Jason Davidson v Glass Surface Coatings T/A G.S.C

[2016] FWC 4148

[2016] FWC 4148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Davidson
v
Glass Surface Coatings T/A G.S.C
(U2016/7249)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr Jason Davidson alleged that the termination of his employment by Glass Surface Coatings (“GSC”) was unfair. GSC denies the allegation.

[2] Given his dismissal took effect on 8 April 2016, his unfair dismissal application lodged on 27 May 2016 was not made within 21 days of the date the dismissal took effect.

[3] Direction was issued to the parties to file material but Mr Davidson did not file any material. GSC did file an employer response, an outline of argument and a witness statement of Mr Brent Scotchmer.

[4] Mr Davidson was sent a letter on 1 June 2016 setting out the purpose of the hearing and was advised that if he did not file material, I would consider the application on the material before me without further notice to him.

[5] Mr Davidson contacted my chambers on 15 June 2016. He was aware that the matter was to be heard on 22 June 2016. He was not sure if he wanted to proceed and he was advised that if he did not wish to proceed he should advise my chambers otherwise he should file his material. Mr Davidson did not file any material and he did not contact my chambers prior to the hearing and he did not answer his telephone when contacted for the hearing.

[6] As I was satisfied that Mr Davidson was aware of the hearing and he had been put on notice that a decision would be made without further reference to him, the hearing continued and Mr Scotchmer gave sworn evidence. At the conclusion of the hearing, I determined to dismiss Mr Davidson’s application and these are my reasons.

[7] 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.

[8] 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;

[9] Mr Davidson, in his application, said he had not made his application within 21 days because he had no income and was unaware that he could seek a waiver. He also said that he was suffering from a severe medical disorder and had not been able to afford his medications. Further he had dental pain. He also said that he needed to find a witness to speak on his behalf about the events.

[10] In the correspondence sent by my chambers to Mr Davidson, he was advised that if his medical condition prevented him from lodging his application in time he needed to provide a medical certificate that explained how his condition prevented him from lodging his application. He did not do so and nor did he provide any sworn evidence about his condition.

[11] That Mr Davidson was unaware that he could apply for a waiver is not unusual. However the Commission website, which advises applicants of the fees payable, also advises that an applicant can apply for a waiver.

[12] I am not satisfied that Mr Davidson has provided a reasonable explanation for the delay.

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

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

[14] Mr Davidson was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[15] There is no evidence of any action taken by Mr Davidson to dispute the dismissal. This weighs against a finding that there are exceptional circumstances.

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

[16] There was no evidence or submission about any prejudice to GSC. While a lack of prejudice is an insufficient basis to grant an extension of time a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[17] In the matter of Kornicki v Telstra-Network Technology Group 2 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."  3

[18] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 4 

[19] Mr Scotchmer gave evidence that he did not dismiss Mr Davidson, he merely reduced his hours. It was his evidence that this occurred because there was a downturn in work and because of Mr Davidson’s behavioral issues and confrontations with staff.

[20] I am satisfied on the basis of evidence before me that that Mr Davidson’s claim is weak and this weighs against a finding of exceptional circumstances.

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

[21] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5  considered this criterion and said "cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.6

[22] There were no submissions or evidence in relation to this criterion and I find it to be a neutral consideration.

Conclusion

[23] I am not satisfied that there are exceptional circumstances. Mr Davidson has not provided a reasonable explanation for the delay and only a lack of prejudice weighs in favour of a finding of exceptional circumstances and that by itself is not a sufficient basis for a finding of exceptional circumstances. Mr Davidson’s application for an extension of time is therefore dismissed and so is his application for an unfair dismissal remedy.

DEPUTY PRESIDENT

Appearances:

No appearance by Applicant.

B. Scotchmer for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

22 June.

 1   [2011] FWAFB 975.

 2   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 3   Ibid.

 4   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 5   [2015] FWC 8885.

 6 Ibid at [29].

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