Lester O'Grady v Hillside Parade Racing and Breeding Pty Ltd T/A Hillside Thoroughsbreds

[2016] FWC 2491

[2016] FWC 2491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lester O’Grady
v
Hillside Parade Racing & Breeding Pty Ltd T/A Hillside Thoroughsbreds
(U2016/5263)

COMMISSIONER BISSETT MELBOURNE, 20 APRIL 2016

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

[1] Mr Lester O’Grady was employed by Hillside Parade Racing & Breeding Pty Ltd T/A Hillside Thoroughbreds (Hillside) firstly as a Stud Farm Manager and then, more recently Operations/Bloodstock Manager.

[2] Mr O’Grady was dismissed from his employment with Hillside on 9 February 2016. He made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal on 9 March 2016. Mr O’Grady’s application was made 28 days after the date of his dismissal. This is 7 days outside the statutory time limit imposed by of the Act.

[3] For Mr O’Grady’s application for unfair dismissal to be considered he must be granted an extension of time within which to make his application. A hearing to determine this matter was held on 14 April 2016.

[4] At the commencement of proceedings I granted permission to Mr Cooper to represent Mr O’Grady and Ms Sheridan to represent Hillside.

[5] Mr O’Grady gave evidence on his own behalf and Mr Peter Ford, a consultant Bloodstock Manager for Hillside, gave evidence for Hillside

Legislation

[6] Section 394(2) of the Act requires that an application for unfair dismissal must be made within 21 days of the time the dismissal took effect.

[7] The Commission has the power, pursuant to s.394(3) of the Act, to extend the time within which an application can be made if it 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.

Evidence and submissions

The reason or the delay

[8] Mr O’Grady says that on the day his employment was terminated he was told he had to leave the property by the end of the day. Mr O’Grady resided on the property and says that following his dismissal he had to quickly find alternative accommodation which he did, staying in a caravan behind a friend’s house. He also had to find an alternative place for his stock (horses) which were at Hillside.

[9] He says that the reason for the delay in making his application is that he was suffering from depression, mental stress and alopecia as a result of his dismissal although agrees that he did not go to a doctor. His evidence is that he knows that his alopecia is affected by stress.

[10] Further, he says that while staying in the caravan he did not have electricity or running water so did not have access to the internet. He agrees however that he did have access to a friend’s internet to search for other work but says he was not aware of the unfair dismissal provisions at that time.

[11] Mr O’Grady says that he became aware of the unfair dismissal provisions when he attended yearling sales on 28 February 2016 where a bystander told him about them. He says he went home and accessed the forms, printed them out, filled them in and sent them off to the Commission. Whilst he agrees that he did find out about the unfair dismissal provisions on 28 February 2016 he says it took him until 9 March 2016 to get the forms to the Commission because he ‘was feeling low’.

[12] Mr O’Grady says that he was still living in the caravan at the time he made his application. Whilst he was aware of alternative accommodation in the local area (such as a motel) he says he could not afford to stay there as he needed the money he had for a deposit if he did get a rental property and to pay for feed and accommodation for his horses.

[13] Mr O’Grady submits that he lived in the world of horses. He had no access to legal advice or a union from whom he might have got some advice as to his rights. His access to the internet was limited to that available through friends or family.

[14] Hillside says that Mr O’Grady has provided no medical evidence of his illness, that his evidence indicates that he did have access to the internet, that he did have access to a mobile phone (because he rang Mr Ford after the dismissal) and that his contract of September 2015 indicates that he did have access to the Fair Work Information Statement and that he therefore could have contacted the Commission about his dismissal.

Whether he became aware of the dismissal after it took effect

[15] There is no dispute that Mr O’Grady became aware of his dismissal at the time it took effect.

Action taken to dispute the dismissal

[16] Mr O’Grady took no other action besides the making of the unfair dismissal application to dispute the dismissal.

Prejudice to the employer

[17] Hillside says that it should be entitled to rely on the time limits imposed by the Act for making an application for unfair dismissal and it would be prejudiced if this was not adhered to.

[18] Mr O’Grady says that the delay was less than one week and does not create any prejudice to the employer.

Merits of the application

[19] Both Mr O’Grady and Hillside made extensive submissions as to the merits of the application. Suffice it to say there is a contest as to the facts which led up to the dismissal of Mr O’Grady.

Fairness

[20] Mr O’Grady says that fairness dictates that he should be able to have his case heard.

Consideration

[21] The Commission can only grant an extension of time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench of Fair Work Australia found:

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…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.

[22] In essence it appears that the reason for the delay in Mr O’Grady making his application is that: he was suffering from mental stress as a result of the termination of his employment; he needed to quickly find accommodation for himself and his horses; and he was not aware that the Commission existed or that he could make an application for unfair dismissal.

[23] I am satisfied that on 28 February 2016 Mr O’Grady was well enough to assist a friend at the yearling sales.

[24] Whilst I accept that Mr O’Grady suffers from alopecia and it is exacerbated by stress he produced no medical evidence that he was so incapacitated that he could not take any action with respect to an application for unfair dismissal.

[25] I am also satisfied on his evidence that Mr O’Grady became aware of the unfair dismissal jurisdiction of the Commission on 28 February 2016 but it was 7 March 2016 before he completed an application form (and 9 March 2016 before it was received by the Commission).

[26] The arguments as to merits of the application do not convince me conclusively one way or the other. For this reason I have not given this matter any weight. It is a matter that could only be determined following the full hearing of the application.

[27] There is, overall, nothing out of the ordinary or unusual or uncommon in the circumstances before me. It is well accepted that a person may suffer from stress and anxiety arising from a dismissal. The parliament has, however, determined that 21 days is an adequate period for a person, despite such stress and anxiety, to make an application. If Mr O’Grady was so debilitated it could reasonably be expected that he would have sought medical assistance. He did not.

[28] Further, it is also accepted that ignorance of the law is not such to create exceptional circumstances so that an extension of time should be granted. In any event had Mr O’Grady acted immediately on the advice he received on 28 February 2016 his application may well have been received within the time limits prescribed by the Act.

[29] Mr O’Grady on his own evidence did nothing to investigate if there was any action he should or could take about the dismissal.

[30] Finally, Mr O’Grady has not explained the totality of the delay in making his application. He was aware on 28 February 2016 that he could dispute his dismissal but it took him eight days to print out an application form, fill it in, sign it and send it to the Commission. No reason is given for this delay except that he felt low.

Conclusion

[31] I do recognise that, from the time of his dismissal until the time he made his application, Mr O’Grady was living in a caravan that did not have electricity and that he only had intermittent access to the internet and that such circumstances are unusual. However, he did have some access to the internet and to a telephone and he was not so debilitated that he could to apply for jobs, attend horse sales and attend to his horses.
[32] It is not just living circumstances that need to be considered here. Mr O’Grady did little to find out about any remedy he may have for his dismissal and, once he was aware of the Commission waited a further week to take any action.

[33] Taking into account all of these matters I am not satisfied that exceptional circumstances exist such that an extension of time should be granted.

[34] The application for an extension of time is therefore refused. Mr O’Grady’s application for unfair dismissal was made outside the time limit prescribed by the Act and is therefore dismissed. An order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

P Cooper for the applicant.

K Sheridan of Counsel for the respondent.

Hearing details:

2016

Melbourne:

14 April

 1 (2011) 203 IR 1.

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