Matthew Medforth v RBH Building Group Pty Ltd T/A Red Bluff Homes
[2016] FWC 1647
•30 MARCH 2016
| [2016] FWC 1647 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Medforth
v
RBH Building Group Pty Ltd T/A Red Bluff Homes
(U2016/3608)
COMMISSIONER CIRKOVIC | MELBOURNE, 30 MARCH 2016 |
Application for relief from unfair dismissal – extension of time not granted.
[1] Mr Matthew Medforth alleged that the termination of his employment by RBH Building Group Pty Ltd T/A Red Bluff Homes (RBH) on 14 December 2015 was unfair.
[2] His unfair dismissal application lodged on 6 January 2016 was not made within 21 days of the date of the dismissal as required by s.394(2) of the Fair Work Act 2009 (Cth) (the Act).
[3] The Fair Work Commission (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.
[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where 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]
[5] Mr Medforth’s employment was terminated with immediate effect on 14 December 2015 following a performance review process in which it was found that his performance was unsatisfactory.
S.394(3)(a) the reason for the delay
[6] Mr Medforth confirmed that he did not consult his union after 14 December 2015. Mr Medforth said that on 16 December 2015, he obtained the paperwork necessary to make his application to the Commission and began to fill that paperwork out; due to his anxiety and the pressure that he was under, he was in two minds as to whether or not he should submit his application.
[7] Mr Medforth said that he had consulted a medical practitioner in relation to his anxiety prior to his termination date, however he had not between the date of termination and the filing of his application.
[8] Mr Medforth said that he was away for personal reasons during the Christmas period, between the 18 December 2015 and 24 December 2015. After he returned from his holiday he took steps to post his application via regular post. Mr Medforth said that he made the final decision to send his application two days before the 21st day after his termination date and that he posted it one day before the 21st day after his termination date.
[9] Mr Medforth said that he did not consider attending the Commission to file the application as he was without a vehicle at that time.
[10] For this consideration there must be an acceptable reason for the delay 2 and this must be for the whole of the period that the application was delayed.3 I am not satisfied that Mr Medforth has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.
S.394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[11] Mr Medforth was notified of his dismissal on the day it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.
S.394(3)(c) any action taken by the person to dispute the dismissal
[12] Action taken by an employee to contest the dismissal, other than lodging an unfair dismissal application, may favour the granting of an extension of time. 4 Prior to 14 December 2015, RBH gave Mr Medforth the option to resign and receive a written reference. Mr Medforth requested more time to consider his options; RBH granted this request and extended Mr Medforth’s notice of termination until 14 December 2015. On 14 December 2015, Mr Medforth informed RBH that he would not be handing in his resignation. Mr Medforth confirmed that he did not consult his union or any other professional body during the period in which he was considering his options. On the materials before me, there is nothing which demonstrates Mr Medforth took action to contest his dismissal, other than lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.
S.394(3)(d) prejudice to the employer (including prejudice caused by the delay)
[13] Prejudice to the employer will go against the granting of an extension of time. 5 RBH did not submit that there was any prejudice to it if an extension of time were granted. This weighs in favour of a finding of exceptional circumstances.
S.394(3)(e) the merits of the application
[14] RBH submitted that it had a valid reason for the termination of Mr Medforth’s employment and that as a small business under the Fair Work Act 2009 (the Act) they had complied with the Small Business Fair Dismissal Code. RBH submitted that Mr Medforth’s performance had been reviewed over an extended period of time. Mr Medforth submitted that he had only been given one formal warning and that he was not given the opportunity to improve as he was on stress leave.
[15] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 6 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.7 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.
S.394(3)(f) fairness as between the person and other persons in a similar position.
[16] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 8 However, there were no submissions that there is, or has been, any persons in a similar position to Mr Medforth. I find this criterion to be neutral.
Conclusion
[17] I am not satisfied that there are exceptional circumstances. While there is no prejudice to RBH, this is not sufficient to enable a finding of exceptional circumstances. 9 I am not able to conclude on the material before me that the merits of this matter are such so as to outweigh the lack of reasonable explanation for the whole of the delay. Mr Medforth’s application for an extension of time is dismissed and his unfair dismissal application is therefore dismissed. An order dismissing Mr Medforth’s application will accompany this decision.
COMMISSIONER
Appearances:
Mr Matthew Medforth representing himself.
Mr Brendan Barry representing RBH Building Group Pty Ltd T/A Red Bluff Homes.
Hearing details:
2016;
Melbourne:
February 12.
1 [2011] FWAFB 975.
2 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
3 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409
4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
5 Ibid
6 Haining v Deputy President Drake (1998) 87 FCR 248, 250
7 Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 [14]
8 Wilson v Woolworths [2010] FWA 2480, [24]-[29]
9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
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