Mathew Schofield v Bridgestone Australia Ltd

[2021] FWC 1304

[2021] FWC 1304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Schofield
v
Bridgestone Australia Ltd
(U2021/858)

DEPUTY PRESIDENT BEAUMONT PERTH, 20 APRIL 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mr Mathew Schofield for an extension of time in which to make his unfair dismissal application under s 394(3) of the Fair Work Act 2009 (Cth) (Act).

[2] On 3 February 2021, Mr Schofield made an application for an unfair dismissal remedy under s 394 of the Act. However, s 394(2) of the Act requires an unfair dismissal application to be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). It is not in dispute that Mr Schofield’s application was filed outside the timeframe for lodgement of the application, by one day. Mr Schofield now seeks that the Commission allow a further period of time for the application to be made. The Respondent, Bridgestone Australia Ltd, opposes the grant of an extension of time.

[3] For the reasons that follow, I am not satisfied that there are exceptional circumstances that warrant the grant of a further period for making the application. It follows that Mr Schofield’s unfair dismissal application is dismissed.

Background

[4] Mr Schofield commenced employment with the Respondent in October 2015 as a full-time tyre fitter. In the period of 9 January 2020 to 8 January 2021, he had been absent from work for 94.8 days. Of those days, 22.4 days were paid leave, and the remainder were unpaid. On 8 January 2021, he was notified that there would be a disciplinary meeting on 11 January 2021 to discuss his absenteeism. The disciplinary meeting was rescheduled to 12 January 2021, because Mr Schofield had informed the Respondent that he had slept for only 1-2 hours’.

[5] At the disciplinary meeting on 12 January 2021, Mr Schofield was questioned about his absenteeism. He explained to his Manager he had put measures in place to reduce his absenteeism and was confident he would improve over the course of the year.

[6] The Respondent gave an account of an employee who had breached company policy in March 2020, resulting in a final written warning and a demotion, and one who had previously been placed on a performance improvement plan to address his absenteeism. While the Respondent acknowledged that there had been a temporary improvement in attendance whilst Mr Schofield was placed on the performance improvement plan, when the plan ended, and Mr Schofield's close monitoring of his performance ceased, Mr Schofield was said to have reverted to past behaviours.

[7] It was the Respondent’s view that Mr Schofield’s personal circumstances changed on a daily basis, notwithstanding having been provided with support over a significant period, in addition to being provided access to the Respondent’s employee assistance program. As a result of Mr Schofield’s conduct and performance, it terminated his employment on 12 January 2021, effective that same date.

[8] Having been informed on 12 January 2021 that his employment was terminated, Mr Schofield was said to have informed the Respondent that he would be reaching out to his union and sought a copy of his performance improvement plan.

[9] Mr Schofield said that the next day he received a letter dated 13 January 2021 confirming his dismissal effective from 12 January 2021. 1 In response to receiving the letter of termination, Mr Schofield emailed the Transport Workers’ Union of Australia, WA Branch (TWU) on 14 January 2021, advising that he had been dismissed.2 The following day, Mr Schofield sent another email to the TWU attaching several medical certificates in support of his absences between 15 October 2020 and 8 January 2021.3

[10] On 19 January 2021, Mr Schofield received an email from Mr Dzieciol, the TWU’s Senior Legal and Industrial Officer. Mr Dzieciol requested that Mr Schofield provide some additional information on the procedure that was adopted by the Respondent by, 22 January 2021. Mr Schofield gave evidence that he did not respond to Mr Dzieciol’s request. 4

[11] In his witness statement, Mr Schofield did not elaborate on the reason for not replying to Mr Dzieciol’s request. When asked at hearing why he had not responded to Mr Dzieciol’s request, Mr Schofield replied that ‘he had a lot going on’. This included his mother staying with him. As a consequence, Mr Schofield stated that he ‘couldn’t get to it in time’ and that he did not realise it was limited in this way – presumedly referring to the statutory timeframe.

[12] According to Mr Schofield, he received a telephone call from Mr Dzieciol on 2 February 2021 to discuss his claim. 5 During that discussion, he instructed Mr Dzieciol that he wanted to pursue an unfair dismissal claim and was advised by Mr Dzieciol that he would arrange for Mr Schofield’s application to be lodged with the Commission. In further discussions on 3 February 2021, Mr Schofield discussed with Mr Dzieciol the procedures the Respondent had followed in dismissing him.6 Mr Schofield said that following those discussions, Mr Dzieciol lodged his unfair dismissal application on 3 February 2021.7

[13] Similarly, Mr Dzieciol spoke of Mr Schofield contacting the TWU by email on 14 January 2021 and emailing medical certificates the following day, on 15 January 2021. Mr Dzieciol confirmed that he had emailed Mr Schofield on 19 January 2021, requesting details of the procedure that the Respondent followed in dismissing him, and asked that the information be provided by no later than the close of business on 22 January 2021.

[14] Mr Dzieciol referred to the lockdown that had occurred in Western Australia commencing on 1 February 2021, for a week. 8 He noted that he was unable to access work files during that period and was working from the emails Mr Schofield had sent.9 However, at hearing, Mr Dzieciol gave evidence that he had not commenced preparing Mr Schofield’s application until around 2 - 3 February 2021. The application was completed on 3 February 2021 and thereafter filed on that same day.

[15] It was during the process of preparing the application, Mr Dzieciol said it came to his attention that he had incorrectly calculated the deadline for submitting the application and that the 21-day limit had expired the day before he filed. He, therefore, noted on the application that it was filed one day late due to representative error.

[16] The 21-day statutory timeframe for filing Mr Schofield’s application for an unfair dismissal remedy expired at midnight on 2 February 2021. Mr Schofield’s application for unfair dismissal remedy was received by the Commission on 3 February 2021. The application was, therefore, lodged one day outside of the statutory timeframe.

Extension of time

[17] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 10 In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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, can be considered exceptional.

[18] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to 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.

[19] Each of these factors are considered below.

Consideration

Reason for the delay

[20] The Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. 11 The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.12

[21] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application. 13 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.14

[22] The primary reason for the delay was said to be that of representative error. Where a representative error is said to have contributed to the delay in making the application, it is accepted that the conduct of the applicant nevertheless is to be examined. 15 In Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service,16 a Full Bench decision that considered an out of time application under s 365 of the Act, but which remains relevant for present purposes, the majority expressed:

Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged. 17

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

[23] Further, in Long v Keolis Downer (t/as Yarra Trams), 18 a Full Bench of the Commission again emphasised the following passage as one of the propositions that should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged (our emphasis added).

[24] Mr Dzieciol gave evidence that the error arose from him not appreciating in the first instance that the dismissal came into effect on 12 January 2021, rather than on the date set out in the header of the letter of termination (13 January 2021). Mr Dzieciol noted that it is the general practice in the TWU for all unfair dismissal applications to be proofread by another Industrial Team member several days before lodging the application. If it were not for the lockdown, said Mr Dzieciol, the application would have been lodged in time as a result of the TWU’s quality control processes of having the application read by another. 19

[25] It appeared from Mr Dzieciol’s evidence that he did not, in earnest, start the preparation of the unfair dismissal application until 2 February 2021. Mr Dzieciol had of course, formed the view that the application was due to be lodged on 3 February 2021. However, it remains difficult to perceive how the TWU’s quality control process would have precluded the error in the circumstances. While Mr Dzieciol refers to the lockdown impacting on the preparation of the application due to the slowness of the email system, the lock down commenced on 1 February 2021. At this time, Mr Dzieciol had not commenced drafting the unfair dismissal application. Therefore, the quality assurance process of the TWU would have had little if not no bearing on the application being filed on time.

[26] While Mr Dzieciol spoke of having to work from home due to COVID-19, this does not constitute exceptional circumstances. The restrictions imposed by the State government affected all manner of businesses in Western Australia, but it is evident from Mr Dzieciol’s account that the TWU continued to operate, and work was being performed at home. 20

[27] The conduct of Mr Schofield is pertinent in light of the reason given for the delay. It is observed that within two days of having been dismissed, Mr Schofield took steps to obtain assistance from the TWU. He did so by advising the TWU of his dismissal and the next day forwarding medical certificates in respect of his absences from work. However, when asked for further information by Mr Dzieciol on 19 January 2021, he did not respond. The reasons for his non-responsiveness centred on experiencing difficulties with his mother that necessitated her staying with him during this period, and he had a lot on. Whilst I am appreciative that Mr Schofield may have been experiencing some personal difficulties, such difficulties are not out of the ordinary course and may in part be considered the usual vicissitudes of life. As it was, all that was asked of Mr Schofield was to provide some additional information to Mr Dzieciol. He did not do so, and the reasons provided for not doing so, were not compelling.

[28] Mr Schofield said however, he did not realise that there was a limit on the time in which an unfair dismissal application can be made. Mr Dzieciol confirmed that he had not provided information to Mr Schofield on the statutory timeframe. However, an argument that Mr Schofield lacked knowledge or was unaware of his legal rights is insufficient in and of itself to constitute an ‘exceptional circumstance’ within the meaning of the Act. 21 In the period of 14 January to 1 February 2021, Mr Schofield had not provided instruction to Mr Dzieciol to pursue an unfair dismissal claim. When he did provide such instruction, this happened to be the same day that the application was required to be filed under the Act. It was Mr Dzieciol’s evidence that he was still obtaining information from Mr Schofield the day after the application was due to have been filed.

[29] Having regard to the above matters, I do not accept that Mr Schofield was blameless. In part, I consider that the delay in filing his application was occasioned by his conduct. He was asked to provide information by 22 January 2021. This was before the lockdown commenced in Perth, Western Australia, on 1 February 2021. That information was not forthcoming in the period set by Mr Dzieciol. It was not until Mr Dzieciol contacted Mr Schofield on 2 February 2021 that Mr Schofield provided instruction to pursue the unfair dismissal claim.

[30] While Mr Schofield may assert he was unaware of the statutory period in which to file his application, ignorance of the law in this respect does not assist Mr Schofield. Having not received guidance from Mr Dzieciol (the TWU) about the statutory period in which to make the unfair dismissal application, Mr Schofield was not precluded from conducting his own research. Unfair dismissal applications can be and are routinely made without legal or other professional advice by reference, for example, to the Commission’s website, which is replete with material designed to assist members of the public in obtaining assistance or preparing and lodging applications. 22

[31] As it was, Mr Schofield did not ascertain timeframes for making an application, he had not responded to a request for further information, and he had made no enquiry as to the progress regarding advice or guidance on whether he had a claim to pursue. While demonstrating urgency in the first instance by providing the TWU with initial information, that urgency did not extend to enquiring or providing instruction about making an application.

[32] I do not find that any of the matters relied upon by Mr Schofield, individually or collectively, constitute an acceptable reason for the one day delay. This weighs against the grant of an extension.

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

[33] It is not in dispute that Mr Schofield became aware of his dismissal on 12 January 2021, being the date that it took effect.

[34] Mr Schofield, therefore, had 21 days to lodge his application for an unfair dismissal remedy from this date. This weighs against the grant of an extension.

Action taken by the person to dispute the dismissal

[35] There is no evidence before the Commission that Mr Schofield took any action to dispute his dismissal once it had taken effect on 12 January 2021, other than by lodging his application for an unfair dismissal remedy.

[36] This weighs against the grant of an extension.

Prejudice to the employer

[37] It is not contended that any prejudice to the Respondent would arise if an extension of time was granted.

[38] I do not consider the mere absence of prejudice to be a factor that would tell in favour of the grant of an extension of time. 23 I consider this to be a neutral consideration.

Merits of the application

[39] In Kornicki v Telstra-Network Technology Group, 24 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 25

[40] Concerning the substantive application, the merits have not been fully tested. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. 26

[41] While I consider it plausible, based on the evidence before me, that the Respondent may have had a valid reason for dismissing Mr Schofield, that is not the only factor considered in determining whether a dismissal was unfair. The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.

Fairness as between the person and other persons in a similar position

[42] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, 27 where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 28

[43] I am not satisfied that the criteria of fairness between Mr Schofield and other persons in a similar position weighs strongly in favour of either party. While the TWU, on behalf of Mr Schofield, referred to the lockdown and the impact it had on Mr Dzieciol to perform his work, noting he had to work from home, I am unpersuaded that: (a) this constituted an exceptional circumstance; and (b) if not for the lockdown, the error would not have occurred as the TWU’s quality assurance processes would have picked up on the error. I therefore find it to be a neutral consideration. As observed by the Deputy President in Daniel Asfa v Drake Australia Pty Ltd T/A Drake International: 29

[31] Further, the fact that the offices of legal firms were closed due to COVID-19 does not constitute exceptional circumstances. The Stage 4 restrictions affected all manner of businesses in Victoria but lawyers were still available to provide legal advice over the phone and through other means.

Conclusion

[44] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all of the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time.

[45] While appreciative that the delay in making the application was one day and that Mr Schofield sought assistance from the TWU within days of having been dismissed, I nevertheless do not consider it fair and equitable to grant an extension of time in which the application may be made, for the following reasons.

[46] Mr Dzieciol noted that an error had been made on behalf of the TWU. However, Mr Schofield was informed that he was to revert with further information by the close of business on 22 January 2021. He did not do so, notwithstanding that at this juncture, he had not provided instruction to the TWU to make an unfair dismissal application. Thereafter, Mr Schofield made no further contact with the TWU until such time as Mr Dzieciol reached out to him. It was not the case that Mr Schofield could simply abrogate all responsibility to the TWU, particularly in circumstances where the TWU was dependent on Mr Schofield’s further information to determine whether an application could be made, and if so, the type. As already noted, it was always open for Mr Schofield to ascertain the timeframe for making such an application. Having considered the reasons for the delay in culmination with the other factors one considers under s 394(3), which are predominately neutral, it remains the case that it is not fair and equitable to grant an extension of time.

[47] It follows that Mr Schofield’s application for an unfair dismissal remedy is dismissed. An Order 30 will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr S Curtis of the TWU for the Applicant;

Ms E McCarthy of Piper Alderman Lawyers for the Respondent.

Hearing details:

2021;

Perth, (by telephone);

March 24.

Printed by authority of the Commonwealth Government Printer

<PR727661>

 1   Witness Statement of Matthew Schofield (Schofield Statement).

 2 Ibid [14].

 3   Ibid.

 4 Ibid [17].

 5 Ibid [18].

 6   Ibid.

 7 Ibid [19].

 8 Witness Statement of Adam Dzieciol [8].

 9 Ibid [10].

 10 [2011] 203 IR 1.

 11   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 [39].

 12   Ibid.

 13   Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 [40].

 14   Mr KeMitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

 15   McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466.

 16   Ibid.

 17 Ibid [35].

 18   Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 [52].

 19 Witness Statement of Adam Dzieciol [18].

 20 Ibid [16].

 21   Nulty [14].

 22   Daniel Asfa v Drake Australia Pty Ltd T/A Drake International[2020] FWC 6402.

 23   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 24   Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 (Ross VP, Watson SDP and Gay C).

 25   Ibid.

 26   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 27   [2015] FWC 8885.

 28 Ibid [29].

 29   Daniel Asfa v Drake Australia Pty Ltd T/A Drake International[2020] FWC 6402.

 30   PR728419.