Jason Conran v Dale Goldsworthy T/A Northline Transport
[2013] FWC 2982
•5 JULY 2013
[2013] FWC 2982 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Conran
v
Dale Goldsworthy T/A Northline Transport
(U2013/6534)
COMMISSIONER LEE | MELBOURNE, 5 JULY 2013 |
Application for unfair dismissal remedy - extension of time - Fair Work Act 2009 - s.394.
[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Jason Conran (the Applicant) claims that he was unfairly dismissed from his employment with Dale Goldsworthy T/A Northline Transport (the Respondent).
[2] The application was made by the Applicant on 15 February 2013. The Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy, lodged by the Respondent on 1 March 2013, objected to the application on the basis that it had been made outside the statutory time limit.
[3] The Applicant asserts that he was notified of his dismissal on 8 January 2013, but that the dismissal took effect on 30 January 2013. The Respondent asserts that the Applicant was dismissed on, and the dismissal took effect on, 8 January 2013.
[4] The matter was allocated to me for jurisdictional determination. The matter was listed for Jurisdictional Conference/Hearing (Extension of Time) on 9 May 2013 in Darwin. The matter was dealt with by way of determinative conference. The Applicant appeared on his own behalf. Mr A Jones, Human Resources Manager, appeared on behalf of the Respondent with Mr D Goldsworthy.
The Law to be applied
[5] The Act provides that;
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.”
[6] Should I find the dismissal took effect on 8 January 2013, the application will have been made out of time, and for the matter to proceed, a further period under section 394(3) of the Act must be allowed.
[7] If I find the dismissal took effect on 30 January 2013, the application is made within time and no extension under section 394(3) of the Act is required.
Factual background to the dismissal
[8] The Applicant was employed by the Respondent in January 2012. The Applicant was employed as a supervisor with unloading duties for the Respondent’s business in Darwin. The Applicant reported to Operations Manager Mr Brett Kimpton.
[9] The Applicant contends that sometime in 2012, Mr. Kimpton implemented a 12:01am Monday morning start for nightshift work and reduced the amount of employees who worked this Sunday-Monday shift. The Applicant asserts that he approached Mr Kimpton on a number of occasions regarding the Sunday-Monday shift, staff numbers and expectations of the company as to the volume of freight movement to be completed within the shift.1
[10] In November 2012, the Applicant asserts that he asked management whether employees could start early on Sunday night, and that (so as to avoid overtime payments), on Tuesday and Wednesdays (quieter nights of the week) employees could have 3 hours added to their timecards.
[11] The Applicant met with Mr Kimpton, Mr Shayne Holmes (dayshift leading hand yard manager) and Mr Goldsworthy that month, where the Respondent asserts that the Applicant was advised that under “no circumstances were any employees to commence the “Sunday-Monday” night shift before 00.01 hours on the Monday.”2 The Applicant concedes in his written submission that he had asked if the employees on that shift could start early and on the quiet nights add 3 hours on to the time cards and that “this was declined”. However I note the Applicant gave contradictory evidence on this point in the hearing claiming that he “disputed 100%” that he was directed not to change the cards. 3
[12] The Applicant asserts that following the meeting he refused to allow employees to add 3 hours to their timecards. However in December “with freight increasing and blokes threatening to leave and the fact we were now to unload a 4 trailer quad from Brisbane the instant it arrived that...trying to unload every priority unit made a midnight start impossible.”4 The Applicant asserts that “after a meeting with niteshift (sic) staff...with the thought of doing [the Respondent business] proud and keeping customers happy, keeping my staff safe and happy and with the [Respondent’s] best interests in mind I started the Sunday niteshift (sic) at 9pm.” 5
[13] It appears the Respondent sought an explanation for the time card changes from the Applicant through correspondence which was not tendered in evidence for this matter. On 7 January 2013, the Applicant attended a meeting with Mr Kimpton and Mr Holmes where the Applicant claims it was agreed that he would be issued a written warning for altering the time cards.
[14] On 8 January 2013, when attending for morning shift, the Applicant was advised by Mr Holmes that he had been terminated. The same day, Mr Kimpton issued a termination letter to the Applicant. The termination letter is dated 7 January 2013 and is headed: “Termination of Employment Serious Misconduct”. It concludes with the paragraph, “As a result your employment with Northline is being terminated on the grounds of Serious Misconduct. Your last day of employment with Northline is 8 January 2013 with no notice period.” 6
[15] It is then alleged by the Applicant that he approached Mr Goldsworthy, a more senior representative at the Respondent, with the termination letter and sought an explanation. It is alleged that Mr Goldsworthy stated that he would “look into the matter whilst the [Applicant] took annual leave commencing that day.”7
Evidence
[16] It is clear on accounts given from both parties that the Applicant received a letter of termination, signed by Mr Kimpton on 8 January 2013. The letter was annexed to the Applicant’s Form F2 - Application for Unfair Dismissal Remedy and is entitled “Termination of Employment - Serious Misconduct”.
[17] In his submissions, the Applicant stated that;
“MR Dale Goldsworthy basically said after looking into the situation a bit more, that my termination was a error [and] he also said to me to go on my holidays keep in touch with him because he would be trying to resolve the issue,,,go on holidays he said don’t let this affect your time off....if i wasn’t basically assume of my job back this unfair dismissal would have been lodged in the first day or two...”8
[18] The Respondent asserts that;
“Immediately post the termination of [the Applicant] [Mr] Kimpton advised our HR department that Jason had made confronting suggestions to the effect that he would “assist me in life and sort it out on the grass out the front”.
An hour or so after this Jason then approached Dale Goldsworthy Branch Manager with the termination letter in hand and advised that he had not been offered a support person. [Mr Goldsworthy] at the time was aware that [the Applicant] had made confronting accusatory remarks against another employee and also the comments that [the Applicant] had made to Brett Kimpton. With the sole purpose of diffusing the situation, [Mr Goldsworthy] advised [the Applicant] that he would look into the matter whilst Jason took annual leave commencing that day”.9
[19] During the determinative conference before me, there was further evidence relating to the 8 January 2013 conversation between Mr. Goldsworthy and Mr. Conran. The evidence from the Applicant was that Mr. Goldsworthy said, “maybe it wasn’t the right decision...Just relax. Go on your holidays. Enjoy them. Come back and see me and we’ll have the situation rectified”. 10 When asked to restate the evidence, the Applicant said that Mr. Goldsworthy said, “we’ll probably have the situation rectified”.11. In his final summary, the Applicant claimed that he was “assured” of his position back.12 The Applicant also claimed that he had conversations with Mr. Holmes while he was on holidays which led him to believe that he would have his position back.13
[20] The evidence of Mr. Goldsworthy as to what occurred in the conversation was as follows:
“The discussion was that I would investigate the fact whether he was given a support person and then seek advice as to whether that was something that would determine right away whether the termination was null and void, so that was something that I couldn’t answer then and there so that’s basically the outcome of the conversation.” 14
[21] Mr. Goldsworthy also claims that he “didn’t discuss reinstatement” 15 with the Applicant and that the “main discussion was around the support person and I guess I was defusing a situation I didn’t want to occur. I didn’t want it to get heated and out of control”.16 When asked by me about what Mr. Goldsworthy said to the Applicant about what he would do once he got advice about the support person, Mr Goldsworthy replied: “When he came back from holidays we would let him know”.17
[22] As to the allegations of threats of violence made on 8 January 2013, the evidence of the Applicant was that in response to receiving the termination letter from Mr Kimpton, and on being asked by Mr Kimpton to come outside, the Applicant said “Yeah I’ll come outside and chase him around and knock him out. If I wasn’t flying out of Darwin [that day] I would go in there and knock him clean out”. 18 The Applicant stated that anyone in his situation would be angry and asked “[n]ow in that situation, a normal bloke, what is he going to do?”.19 He also claimed that he had a “few words” with Mr. Kimpton on the morning after the termination but that was “...a natural thing to do.”20
Consideration - date of effect of termination
[23] The letter of termination handed to the Applicant on 8 January 2013 is clear on its terms that the Applicant has been terminated for serious misconduct. It clearly states that the Applicant’s “last day of employment with [the Respondent] is 8 January 2013”.21 The Applicant conceded that he was paid out his entitlements whilst on the holiday he commenced immediately after the termination. 22
[24] The Applicant conceded during the hearing that he knew he was dismissed on on 8 January 2013 on the basis of the clear terms of the letter of termination. 23 However, this has to be considered against the undertaking from Mr. Goldsworthy to investigate the issue of the support person. The Applicant was inconsistent and contradictory in his evidence of the 8 January 2013 conversation. Mr. Goldsworthy’s evidence was to the effect that he held out the prospect that the dismissal may be “null and void”.24
[25] On balance, I prefer Mr. Goldsworthy’s version of events as to what happened on 8 January 2013. I do not think that there was a commitment made to reinstate the Applicant. Rather there was the holding open of the possibility of reinstatement, depending on the outcome of his investigation as to the impact of a lack of a support person. However, the raising of that possibility does not change the fact that the termination of employment clearly occurred on 8 January 2013.
[26] As I find that the termination took effect on 8 January 2013. The application was not made by the Applicant within 21 days of that date. As the application was made on the 15 February 2013, it was in fact made 17 days out of time. For the matter to proceed, the Applicant requires an extension of time pursuant to section 394(3) of the Act.
Consideration - exceptional circumstances
[27] Section 394(3) of the Act provides that the Fair Work Commission may allow a further period for the application to be made if the Commission is satisfied there are exceptional circumstances taking into account the criteria set out in s.394(3)(a) - (f) of the Act.
[28] The term exceptional circumstances was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd25, where the Full Bench stated that;
“[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.
...
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
[29] While Cheyne Leanne Nulty v Blue Star Group Pty Ltd considered the term exceptional circumstances in relation to section 365 of the Act, the discussion is applicable to the term in section 394. I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.
[30] I will deal with each criterion of section 394(3) of the Act in turn.
(a) the reason for the delay;
[31] The Applicant claims he went on holidays believing he would be reinstated upon his return to work from holidays. The Applicant claims he believed this up until the day he returned to the workplace on 29 January 2013. His belief was based on the conversation with Mr. Goldswrothy on 8 January 2013 and the conversations he claimed to have with Mr. Holmes whilst he was on holidays.
[32] The Applicant further claims that once he had confirmed he would not be reinstated (which he claims occurred in the conversation with Dale Goldsworthy on 30 January 2013), he “knew it was D-Day [and] the impression I got it was three weeks from that date.” (meaning that he believed he had 3 weeks to lodge his application from the 30 January 2013) The Applicant also stated at the hearing that the reason that he took a further 16 days from the time that he knew he would not be reinstated was that “...lodging the application was not an easy decision to make... because [he knew] that friendships were going to be strained”. 26
[33] It is clear on the evidence that Mr. Goldsworthy did give an undertaking to consider whether the lack of support person rendered the dismissal “null and void”. 27 However, as already stated, I prefer Mr. Goldsworthy’s version of events generally on what happened on 8 January 2013. The evidence of the Applicant as to what occurred in the conversation was inconsistent and contradictory. As stated above, it is most likely that there was the holding open, by Mr. Goldsworthy, of the possibility of reinstatement depending on the outcome of his investigation. I also think it likely that Mr. Goldsworthy may have been partly motivated in his commitments to look into the matter by his desire to defuse the situation given the admissions of the Applicant that he made threats against other staff and Mr. Goldsworthy being aware of that fact.
[34] However, the holding open of the possibility of reinstatement, no matter what the motivation of Mr. Goldsworthy, certainly is a clear and cogent reason for the delay in filing the application by the Applicant, at least up until the 30 January 2013. What is not clear is the reason for the further delay in filing the application for another 16 days, the Applicant having become aware that there was no prospect of reinstatement.
[35] The evidence of the Applicant that it wasn’t easy as friendships were going to be strained was not convincing, nor is it a factor that could be considered as exceptional. While the Applicant claims he thought he had 21 days from 30 January 2013, he was wrong to think so. He was aware he was dismissed on 8 January 2013. However, he had formed the view that there was a possibility he may be reinstated. Having been informed that he would not be reinstated on 30 January 2013 did not mean that he had three weeks from that time to lodge the application.
(b) whether the person first became aware of the dismissal after it had taken effect
[36] The Applicant conceded that he became aware of the dismissal upon receipt of the letter of termination of 8 January 2013. 28
(c) any action taken by the person to dispute the dismissal;
[37] It is clear that the Applicant took action to dispute the dismissal on the day he received the letter of termination. The action included approaching Mr. Goldsworthy and contesting the fairness of the dismissal.
[38] The action to dispute the dismissal also included the making of threats to other managers. Such actions are not reasonable. The suggestion by the Applicant that his actions in this regard are normal and natural are worthy of condemnation. A level of anger may well be normal and natural but threats of violence are not.
[39] Overall, the actions taken to dispute the dismissal by way of securing a commitment from Mr. Goldsworthy to reconsider the dismissal weighs in favour of granting the extension. To be clear, threats of violence to other staff does not.
(d) prejudice to the employer (including prejudice caused by the delay)
[40] The Applicant claims there would be no prejudice to the Respondent.29 The Respondent claims that it would be prejudiced. The Respondent bases this on its belief that the “unfair dismissal claim is not…a very strong case…[and] spending…time on this matter [is] an abuse of time”.30 Overall, this is a neutral consideration.
(e) the merits of the application
[41] The Respondent was clear in its written submission that the Applicant’s employment was terminated on the grounds of serious misconduct based on it being found that he had intentionally falsified time card records to cover up his direct failure to comply with a management directive. The Respondent submitted that the Applicant was not offered a support person but that at no stage he requested a support person.
[42] There is not a requirement for the employer to supply or offer a support person. 31 The Respondent contends that the dismissal of the Applicant meets all the requirements of a fair dismissal.32
[43] The Applicant agrees he didn’t follow the direction of management. It is possible arbitration on the merits of the case may determine the direction was not a reasonable one, depending on the evidence about the health and safety and workload issues the Applicant refers to. However, overall I consider that there is little merit to the application in circumstances where the Applicant has admitted to being directed to not start staff early, has admitted that he did so and admitted to altering the time cards. The Applicant’s description of the health and safety concerns was not convincing.
(f) fairness as between the person and other persons in a similar position.
[44] The Applicant’s submission on this point was that this dismissal is unjust and unfair and he is an average Australian and that he has not done anything wrong. 33 The Respondent submitted that a person dismissed may well go to a senior manager to challenge the dismissal but that does not support an extension of time. Overall, this factor is a neutral consideration.
Conclusion
[45] As the dismissal took effect on 8 January 2013, the application should have been lodged on 29 January 2013 to be held to be lodged within time. As described above, I have found that the Applicant held a belief that he may be reinstated. I have found the Applicant became aware that he was not reinstated on 30 January 2013. Had the application been filed on or close to 30 January 2013, considering the criteria and evidence above, it is likely I would have been satisfied that there were exceptional circumstances present to allow for an extension of time.
[46] However, there was a further period of delay of 16 days (from 30 January 2013) before the application was filed by the Applicant. The reasons given for this delay were far from exceptional. Overall, I am not satisfied there is an acceptable reason for the delay, that could be considered exceptional, for the period from the 30 January 2013 to 15 February 2013. This weighs against a determination that there are exceptional circumstances.
[47] There was clear action taken to dispute the dismissal with the Respondent on the date of the dismissal. However, the threats of violence to other staff as part of that action are objectionable. There was no action taken by the Applicant to dispute the dismissal after 30 January 2013 up until the lodging of the application on 15 February 2013.
[48] There is little in the way of prejudice to the employer should I grant the extension and this is a neutral consideration.
[49] As discussed above, there is not strong merit to the application in circumstances where on the Applicant’s own evidence he was instructed not to alter the start times of the staff, that he did so and then altered the time cards in breach of a direction of management to not do so. The argument that the actions were taken by the Applicant were necessary because of health and safety concerns was not convincing, but it is neither possible nor necessary to reach a concluded view on the merits. Overall, I have determined there is little merit to the application.
[50] There is no particular issue relevant to the consideration of fairness between other persons in a like position.
[51] Having considered all of the circumstances, I am not satisfied that there are exceptional circumstances for the delay. As the application was made out of the statutory time period, the application is dismissed. An order dismissing the application will be issued concurrently with this decision.
COMMISSIONER
Appearances:
A Jones on behalf of the Respondent
J Conran representing himself
Hearing details:
2013
Darwin
May 13
1 Mr Jason Conran written statement attached for Form F2 - Application for unfair dismissal remedy, filed 15 February 2013.
2 Letter from Mr Brett Kimpton to Jason Conran dated 7 January 2013
3 PN 58
4 Mr Jason Conran written statement attached for Form F2 - Application for unfair dismissal remedy, filed 15 February 2013.
5 Ibid.
6 Letter from Mr Brett Kimpton to Jason Conran dated 7 January 2013
7 Submissions of the Respondent, filed 19 April 2013, [1].
8 Submissions of the Applicant, filed 2 April 2013
9 Submissions of the Respondent, filed 19 April 2013, [1]
10 PN25
11 PN26
12 PN192
13 PN26
14 PN117
15 PN123
16 PN123
17 PN133
18 PN75
19 PN74
20 PN192
21 Letter from Mr Brett Kimpton to Jason Conran dated 7 January 2013
22 PN35 - 37
23 PN31
24 PN117
25 [2011] FWAFB 975
26 PN28
27 PN117
28 PN31
29 PN51
30 PN184-186
31 See the Explanatory Memorandum to the Fair Work Bill 2008, para 1542
32 Submissions of the Respondent, filed 19 April 2013, [3]
33 PN80
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