Michael Wilson v Sovereign Hydroseal Pty Ltd

[2015] FWC 8430

[2015] FWC 8430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Wilson
v
Sovereign Hydroseal Pty Ltd
(U2015/12545)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Michael Wilson alleged that the termination of his employment by Sovereign Hydroseal Pty Ltd was unfair.

[2] Hydroseal objected to Mr Wilson’s application, alleging that it was not lodged within 21 days from when the dismissal took effect.

[3] In his application form, Mr Wilson submitted that his dismissal took effect on 7 October 2015 but he was not notified of the dismissal until 19 October 2015. Hydroseal submitted that Mr Wilson abandoned his employment on 7 October 2015.

[4] If Mr Wilson is correct, and he was not notified of his dismissal until 19 October 2015, then his application lodged on 30 October 2015 was within the 21 days and he does not require an extension of time. If Mr Wilson abandoned his employment on 7 October 2015, then he requires an extension of time to lodge his application.

[5] At the hearing, I granted Mr Kemp permission to appear for Hydroseal as I considered it would enable the matter to be dealt with more efficiently due to the complexity of the matter. This was not a simple extension of time application. The added complexity was whether Mr Wilson had abandoned his employment.

[6] Mr Wilson performed work for Hydroseal in Singapore. He commenced work on site on 21 September 2015. On 6 October 2015, Mr Wilson attended site but refused to sign daily records.

[7] On 7 October 2015, Mr Wilson sent an email to Mr Chris Schwarz, a Director of Hydroseal, raising issues he had identified with his visa, in particular that he could not perform the daily signing off. On the same day, Mr Schwarz replied advising the Mr Wilson was correct and he was told not to step outside of his current authorisation. Mr Wilson replied and said that there were still issues around his remuneration which needed clarifying.

[8] On the same day, an email was sent by Mr Grobler, another Director, to Mr Wilson advising him that Mr Van Dyk would be in Singapore on Sunday and asking him to keep control of things until then. 1

[9] On 7 October 2015, Mr Wilson sent Mr Grobler a text message in Africaans which said:

“UP TO HERE BUT NO MORE Nico …. I am finished…. all fucked up. The little I was promised out of the millions I pumped is taken from me….. and then even my personal cash I used not refunded….. Jesus man I know I’m an English man but damn…. now I’m becoming a “Boer”… And I will stand my ground…… and it is good ground because I grouted it.” 2

[10] Mr Van Dyk gave evidence that he travelled to Singapore on 9 October 2015 to meet with Mr Wilson. He rang Mr Wilson but when Mr Wilson answered the calls, he hung up once he realised it was him. 3 Mr Van Dyk sent Mr Wilson a text message telling him they should meet that morning as he was in Singapore and asked him when he would be at work.

[11] Mr Van Dyk said he spoke to Mr Schwarz on 9 October 2015 and told him to tell Mr Wilson that if he did not wish to continue working, he should resign. 4

[12] Mr Wilson sent Mr Van Dyk a text message as follows:

“I will return to Australia and hand in my resignation as per request. Thankyou [sic] for the opportunity that has been given but it is not in the direction that I wish to continue my career and life. Regards Mike.” 5

[13] On 9 October 2015, Mr Schwarz advised Mr Van Dyk that Mr Wilson wanted to return to Australia and that he would put in his resignation when he returned to Australia. 6

[14] On 10 October 2015, Mr Van Dyk sent Mr Wilson an email in which he advised Mr Wilson that he had received his SMS to resign and advised that the resignation was accepted. Mr Wilson gave evidence that he did not receive this email and it was not disputed that his email had been cut off by this date. He was given this document by Mr Schwarz on 13 October 2015 when he returned to Australia.

[15] Mr Wilson returned to Australia on 13 October 2015 but did not report for work. He gave evidence that he was unable to attend work as the office was unattended and he did not have keys to the office. On 18 October 2015, Mr Wilson sent Mr Dave Le Roux, the General Manager of the Perth office, an SMS asking about the current status of his work as follows:

“Due to inability to communicate via emails as mine has been closed I would like to know what my current status regarding work is? I’m a bit confused, initially I was asked to resign no other option given. I replied via SMS that I would on return to Australia as requested. Thereafter it was stated that I can’t be forced to work in Singapore and there is plenty of work for me to do in Australia. I have not handed in an official resignation letter to the office as of yet and I am willing to continue with work here in Australia. Looking forward to your response. Mike.” 7

[16] Mr Wilson met with Mr Le Roux on 19 October 2015 when Mr Le Roux told him he was no longer an employee. 8

[17] The first issue to be decided is when did Mr Wilson’s employment end, either by resignation, termination or abandonment of employment.

[18] Hydroseal submitted that Mr Wilson abandoned his employment on 7 October 2015. I do not accept this submission. It was Mr Wilson’s evidence that he was required to perform work that he was not permitted to perform under his visa. Mr Schwarz, a Director of the Hydroseal, agreed that he should not perform work outside of his current authorisation.

[19] Neither Mr Van Dyk nor Mr Grobler gave evidence that they formed the view that Mr Wilson had abandoned his employment on 7 October 2015. So much is clear from the email sent to Mr Wilson on 10 October 2015 when he was advised that his resignation had been accepted.

[20] However, on 9 October 2015, Mr Wilson clearly told his employer that he was no longer willing to perform the work he had been assigned to do in Singapore and he was returning to Australia. If Mr Wilson abandoned his employment or resigned his employment on that date, his application for an unfair dismissal remedy was lodged within 21 days of that date and as such he does not require an extension of time.

[21] If I am wrong, and he did abandon his employment on 7 October 2015, then Mr Wilson’s unfair dismissal application cannot be determined unless he is granted an extension of time.

[22] 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.

[23] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 9where 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;

[24] Mr Wilson relied upon the confusion around the date of dismissal to explain the delay in lodging his application. He submitted that he was only aware that his employment had ended when advised by his manager on 19 October 2015. He said he did not return to Perth until 13 October 2015. He accepts that he said he would resign on his return to Australia but he never formally resigned. He further said he did not know that Fair Work existed and his employer had never provided him with a copy of the Fair Work Information Statement.

[25] Hydroseal submitted that Mr Wilson knew his termination took effect on 7 October 2015 when he stopped performing work.

[26] I find that Mr Wilson had a reasonable explanation for not lodging his application within 21 days. I accept his evidence that he believed that he was being asked to perform work that was outside of the scope of his work permit. So much was confirmed by Mr Schwarz. Further, there was no indication given to Mr Wilson on 7 or 8 October 2015 that Hydroseal had determined that he had abandoned his employment and was no longer an employee.

[27] 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;

[28] For the reasons outlined above, I do not accept the submission that Mr Wilson was aware of his dismissal when it took effect. This weighs in favour of a finding that there are exceptional circumstances.

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

[29] As Mr Wilson was not aware that Hydroseal considered his employment had ended on 7 October 2015, he did not take any action to dispute his dismissal at this time. This criterion is neutral.

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

[30] Hydroseal submitted that there would be no direct prejudice to it if an extension of time were granted. However, it did submit that there would be considerable cost and inconvenience to it as its two main witnesses reside in New York. I accept that there would be prejudice to Hydroseal, but that prejudice is not sufficient to weigh against a finding that there are exceptional circumstances. I consider this criterion to be neutral.

(e) the merits of the application;

[31] There is a significant dispute about whether Mr Wilson was being required to perform work outside of his visa requirements. This was Mr Wilson’s explanation for his failure to perform work. If this issue is resolved in Mr Wilson’s favour, then his contention that he did not abandon his employment by refusing to perform the work will be supported. However, even if he is right about this, it does not explain his decision to refuse to meet with Mr Van Dyk and his decision to unilaterally leave Singapore.

[32] However, as these issues have not been fully explored, I am not able to make a final assessment of the merits as there are factual disputes between the parties. I consider this criterion to be neutral.

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

[33] No relevant submissions were made on this criterion.

Conclusion

[34] I have found that Mr Wilson’s application was made within the time period provided by the Fair Work Act 2009. If I am wrong, I find that there are exceptional circumstances. Mr Wilson has provided a reasonable explanation for the delay in lodging his application and none of the other criteria weigh against a finding of exceptional circumstances. I am unable to agree with the submissions of Hydroseal that Mr Wilson’s claim is unlikely to succeed and had it been necessary, I would have exercised my discretion to extend the time for Mr Wilson to lodge his application.

DEPUTY PRESIDENT

Appearances:

Mr M Wilson on his own behalf.

Mr S Kemp on behalf of the Respondent.

Hearing details:

2015.

Perth:

November 26.

 1 Exhibit R3 at [22].

 2   Exhibit R2.

 3 Exhibit R1 at [14].

 4 Ibid at [15].

 5   Exhibit R3 at page 15.

 6   Ibid at page 23.

 7   Exhibit R3 at page 14.

 8 Exhibit R1 at [23].

 9   [2011] FWAFB 975.

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