Mr Benjamin Jones v SMS Operations Pty Ltd T/A Swick Mining Services

[2014] FWC 4099

[2014] FWC 4099

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Benjamin Jones
v
SMS Operations Pty Ltd T/A Swick Mining Services
(U2014/1338)

COMMISSIONER CLOGHAN PERTH, 24 JUNE 2014

Unfair dismissal.

[1] On 17 April 2014, Mr Benjamin Jones (Mr Jones or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, SMS Operations Pty Ltd T/A Swick Mining Services (Employer).

[2] Mr Jones states in his application that he was dismissed by the Employer on 25 March 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Mr Jones has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(a) of the FW Act, a further period for the application to be made, that is, 17 April 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 17 April 2014, I issued procedural directions to the parties on 8 May 2014 advising that the matter would be determined by written submissions.

[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 17 April 2014.

CONSIDERATION

[9] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[10] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[11] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[12] The burden lies with Mr Jones to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[13] On 4 April 2014, the Applicant’s Industrial Agent contacted the Employer with a “To Whom It May Concern” email. The relevant parts of the email are:

“We have agreed to take on this case and represent him through the Australia Fair Work Commission process. I kindly ask that the person in charge of such matters contacts me on Monday to discuss the matter prior to us lodging the application.”

[14] The Employer’s Human Resources Manager responded approximately 3.5 hours later advising that she was on leave from the following Monday for one week but was available to discuss the matter that day. Alternatively, the Human Resources Manager advised she would contact the Industrial Representative on her return from leave.

[15] On the same day, 4 April 2014, the Industrial Agent responded by email. The relevant parts are as follows:

“Unfortunately none of our consultants are available today and I’m completely tied up...

At this point I would like to understand if the company would consider settling the matter prior to the lodgement of the application? If so can we discuss the matter and agree on terms prior to the 21 days lapsing. Alternatively if the company is not willing to reach an agreement we will lodge.”

[16] I find that on 4 April 2014, the Applicant’s representative was aware that an application had to be filed in the Commission within 21 days of the dismissal taking effect. While there is no documentation, I find it inconceivable that the Applicant’s industrial representative did not know that Mr Jones was dismissed on 25 March 2014.

[17] At the time of the email communication between the Applicant’s industrial representative and the Employer on 4 April 2014, 10 days had elapsed since the dismissal took effect. I have no submission regarding the action, if any, taken by Mr Jones during this period.

[18] In the remaining 11 days, I have no submission as to what action, if any, the Applicant or Industrial Representative took with regards to lodging the application other than the email exchanges on 4 April 2014.

[19] The Applicant’s representative submits:

“...unfortuantely we did not hear back from them [the Employer] after initial emails and phone conversations where the HR manager said she would be on leave. As we did not hear back from them [we] were left with no alternative but to lodge the application”.

[20] The Applicant has not alleged, nor the Industrial Agent conceded, that the delay was caused by representative error. I do not have a submission which states that the Applicant gave clear and unequivocal instructions to lodge the application when the HR Manager failed to respond to the Industrial Agent on returning from her leave.

[21] The Full Bench in McConnell v A & P M Fornataro[2011] FWAFB 466 adopted at paragraph [35] the approach summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency as follows:

“(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

[22] Similarly, this criterion is but one of a number which I must take into account and give weight to in deciding whether an application can be filed beyond the statutory timeline.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[23] There appears to be no dispute between the parties that the Applicant became aware of his dismissal on 25 March 2014.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[24] I have no documentary material to demonstrate that the Applicant took any action to dispute the dismissal with the exception of engaging an industrial agent. Following Mr Jones engaging an industrial representative, the correspondence between the representative and the Employer is a desire to enter into “settling the matter” prior to the lodging of an application.

[25] At most, I can infer that at 4 April 2014, Mr Jones disputed his dismissal.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[26] The Applicant does not address this criterion. The Employer submits that, should the Commission be satisfied that an extension to file the application is appropriate, it will incur additional time and cost in responding to the application. However, that may be so, but that time and cost would have had to be extended if the application had been filed within the statutory timeline. I have expressed previously that lack of prejudice suffered by the Employer is not a satisfier of exceptional circumstances, rather it does not dissatisfy exceptional circumstances.

Paragraph 394(3)(e) - the merits of the application

[27] The Applicant submits that he has never been warned regarding past performance and his employment was terminated due to the misconduct of another employee.

[28] The Employer sets out the incident and investigation which led to Mr Jones being dismissed.

[29] The Employer submits that the Applicant’s application has no reasonable prospect of success. The events that led to his dismissal were serious. In view of the details set out in the Employer’s submission, and the lack of a response from the Applicant (which he was entitled to make pursuant to the directions but did not avail himself of the opportunity), I consider it reasonable in the circumstances to draw an adverse inference from a lack of response by the Applicant.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[30] The Applicant does not address this criterion.

[31] The Employer submits that, as part of its investigation into the incident which led to Mr Jones being dismissed, another employee allegedly involved, resigned before the conclusion of the investigation.

CONCLUSION

[32] Having considered the submissions and taking into account the criteria in paragraph 394(3)(a) of the FW Act, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be filed beyond the statutory timeline of 21 days. Accordingly, the application must be dismissed. An order to this effect is issued with this decision.

COMMISSIONER

Final written submissions:

Applicant: 23 May 2014.

Respondent: 9 June 2014.

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