Gavin Robinson v Coates Hire Pty Ltd

[2016] FWC 3576

[2016] FWC 3576

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gavin Robinson
v
Coates Hire Pty Ltd
(U2016/6554)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr Gavin Robinson alleged the termination of his employment by Coates Hire Pty Ltd was unfair. Mr Robinson was provided with a termination letter on 7 April 2016 which provided that his employment was to terminate immediately and he was paid in lieu of notice. Mr Robinson returned company property in his possession and left the workplace that day.

[2] Mr Robinson submitted that the termination did not take effect until 8 April 2016 because he was to be paid for 7 April 2016. Mr Robinson is mistaken. The termination took effect when he was advised of the termination on 7 April 2016. Consequently, he was required to file his application by 28 April 2016 and it was not filed until 29 April 2016.

[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 Robinson said that he had problems with his internet and therefore could not make an application on line. He further said he had problems with making a telephone application but when questioned, he advised that he did not telephone the Fair Work Commission. Mr Robinson said he then drove into Perth on 28 April 2016 to get an application form and when asked why he did not fill it in on the spot, he said it was ten to five and the staff were leaving. Mr Robinson then emailed his application on 29 April 2016.

[6] Mr Robinson did not seek any advice in relation to his application and did not attempt to use the facilities at his local library where he could have accessed the Commission’s website. Mr Robinson did not explain why he waited until the last day to attend the Perth office of the Commission nor did he explain why he did not ring the Commission to seek information about how he could lodge his application, given his difficulties with the internet.

[7] Mr Robinson thought the 21 days commenced on 8 April 2016 and therefore he was in time.

[8] There was no reasonable basis for Mr Robinson to decide that the termination did not take effect until 8 April 2016. He was aware of the termination letter. He was aware of the termination when it took effect. That he had arranged for his partner to be on standby on 7 April 2016 to take him home, in case he was dismissed, and that he left the workplace, after returning his company mobile phone and car, shows that he was aware that he had been dismissed on that day.

[9] I am therefore not satisfied that Mr Robinson had a reasonable explanation for the delay in lodging his application.

[10] 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;

[11] Mr Robinson 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.

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

[12] Mr Robinson disputed the matters that Coates Hire relied upon to justify his dismissal. Mr Robinson did not do anything, after the decision was made, to dispute his dismissal. He said this was because he was taken aback by his dismissal. Coates Hire submitted that Mr Robinson made no contact with management after the day of the dismissal to raise any concerns about his dismissal. That Mr Robinson was taken aback on the day did not prevent him from contacting relevant managers 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);

[13] There was no submission or evidence that there would be any prejudice to Coates Hire if an extension of time were granted. This weighs in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[14] Mr Robinson was dismissed for safety breaches and for noncompliance with policies. Mr Robinson accepted that he had not correctly followed the procedure in one instance but provided an explanation for his conduct. He disputed the other allegations made by Coates Hire. Mr Robinson was a long standing employee.

[15] 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.

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

[16] There were no submissions that there were any persons in a similar position. This criterion is neutral.

Conclusion

[17] I am not satisfied that there are exceptional circumstances. Mr Robinson has not provided a reasonable explanation for the delay and apart from a lack of prejudice to the employer, no other criteria weighs in favour of a finding of exceptional circumstances. Mr Robinson’s application for an extension of time is dismissed and accordingly his application for an unfair dismissal remedy is also dismissed.

DEPUTY PRESIDENT

Appearances:

G. Robinson on his own behalf.

M. Sandon for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

1 June.

 1   [2011] FWAFB 975

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