Harris v Royal Canberra Golf Club Limited

[2016] FWC 1123

[2016] FWC 1123

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Jamie Harris
v
Royal Canberra Golf Club Limited
(U2015/12997)
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 19 FEBRUARY 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances

warranting allowing a further period for the making of an application - application

dismissed.

[1]        Mr Jamie Harris (the Applicant) made an application which was received by the Fair

Work Commission (the Commission) on 21 September 2015 under s.394 of the Fair Work

Act 2009 (the Act) alleging that the termination of his employment on 12 December 2014 was

harsh, unjust and unreasonable. On 2 October 2015, Royal Canberra Golf Club Limited (the

Respondent) objected to the application on the grounds that it had been made outside the 21

day timeframe specified in s.394(2) of the Act and that Mr Harris did not meet the minimum

employment period. The application was lodged 260 days outside the 21 day statutory

timeframe.

[2]        Directions were issued on 19 October 2015 setting out the timetable for the filing of

submissions and any evidentiary material to be relied on by the parties, with amended

Directions issued on 27 October 2015. The Respondent’s jurisdictional objections were the

subject of a telephone hearing on 25 November 2015.

[3]        At the hearing Mr Harris appeared on his own behalf, while Mr Anthony Chase

appeared for Respondent.

[4]        For the reasons outlined below I have found that there are no exceptional

circumstances warranting the granting of a further period for the making of an application

under s.394 of the Act. Accordingly, the application cannot proceed and is therefore

dismissed. In those circumstances, there is no need to determine the Respondent’s other

jurisdictional objection regarding the minimum employment period.

Background

[5]        Mr Harris commenced employment with Respondent as a casual golf shop assistant in

December 2013. Mr Harris worked regularly with the Respondent until 22 June 2015 when he

flew to Italy to work as a golf instructor for the European summer. He next worked for the

Respondent in late November/early December 2015.
[2016] FWC 1123

[6]        An incident involving Mr Harris occurred at the Respondent’s premises on

4 December 2014. The incident involved allegations of Mr Harris misappropriating alcohol

and being inebriated on duty. The Respondent convened a meeting with Mr Harris on

8 December 2014 to discuss the incident. The record of that meeting indicates that it

concluded on the basis that Mr Harris would have until the conclusion of his shift that day to

think about the matter and to advise the Respondent whether he wished to resign or be

terminated for misconduct. It appears that a further meeting between Mr Harris and Ms Kerry-

Lee Judd, the Respondent’s Human Resources and Finance Manager, was subsequently

arranged for 9 December 2014 and that Mr Harris did not attend the meeting. On

10 December 2014 Ms Judd emailed Mr Harris asking that he show cause as to why he should

not be dismissed for serious misconduct and giving Mr Harris a further opportunity to respond

and provide any additional material to support his version of events. Mr Harris was

subsequently dismissed on 12 December 2014 for serious misconduct.

[7]        As noted above, Mr Harris’ unfair dismissal application was received by the

Commission on 21 September 2015, 260 days outside the 21 day statutory timeframe.

The Extension of Time issue

[8]        I will deal firstly with the Respondent’s jurisdictional objection regarding the

extension of time issue.

Mr Harris’ case

[9]        Mr Harris submitted that following his dismissal the President, Captain and Vice-

Captain of the Royal Canberra Golf Club (the Club) were lobbying for his reinstatement and

that the Respondent’s General Manager was away until 29 December 2014. Mr Harris further

submitted that he met with the Respondent’s General Manager on 8 January 2015 and that he

went into that meeting believing that the matter could be resolved rationally and reasonably.

However, Ms Harris submitted that at that meeting he was only offered the option of his

termination being treated as a resignation.

[10]      Mr Harris contended that following that meeting he went into a state of denial, shock

and depression and that he did not return to the Club of which he had been a member since

1986. Mr Harris also submitted that he had regular consultations with his family doctor during

this period.

[11]      At the telephone hearing, Mr Harris reiterated the above and also attested that he was

not aware of the 21 day timeframe for making an unfair dismissal application and that he

made no enquiries as to what his options were in terms of seeking redress regarding his

dismissal.

The Respondent’s case

[12]      The Respondent submitted, inter alia, that there were no exceptional circumstances in

this matter to warrant special consideration. The Respondent further submitted that there was

no evidence that Mr Harris had suffered illness or trauma as a result of his dismissal,

especially as he had ample opportunity to initiate his application following his dismissal in

2014. Accordingly, the Respondent contended that Mr Harris’ application should be

dismissed.

[2016] FWC 1123

The Relevant Legislation

[13]      Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under

Division 4 granting a remedy.

394(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).

394(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[14]      In deciding whether to allow a further period for an application to be made the

Commission must take into account the matters set out in s.394(3) above. I will deal with each

of those matters separately.

(a) The reason for the delay

[15]      As noted above, Mr Harris submitted that he sought to resolve the issue amicably with

the support of senior officials of the Club all of whom were advocating for his reinstatement.

Further, Mr Harris submitted that he was unable to lodge his application as a result of the

shock and depression he suffered after he realised that the issue could not be resolved

amicably.

[16]      At the hearing, Mr Harris was unable to state how seeking to resolve the matter

amicably with the Respondent precluded him from filing his application within the 21 day

statutory timeframe. As to his shock and depression, Mr Harris provided no medical evidence

to substantiate his contention in this regard, though I note that following the hearing

Mr Harris did forward to the Commission a statement from his partner at the time concerning

his demeanour following his dismissal. However, given that the statement was only forwarded

to the Commission after the hearing thereby denying the Respondent the opportunity to cross

examine the deponent, I have not taken the statement into account in determining the matter.

[17] As also noted above, at the hearing Mr Harris indicated that he was not aware of the

21 day statutory timeframe and that he made no inquiries as to the options open to him
[2016] FWC 1123

following his dismissal. With regard to Mr Harris’ ignorance of the 21 day timeframe for

making an unfair dismissal application, I note that in Cheyne Leanne Nulty v Blue Star Group

1

(Nulty) a Full Bench of the then Fair Work Australia determined that:

“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional

circumstance ...”

[18]      By way of background the reference in Nulty to s.366(1)(a) refers to the provision in

the Act which deals with the time for making a general protections application in respect of a

dispute involving dismissal. The provision is in almost identical terms to s.394(2)(a) of the

Act.

[19]      The above analysis, together with the decision in Nulty, does not support a finding of

the existence of exceptional circumstances.

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

[20]      Mr Harris contended at the hearing that he became aware of his dismissal one day

after it took effect.

[21]      The Respondent did not directly address this consideration.

[22]      Against that background, I consider this factor to be a neutral consideration.

(c) Any action taken by the person to dispute the dismissal

[23]      Mr Harris submitted that he discussed his dismissal with the President of the Club and

sought to resolve the issue with his assistance. Mr Harris also met with the Respondent’s

General Manager on 8 January 2015 to discuss his dismissal.

[24]      The Respondent contended that Mr Harris had thought his connections in the Club

would save him, submitting that he had not participated in the disciplinary process and had

not taken the dismissal letter seriously.

[25]      In circumstances where Mr Harris did take steps to dispute his dismissal, I consider

this factor to be a neutral consideration.

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

[26]      Mr Harris submitted that the Respondent would not be prejudiced were an extension

of time granted in this case.

[27]      The Respondent submitted that it would be extremely prejudiced were an extension of

time granted though it did not elaborate as to the nature of the prejudice that it would suffer.

[28]      In those circumstances, I consider the issue of prejudice to be a neutral consideration.

[2016] FWC 1123

(e) The merits of the application

[29]      Mr Harris submitted that he considered that he had been unfairly treated and that he

did not think that he had done anything wrong.

[30]      The Respondent stated in its Form F3 – Employer Response to Unfair Dismissal

Application that Mr Harris was given an opportunity to respond to the allegations and that the

Respondent had considered his response in deciding to dismiss Mr Harris for serious

misconduct.

[31]      Based on the record of the meeting of 8 December 2014, Mr Harris contended that

when he asked if the group he was a part of could have another drink, he was told by a bar

staff member of the Respondent he could get the drinks himself. The Respondent disputed

this based on the findings of its investigation. In circumstances where this issue is disputed

and in the absence of any substantive evidence regarding this issue, I am unable to form a

considered view as to the merits of the application.

[32]      As such, I consider this factor to be neutral consideration.

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

[33]      At the hearing Mr Harris contended that both he and the person who allegedly said

that he could get a further round of drinks himself had been dismissed, though the other staff

member was subsequently reinstated.

[34]      The Respondent submitted that the other staff member had not been dismissed, stating

that he had been issued with a first and final warning and highlighting that the other staff

member had not taken any alcohol.

[35]      In view of the differences highlighted by the Respondent, I consider this factor to be a

neutral consideration.

Conclusion

[36]      The question of exceptional circumstances was dealt with by a Full Bench of Fair

2

Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group	(Nulty) in the
following way:

“[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”

[2016] FWC 1123

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.”

[37]      Having considered all of the factors set out in s.394(3) of the Act, and drawing on the

decision in Nulty, I find that there are no exceptional circumstances warranting the granting of

further period for the making of an application for an unfair dismissal remedy. Accordingly,

the application cannot proceed and is therefore dismissed. An order to that effect will be

issued with this decision.

[38]      In those circumstances, there is no need to determine the Respondent’s other

jurisdictional objection regarding the minimum employment period.

Appearances:

J. Harris on his own behalf.

A. Chase for Royal Canberra Golf Club Limited.

Hearing details:

2015.

Canberra (telephone hearing):

November 25.

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1

[2011] FWAFB 975

2

(2011) 203 IR 1