Mark Cook v The Salvation Army Victoria Property Trust T/A the Salvation Army EastCare

[2014] FWC 3201

[2014] FWC 3201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Cook
v
The Salvation Army Victoria Property Trust T/A The Salvation Army EastCare
(U2014/454)

COMMISSIONER CRIBB MELBOURNE, 15 MAY 2014

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] Mr Mark Cook (the applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in respect of his dismissal by The Salvation Army T/A the Salvation Army Eastcare Network (the respondent, The Salvation Army).

[2] The respondent raised a jurisdictional objection in their Employer Response, filed in the Commission on 19 March 2014, on the basis that Mr Cook’s application was lodged outside the statutory timeframe by 47 days. A hearing of Mr Cook’s extension of time application took place on Monday 12 May 2014.

[3] At the end of the hearing, the Commission made a number of findings in respect of the requirements of section 394(3)(a) - (f) of the Act. However, the Commission was unable to reach a concluded view as to whether there was an acceptable reason for the delay and whether there were “exceptional circumstances” such that it should exercise its discretion and grant Mr Cook’s extension of time application.

[4] As indicated during the hearing, in order to expedite a decision, the Commission would put in writing, the findings that were made during the hearing, together with the conclusions as to an acceptable reason for the delay and “exceptional circumstances”. 1

[5] This decision, therefore, sets out the Commission’s findings in respect of section 394 (3)(a) - (f) of the Act and the findings as to acceptable reason and whether ‘exceptional circumstances’ exist which warrant exercise of the discretion to extend time.

Statutory framework

[6] The statutory framework for the making of an application for an unfair dismissal remedy is set out in the section 394(2) of the Act as follows:

“(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).”

[7] Section 394(3) provides:

“(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.”

[8] I will deal with each of these factors contained in s.394(3) in turn.

Reasons for the delay - s.394(3)(a)

[9] On behalf of Mr Cook, it was argued that the reason for the delay in lodging the application was due to error on the part of his representative, Mr Aalders. Mr Aalders stated that he had been advised by Mr Cook, on 20 December 2013, that he had been dismissed. He had then asked Mr Cook for any documentation that he had regarding his dismissal. This was because he needed to see the documentation so that he could put together all of the relevant facts and assess whether there were grounds to submit an unfair dismissal application. 2 Mr Cook had told him that he did not have any documentation. Mr Aalders, on 20 December 2013, also advised Mr Cook to go to Legal Aid and to see his lawyer referral partners. Mr Cook did both of these things but, for different reasons, neither was able to assist him.3 Mr Aalders then went on annual leave returning to work on 20 January 2014.4

[10] In the meantime, Mr Cook received the investigation report from the Department of Human Services (DHS), on 7 January 2014, which he gave to Mr Aalders when he returned from holidays. 5 It was Mr Aalders’ evidence that the first time he received any documentation from Mr Cook was around 25 January 2014.6 He stated that he was not given the letter of dismissal on 20 December 2013.7 It was recounted that he had received Appendices D and E on 20 January 2014.8 Mr Aalders explained that all he had to go on was what Mr Cook had told him verbally on 20 December 2013.9

[11] It was recounted by Mr Aalders that, on returning from annual leave on 20 January 2014, he had a lot of work to do for his business. Mr Cook’s issues were said to be secondary but he did pull apart the material he had been provided by Mr Cook. He then forwarded it to the business’s legal representatives who took a week to get back to him. They told him that he had done too much preparation and that all he had needed to do was a basic application. Once the legal representatives had got back to him, Mr Aalders lodged the application. 10

[12] It was argued by The Salvation Army that Mr Cook had sufficient information about the reasons for his dismissal for an application to have been lodged within time. That Mr Cook felt he had to wait until he received a copy of DHS’ investigation was not accepted. It was contended that Mr Cook was aware of his dismissal and of the reasons for it at the time he was dismissed. Further, The Salvation Army argued that Mr Cook had received enough information on the day of his dismissal to allow him to make an application. 11

[13] I have considered carefully all of the material before me on this issue. It would seem that Mr Cook spoke to Mr Aalders about his dismissal, amongst other things, on 20 December 2013. It appears that Mr Cook did not give Mr Aalders his termination letter or any other documentation at that point in time. Mr Aalders was on annual leave until 20 January 2014. During the intervening period, on 7 January 2014, Mr Cook received a copy of DHS’ investigation report. Mr Cook also sought out Legal Aid and another firm of lawyers during this period, as suggested by Mr Aalders on 20 December 2013. However, neither were able to assist him.

[14] Around 25 January 2014, when Mr Aalders was back from leave, he received documentation from Mr Cook on the subject of this year's dismissal. As Mr Alders had been away from the business for a month, his paying work took precedence. However, he did manage to analyse Mr Cook’s documents, the outcome of which he forwarded to the business’s lawyers. The lawyers then took a week to come back to him to say that he had over prepared and that a basic application would have been sufficient. Mr Aalders accepted responsibility for the lateness of the application. 12

[15] Taking all of this into account, I find that error on the part of Mr Cook’s representative, Mr Aalders, is to blame for the late lodgement of the application. Mr Aalders spoke to Mr Cook within time but was not given any documentation, including the letter of dismissal, until about 25 January 2014. Mr Cook received the DHS investigation report on 7 January 2014 whilst Mr Aalders was on annual leave. Mr Aalders did not return to work until 20 January 2014. Mr Aalders then over prepared the application whilst giving first priority to his business. He referred it to the business’ lawyers who took a week to respond. Mr Aalders lodged the application on 18 February 2014.

Aware of the dismissal – s.394(3)(b)

[16] It was Mr Cook’s evidence that he was advised, on 10 December 2013, that he was dismissed. 13 Mr Cook received a summary termination letter, dated 10 December 2013.14

[17] Accordingly, I find that Mr Cook was aware of the decision to dismiss him at the time it took effect. 15

Any action taken to dispute the dismissal - s.394(3)(c)

[18] In addition to filing the application, it was Mr Cook’s evidence that he had spoken to a couple of police friends about getting charged with assault in order to clear his name. The outcome of these conversations was, in effect, that he had to take the civil route to prove his innocence. 16 Mr Aalders gave evidence, which was confirmed by Mr Cook, that, pre-Christmas, Mr Aalders had advised Mr Cook to go to Legal Aid and also to his lawyer referral partners.17 Mr Cook had gone to see Legal Aid but they were too busy and the lawyers were too expensive.18

[19] On the other hand, Mr Cook had not sought a review of the investigation outcomes from either The Salvation Army or DHS. Neither has he contacted the Fair Work Ombudsman which was referred to in the termination letter. 19

[20] Accordingly, I find that Mr Cook did avail himself of some, but not all, of the possible avenues for disputing his dismissal. He contacted his police friends and, as well, Legal Aid and his representative’s legal referral partners. However, Mr Cook did not seek a review of the findings of the two investigations (from The Salvation Army or DHS) which he could have done. Also, he did not contact the Fair Work Ombudsman, the contact details for whom, were contained in the letter of termination. 20

Prejudice to the employer - s.394(3)(d)

[21] I have already found that there is no additional prejudice to The Salvation Army other than the usual prejudice which accompanies any granting of an extension of time. 21

Merits of the application - s.394(3)(e)

[22] At the end of the hearing, the Commission indicated that it was common ground that there was physical contact between the young man and Mr Cook. There are some common facts but the Commission has before it two different versions of what and why in respect of the incidents that occurred on the night of 24 November 2013. 22

[23] On this basis, therefore, it is not possible to say that the application is without merit. 23

Fairness as between the applicant and other persons in a similar position - s.394(3)(f)

[24] Early in the preceding, the Commission expressed the view that this subsection of the Act is not relevant in this matter. 24 The Salvation Army held a different view and argued that this subsection refers to process. It was stated that The Salvation Army had had similar situations in similar workplaces and that Mr Cook had not been treated any differently from anyone else who has been in a similar situation.25

[25] The Salvation Army’s submissions on this factor are acknowledged. It is accepted that The Salvation Army’s view is that Mr Cook was not treated differently to anyone else who had been in a similar situation. However, I confirm my earlier view that this factor is not relevant in this case. 26

Are there exceptional circumstances - s.394(3)?

[26] It was argued on behalf of Mr Cook that there were “exceptional circumstances” which were due to representative error. 27 In addition, Mr Aalders stated that he had disproved every witness statement that had been provided as part of the investigation. Further, the doctrine of altruism was referred to in terms of the way The Salvation Army was said to have acted in Mr Cook’s case.28

[27] On the other hand, The Salvation Army submitted that Mr Cook’s situation did not substantiate “exceptional circumstances”. It was argued that Mr Cook had sufficient information to make an application on the day he was dismissed. Further, The Salvation Army contended that there is no merit in the application on the basis that Mr Cook did not provide any mitigating evidence to substantiate why he did what he did. It was said that, even Mr Cook had agreed that certain incidents occurred, which were inappropriate. In addition, it was stated that DHS had undertaken their own investigation which was separate to that of The Salvation Army. 29

[28] Further, the respondent argued that Mr Cook had not disputed The Salvation Army’s nor DHS’ investigation findings by seeking a review of either or both, which was available to him. As well, Mr Cook had not contacted the Fair Work Ombudsman, the contact details for whom, were set out in the letter of termination. 30

[29] In its decision in M N Robinson v Interstate Transport Pty Ltd 31, the Full Bench found that:

“In our view, the error by Mr Robinson's original representative, in circumstances in which Mr Robinson is blameless for the delay, constitutes an exceptional circumstance in which the application should be accepted late.” 32

[30] It is apparent from Mr Cook’s evidence that he gave Mr Aalders carriage of his case prior to Christmas 2013. The reasons for the delay in lodging the application do not relate to a fault on Mr Cook’s part. Rather, the causes of the delay between 31 December 2013 and 18 February 2014, are due to the actions or non actions by Mr Aalders. Mr Aalders required of Mr Cook, documentation regarding the dismissal, in order to quality control check Mr Cook’s allegations about his dismissal. This material became available to Mr Cook on 7 January 2014. However, Mr Aalders was away on annual leave at that point in time. On his return from annual leave, Mr Aalders was given the documentation, around 25 January 2014. Between 7 January 2014 and the date of lodgement of the application, it was Mr Aalders’ actions (or lack of them), which caused the delay.

[31] Therefore, weighing up, and taking account of, all of the factors set out in s394(3)(a) -(f) of the Act, including that there was representative error, on fine balance, I find that there are “exceptional circumstances” such that I should exercise my discretion and grant an extension of time.

[32] Accordingly, Mr Cook’s application for an extension of time is granted. The date for lodgement is extended to 18 February 2014.

[33] An order 33 to this effect will be issued separately.

[34] The application will be referred for conciliation.

Appearances:

Mr T Aalders for the Applicant

Mr M Scholz for the Respondent

Hearing details:

2014.

Melbourne:

May 12.

 1   Transcript PN 343

 2   Ibid PN 17 - 18, 67, 75, 84, 86, 116 - 118 and 204

 3   Ibid PN 19, 21 and 69

 4   Ibid PN 18

 5   Ibid PN 121 - 122, 181 - 183 and 256

 6   Ibid PN 21, 256 and 265

 7   Ibid PN 263 and 265

 8   Ibid PN 264

 9   Ibid PN 256

 10   Ibid PN 256 and 258

 11   Ibid PN 215 and 270

 12   Ibid PN 278

 13   Ibid PN 86 and 196 - 197

 14   Attachment 6 to Employer Response to Unfair Dismissal application, dated 14 March 2014

 15   Transcript PN 324

 16   Ibid PN 88 - 89, 120, 185 and 132

 17   Ibid PN 19 and 21

 18   Ibid PN 21 and 69

 19   Ibid PN 178 - 180 and 184

 20   Ibid PN 325

 21   Ibid PN 326

 22   Ibid PN 327

 23   Ibid PN 328

 24   Ibid PN 328 and 331

 25   Ibid PN 329 - 330

 26   Ibid PN 328

 27   Ibid PN 278

 28   Ibid PN 279

 29   Ibid PN 270 and 272 - 273

 30   Ibid PN 271

 31   [2011] FWAFB 2728

 32   Ibid at [41]

 33   PR550592

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