Jake Jones v Emerald Carrying Company

[2019] FWC 1494

[2019] FWC 1494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jake Jones
v
Emerald Carrying Company
(U2018/11841)

COMMISSIONER SIMPSON BRISBANE, 30 APRIL 2019

Application for an unfair dismissal remedy - Exceptional circumstances not found – Extension of time not granted.

[1] This matter concerns an application made in accordance with section 394 of the Fair Work Act 2009 (the Act) by Mr Jake Jones who alleges his employment with Emerald Carrying Company Pty Ltd (ECC) was terminated unfairly. Mr Jones was completing an apprenticeship at the time of his dismissal.

[2] Mr Jones stated in his application that he commenced employment with ECC on 9 April 2018 and was dismissed on 23 October 2018. The 21^st day after his dismissal was Tuesday 13 November 2018. Mr Jones’ unfair dismissal application was lodged on Friday 16 November 2018 at 7.37pm, and was therefore made three days outside the period prescribed by the Act. The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[3] The Act provides that a person who has been dismissed and applies to the Commission for it to deal with an unfair dismissal application pursuant to s.394 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.

[4] Section 394 of the Act provides:

“Section 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.”

Background

[5] On the Form F2 originating application Mr Jones provided that the reason the application was filed late was because the Operations Manager Ben Haylock on leave overseas, and Mr Jones’ father who is a driver for the company was on an extended long haul route. Mr Jones said he wanted to wait until Mr Haylock and his father were back so he could discuss his dismissal with Mr Haylock before filing an application in the Commission.

[6] Mr Jones said Mr Haylock did not know that he had been dismissed and Mr Jones wanted to make sure that filing an unfair dismissal application would not affect his father’s job as a driver.

[7] The Form F2 went on to claim that Mr Jones met with Mr Haylock when he returned (before filing the application) and Mr Haylock said he was “OK with me lodging this – as the people Robert Morrow, Allan Roberts, Tamara Lette and Luke (General Manager) dismissed me without his approval and he was unhappy at how they waited until he was away on holidays and his Dad, Greg Haylock who owns 50% of the business was also away when they did this – behind their backs.”

[8] The Form F2 also identified that Mr Jones was being treated for a mental health condition and also has dyslexia.

[9] A directions hearing was conducted on 14 February 2019. Both parties were self-represented. The parties were invited to make brief submissions and file any evidence they wished to rely upon for the purposes of determining whether exceptional circumstances warranted the granting of an extension of time.

[10] On 22 February 2019 a written submission was filed for Mr Jones along with a witness statement from himself and his mother Ms Sherie Dooly-Jones.

[11] It was submitted for Mr Jones that;

•  The dismissal occurred at a time when Mr Jones had recently returned from sick leave accompanied by a medical certificate for anxiety and stress attributed to work;

•  There had been issues in the lead up to his dismissal (the facts regarding these matters are in dispute);

•  The news of Mr Jones dismissal given to him at a meeting on 23 October was a “massive shock”;

•  At the time of dismissal Mr Jones was on prescription medication for anxiety and depression;

•  At the time of his dismissal Mr Jones father was away on an extended long haul trip (Mr Jones was 20 years of age at the time of his dismissal);

•  It was difficult for Mr Jones to discuss his situation for a week following the dismissal;

•  Mr Jones attempted to arrange discussions with management about his termination after it occurred. On 25 October Ms Tamara Lette for ECC said in an email she would set up a meeting with management. Mr Jones said he was unavailable for the next two weeks and this email went unanswered until 1 November 2018 when ECC responded that the General Manager did not believe another meeting was necessary;

•  Mr Jones said there was communication with Mr Greg Haylock that led him to be reassured that he would “sort things out”. Mr Jones said he had a close connection with the owners son Ben Haylock who was away at the time;

•  Mr Jones said out of respect for Ben Haylock he wanted to wait until he returned from vacation to speak to him about what happened to try to resolve it;

•  It was submitted that overall the combination of events warrant the granting of extension of time.

[12] On 1 March 2019 ECC filed a written submission and a statement from Mr Scott Collins, the Administration Manager.

[13] Mr Collins statement in summary said that Mr Jones had failed to satisfy the criteria for being granted an extension of time. The ECC submission included the following points,

•  Mr Jones sick leave and the handling of his apprenticeship was not a basis for the late filing of his application;

•  Mr Jones referred to difficulties in communicating with his support in the week following his termination; however there remained ample time to file the application within 21 days. Further ECC submitted that there were emails between Mr Jones and Ms Tamara Lette in the days immediately after the dismissal, which contradict the comments made regarding Mr Jones shutting himself off, and instead Mr Jones was actively involved;

•  Mr Jones’ request for an additional meeting was denied on 1 November 2018 which still left ample time to submit the application;

•  It was Mr Jones’ decision to wait until Ben Haylock returned and this does not warrant submitting a late application. Further ECC submits Mr Jones met with Ben Haylock prior to the application being filed and yet still failed to proceed with the application in a timely manner;

•  ECC submitted that Mr Jones’ concern for his father’s working relationship with the respondent if he submitted the application was not warranted, and that ECC was aware whilst the two were related there was no link between their work performance, and the respondent would not and cannot punish one employee for another employee's actions;

•  In regard to the claim that there was a delay in ECC providing timesheets as requested by Mr Jones, ECC says the requests were sent on 23/10/18 but not received until 24/10/18 as it was sent outside of business hours. ECC says there was a significant amount of timesheets requested and ECC expected to have a reasonable amount of time to prepare the information, of which there was a lot more than just the timesheets. ECC said the timesheets were provided on 2 November 2018, which left ample time to review and submit the application;

•  Finally, in response to the claim of Mr Jones that his mother, to whom he provided instructions to proceed with the application, experienced technical issues making the application online because she was in Europe, ECC said technical difficulties due to living outside the jurisdiction are not the responsibility of the FWC. ECC submitted that there are several methods to submit an application including by email, fax, post, in person at a Commission office or online using the Commission’s Online Lodgement Service (OLS), and if an application cannot be lodged by any of those means by phone. Therefore, whilst some difficulties were experienced with the online submission there were other options that would have allowed the submission to be made within the timeframe.

[14] The matter was listed for hearing on 7 March 2019 however was adjourned at the Applicant’s request on medical grounds. The matter was relisted for hearing on 24 April 2019 by telephone.

[15] At the hearing the witness statements of Mr Jakes Jones 1 Ms Sherie Jones2 and Mr Scott Collins3 were admitted into evidence uncontested.

Section 394(3)(a) – reason for the delay

[16] There are a range of different matters raised concerning the reason for the delay. Firstly, there was reliance placed on health conditions suffered by Mr Jones that it is claimed contributed to the reason for the delay. Mr Jones, who was 20 years of age at the relevant time had recently returned from sick leave just prior to his termination and provided a medical certificate stating the basis of his leave as anxiety and stress attributed to his work. At the time he was taking prescription medication for anxiety and depression and continues to be treated for these conditions. Mr Jones also suffers from dyslexia and appeared to rely on his mother, who was overseas at the relevant time, to assist him in completing paperwork to file the application. Besides the statement that Mr Jones suffered from dyslexia, there was no evidence that his condition made him incapable of filing the application without the assistance of his mother or someone else. He actively engaged in oral and written communication with various persons about his termination including representatives of ECC after the termination of his employment.

[17] There is also the circumstance of Mr Jones’ father being an employee of ECC and a concern harboured by Mr Jones for his father’s ongoing relationship with ECC if he decided to file for unfair dismissal. He ultimately decided to pursue the application despite these concerns after discussing them with Mr Ben Haylock the son of a part owner of ECC, and this decision was taken either five days or seven days before he filed the application as oral evidence was different to other material filed in relation to when he made the decision to proceed with the application.

[18] There is also the issue of Mr Jones having a personal relationship with Mr Ben Haylock and a decision taken to delay commencement of the claim because he wanted to seek assurances about his father’s position in ECC if he decided to pursue, the claim. His ability to speak to Mr Ben Haylock was delayed because Mr Haylock had been overseas, however again this conversation finally occurred several days before the time limit had expired.

[19] Further, Mr Jones’ mother Ms Sherie Dooly-Jones was in Europe where she resides in the last days before the application could be filed and at the time Mr Jones made the decision to request that she assist him by filing the application on his behalf.

[20] According to Ms Dooly-Jones, who was not challenged on these issues, she was in the United States in the first week of November 2018 when consideration was being given to preparing and filing an unfair dismissal application, and at that time she was having no difficulty accessing the Fair Work Commission website.

[21] However when her son later made the decision to request that she proceed to file the application on his behalf (on either 9 November 2019 or 11 November), she had returned to Europe where she was not able to access the website due to restrictions. Ms Jones said that due to the weekend and time difference she spoke to the Commission IT support the following week and attempted to use an IP proxy server to file the application and this was unsuccessful. Ms Dooly-Jones said after further discussions with the Commission IT support, she attempted from Austria, to use an UK IP address from a UK proxy server and was ultimately able to file the application.

[22] Ms Dooly-Jones said the problem she experienced at the time in accessing the FWC site from Austria has now been addressed and it is now possible to access the FWC website from her home in Europe.

[23] The evidence of Ms Dooly-Jones concerning the difficulties she was experiencing accessing the Commission website from Europe indicated that due to the weekend and time differences she did not commence discussions with Commission IT staff until sometime after Sunday 11 November. The last day the application could be filed within time was Tuesday 13 November. However the application was not filed until 7.37pm on Friday 16 November. Ms Dooly-Jones did not provide an adequate explanation as to why it took as long as it did to file the application after the time limit expired.

[24] On her own evidence Ms Dooly-Jones claims that she was speaking to Commission IT staff about restrictions on her access to the Commission website however gave no evidence about making other efforts to enquire about how else to file an application such as over the phone which is acceptable on day 21 if there is no other way the application can be filed.

[25] There was no evidence of consideration being given to any other alternative means of filing the application such as by email, fax or express post. I am also not satisfied from the evidence that Mr Jones was incapable of taking steps to file the application himself, or at least to assist his mother in her efforts to file the application by for example sourcing documents in Australia and emailing them to his mother overseas if he wanted her assistance in preparing the application, or the two of them working together to prepare the application and have it filed. The evidence concerning his mental health and his suffering dyslexia at the relevant time did not go so far as to make the case that he could not have done so. Mr Jones did not give any evidence about seeking assistance from anyone else including his father if he did need assistance at all. It appears he asked his mother to file the application from overseas and from that point it appears it became the sole responsibility of his mother to file the application from his perspective.
[26] I am not satisfied that any of the matters set out above, taken on their own constitute exceptional circumstances, and neither am I satisfied that all of the reasons given for delay taken together are exceptional circumstances tending to support an extension of time.

Section 394(3)(b) – whether the person first became aware of the dismissal after it had taken effect

[27] Mr Jones accepted he was made aware of his dismissal on 23 October 2018. This does not tend to support the case for the granting of an extension.

Section 394(3)(c) – any action taken by the person to dispute the dismissal

[28] On the evidence already described above I am satisfied Mr Jones took action to dispute his dismissal by seeking to initiate discussions about his termination with ECC and with Mr Haylock. This tends to support the case for the granting of an extension. However I also make the observation that the evidence indicates Mr Jones did not take sufficient responsibility in pursing steps to ensure the application was filed within time and relied too heavily on his mother to take responsibility for the filing of his application.

Section 394(3)(d) – prejudice to the employer

[29] The application was filed three days outside the time limit. ECC knew that Mr Jones was attempting to challenge the decision to dismiss him by seeking to engage in discussion with it in the weeks following his dismissal. This is not a matter that would weigh against granting an extension.

Section 394(3)(e) – the merits of the application

[30] I have considered the respective material filed and I am satisfied the case will involve competing contentions that will give rise to factual disputes that I should not give detailed consideration to. I am satisfied that it is appropriate to regard the consideration under s394(3)(e) as a neutral matter.

Section 394(3)(f) – fairness as between the person and other persons in a similar position

[31] There is no suggestion that this consideration is relevant in this case and I will consider it a neutral matter.

Conclusion

[32] I have taken into account each of the elements of s.394(3) of the Act. This matter does not give rise to exceptional circumstances that would warrant the granting an extension of time beyond the 21 day time limit. On that basis the application for an extension of time has been refused and the application is dismissed.

COMMISSIONER

Appearances:

Ms S. Dooly-Jones appearing on behalf of the Applicant.

Mr S. Collins appearing on behalf of the Respondent.

Hearing details:

Brisbane.

2018:

April 24

Final written submissions:

Printed by authority of the Commonwealth Government Printer

<PR705612>

 1   Exhibit 1 Statement of Jake Jones.

 2   Exhibit 2 Statement of Sherie Dooly-Jones.

 3   Exhibit 3 Statement of Scott Collins.