John Newburn v Instant Windscreens T/A Instant Windscreens & Tinting

[2015] FWC 3411

[2015] FWC 3411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Newburn
v
Instant Windscreens T/A Instant Windscreens & Tinting
(U2015/1000)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MAY 2015

Application for relief from unfair dismissal.

[1] Mr John Newburn alleged that the termination of his employment by Instant Windscreens on 17 February 2015 was unfair.

[2] His unfair dismissal application lodged on 17 March 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] On 9 March 2015, Mr Newburn electronically lodged a copy of his letter of dismissal with the Fair Work Commission and paid the filing fee. On the same day, he received an email from the Commission advising him that an application form had not been received, only his termination letter. He was told to lodge an application. On 10 March 2015, which was the last day on which Mr Newburn could file his application and be within time, he sent an email to the Commission in these terms: “That is all I got if its not acceptable a full refund of my money will be expected.” Having received the email, the Commission staff attempted to contact Mr Newburn to discuss the requirement to file an application form but he did not answer the phone and a voice message was left for him. A further voice message was left on his phone on 12 March 2015 but he did not contact the Commission.

[6] On 17 March 2015, a further email was sent to Mr Newburn advising that there had been multiple unsuccessful attempts to contact him by telephone.

[7] In the email he was told that he needed to complete an application form and was provided with a link to the form. He was told that he had 21 days from the date of his dismissal to lodge his application. Mr Newburn replied the same day lodging the application form and he said in his email “I did not see the application form I thought when payment was excepted [sic] then that was the application.”

[8] Mr Newburn explained that he was not able to answer his phone at work and he did not check his emails regularly. This does not explain why he ignored voicemail messages left for him.

[9] Mr Newburn provided no explanation as to why he took no action between 9 March and 17 March to lodge the application. I accept that Mr Newburn unsuccessfully tried to lodge an application within time. He was aware on 10 March 2015 that his application had not been successful. He did not contact the Commission to find out how he could rectify his error. Despite repeated attempts by the Commission to contact him, he was non responsive. While he may not have been able to answer his phone while at work he could have responded to the messages left for him but he did not.

[10] Mr Newburn does not have a reasonable explanation for the whole of the delay. This weighs against extending time.

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

[11] Mr Newburn was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against extending time.

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

[12] Mr Newburn said he disputed the matters in the letter of dismissal at the time he received it. I consider this to be a neutral criterion.

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

[13] There was no evidence of any prejudice to the employer. This weighs in favour of extending time.

(e) the merits of the application;

[14] Instant Windscreens submitted thatMr Newburn had been verbally abusive towards his manager and other workers and had refused to work as directed.

[15] Mr Newburn denied the allegations.

[16] 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.

[17] No submissions were made on this criterion and I consider it to be neutral.

Conclusion

[18] I am not satisfied that there are extenuating circumstances. This is not a case where the merits of the case outweigh the lack of a reasonable explanation for the whole of the delay. Mr Newburn’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J Newburn on his own behalf.

Mr J Anderson and Mr B McGrath on behalf of the Respondent.

Hearing details:

2015.

Hearing via telephone:

18 May.

 1   [2011] FWAFB 975.

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