Joshua Colliver v Autobarn Elizabeth

[2015] FWC 1246

[2015] FWC 1246

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Colliver
v
Autobarn Elizabeth
(U2014/16711)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 FEBRUARY 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] On 23 February 2015 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 23 December 2014 Mr Colliver lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with Autobarn Elizabeth (Autobarn).

[3] In that application, Mr Colliver advised that his dismissal took effect on 26 September 2014. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“1. I was given 3 reasons for termination:

1. not enough work
2. not profitable enough to employ me
3. serious & wilful misconduct

2. I spoke to a lawyer on 2/10/14 who advised me that it would be difficult to defend the allegations of serious & wilful misconduct.
3. I have since become aware that other employees have been hired to do the exact same job that I do.
4. The basis for my termination was that I had taken stock without paying for it. On or about 12/12/14 I became aware that this is still an ongoing practice within Autobarn that is being approved by the managers. Therefore it cannot amount to serious & wilful misconduct.” 1

[4] The application was referred to me for consideration. On 15 January 2015 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 23 February 2015. Mr Colliver was required to provide a witness statement and a copy of any document relied upon, by 16 February 2015.

[5] The Employer’s Response (Form F3) to the application asserted that Mr Colliver was dismissed with effect from 26 September 2014. The Form F3 confirmed that Autobarn objected to an extension of time.

[6] On 19 February 2015 Ms Stanley provided following statement on behalf of Mr Colliver.

“1. I have previously represented JOSHUA DEAN COLLIVER in an unrelated matter.
2. Mr Colliver came to see me on 2 October 2014 in relation to his termination from his employment with Autobarn Elizabeth. On that occasion, he provided me with a number of documents. I gave Mr Colliver some preliminary advice in relation to his potential claim and I also requested that he provided me with some further documentation.
3. I did not advise Mr Colliver of the 21 day time limitation period in which to file a Claim in the Fair Work Commission.
4. Mr Colliver contacted me again on 15 December 2014 with the further documents I had requested from him. Based on the information he provided me, I prepared an Unfair Dismissal Application which was dated 15 December 2014 and forwarded to the Fair Work Commission on the same date.
5. The failure of Mr Colliver to file an Application within the time limitation period is solely due to my failure to advise him of the time requirements.
6. I know the facts deposed to herein of my own knowledge and belief except where otherwise appears.”

[7] The extension of time issue was considered through a telephone conference on 23 February 2015. A sound file record of this conference was kept. Mr Colliver attended this conference and was represented by Ms Stanley, of counsel pursuant to a grant of permission made under s596(2)(a) and (c). Autobarn was represented by Mr Frieberg of counsel, also pursuant to a grant of permission made under s.596(2)(a) and (c). Mr Holmes of Autobarn also participated in the conference.

[8] Mr Colliver was provided with the opportunity in the conference to provide further information in support of his request for an extension of time. That information confirmed that he contacted Ms Stanley on 2 October 2014, and did not further contact her until 15 December 2014. Ms Stanley understood that the application was lodged on that day but acknowledged that a further delay may have occurred until 23 December 2014.

[9] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[10] Section 394 states:

“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.”

[11] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 67 days outside of the 21 day time limit. It can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Colliver’s circumstances can be regarded as exceptional for the purposes of this subsection.

[12] The information provided to me does not adequately explain why the application could not have been lodged within time. I have accepted that Ms Stanley did not advise Mr Colliver of the 21 day time limit. However, whilst I accept that the delay from 15 December to 23 December was the responsibility of Ms Stanley, I am not satisfied that the substantial delay in this matter is properly regarded as attributable solely to representative error. I am not persuaded that Mr Colliver took any reasonable steps to pursue his application in a timely manner. No satisfactory reason for the very substantial delay on Mr Colliver’s part has been established to me. It is well established that representative error may constitute a basis for an extension of time. However, it is equally well established that the error on the part of the representative must explain the delay in that it was not a failing or inactivity on the part of the applicant. Long standing decisions such as Clark v Ringwood Private Hospital 2 and, more recently, Robinson v Interstate Transport Pty Ltd3 clearly differentiate between errors that are the fault of a representative and hence cannot be fairly visited upon an applicant, and the obligation on an applicant to act in a reasonable manner. In this instance I am not satisfied that Mr Colliver took any reasonable action between 2 October 2014 and 15 December 2014 to pursue his application. I may have arrived at a different conclusion had the material before me established that Ms Stanley specified to Mr Colliver, an incorrect timeframe for the lodgement of the application. To the extent that it is relied upon, Mr Colliver’s contention that, in mid-December 2014, he became aware of other employees he asserted are behaving in the same manner as he behaved simply does not provide an acceptable reason for an extension of time for the lodgement of the application and is inconsistent with the reliance on representative error.

[13] On the information before me, I am satisfied that Mr Colliver was aware of the termination of employment decision on 26 September 2014 which I have taken as date that termination of employment took effect.

[14] On the information provided to me I am not satisfied that Mr Colliver challenged the termination of his employment other than through this application. In his application he concedes that he spoke to a lawyer on 2 October 2014.

[15] Given the substantial delay in the lodgement of the application I have concluded that the granting of an extension of time would most likely prejudice the respondent in this matter.

[16] In terms of the merits of the application, the information before me indicates that Mr Colliver was dismissed for serious and wilful misconduct. Notwithstanding that I have concluded that it is most likely that he admitted to taking stock without payment or without permission or authority, I understand that Mr Colliver asserts that his practices in this respect were commonplace. Accordingly, I have regarded the merits of Mr Colliver’s application as a neutral consideration relative to the extension of time issue.

[17] Considerations of fairness relative to persons in similar circumstances to Mr Colliver do not support an extension of time.

Conclusion

[18] For the reasons I have set out above, Mr Colliver’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR561287) reflecting this decision will be issued.

Appearances (by telephone):

K Stanley representing the applicant.

A Frieberg representing the respondent.

Hearing (Conference) Details:

2015.

Adelaide:

February 23.

 1   Form F2, para 1.4

 2 (1997) 74 IR 413

 3 (2011) 211 IR 347

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561286>