James Shearer v Lynford motors

[2016] FWC 159

[2016] FWC 159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Shearer
v
Lynford motors
(U2015/16894)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] Mr James Shearer alleged that the termination of his employment by Lynford Motors on 26 November 2015 was unfair.

[2] His unfair dismissal application lodged on 18 December 2015 was not made within 21 days of the date of the dismissal.

[3] 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.

[4] 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;

[5] Mr Shearer explained that he was unaware of the process for making an unfair dismissal application and it was only after a friend told him that he lodged his application. Mr Shearer said he was told about unfair dismissal about 20 days after his dismissal. Mr Shearer gave evidence that he had a smart phone but his phone was cut off after he was dismissed because he could not pay the bill. He was not clear about when this occurred. It was submitted on his behalf that Mr Shearer was only 18 years old and that he did not know he could lodge an unfair dismissal application. It was said he couldn’t know what he didn’t know. When I put to his representative that he could have made inquiries, it was put that his age and lack of immediate internet access should be taken into account.

[6] Lynford submitted that mere ignorance of the statutory time limit is not an exceptional circumstance. It was put that even if Mr Shearer’s mobile phone had been disconnected he could have accessed the internet at the library. It was submitted that persons of Mr Shearer’s age are very familiar with using the internet to access information. However Mr Shearer was not questioned about his familiarity with using the internet to access information.

[7] It is clear that ignorance of unfair dismissal rights and the 21 day time limit is not by itself unusual. Mr Shearer’s unfair dismissal claim was lodged one day late. Once he became aware that he could lodge an application he did not unduly delay making his application. His evidence that his phone was disconnected and that he did not have immediate internet access was not challenged by Lynford.

[8] I am satisfied that Mr Shearer has a reasonable explanation for the delay. I do consider his age is a relevant factor as was his evidence that he did not have ready access to the internet after his dismissal. He acted promptly once he was advised that he could lodge this application.

[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 Shearer was aware of the dismissal when it took effect and he had the full 21 days to lodge his application.

[11] This weighs against a finding that there are exceptional circumstances.

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

[12] Mr Shearer said he said that the dismissal was unfair but apart from this he did not dispute the dismissal.

[13] This weighs against a finding that there are exceptional circumstances.

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

[14] Lynford said that it would suffer prejudice if an extension of time were granted because it would be required to expend resources defending the claim. The prejudice suffered by Lynford is not sufficient to weigh against a finding that there are exceptional circumstances.

(e) the merits of the application;

[15] Lynford submitted that it had a valid reason for the termination of Mr Shearer’s employment and he had been afforded procedural fairness. Lynford submitted that Mr Shearer had been warned about unsatisfactory performance.

[16] Mr Shearer submitted that he had only been an apprentice for two years and was still learning. He said Lynford should have put in place a process to check his work prior to the vehicle being returned to the customer. He does not deny that he made a mistake. He said he was not given any warning of his termination. Mr Shearer referred to advice he had received about the supervision he should have received. I have not had regard to this submission as there was no evidence called by the person providing the advice.

[17] Mr Shearer said the dismissal was harsh because he had just financed a car through Lynford and now had a large debt.

[18] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[19] Lynford submitted that it would be unfair to other applicants whose claims had greater merit and who had clearer reasons explaining the delay if Mr Shearer were granted an extension of time. Mr Shearer made no submissions on this criterion. I do not consider that this criterion is intended to apply in the manner submitted by Lynford. I am not satisfied that there are any other persons in the same position as Mr Shearer and I consider this criterion to be neutral.

Conclusion

[20] I am satisfied that there are exceptional circumstances. I am satisfied that Mr Shearer had a reasonable explanation for the delay in lodging his application. I do not consider the other criteria are such as to outweigh his reasonable explanation for the delay. In those circumstances I will exercise my discretion to extend the time for lodging the application. An order extending the time for Mr Shearer to lodge his application to 18 December 2015 will be issued with this decision and his application will be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

K. Bain for the Applicant.

Y. Sheriff for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

17 February.

<Price code A, PR575956>

 1   [2011] FWAFB 975

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