John Pocock v Maxitrans Australia

[2016] FWC 3730

[2016] FWC 3730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Pocock
v
Maxitrans Australia
(U2016/2207)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr John Pocock alleges that the termination of his employment by Maxitrans Australia Pty Ltd was unfair. Maxitrans denies the allegation.

[2] Given his dismissal took effect on 18 April 2016 his unfair dismissal application lodged on 11 May 2016 was not made within 21 days of the date the dismissal took effect.

[3] The 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:

“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]

The reason for the delay

[5] Mr Pocock said he found lodging the forms to be very difficult given his lack of reading and writing skills. Mr Pocock said he did not use computers and he gets confused. He said he had to have support completing the forms and he was not aware that he had 21 days rather than 21 business days to lodge his application.

[6] When asked why he had signed the form on 5 May 2016 but not provided it to the Commission until 11 May 2016 he said he was not aware that he could have posted his application.

[7] Mr Robert Bethune, the AMWU delegate, had provided assistance to Mr Pocock during the dismissal process and he gave evidence that he spoke to Mr Pocock a couple of times after he was dismissed but Mr Pocock did not ask for his assistance.

[8] Maxitrans submitted that during this time Mr Pocock was able to lodge a workers compensation claim. When asked about this Mr Pocock said he was able to get this form from the post office and it did not require him to download the form.

[9] Further Maxitrans submitted that Mr Pocock was aware of the Fair Work Commission because he referred to it during the dismissal meeting.

[10] There was no challenge to Mr Pocock’s evidence that he lacked reading, writing and computer skills. I accept that parties require such skills to successfully navigate the Commission’s website. I also accept that this process can be daunting. However Mr Pocock managed to download and complete the form by 5 May 2016. The form he downloaded makes it clear in bold that the form must be lodged within 21 calendar days and that it can be done by post, fax, email or in person.

[11] It is not unusual for applicants to be unaware of the 21 day time limit and the methods for lodging applications. However I find that, given Mr Pocock’s unchallenged lack of literacy and computer skills, he had a reasonable explanation for the delay in lodging his application.

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

Whether the person first became aware of the dismissal after it had taken effect

[13] Mr Pocock 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.

Any action taken by the person to dispute the dismissal;

[14] Maxitrans gave evidence that Mr Pocock told them at the dismissal meeting that he would see them at the Commission. Mr Pocock said he told them he would be contacting the Commission. Mr Pocock took no other steps to dispute the dismissal. Maxitrans was on notice that Mr Pocock was disputing his dismissal and would take it further. This weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[15] There was no evidence or submission that Maxitrans would suffer any prejudice. 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.

The merits of the application

[16] In the matter of Kornicki v Telstra-Network Technology Group 2the 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

[17] 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

[18] Mr Pocock was dismissed for continued absences from work. Mr Pocock had been given a warning about his continued absences in March 2016 as he had been absent for ten weeks in the previous 12 months. At this time Mr Pocock gave a commitment to improve. Mr Pocock then had further unplanned absences and Maxitrans decided to terminate his employment.

[19] Mr Pocock gave evidence that his subsequent absences from work were due to a work related injury.

[20] Mr Pocock accepted that he had been absent but submitted that these were genuine absences.

[21] Maxitrans submitted that it had afforded Mr Pocock procedural fairness and he was dismissed with four weeks pay in lieu of notice which was more than his entitlements.

[22] I am not able to make a final assessment of the merits of the case because there are factual disputes between the parties. I find however that Mr Pocock’s claim is not unarguable.

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

Fairness as between the person and other persons in a similar position

[24] 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

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

Conclusion

[26] I am satisfied that there are exceptional circumstances. Mr Pocock faced particular disabilities in lodging his application on time which meant he had a reasonable explanation for the delay in lodging his application. His case is not unanswerable and Maxitrans was on notice that he would be taking the matter further. I am therefore prepared to exercise my discretion and grant Mr Pocock an extension of time to lodge his application until 11 May 2016. The application will now be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

Mr John Pocock and Mr Bob Bethune for the Applicant.

Ms Linda Craven for the Respondent.

Hearing details:

2016.

Melbourne (by telephone);

June 7.

 1   [2011] FWAFB 975 at [13].

 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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