Matthew Keeley v Noosa Valley Sports & Recreation Pty Ltd T/A Noosa Valley Country Club

[2016] FWC 4600

[2016] FWC 4600

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Keeley
v
Noosa Valley Sports & Recreation Pty Ltd T/A Noosa Valley Country Club
(U2016/8104)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 JULY 2016

Application for relief from unfair dismissal.

[1] Mr Matthew Keeley alleged that the termination of his employment by Noosa Valley Sports & Recreation Pty Ltd was unfair. Noosa Valley denies the allegation.

[2] At the hearing I granted permission for Mr Keeley to be legally represented. I accepted the submission that it would be unfair to not grant permission because Mr Keeley is not able to represent himself effectively.

[3] Given his dismissal took effect on 5 May 2016 his unfair dismissal application lodged on 29 June 2016 was not made within 21 days of the date the dismissal took effect.

Background

[4] Mr Keeley first lodged an unfair dismissal application on 21 May 2016. The matter was listed for conciliation on 20 June 2016. On 10 June 2016, Mr Keeley rang the Fair Work Commission and left the following voice message.

“Hi Christine Harvey.
My name is Matthew Keeley.
I have an unfair dismissals case against Noosa Valley Country Club.
Commission matter number U2016/7090.
I now wish to stop the unfair dismissal case and not continue in this matter.
If you need to call me to talk about anything, call me back on …….”

[5] As a result a member of staff of the Commission contacted Mr Keeley. That staff member made a file note as follows: “Discussion with App and advised the matter would not be able to brought back to the Commission. App confirmed his request to discontinue the matter.”

[6] On 13 June 2016, Mr Keeley sent an email in which he advised “After talking to you last Friday I will go ahead with mediation and will call you this Thursday.”

[7] On 14 June 2016, Mr Keeley was advised that “as per our conversation on Friday, you withdraw (sic) your application via phone. As discussed and advised to you, this matter will not be able to be re-opened. The Application has been closed and Cancelled notice issued to the parties on Friday 10 June 2016.”

[8] On 14 June 2016, Mr Keeley’s representative and that email stated as follows:

“We confirm that we have received instructions from Matthew Keeley.

Mr Keeley has forwarded to us the below correspondence.

Mr Keeley disputes that the mediation was able to be cancelled by phone.

Our client states that he telephoned your offices on Friday 11 June 2016 at approximately 2:40pm.

Our client states that he left a message which was returned by you at around 3:00pm.

Our client states he was suffering anxiety when he contacted you and was worried about the upcoming mediation.  He spoke to you he advises in gest of cancelling the mediation.  Our client states that you advised him that a formal notice in writing needed to be supplied (namely a form F50) before the mediation can be cancelled.

Our client thought about it and confirmed in writing to you that he wanted to proceed.  Accordingly, we again confirm in writing that our client would like to proceed.

Please confirm the time and date for mediation.”

[9] On 21 June 2016, I caused an email to be sent to Mr Keeley’s representative advising of Rule 10 of the Commission’s rules which permit discontinuance by telephone. I also drew attention to the decision in AB v Tabcorp Holdings Limited. 1

[10] I advised that matter would be listed for telephone hearing/conference to determine whether the application had been discontinued.

[11] On 21 June 2016, Mr Keeley’s representative responded stating that her:

“client did allude to terminating the conciliation in a telephone call with Fair Work Australia, however at the time he was under an immense amount of stress, anxiety and pressure and did not want to terminate the process.

If you listen to the tape recorded call, you will hear that our client was advised to think about the decision before making a firm decision and the call was ended not by confirming that termination of the conciliation should occur but by our client agreeing to think about the process and being advised if he did want to terminate that he needs to advise the commission in writing.  We confirm that our client then confirmed in writing that he did want to proceed with the application, which was before the notice to terminate was issued.

Our client will suffer detrimental hardship if he cannot utilise the Fair Work Australia Forum to negotiate a severance package for the unfair dismissal. 

We ask the commissioner to please take into consideration our client’s financial hardship and stress of losing his job which he held for 9 years when making the decision about whether or not to relist the application.  We again confirm that our client admits to discussing termination of the process but did not formally give instructions to terminate the process.” 

[12] On 29 June 2016, Mr Keeley filed a further unfair dismissal application and sought an extension of time.

[13] At the hearing I asked Mr Keeley’s representative to confirm whether she sought to pursue the contention that the matter had not in fact been discontinued or sought to be press the second application. She advised she wished to press the second application. As such Mr Keeley’s second application cannot proceed unless Mr Keeley is granted an extension of time to make the application. I further asked Mr Keeley’s representative if she wished to have that matter heard and determined at the telephone hearing or be provided with an opportunity to file material and she confirmed that she wanted to make submissions and then provide medical certificates to support those submissions.

[14] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[15] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 2 where the Full Bench said:

“[13] 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. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. 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." [Endnotes not reproduced]

(a) the reason for the delay;

[16] The main reason for the delay in lodging this application is due to Mr Keeley discontinuing his first application. It was also delayed because Mr Keeley instructed his lawyers that he had not discontinued and therefore instead of promptly lodging this application his lawyers sought to have the original application reopened on the basis that there had been no discontinuance. Even after my letter of 21 June 2016, which referred to the decision in AB v Tabcorp that stated that there was no barrier to an applicant who had discontinued an unfair dismissal application filing another application, no new application was made until 29 June 2016.

[17] Mr Keeley submitted that he did not understand the repercussions of his decision to discontinue his application. It was submitted that he was unaware that he couldn’t go to mediation. It was submitted that he was advised that he needed to file a notice of discontinuance and he then decided he wished to proceed with the matter.

[18] However this submission is inconsistent with the Commission’s records. Mr Keeley’s telephone message discontinuing the application was clear. He wanted to stop the unfair dismissal case and he did not want to continue any further. That telephone message was unsolicited. The staff member who returned his call made it clear that the matter could not subsequently be reopened.

[19] It was said he changed his mind the same day, however the Commission’s records disclose that he did not advise the Commission of this until 13 June 2016.

[20] Further having listened to the recording of the telephone message there is nothing in that message which supports Mr Keeley’s lawyer’s contention that he advised in jest that he wished to cancel the mediation. In Mr Keeley’s original call, there was no reference to the mediation.

[21] I provided a copy of the text of the voice message to the parties and invited them to comment. Noosa Valley submitted that Mr Keeley had simply changed his mind and the matter should not proceed. Mr Keeley submitted that he received the employer response and panicked and, without seeking legal advice, telephoned the Commission. The Commission’s records show that the employer response form was served on Mr Keeley by email on 6 June 2016 and he did not advise the Commission until 10 June 2016 that he wished to discontinue the matter.

[22] Mr Keeley relied upon medical certificates dated 16 June 2016 and 29 June 2016 and a medical report dated 19 June 2016. The certificate dated 29 June 2016 reported that Mr Keeley had been seen on 19 April 2016 which predated his dismissal and does not assist to explain why he discontinued his application in June 2016. The certificate dated 16 June 2016 does not state that he was not capable of making decisions in relation to this dispute. The report dated 19 June 2016 advised of significant health issues which may have impacted on his decision making.

[23] While those health issues are relevant to my consideration of whether there is a reasonable explanation for the delay, his health has not prevented him from lodging his initial application and, after discontinuing his application, instructing lawyers to represent him. There was nothing to prevent him obtaining advice prior to discontinuing his application. Further his medical condition did not prevent him working during this period.

[24] It is not unusual for employees to discontinue an application and then change their mind. There is no evidence to suggest he discontinued by mistake or under duress.

[25] While I accept that Mr Keeley’s health may have contributed to his decision to discontinue his application, he further contributed to the delay by not providing his lawyers with a complete picture of what had occurred. Had his lawyers been aware that, in an unsolicited phone call, Mr Keeley had advised that he did not want to continue his claim, it could have immediately filed a fresh application. Further there was no explanation of the delay between 21 June and 29 June 2016. By 21 June 2016, Mr Keeley was on notice that the Commission could not set aside discontinuance and that discontinuance by telephone was permissible. There was no submission that this delay was caused by representative error.

[26] I am therefore not satisfied that Mr Keeley had a reasonable explanation for the whole of the delay.

[27] This weighs against a finding of exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[28] Mr Keeley was aware of the dismissal when it took effect. I consider this criterion to be neutral.

(c) any action taken by the person to dispute the dismissal;

[29] There was no evidence of any action taken by Mr Keeley to dispute his dismissal when it occurred. This weighs against a finding of exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[30] There was no evidence or submission about any prejudice to Noosa Valley. While a lack of prejudice is an insufficient basis to grant an extension of time a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[31] In the matter of Kornicki v Telstra-Network Technology Group 3 the 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 Commission said:

"The merits of the substantive 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."  4

[32] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 5 

[33] Mr Keeley submitted that he had been dismissed because he queried his entitlements. He claimed to have been bullied by his employer. Noosa Valley denied the allegations. It was submitted that he was dismissed because of his failure to attend work and notify his employer of his absences as well as his attitude.

[34] I am not able to make a final determination of the merits in this matter as there are factual disputes between the parties. I consider this criterion to be a neutral consideration.

(f) fairness as between the person and other persons in a similar position.

[35] There were no submissions or evidence in relation to this criterion and I find it to be a neutral consideration.

Conclusion

[36] The only reason Mr Keeley requires an extension of time is because he discontinued a validly made application. He did so in circumstances where he was unwell. However I was not satisfied that this provided a reasonable explanation for the whole of the delay. A lack of prejudice to the employer is not a sufficient reason to find that there are exceptional circumstances. None of the other criteria weigh in favour of such a finding. I am therefore not satisfied that there are exceptional circumstances and Mr Keeley’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

D. Sewell for the Applicant.

T. Karas for the Respondent.

Hearing details:

2016.

Melbourne and Brisbane, by telephone link:

July 1.

 1   [2015] FWCFB 523.

 2   [2011] FWAFB 975.

 3   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 4   Ibid.

 5   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

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