Mark Goward v Dick Smith Electronics Pty Ltd

[2014] FWC 3771

[2014] FWC 3771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Goward
v
Dick Smith Electronics Pty Ltd
(U2014/723)

DEPUTY PRESIDENT BOOTH SYDNEY, 5 JUNE 2014

Termination of employment - application for an unfair dismissal remedy - application for an extension of time.

[1] Mr Mark Ernest John Goward was employed in a Dick Smith electronics retail store from 7 March 2002 until his dismissal on 7 February 2014.

[2] Mr Goward lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) on 10 March 2014.

[3] I note that Mr Goward cites his employer as DSE (Holdings) Pty Ltd in the Form F2 application whereas his employer uses the name Dick Smith Electronics Pty Ltd on the Form F3 response to the application. No objection is raised in relation to the naming of the employer and for the purpose of this decision I will adopt the name Dick Smith Electronics Pty Ltd. (Dick Smith).

[4] Dick Smith objects to Mr Goward’s application on the grounds that it was not lodged within the 21 day time period required by the Act. It is uncontroversial that Mr Goward’s application was lodged on day 31 after his dismissal and as such the application was 10 days out of time. To have been within time the application would have had to have been lodged on 28 February 2014.

Directions

[5] On 9 April I wrote to the parties bringing their attention to s.394 of the Act and the matters to be addressed in submissions with directions as follows:

“The applicant is to lodge a submission in support of an extension of time with these Chambers, and serve a copy on the respondent, by close of business on 23 April. The applicant should indicate whether he seeks a hearing to present oral argument and/or witness evidence or is agreeable to Deputy President Booth making her decision without a hearing, known as making a decision on the papers.

The respondent is to lodge a response to this submission with these Chambers, and serve a copy on the applicant, by close of business on 7 May 2014 and indicate whether it seeks a hearing to present oral argument and/or witness evidence or is agreeable to Deputy President Booth making her decision on the papers.

The applicant is to lodge any reply he wishes to make to the respondent’s submissions on 14 May 2014.

If both the applicant and the respondent agree to the decision being made on the papers Deputy President Booth will consider whether a decision on the papers is appropriate and if so, make her decision soon thereafter. If either party seeks a hearing of the matter, or Deputy President Booth considers that a hearing is appropriate, the matter will be listed soon thereafter. The parties will be advised of the course of action to be adopted.”

[6] Submissions had not been received by 28 April 2014 and I gave Mr Goward an extension of time until 5 May 2014 to lodge his submissions with Dick Smith having until 14 May 2014 to lodge their submissions.

[7] Mr Goward replied on 28 April 2014 drawing my attention to the comments made in his original application and Dick Smith provided a response to these remarks on 12 May 2014. Mr Goward was provided with a copy of this response by my Chambers on 15 May 2014 and Mr Goward was given until 21 May 2014 to reply. At the date of publication of this decision no reply has been received.

[8] Neither Mr Goward nor Dick Smith sought a hearing of the matter and this decision is based on the material provided by the parties commonly known as a decision on the papers.

[9] Mr Goward bears the onus of satisfying the Commission that it should exercise its discretion pursuant to s.394 of the Act to extend the time for making the application.

Legal framework

[10] In my considering the submissions in this matter I have had regard for s.394 of the Act which reads as follows:

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] The Act makes it clear that an extension of time may be granted by the Commission if there are exceptional circumstances, that is, the judgement to be made is still the Commission’s to make.

[12] McHugh J’s decision in the High Court judgement in Brisbane South Regional Health Authority v Taylor (Brisbane South Regional Health Authority case) 1 in an appeal against a judgement in the Court of Appeal of Queensland that had allowed an appeal against a decision of the District Court of Queensland to refuse an extension of time in which to commence an action makes the point clearly. He says at page 554:

“Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion.”

[13] So it is in this jurisdiction. There are certain matters set out in s.394(3)(a) to (f) that I must take into account in determining whether I am satisfied that there are exceptional circumstances, however I must then apply my discretion as to whether an extension of time should be granted. In the words of McHugh J in the Brisbane South Regional Health Authority case I must decide whether “justice will be best served by excepting the particular proceedings from the general prohibition”.

Reasons for delay

[14] Mr Goward relied upon reasons stated in his Form F2 Unfair Dismissal Application being his understanding that the time limit for making an application was 6 weeks and the stress that the dismissal and his treatment at work in the preceding period had caused him.

[15] Dick Smith submits that these reasons are not exceptional and they do not support his application for an extension of time.

Other factors

[16] In relation to the other factors that I am required to take into account in coming to a conclusion it is clear that Mr Goward was terminated in a meeting with Dick Smith on 7 February and he does not contend that he was not aware that he had been dismissed. He makes no submissions concerning action taken to dispute the submission save the making of the application that is the subject of this decision. Dick Smith makes no submission in relation to prejudice and I conclude that there would be no prejudice to them if an extension of time was granted. The merits of the substantive application have not been addressed by the parties in their submissions and a reading of the Form F2 and Form F3 reveal a contest of facts and conclusions such that this factor is neutral in my consideration. It is not contended that there is anyone in a similar position to Mr Goward and so this factor is not relevant.

Consideration

[17] I have considered Mr Goward’s circumstances in relation to his reasons for delay and the other factors I am required to take into account in making my decision. There is nothing in his circumstances that I consider exceptional or “out of the ordinary course, or unusual, or special or uncommon” to use the words of the Full Bench of Fair Work Australia, the predecessor to the Commission, in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 2. I note that the Full Bench in this decision made the point that “mere ignorance of the statutory time limit.....is not an exceptional circumstance”.3

Conclusion

[18] Taking into account all the circumstances of this case and considering the matters I am required to take into account pursuant to s.394(3)(a) to (f) of the Act, I have decided against granting Mr Goward an extension of time in relation to his application. His application is dismissed. An order will issue with this decision.

DEPUTY PRESIDENT

Final written submissions:

12 May 2014

 1 (1996) 186 CLR 541

 2   [2011] FWAFB 975

 3   Ibid., [14]

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