Henry Skupek v Crest Coatings (Australia) Pty Limited T/A Crest Coatings Australia

[2015] FWC 4594

[2015] FWC 4594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Henry Skupek
v
Crest Coatings (Australia) Pty Limited T/A Crest Coatings Australia
(U2015/7363)

DEPUTY PRESIDENT KOVACIC CANBERRA, 7 JULY 2015

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 Henry Skupek (the Applicant) made an application on 5 May 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment on 27 March 2015 was harsh, unjust and unreasonable. On 29 May 2015, Crest Coatings (Australia) Pty Limited T/A Crest Coatings Australia (Crest - 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 the Applicant had resigned and was not dismissed from his employment. The application was lodged 18 days outside the 21 day statutory timeframe.

[2] Directions were issued on 8 May 2015 setting out the timetable for the filing of submissions and any evidentiary material to be relied on by the parties. The matter was heard on 3 July 2015.

[3] At the hearing Mr Skupek was self-represented, while Ms Caroline Pellow appeared with permission for Crest.

[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.

Background

[5] Mr Skupek commenced employment with Petro Coating Systems Pty Ltd, as Crest was then called, on 10 November 2008 as its Business Development Manager. On 27 February 2015, Mr Skupek gave Crest four weeks’ notice of his intention to resign. His resignation took effect on 27 March 2015.

[6] Mr Skupek became aware in early April 2015 that the part of Crest’s business that he had been working in, i.e. Marine and Distribution, had been sold to a competitor. This caused Mr Skupek to form the view that as a result of the sale his position would have no longer been required by Crest and that he should have been made redundant rather than having been forced to resign. Mr Skupek also contends that he is yet to be reimbursed by Crest for a number of expenses he incurred while still in its employ.

[7] As noted above, Mr Skupek filed his application on 5 May 2015, 18 days outside the 21 day statutory timeframe.

The Applicant’s case

[8] Mr Skupek submitted that he had contacted Fair Work Australia and Job Watch on two occasions, including 2 April 2015, and that he was disappointed with the level of advice provided. On 8 April 2015 Mr Skupek contacted the Fair Work Ombudsman (FWO) in respect of the monies which he contends Crest is yet to reimburse him. On 22 April 2015 Mr Skupek enquired of the FWO as to whether he should have received a redundancy payment. Mr Skupek submits that the FWO responded on 23 April advising that he should lodge an unfair dismissal application with the Fair Work Commission (the Commission). In his written submission, Mr Skupek contended that:

“Given the attempts I had made in seeking advice from Fair Work Australia, Job Watch and searching the internet to educate myself, it is astounding that I was not advised earlier to approach the Fair Work Commission.”

[9] At the hearing, Mr Skupek contended that at the time of his resignation he was not aware of the imminent sale of part of the business and that it was only after he became aware of the sale that he came to the realisation that he was constructively dismissed.

The Respondent’s case

[10] Crest put forward that Mr Skupek submitted his letter of resignation providing four weeks’ notice on 27 February 2015 and that it allowed Mr Skupek to work out his notice period from home. Crest further submitted that during the notice period Mr Skupek took a period of unauthorised absence during which he travelled to Thailand where it is alleged that he was in contact with Crest’s suppliers soliciting material for a project not authorised by it. On that basis, Crest submitted that it advised Mr Skupek, in the context of writing to him regarding his outstanding and accrued entitlements, that it was deducting the equivalent of one week’s pay from his final payment due to his unauthorised absence.

[11] At the hearing, Crest submitted that had Mr Skupek not resigned he would not have been made redundant following the sale of part of the business and that it had reimbursed all expenses where a receipt had been provided.

[12] Crest further submitted that Mr Skupek had failed to demonstrate the existence of exceptional circumstances which caused the delay in him filing his application and that therefore he should not be granted a further period for the making of his application.

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 Skupek submitted the he was only advised by the FWO on 23 April 2015 that he should lodge an unfair dismissal application with the Commission. However, this was only after his supplementary enquiry of the previous day to the FWO regarding whether he should have received a redundancy payment. As to the reason for the delay between receiving that advice and 5 May 2015 when his application was received by the Commission, Mr Skupek advised that work commitments meant that he had little time to focus on his application and prevented him from lodging his application until 5 May 2015.

[16] Crest submitted that Mr Skupek had identified several reasons for the delay, i.e. that he did not resign, that he was not advised earlier to approach the Commission and that he made previous enquiries with Job Watch and the FWO. In response, Crest:

• disputed that it had taken any action intended to bring the employment relationship to an end;



• relied on the decision of Senior Deputy President O’Callaghan in Glyn Roberts v Westech IT Solutions Pty Ltd 1 to contend that confusion between the FWO and the Commission regarding who to contact and where to lodge an application would not generally support an extension of time;

submitted that Mr Skupek had contacted Job Watch and the FWO in relation to his outstanding entitlements rather anything related to his alleged dismissal; and

pointed to the twelve day delay in Mr Skupek lodging his application after having been advised by the FWO on 23 April 2015 to lodge his application with the Commission.

[17] Crest further submitted that these factors do not constitute exceptional circumstances warranting the granting of a further period for the making of the application.

[18] Mr Skupek confirmed at the hearing that he had only raised with the FWO the issue of whether he should have received a redundancy payment on 22 April 2015. Prior to that, his discussions with the FWO and Job Watch had concerned his outstanding entitlements. I note that 22 April 2015 is five days outside the 21 day statutory timeframe. Also at the hearing, Mr Skupek advised the Commission that while he received the FWO’s advice on 23 April 2015, work commitments precluded him from lodging his application until twelve days later on 5 May 2015. Further, Mr Skupek submitted that he had contacted Fair Work Australia and Job Watch in early April 2015. However, Mr Skupek was unable to elaborate on his contact with Fair Work Australia and how it differed from the Commission (Fair Work Australia was renamed the Fair Work Commission from 1 January 2013).

[19] This analysis indicates that Mr Skupek only enquired about the cessation of his employment after the 21 day statutory timeframe had already expired and that prior to doing so he was not aware of the possibility of making an unfair dismissal application. Further, the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 2 determined that an employee needs to provide a credible reason for the whole of the period that the application was delayed. While Mr Skupek cited work commitments, he provided no detail as to the nature of those commitments and whether they were out of the ordinary.

[20] Together, these factors do not support a finding that the reasons for the delay constitute exceptional circumstances.

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

[21] It is not disputed that Mr Skupek was aware that his employment would end on 27 March 2015 consistent with the notice he had provided in his letter of resignation.

[22] On that basis, I consider this factor to be a neutral consideration.

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

[23] As previously noted, Mr Skupek only raised with the FWO the issue of whether he should have received a redundancy payment on 22 April 2015 which was after the 21 day statutory timeframe had already expired. While Mr Skupek contacted Job Watch and the FWO prior to this, his enquiries related to his outstanding entitlements.

[24] Crest submitted that Mr Skupek took no action to dispute his dismissal until several months after it had occurred, at which time he sought to argue that he had been constructively dismissed.

[25] Mr Skupek’s lack of action to dispute his dismissal either prior to it taking effect or until he lodged his application with the Commission militates against a finding of the existence of exceptional circumstances.

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

[26] Mr Skupek did not address this factor.

[27] Crest submitted that as a small business with limited financial resources it would suffer significant prejudice were an extension of time granted.

[28] I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[29] Mr Skupek contends that he was constructively dismissed. Relevant in this regard is the following extract from Mr Skupek’s resignation letter:

“Given your behaviour and that of others, I feel that my position with PCS has become untenable and that it is now time to move on. I leave feeling satisfied with the standard of my work and behaviour.”

[30] Crest submitted that Mr Skupek had resigned his employment and was not dismissed, adding that this was evidenced by Mr Skupek’s request for a separation certificate, his failure to rescind he resignation and his conduct subsequent to his resignation. On that basis, Crest submitted that the application is without merit or, in the alternative, has no reasonable prospects of success. A previously mentioned, at the hearing Crest submitted that had Mr Skupek not resigned he would not have been made redundant following the sale of part of the business.

[31] Based on the limited material before the Commission, the merits of Mr Skupek’s application appear less than compelling, though not completely devoid of merit.

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

[32] Again, Mr Skupek did not address this factor.

[33] Crest submitted that should Mr Skupek be granted an extension of time that he would be significantly advantaged vis-à-vis other persons in a similar position as he would effectively be provided a second opportunity to contest his alleged dismissal months after resigning his employment.

[34] I consider this factor to be a neutral consideration.

Conclusion

[35] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 3 (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” 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.

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

[36] 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 identical terms to s.394(2)(a) of the Act.

[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.

Appearances:

H. Skupek on his own behalf.

C. Pellow for Crest Coatings (Australia) Pty Limited T/A Crest Coatings Australia.

Hearing details:

Melbourne.

2015:

July 3.

 1   [2014] FWC 4226

 2 (2010) 197 IR 403 at 408-409

 3 (2011) 203 IR 1

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