Graham Hawkins v Les Brazier Special Vehicles Pty Ltd
[2016] FWC 2802
•6 MAY 2016
| [2016] FWC 2802 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Graham Hawkins
v
Les Brazier Special Vehicles Pty Ltd
(U2016/6215)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 6 MAY 2016 |
Application for relief from unfair dismissal - extension of time not granted.
[1] Mr Hawkins has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Les Brazier Special Vehicles Pty Ltd (Brazier). At a telephone conference convened on 6 May 2016 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.
[2] Mr Hawkins’ application was lodged on 15 April 2016. In that application Mr Hawkins advised that his employment termination took effect on 20 November 2015. Mr Hawkins provided the following explanation for the late lodgement of his application:
“On Friday 20 November 2015,a conference was held between myself and the Chief Executor Office of my employer, Mr Peter Greig. During that conference Mr Greig raised a series of concerns with respect to my use of the company's credit card. I brought to Mr Greig's attention my use of that card had been compliant with his earlier request issued in July of 2015. Mr Greig was quite adamant that I had used company C card inappropriately and persisted with his position. I did not challenge his position as I was intimidated and security personal were present. Towards the conclusion of that conference, Mr Greig raised the issue of my entitlements and repayment of an outstanding company debt. I suggested that the debt in conjunction with my entitlements could be paid from the transfer of shares I held with the Company. Mr Greig stated that could be a possibility.
The following Monday, 23 November 2015, Greig approached me and said he is giving consideration to my proposition and that he will order an evaluation of the company's shares.
On approximately 24 November 2015,l received a copy of a termination letter from Mr Greig dated 23 November 2015. Attached here to and marked with the letters "GH-1" is a true copy of that letter.
I had not heard from Mr Greig for several weeks and with respect to the valuation of the company shares and therefore by email dated 8 December 2015, Iemailed Mr Greig regarding the progress of the company valuation at 1:05pm on 8 December 2015 and received a response from Mr Greig 2.24pm on the same day, advising me that the valuer required some additional background data. Attached hereto and marked with the letters "GH-2" is a true copy of those emails dated 8 December 2015.
On 24 December 2015,I received by email from Mr Greig, a copy of the company valuation. Attached hereto and marked with the letters "GH-3" is a true copy of that email.
Attached hereto and marked with the letters "GH-4" is a true and current copy of the business and share valuation obtained from Mr Simon Winter, certified practicing ve luer. The date of the valuation inspection, as stipulated on page 2, is 24 November 2015 whilst the date of the valuation is dated 31st October 2015. I received a letter from Mr Greig's solicitor's, Minter Ellison Solicitors, dated 9 February 2016 on approximately 10 February 2016. That correspondence raises the payment of the outstanding debt In the vicinity of $44,000.00.This was also the first time I had herd that I was fired for Serious Misconduct.
Attached hereto and marked with the letters "GH-5" is a true copy of that letter from Minter Ellison Solicitors dated 9 February 2016.
I responded to Minter Ellison Solicitors by letter dated 23 February 2016 and requested all credit card holder statements back dated to 30 June 2015 and all credit card holder personal workshop account statements in order to investigate the appropriateness of the allegation raised against me with respect to the misappropriation of funds. Attached hereto and marked with the letters "GH-6" is a true copy of my letter to Minter Ellison Solicitors dated 23 February 2016.
I received a response from Minter Ellison Solicitors dated 7 March 2016. Attached hereto and marked with the letters "GH-7" is a true copy of that correspondence from Minter Ellison Solicitors dated 7 March 2016.
I responded to that correspondence by way of letter dated 22 March 2016, requesting copies of all accounts to be provided to me. Attached hereto and marked with the letters "GH-8" is a true copy of my letter to Minter Ellison Solicitors dated 22 March 2016.
I received a response to my above letter from Minter Ellison Solicitors dated 24 March 2016 and the documentation I requested was not provided. Attached hereto and marked with the letters "GH -9" is a true copy of the letter from Minter Ellison Solicitors to myself dated 24 March 2016.
I attended upon a solicitor at Dixon Gallasch Pty Ltd on 15 February 2016. Due to me being unemployed, I was unable to afford the solicitors fees and therefore was referred onto Justice Net SA.
I telephoned Justice Net SA in an attempt to obtain legal representation and completed the necessary application form they required me to complete by way of letter dated 29 February 2016. Attached hereto and marked with the letters "GH-10" is a true copy of my application form to Justice Net SA (undated).
I received a response from Justice Net SA by way of email dated 7 March 2016 requiring further details before eventually I received correspondence dated 4 April 2016 advising that Justice Net SA were unable to refer my matter for Pro Bono legal assistance. Attached hereto and marked with the letters "GH-11" is a true copy of correspondence from Justice Net SA to myself dated 4 April 2016.
I say the delay in bringing this application to the Commission's attention is due to Mr Greig's actions in delaying the provision of the valuation in an attempt to minimize any legal course of action I may have against him. My submission is based primarily on the date of the valuation, that date preceding, the date of the conference when 1 was dismissed on 20 November 2015 noting that the valuation report was withheld from me by Mr Greig and not released to me until 24 December 2015. Further, my inability to obtain representation is a consequence of my financial state of affairs which I say is due to being dismissed unfairly otherwise I would have been able to obtain representation.
To this day I still believe that MinterEllIison and Peter Greig were delaying all matters regarding my case To put me into then situation I have found myself in now. I also honestly believed we were negotiating A fair deal for both the company and myself but now see this was never happening.” 1
[3] On 19 April 2016 my Associate corresponded with both Mr Hawkins and Brazier and advised that the extension of time issue would be considered through a telephone conference on 6 May 2016. Substantial information about the extension of time issue was provided to the parties. Mr Hawkins was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by Friday 29 April 2016.
[4] Additional information was received from Mr Hawkins, on 29 April 2016, in which he stated:
“1/On the 20th of November 2015 I was fired unfairly.
2/I worked for Les Brazier and Peter Greig for over thirty years starting as a Apprentice Panel beater then a leading hand to a foreman and eventually a General Manager,Director,Share holder and part owner of the company.
3/ I have suffered anxiety and depression since 2013 and with all the recent proceedings including being terminated and the ups and down of this case has made my condition worse. I refer to Appendix I
4/Peter Greig,Darren Spangenberg and myself all had company credit cards and staff accounts. These account were commonly used for personal purchases with pay back systems in place.
5/In July of 2015 I was advised not to use the company credit card for purchasing personal items. From that date I didn't incur one personal expense on that card.
6/On the 20th of November 2015 it was alleged that I had been using the company credit card for personal items which I had not done. I was terminated on the spot in the presence of Peter Greig and a private security guard.
7/Appendix 2 is a copy of the invoice from Bob Jane Tmart Salisbury in the sum of$392.00. This expense was not on the credit card "as accused"other wise it would state credit in lieu of the "9978" after "customer Order No"
8/It was an agreement of my termination that monies which were owed to the company would be paid back through the sale of the shares I hold. I offered the sum of 4000 per share to which Peter Greig said words to the affect that it seems reasonable.
9/On the 23rd November 2015 I was advised by Peter Greig that a valuation of the company would occur.
10/On the 30th November 2015 I received a copy of termination letter dated 23 November2015.
Appendix 3
11/I vehemently deny that I incured any expense on the credit card and that my conduct did not constitute "Serious Misconduct".
12/ On 8th December2015I had not received the valuation so I emailed Peter Greig Appendix 4
13/On the 8th December 2015 I received a response Appendix 4
14/On the 24th December 2015 I received the evaluation Appendix Sa & 5b
15/I didn't hear from Peter Greig with respect to our arrangement as to my departure regarding my offer or any counter offer from him in January of2016.
16/On 9th February I sought Legal advise. I was unable to afford representation due to my termination and unemployment. I then approached Justice Net on the recommendation of the solicitor.
17/I rang Justice Net that afternoon and was told to complete an online application form. I did so Appendix 6
18/I was advised by Justice Net to approach Northern Community Legal Services for their advice as well. I did this on the 1Y" February2015.They subsequently advised they could not assist as it was out of their league.
19/By letter dated 23rd February 2016 I wrote Peter Greigs solicitors MinterEllison who were chasing me for the debt against me to clarify the claim against me I requested all credit card and staff account statements back dated to the 30th June 2015 to present day Appendix 7. I also asked them to clarify the relevant section of the Serious and Willful Misconduct Act
20/To date I haven't received any such documents.
21/On the 4th April 2016 I received an email from Justice Net dated the 4th April2015 advising that Justice net was unable to refer my matter for pro bono legal assistance Appendix 8,and that the matter they referred to for which I sought legal advice was covering the termination of employment from Les Brazier Special Vehicles Pty Ltd.
22/I say that I was late in these proceedings and should be heard because.
1/ My employment was terminated unfairly
2/ I relied upon an agreement at the termination conference that I could be " Paid out "
3/ The said delays was not my fault. To date I haven't received the relevant documents I requested.
5/ Peter Greig has not been prejudiced by my delay
6/I sought legal advice within a period I say would have been within 21 days but for Peter Greigs delays (deliberate?
7/I sort legal advise in these circumstances in a reasonable time period. But encountered difficulties at the three different law firms I approached.
8/I these circumstances I seek a extension of time to file my unfair dismissal application.”
[5] The Employer’s Response to the application indicated that Brazier opposed the extension of time. In this response Brazier stated:
- The Applicant has lodged his application out of time.
- In the Applicant's F2 filed on 14 April 2016, the Applicant states he was aware he was terminated on 24th November 2015 when he received the termination letter from the Respondent.
- The Applicant took no action in relation to making an unfair dismissal claim until 15 February 2016. Mr Hawkins states he was provided advice by Tony Cacas from Dixon Gallasch on 15 February 2016 that he had a good case across three jurisdictions, including an unfair dismissal claim (see page 3 of the Applicant's annexure marked "GH-10"). He has provided no evidence to verify receipt of that advice or any detail of it, including any advice regarding time limits.
- Despite receiving this advice on 15 February 2016, the Applicant waited a further two months before he filed his unfair dismissal claim on 14 April 2016.
- The Applicant has not provided any evidence to demonstrate why he could not have sought legal advice earlier from Dixon Gallasch, JusticeNet or the Fair Work Commission in relation to making an unfair dismissal claim.
- In determining whether the Applicant should be allowed a further period for the application to be made, the FWC must be satisfied that there are exceptional circumstances taking into account the factors in section 394(3) as follows:
Reason for the delay
The Applicant has not advanced any reasons for the delay that are unusual or extraordinary circumstances. The Applicant has not provided any credible reasons for the delay. The Applicant's ignorance of the time limitation is not an exceptional circumstance.
Whether the person first became aware of the dismissal
The Respondent says that the Applicant was informed of his dismissal verbally on 20th November 2015. The Applicant states that he received a copy of the termination letter on 24th November 2015 (see item 1.4 of the Applicant's F2). On the Applicant's case, he was aware of his dismissal as at 24th November 2015.
Action taken by the person to dispute the dismissal
The Applicant did not dispute the dismissal until 11th January 2016 when the Applicant sent a letter to the CEO of the Respondent, Mr Peter Greig. A copy of this letter is annexed and marked "R-1".
Prejudice
The Respondent will suffer prejudice if the Applicant is granted an extension of time. The Respondent will be required to expend further time and resources if the Applicant is granted an extension of time in circumstances where he does not have an arguable case and has no reasonable explanation for the delay and no prospect of success.
Merits of the application
The Applicant's application has no prospect of success because the Applicant was dismissed on the basis of serious and willful misconduct for using the company credit card for personal expenses, against the Respondent's direction on 6 July 2015 that he cease doing so.
The Applicant's application is out of time and there are no exceptional circumstances warranting the FWC granting an extension of time.
[6] Mr Hawkins participated in the telephone conference. Mr Grieg represented Brazier and also participated in the conference. I note that a sound file record of this telephone conference was kept.
[7] Section 394 relevantly states:
“394 Application for unfair dismissal remedy
....
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
[8] There is no dispute that the termination of Mr Hawkins’ employment took effect on 20 November 2015. I have concluded that the application was made some 126 days outside of the 21 day time limit and can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 which stated:
- “[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
[10] Mr Hawkins was aware of the termination of his employment on the day on which it took effect.
[11] I acknowledge that, in addition to the late lodgement of this application, Mr Hawkins took other actions in relation to his disputation with Brazier. I am not satisfied that these other actions were fundamentally directed at challenging the termination of his employment as distinct from challenges to the valuation of the company of which he was a shareholder. Notwithstanding this, these other actions do not explain the delay.
[12] Brazier argued that an extension of time of this magnitude would prejudice it. However, notwithstanding that the delay is very substantial, I have not founded my decision in this matter on concerns with respect to prejudice to the employer.
[13] In terms of the merits of the application, the information before me does not enable a conclusion to be reached. I have consequently regarded this as a neutral factor in my extension of time considerations.
[14] Considerations of fairness relative to other persons in similar positions do not generally support an extension of time.
[15] Accordingly, I have concluded that the material before me does not establish that Mr Hawkins’ circumstances can be regarded as exceptional so as to warrant an extension of time. The application must be dismissed accordingly and an Order (PR580008) giving effect to this decision will be issued.
Appearances (by telephone):
G Hawkins on his own behalf.
P Greig for the respondent.
Hearing (Conference) details:
2016.
Adelaide:
May 6.
1 Form F2, para 1.4
2 [2011] FWAFB 975
Printed by authority of the Commonwealth Government Printer
<Price code A, PR580007>
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