Gordon Forrest v Conga Foods Pty Ltd
[2015] FWC 700
•9 MARCH 2015
| [2015] FWC 700 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Gordon Forrest
v
Conga Foods Pty Ltd
(C2014/8177)
COMMISSIONER SIMPSON | BRISBANE, 9 MARCH 2015 |
Application to deal with contraventions involving dismissal - Out of time objection - Factors in s.366(2) considered - Not satisfied of exceptional circumstances - Application dismissed.
[1] On 10 December 2014 Mr Forrest (the Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment.
[2] The Applicant asserts that his termination by Conga Foods Pty Ltd (the Respondent) took effect on 28 October 2014. The Applicant commenced employment with the Respondent as a State Operations Manager on 2 September 2013 and claims he was summarily dismissed in the course of a conversation with the Respondent’s Chief Executive Officer on 28 October 2014. The Respondent asserts that there has been no termination at the initiative of the Respondent, and that the Applicant resigned voluntarily, in writing, on 31 July 2014 to take effect from 31 October 2014, which subsequently brought the employment relationship to an end in accordance with his resignation on 31 October 2014.
[3] Whilst there is a dispute regarding whether a dismissal has occurred, given the Applicant asserts the date of dismissal as being 28 October 2014, it is appropriate to refer to 28 October 2014 for the purpose of telling time.
[4] On the basis of the Applicants asserted date of termination the application was lodged outside the statutory time limit provided for in the Act. The last day that the application could have been lodged within time was Tuesday, 18 November 2014. As it was lodged on 10 December 2014 it was lodged 22 days outside the statutory time frame.
[5] In this regard, the Act states:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as FWC allows under subsection (2).
(2) FWC may allow a further period if FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.” (underline added)
[7] The directions order stated that if the parties are in agreement the matter will be determined on the papers, and that the Fair Work Commission would conduct a hearing if requested to do so by one of the parties. Both parties were requested to advise if they requested a hearing by 10am on Monday 9 February 2015 to chambers and to the other party. The Applicant requested a hearing and the matter was listed for telephone hearing on Friday 6 March 2015.
Summary of Submissions for the Applicant - Extension of Time
[8] The Applicant asserts that his employment was verbally terminated from the company CEO on 28 October 2014 who fired him in anger.
[9] The Applicant asserts his application was late because the Respondent “threatened him with arrest and Conga Foods eventually laid charges of theft against me and which threat of and charges I needed to consider carefully given the potential consequences of having a criminal record and what that might mean for my future.”
[10] The Applicant also referred to a phone call he had with a Police Officer on 11 December 2014 wherein he claimed the police officer advised him that the Respondent would withdraw the complaint of theft against him, on the condition he not speak to any of the Respondent’s employees about his application to the Fair Work Commission. The difficulty with this conversation having any relevance in the extension of time application is that it occurred some 23 days after the last day that the application could be filed within time.
[11] The Applicant also stated that he had been on medication and has been suffering from significant stress, anxiety and related illness due his treatment by the Respondent. The Applicant said his stress and anxiety level in October and November made it very difficult dealing with Conga Foods and the police action.
[12] The Applicant said that the application had been predominantly compiled using the Respondents company information which he said the Respondent continually advised was in breach of contract, illegal and that the Respondent threatened and did take action against him.
[13] The Applicant also refers to a grievance he made on 18 May 2014 against the group Human Resources Manager.
[14] In the course of the hearing on 6 March 2015 the Applicant made it clear he believed the Respondent had complained to the police about him not having returned the Respondents property in an effort to pressure him not to make an application to the Fair Work Commission.
Respondent’s Case.
[15] The Respondent points to all documentary evidence including the Applicant’s resignation letter, the Respondent’s pay records and the Applicant’s Employment Separation Certificate that all suggest a resignation and not dismissal at the initiative of the Respondent.
[16] The Respondent says that the Applicant had failed to articulate what workplace right the Respondent has contravened and on that basis his application is bound to fail.
[17] The Respondent said that it did not lodge a complaint to the Queensland Police to discourage the Applicant from making an application to the Fair Work Commission. The Respondent said the complaint was made as a last resort and only after the Respondent and the Queensland Police had exhausted all possibilities in regard to having the Respondents property returned. The Respondent said an arrangement had been made for the return of its property on 31 October and the Applicant refused to honour the arrangement. The Respondent said on three further occasions it was requested that its property be returned, and a complaint was only lodged with the Police after the Police had discussed the matter with the Applicant and presented him with options and consequences.
[18] The Respondent said the Applicant by his own admission was conversant with Fair Work Commission processes and fully aware of the time limit and he had ample time to prepare. The Respondent said there is no evidence to support an assertion that the Applicant felt threatened.
[19] The Respondent refers to emails from the Applicant dated 5 November at 5.56pm which includes;
“I am now currently preparing a FWA submission which requires a few details from my Conga Laptop and I will return it as soon as I have finished the preparation of my submission. This should be done by close of play Friday.”
[20] The Respondent refers to a further email dated Friday 7 November at 10.24am which includes;
“The police have given me a call and said they understand I need to make a FWA submission and that if I have a computer at home I am to take the information I need and then let you have the laptop back in the condition I received it. I am doing this now.”
[21] The Respondent refers to a further email dated Friday 7 November at 1.02am am which includes;
“I would like to have a personal meeting with you rather than a phone conversation and my wife would also like you to come to dinner at our home so as to be of support as well and also so as to create a relaxed and friendly meeting atmosphere. The only problem for me is that I am away 12th November to 30th November 2014 in remote North Queensland.
Prior to me departure, I am required to submit a FWA submittal as this must be done within 21 days of termination and given that I am now going away and we may not be able to meet within this timeframe, I will need to complete this submission and lodge before I leave so as to meet their requirements however it is entirely possible that you and I can resolve matters in which case I should be able to withdraw any FWA submission made and awaiting hearing.
Thankyou for getting back to me, let us know what dates would suit you so we may host you a dinner...” (underlining added)
[22] The Respondent says the Applicant’s reasons for delay are not exceptional circumstances. The Respondent says that illness is not necessarily an exceptional circumstance.
[23] The Respondent also raised that the Applicant had in his possession a company computer that contained commercially sensitive and confidential employee information. The Respondent states that the Applicant in his written submission referred to documents pertaining to company performance and individual staff salary reviews which have no relevance to his application. The Respondent said under the Australian Privacy Principles, and specifically principle 11, it must take steps as are reasonable to protect employee information.
Consideration
[24] The Applicant appears to have formed the view that the dispute between the Applicant and Respondent regarding the Respondent seeking the return of its property after the ending of the employment relationship was in actuality a tactic by the Respondent to stop or prevent his application to the Fair Work Commission. From the material provided it would appear the Respondent was merely attempting to secure the return of its property, and the steps it took in that regard do not give rise to exceptional circumstances that would justify the Applicants delay in filing his application.
[25] The Applicant said he had been on prescription medication for stress and anxiety which he had been using for many months. The Applicant did not provide any medical evidence to support a conclusion that his health condition was of a nature that prevented him from being able to file an application with the Fair Work Commission. The material provided for dates following his dismissal clearly indicates that he was capable of writing emails to his employer and seeking to engage in discussions concerning his grievances about how the employment relationship was ended. It is also apparent he went on a holiday for the second half of November 2014, a decision he took in the full knowledge that the time in which he could file an application with the Fair Work Commission would expire while he was away on holiday.
[26] The Applicant also refers to a grievance he lodged on 18 May 2014 with management concerning the handling by the Respondent of a separate unfair dismissal application by another former employee of the Respondent which was settled between that person and the Respondent. The Applicant was aggrieved that he had not been privy to the copy of a settlement and deed of release between the Respondent and the former employee. This does not give rise to an exceptional circumstance justifying an extension of time.
[27] It is evident from reading emails attached to the Applicant’s submissions that on or around 7 November 2014 he proposed to arrange a meeting with Mr David Valmorbida, a representative of the Respondent.
[28] An email from Mr Valmorbida on 8 November 2014 in reply to the Applicant’s proposed meeting reads in part as follows:
- “
………………………………………
Thankyou for the kind invitation to come to Queensland for dinner and meeting at your house with you and your wife. The sentiment is much appreciated. As you know, the November/December period of our business is very important and very busy, and unfortunately I simply won’t have the chance to travel this side of the new year, especially considering that I find myself in a period of several supplier visits from overseas, Board meetings and other critical projects. Sincerely, if you would like to talk with me and resolve any remaining issues, we can have a very calm and friendly conversation on the phone, even at your option to call me at any time this weekend.”
[29] In his written submission the Applicant goes on to say that he was absolutely staggered to have the Queensland Police then arrive at his house on 4 December 2014 shortly after his return from holiday. The Applicant said he attempted to contact Mr David Valmorbida by phone and also sent an email that day, part of which read as follows:
“Please be advised that I am very disappointed in how Conga Foods have now chosen to deal with me and accordingly I will now be proceeding with a “late” application against Conga Foods to FWA and other actions which I will be filing ASAP and which will be filed with this new evidence of Conga Foods poor treatment and relevant information and which I had hoped to avoid as laid out in my communications with yourself when I advised your Group HR Manager that ….”One should not reach for the gasoline when your house is on fire.
It is unfortunate we have ended up here.
Sincerely
Gordon Forrest.” Underlining added
[30] It would appear from this email that the Applicant decided to pursue a late application, at least in part, in response to the Respondent seeking to recover its property by complaining to the police. Such a reason for filing a late application is not an exceptional circumstance.
[31] For all of the reasons set out above I am not satisfied any of the explanations provided by the Applicant for the delay are an exceptional circumstance justifying an extension of time. Further it appears the Applicant put on hold a decision to dispute the dismissal for the entire second half of November 2014 in order to could go on a holiday. Any prejudice the employer may suffer from granting an extension including prejudice caused by the delay is not so significant it would of itself be a reason not to extend time. The merits of the application appear on the limited material available to be weak in that any available written documentation provided so far supports a conclusion that the Applicant resigned on 31 October, and was not terminated on 28 October. Further the Applicant has not clearly articulated an arguable case concerning a protected workplace right as being connected to the alleged dismissal. However I will place limited weight on these preliminary views as I have not dealt with formal evidence on these matters. S.366(2)(e) is not a relevant consideration.
[32] Having taken into account each of the matters set out in s.366(2) I am not satisfied there are exceptional circumstances allowing an extension of time in this case and on that basis the application is dismissed.
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