Matthew Rodgers v Badge Construction

[2016] FWC 3595

[2016] FWC 3595

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Rodgers
v
Badge Construction
(U2016/2092)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr Matthew Rogers alleged the termination of his employment by Badge Constructions (WA) Pty Ltd on 18 March 2016 was unfair.

[2] His unfair dismissal application lodged on 5 May 2016 was not made within 21 days of the date of the dismissal.

[3] The Fair Work 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.

[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1 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;

[5] Mr Rodgers sought legal advice in relation to his dismissal on 26 March 2016. He said he discussed with his lawyer proceeding with an unfair dismissal claim and his workers compensation claim. He said that when he left he understood that both issues would be handled by his lawyers. Mr Rodgers did not enter into a retainer with his lawyers in relation to either matter.

[6] On 28 April 2016, as he had not heard from his lawyers, he rang and asked what was happening. He was told that the lawyers were not able to represent him in his unfair dismissal claim. He then made enquires as to how he could proceed with this himself and on 4 May 2016 he discovered that there was a 21 day time limit to make his application. Prior to that, he said he did not know of the time limit and his lawyers did not advise him of the time limit. He asked his lawyers to verify this information and they provided a letter which made no reference to any discussion about any unfair dismissal claim prior to 28 April 2016. That letter advised that there had been a telephone conversation on 28 April 2016 and he had been advised that particular named lawyers could not represent him as they did not practice in employment law. They confirmed his advice that he was going to seek alternative representation, but if that was not able to be arranged, then another lawyer at the firm may be able to assist.

[7] Mr Rodgers said he was still taking pain medication but provided no medical evidence that his condition prevented him from lodging his application.

[8] Mr Rodgers’ father gave evidence that he spoke to his son after he visited the lawyers and it was clear that Mr Rodgers believed the firm was acting for him. However, Mr Albert Rodgers was not present at the meeting with the lawyers and had no direct knowledge of what Mr Rodgers was told.

[9] Badge submitted, given as there was no reference to Mr Rodgers’ evidence, that the lawyer forgot to inform him that she would not be proceeding with his claim in the letter from the lawyers, I could not be satisfied that the conversation actually took place.

[10] Badge also submitted that Mr Rodgers was aware of the Fair Work Commission because his EBA made it clear that disputes could be referred to the Commission for resolution; he had been provided with contact details for the Commission as part of the negotiating process for the EBA; and Mr Rodgers had been in contact with the Commission before.

[11] There was nothing in the lawyer’s letter that suggested that Mr Rodgers had instructed his lawyers to lodge the application and that they failed to do so. The absence of a costs agreement supports a conclusion that Mr Rodgers was mistaken in his belief that the law firm was acting for him in this matter.

[12] However even if I accepted that Mr Rodgers had a reasonable belief that his lawyers were acting for him, he was disavowed of this on 28 April 2016.

[13] Mr Rodgers did not provide a satisfactory explanation, other than his ignorance of the time limit, for not acting promptly after being advised on 28 April 2016 that the lawyers could not act for him. It is well established that a lack of knowledge of the time limit is not unusual.

[14] I am not satisfied that Mr Rodgers’ lack of knowledge of the time limit provides a reasonable explanation for why he took from 28 April 2016 to 5 May 2016 to file his application. This weighs against a finding that there are exceptional circumstances.

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

[15] Mr Rodgers was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[16] Mr Rodgers disputed the reasons relied upon by Badge to dismiss him, but apart from lodging this application, he did not take any other action to dispute his dismissal. I consider this criterion to be a neutral consideration.

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

[17] Badge submitted that it is a medium employer having 245 staff and did not have a heavily resourced HR department with only one employee who could represent them in an unfair dismissal claim. It submitted that all material in relation to this matter had been archived and having to participate in this process had already taken up time of senior staff. It submitted that it would send the wrong message to its staff that they can lodge outside of the time frame.

[18] I am not satisfied that any prejudice suffered by Badge is sufficient to weigh against a finding of an extension of time.

[19] I consider this criterion to be a neutral consideration.

(e) the merits of the application;

[20] Mr Rodgers was dismissed for willful disobedience, neglect of duty and gross insubordination. He was dismissed without notice. Mr Rodgers had been given a formal warning in December 2014 and Badge submitted that he was not performing to required standard. Badge alleged that Mr Rodgers had failed to attend work; and/or arrived late at work; and had failed to communicate with his line manager.

[21] Mr Rodgers was employed in October 2013 and had a work related injury. He denied that he had not communicated with his line manager. He accepted that he was struggling to get back into work after he had six months off because of his injury. He said he explained that his pain medication made it difficult for him to get up in the morning. Mr Rodgers accepted that he could have been given a warning but dismissal was harsh. Mr Rodgers said he was denied procedural fairness. He said the fact that dismissal letter had been dated and signed before the meeting supported a finding that the decision had already been made.

[22] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[23] Mr Rodgers submitted that his situation was less fair than others because his employer failed to follow any formal disciplinary procedure; he was not afforded natural justice in being dismissed; his employer should have understood the impact of his physical injury and given his performance was exemplary and it should have provided him with an opportunity to resolve the problem.

[24] Badge submitted that granting an extension of time would prejudice Badge because it would be a signal to other employees that they could lodge an unfair dismissal application out of time.

[25] I am not satisfied that the submission made by either party in this matter weigh in favour or against extending time. I consider this to be a neutral consideration.

Conclusion

[26] I am not satisfied that there are exceptional circumstances. Even accepting that Mr Rodgers mistakenly believed his lawyers were acting for him once he was advised they were not he was required to act promptly and he did not. None of the other criterion weigh in favour of a finding of exceptional circumstances. Mr Rodgers application for an extension of time is dismissed and accordingly his unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Rodgers on his own behalf.

R. Cox and D. McLaughlin for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

31 May.

 1   [2011] FWAFB 975

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