Michael Townsend v ASAP Global Lincs

[2016] FWC 2198

[2016] FWC 2198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Townsend
v
ASAP Global Lincs
(U2016/4976)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Michael Townsend alleged the termination of his employment on 8 February 2016 was unfair.

[2] His unfair dismissal application lodged on 1 March 2016 was not made within 21 days of the date of the dismissal.

[3] A telephone conference was conducted but ASAP Global Lincs did not participate.

[4] 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.

[5] 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;

[6] Mr Townsend said that he was advised by text message on 5 February 2016 that “due to lack of work in the Burnie/Somerset area we have had to close that area down.” He was told that he would receive an email that night explaining everything. Mr Townsend said he did not receive the email. He was told he would be sent a letter of explanation, a separation certificate and a cancellation of traineeship, none of which he received. He was told he would be paid his entitlements the next week but this did not occur. He waited for a couple of weeks hoping that he would be paid.

[7] Mr Townsend said he was unsure of when his employment was in fact terminated because he had previously been stood down when there was a shortage of work. He decided when he was not contacted on the Monday that his employment had been terminated.

[8] He delayed going to Centrelink until 22 February 2016 as a result. He then decided to lodge an unfair dismissal application and because he had some problems with the computer application, he asked the application to be sent to him by mail. When it didn’t arrive he went to the Burnie Line Centre and tried to complete the application on line. However because he could not save it to the hard drive he lost his application when he went to save his work. He then got the staff to download a form for him and he completed it and sent it registered post on 26 February 2016. Mr Townsend thought this was the fastest way he could send a letter.

[9] Unfortunately Australia Post does not purport to deliver registered post any faster than it delivers regular mail. It says there is delivery estimate of 2-6 days. Only express post has a next business day delivery estimate and that estimate only applies if it is posted over the counter by 5pm or at a yellow street posting box.

[10] Mr Townsend was not aware of this when he posted his letter. The change in delivery standards only took effect at the beginning of the year.

[11] I do not consider it was unreasonable for Mr Townsend to expect a registered letter sent on Friday to be delivered on Monday. While it is not unusual for applicants to have some difficulty with computers or electronic lodgement or the slow delivery of the mail, to encounter the litany of problems faced by Mr Townsend is unusual. I consider that Mr Townsend had a reasonable explanation for the one day delay in lodging his application and this weighs in favour of a finding that there are exceptional circumstances.

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

[12] Mr Townsend 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;

[13] Mr Townsend attempted to dispute his dismissal at the time. He made phone calls and sent text messages. However ASAP Global did not return his calls. This weighs in favour of a finding that there are exceptional circumstances.

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

[14] ASAP Global did not file any material in response to Mr Townsend’s application. I find that there is no prejudice to the employer if an extension of time is granted. This weighs in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[15] Mr Townsend’s employment was terminated by text because of a lack of work. Mr Townsend says he was willing to relocate or travel for work. He said some of the workers were redeployed to other contracts. Even if there were operational reasons for the dismissal there is no evidence of any consultation with Mr Townsend and no evidence that there were no suitable redeployment opportunities.

[16] While I am not able to make a final assessment of the merits given ASAP Global did not file any material in opposition to the application I am satisfied that Mr Townsend’s claim has merit. This weighs in favour of a finding of exceptional circumstances.

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

[17] There were no submissions that there were any persons in a similar position.

Conclusion

[18] I am satisfied that there are exceptional circumstances. Mr Townsend has a reasonable explanation for the delay and his claim has merit. The decision to approve an extension of time is discretionary. Much of Mr Townsend’s complaint goes to issue of how he was treated whilst employed. He further complains that ASAP Global was given significant subsidies to employ him because of his age and because he is an indigenous Australian.

[19] As a result of his dismissal, these subsidies are not available to assist him to gain alternative employment. Further, his complaint raises issues about underpayment of entitlements. While many of these issues cannot be resolved in an unfair dismissal case, I am satisfied that this is a case where I should exercise my discretion to extend time. If the facts relied upon by Mr Townsend are correct then he was not treated with dignity during his employment or in the manner in which his employment was ended. He is entitled to have that question of whether he was unfairly dismissed determined.

[20] An order extending the time for Mr Townsend to lodge his application to 1 March 2016 will be issued with this decision and his application will be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

M. Townsend on his own behalf.

No appearance by the Respondent.

Hearing details:

2016.

Melbourne and Hobart, by telephone link:

6 April.

 1   [2011] FWAFB 975

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