John Spencer v G R Harrison Pty Ltd ATF the Harrison Family Trust T/A Harrison Buses

[2014] FWC 9210

[2014] FWC 9210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Spencer
v
G R Harrison Pty Ltd ATF The Harrison Family Trust T/A Harrison Buses
(U2014/14674)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 DECEMBER 2014

Application for relief from unfair dismissal.

[1] Mr John Spencer alleged that the termination of his employment G R Harrison Pty Ltd ATF The Harrison Family Trust T/A Harrison Buses (Harrison Buses)was unfair.

[2] Mr Spencer’s employment as a school bus driver ended on 26 September 2014 and his application was lodged on 29 October 2014. The application was therefore not made within 21 days of the date of the dismissal.

[3] Mr Spencer was provided with information about the criteria used by the Fair Work Commission (the Commission) in deciding whether to extend time and invited to provide a statement supporting his application for an extension of time. Having received Mr Spencer’s response I determined to hold a hearing/conference to determine the application.

[4] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. 1 In deciding if there are exceptional circumstances the Commission must have regard to the following criteria.

The reason for the delay

[5] In his application Mr Spencer explained that he had not lodged the application within 21 days as he was not aware that as he had 18 months service he could pursue an unfair dismissal claim until he contacted the Commission on 28 October 2014.

[6] Mr Spencer gave evidence that he contacted the Transport Workers Union (TWU) after his employment was terminated. He was unhappy with the lack of response from the TWU and after 2-3 weeks he contacted another person at the TWU. Mr Spencer was not able to give clear evidence about what, if anything, he asked the TWU to do. At its highest, Mr Spencer asked the TWU to sort the dismissal out. There is evidence that the TWU contacted Mr Harrison from Harrison Buses to discuss the termination. So much is obvious from Mr Spencer’s letter to Mr Harrison on 12 October 2014. Mr Spencer did not give evidence that he instructed the TWU to file an unfair dismissal application.

[7] Mr Spencer’s evidence in this matter was confusing. He advised that he had had a previous unfair dismissal application and that he was aware of the time limits. He subsequently resiled from this evidence.

[8] Mr Spencer’s explanation for the delay at its highest is that he was unaware of the time limit for making a claim. It cannot be said that he was unaware of his unfair dismissal rights as he had made an earlier application. There is insufficient evidence before me to find that Mr Spencer asked the TWU to file an unfair dismissal claim and that the TWU did not do as instructed. I am unable to conclude that there was representational error. Ignorance of the time limit does not weigh in favour of a finding of exceptional circumstances. Further given Mr Spencer’s statements at the hearing, I find that he was aware of a time limit albeit he thought he had 14 days to file his application not 21 days.

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

[9] Mr Spencer was aware of the dismissal on the day it took effect as he was handed a letter of termination. He had the full 21 days to lodge an application. This weighs against a finding of exceptional circumstances.

Any action taken by Mr Spencer to dispute the dismissal

[10] Mr Spencer contacted the TWU and wrote a letter to Mr Harrison on 12 October 2014 disputing the fairness of his dismissal. The TWU also contacted Mr Harrison on behalf of Mr Spencer. This weighs in favour of a finding of exceptional circumstances.

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

[11] Mr Harrison did not give any evidence of any prejudice to Harrison Buses if the extension of time were granted. This weighs against a finding of exceptional circumstances.

The merits of the application

[12] Harrison Buses is a small business. Mr Spencer said the termination of his employment was unfair. He was summarily dismissed and he had never been warned about any issues about his performance. Mr Spencer submitted that he should have received two warnings before he was dismissed. He submitted that he had given Mr Harrison notice that he needed to take time off in August for personal reasons and he supplied a replacement driver.

[13] Mr Harrison accepted that he had not provided Mr Spencer with any warnings that his employment was at risk though he said he had spoken to him about issues.

[14] Mr Harrison said it was not appropriate for Mr Spencer to take leave during term time and he should take leave during school holidays. He further said that the driver who Mr Spencer arranged to fill in for him filled the diesel bus with petrol. He said that neither Mr Spencer or the driver apologised for this error. He said that Mr Spencer had also scratched his new bus and caused other damage. It was his evidence that the students did not like or respect Mr Spencer. He decided that he had had enough and sacked him.

[15] I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. However, as the evidence of Mr Harrison shows Mr Spencer’s claim is not without merit as the Small Business Fair Dismissal Code requires an employee to be warned if his or her performance is putting his or her employment at risk. This weighs in favour of a finding that there are exceptional circumstances.

Fairness as between Mr Spencer and other persons in a similar position

[16] This criterion is neutral.

Conclusion

[17] Mr Spencer has, on the material before me, an arguable case that he was denied the procedural fairness required by the Small Business Fair Dismissal Code. However despite that finding, Mr Spencer’s explanation for the delay in filing his application has not persuaded me that there are exceptional circumstances warranting the grant of an extension of time. The application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

 1 See s.394(3) of the Fair Work Act.

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