood down and was told it was in the hands of police to investigate. Apart from this, he took no further action to dispute the dismissal. I consider that this criterion is a neutral consideration.

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

[11] Erceg did not submit that there was any prejudice to it if an extension of time were granted. This weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[12] Mr Gould gave evidence that he was told by Erceg to leave the workplace immediately as there was no choice but to stand him down as there was a police investigation on foot.

[13] Erceg submitted that there was no dismissal and that Mr Gould resigned his employment. On 1 September 2015, Mr Erceg said that Mr Gould requested an Employment Separation Certificate, which was sent to him by post.

[14] 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. I consider this criterion to be neutral.

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

[15] No submissions were made on this criterion. I consider it to be neutral.

Conclusion

[16] I am not satisfied that there are exceptional circumstances. Mr Gould has not provided a reasonable explanation for the whole of the delay. None of the other criteria, apart from the lack of prejudice to the employer, weigh in favour of a finding of exceptional circumstances. A lack of prejudice alone is insufficient to find exceptional circumstances. Mr Gould’s application for an extension of time is dismissed and therefore his unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr G Gould on his own behalf.

Mr T Erceg on behalf of the Respondent.

Hearing details:

2016.

By telephone:

January 27.

 1   [2011] FWAFB 975.

 2   Exhibit R1.

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