James Eastley v Inghams Enterprises Pty Ltd

[2016] FWC 25

[2016] FWC 25

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Eastley
v
Inghams Enterprises Pty Ltd
(U2015/12514)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 JANUARY 2016

Application for relief from unfair dismissal.

[1] Mr James Eastley alleged that the termination of his employment by Inghams Enterprises Pty Limited was unfair.

[2] Mr Eastley said that his dismissal took effect on 3 May 2015 but he was not told that his employment was terminated until 14 October 2015. On 29 October 2015, Mr Eastley lodged his employment separation certificate with the Commission via efiling. Mr Eastley did not lodge a form F2 until 2 November 2015.

[3] If his dismissal took effect on 3 May 2015, which was the last day he worked, his unfair dismissal application was not made within 21 days of the date of the dismissal.

[4] Inghams advised that it did not intend objecting to the extension of time being granted and advised that it would not be submitting any evidence. As a result, I determined that as there was no factual dispute between the parties the matter would be determined on the papers.

[5] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied, that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

(a) the reason for the delay;

[7] Mr Eastley last worked on 5 May 2015. On 1 May 2015, Mr Eastley was advised that opportunities for casual labour were becoming increasingly difficult. On 3 June 2015, he was advised that he could seek the assistance of an employment service to obtain additional work, but he was advised that his employment had not been terminated. Mr Eastley made inquiries about work in October 2015 and was then advised that his employment had been terminated.

[8] I am, for the purpose of this extension of time application, prepared to accept that Mr Eastley’s employment ended on 5 May 2015. Mr Eastley has provided a reasonable explanation for the delay in lodging his application, as he was not formally told of his dismissal until 14 October 2015.

[9] This weighs in favour of a finding that there are exceptional circumstances.

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

[10] Mr Eastley was not informed of his dismissal until after it took effect. This weighs in favour of a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[11] Mr Eastley did not take any action to dispute his dismissal apart from seeking contact details of senior management. This weighs against a finding that there are exceptional circumstances.

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

[12] There was no evidence or any submissions put by Inghams that it would suffer any prejudice if an extension of time were granted. Inghams did not oppose the application. This weighs in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[13] Mr Eastley worked regular hours until 5 May 2015. He said that his hours were reduced after he made complaints about events at work. He said he was unable to obtain any clarification about his hours of work. An email sent to Mr Eastley advised him that opportunities for casual work were becoming difficult but did not advise him that his employment was terminated.

[14] Inghams did not express any view about the merits of Mr Eastley claim that his dismissal was unfair. If, as Mr Eastley contends, he was a regular casual employee whose employment was terminated without notice, then his claim that he was unfairly dismissed has merit. This weighs in favour of a finding that there are exceptional circumstances.

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

[15] No relevant submissions were made in relation to this criterion. I consider it to be a neutral consideration.

Conclusion

[16] Mr Eastley has provided a reasonable explanation for the delay in lodging his application and on the material before the Commission his claim to be unfairly dismissed is not without merit. I do not consider that his failure to dispute his dismissal is sufficient to outweigh the positive findings made above. Therefore, I find that there are exceptional circumstances and I will extend the time for Mr Eastley to make his application to 2 November 2015. An order to that effect will be issued with this decision and Mr Eastley’s application will be referred to conciliation.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975.

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