Mr Bradley Garrett v Gemini Accident Repair Centre

[2015] FWC 5308

[2015] FWC 5308

FAIR WORK COMMISSION

DECISION

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

Mr Bradley Garrett
v
Gemini Accident Repair Centre
(U2014/15894)

VICE PRESIDENT CATANZARITI MELBOURNE, 6 AUGUST 2015

Application for relief from unfair dismissal.

[1] Mr Bradley Garrett (Applicant) applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his former employment with Gemini Accident Repair Centre (Respondent).

[2] The Applicant was employed as an Estimator by the Respondent. The Applicant commenced employment with the Respondent on 11 May 2012. The Applicant alleges that he was notified of the termination of his employment with the Respondent on 15 September 2014. The Applicant’s application for an unfair dismissal remedy was completed on 3 December 2014. The Respondent made a jurisdictional objection to the application on the basis that the Applicant filed the application some 84 days outside the statutory time limit. The Respondent also objected to the application on the basis that the Applicant resigned and was not dismissed.

[3] The matter was initially listed for a jurisdictional hearing on 29 May 2015. The Applicant did not appear at the hearing and did not make any attempt to contact the Commission to notify it of his inability to attend. On the day of the hearing, enquiries were made via phone and email and the Commission was unable to locate the Applicant. Subsequent to the hearing, the Applicant emailed the Commission on 1 June 2015 and sought to have the matter reopened. Following correspondence with the Commission, the Commission directed that the matter would be reopened on the condition that the Applicant provided a statutory declaration explaining why he failed to appear before the Commission on 29 May 2014. A statutory declaration was subsequently provided by the Applicant which was sworn on 15 June 2015 and that statutory declaration is a matter to be taken into account by the Commission. It is noted in that statutory declaration that the Applicant says that he could not attend the Commission because he was involved in an accident, was having trouble speaking as his jaw was wired shut and was suffering from Post-Traumatic Stress Disorder.

[4] The matter was relisted and proceeded on 7 July 2015 on the submissions that were previously filed and subsequent evidence was given by the Applicant in person and the Respondent’s HR manager Ms Reid attended via telephone. The matter was run as a determinative conference to ensure its efficient running in circumstances where enquiries of a factual nature were required and both parties were unrepresented. I swore in the Applicant as a witness and asked him questions and allowed the Respondent to ask any supplementary questions as required.

[5] I note that the Applicant has been employed for periods of time since he ceased working for the Respondent. I requested at the determinative conference, that the Applicant provide copies of his payslips and all relevant information regarding his employment since his he ceased working for the Respondent, within 7 days of the determinative conference. 1 I note that the Applicant has not complied with this direction and it is taken that he had no material that he wished to supply in this regard.

[6] The threshold question requiring determination was whether the Applicant should be granted an extension of time to file his application. If I determine that no extension of time should be granted, a finding of no jurisdiction must follow.

The relevant legislation and authorities

[7] One of the matters that the Commission must determine prior to considering the merits of an application is whether the application was made within the period required in s.394(2).

[8] Section 394 of the Act relevantly provides

“(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

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

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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."

[9] It is well established that this section requires a consideration of all of the circumstances and that exceptional circumstances may arise from a single factor or a combination of factors. The Applicant contends that a combination of factors amount to exceptional circumstances in this matter. I propose to consider the circumstances by reference to the factors contained in s.394(3) of the Act.

[10] The term “exceptional circumstances” has been helpfully summarised by a Full Bench of the Commission in Nulty v Blue Star 2:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are ‘exceptional circumstances’, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[11] I adopt and follow the approach of the Full Bench in this regard.

Consideration

The reason for the delay

[12] The Applicant submitted that after his dismissal from the Respondent’s employ, which he alleges took place on 15 September 2014, he became severely depressed, suicidal and was dealing with marital problems. The Applicant submitted that he was not able to leave the house for several weeks and could not lodge his claim any earlier. The Applicant provided medical documentation dated 15 September 2014 from a Dr Fathi comprising of a mental health assessment plan which states his diagnosis as “Mixed anxiety and depression”. 3

[13] The Respondent submitted that the Applicant was not dismissed and resigned from his position following the refusal of the Respondent to engage him as a contractor. A document entitled “Staff Termination Form” dated 29 August 2014 was attached to Respondent’s application and indicated the reason for termination as “Starting as a Contractor Estimator”. 4 The Respondent alleges that on 13 September 2014, after the Applicant’s resignation, the Applicant contacted a Mr Huskinson (the Centre Manager) in regards to doing contract work as an Estimator for the Respondent. On 15 September 2014, Mr Huskinson advised the Applicant that at the time, the Respondent did not require the services of an Estimator as there was a full time employee who was injured on 30 August 2014 and required modified duties whilst healing and had subsequently been temporarily appointed into the role of Estimator.

[14] Moreover, the Respondent submitted that the medical documentation provided by the Applicant notes family problems and that he sought help for mixed anxiety and depression on 15 September 2014, but makes no mention of the Applicant being unfairly dismissed or that anything relating to work contributed to his mental health condition. Furthermore the mental examination by Dr Fathi indicates that the Applicant’s thinking, perception and cognition were all rated normal on 15 September 2014. In the Respondent’s submissions, this supports the position that the Applicant resigned on 29 August 2014 to pursue being a contractor. The Respondent submitted that the Applicant could have lodged an application for an unfair dismissal at this time as he was receiving help for his mental health issues and was deemed to have normal thinking, perception and cognition. Moreover, even if the Applicant could not leave the house for several weeks, the Respondent submitted that the Applicant could have lodged an application via telephone or online which is a simple and convenient process. The Respondent contended that the Applicant’s submissions do not justify a delay of 14 weeks from his date of resignation.

[15] During the determinative conference, the Applicant denied having signed the termination form despite the signature on the form being identical to his signature on his Form F2 - Unfair Dismissal Application. 5 The Applicant indicated that his signature may have been inserted into the document and insisted he didn’t sign the document.6 When giving evidence, the Applicant also claimed he did not receive documents from the Commission, including the Form F3 - Employer Response.7 Once presented with the documents and emails sent to him, he then claimed that he did not have access to the email address which he provided in his application because it was his wife’s email address and they had separated.8 However, under further questioning it became obvious that he had received the correspondence that he denied receiving and had in fact replied from the email address he denied having access to.9 Upon being shown emails sent from him from that email address, he then claimed that it was his wife replying on his behalf.10 The Applicant gave a number of inconsistent answers and only reluctantly agreed to facts when confronted with documents. I find that the Applicant was not a witness of credit and as such give little weight to his narrative regarding his reasons for the delay in filing his application.

[16] I prefer the Respondent’s evidence in regards to the delay. There is a real disconnect between the reason given on the termination form on 29 August 2014, the request to do contract work on 13 September 2014 and the subsequent claim that he was dismissed on 15 September 2014 and suffering mental illness as a result. Despite his assertions that he was suffering from serious mental health issues, the Applicant did not seek medical attention between the 29 August 2014 and 15 September 2014, a period in which he was not working. The medical evidence seems to be retrospectively linked to the refusal of the Respondent to offer him contract work.

[17] Even if I did accept the Applicant’s version of the facts, I do not consider that the circumstances described as causing the delay can be characterised as exceptional for the purposes of exercising the discretion to grant an extension of time.

[18] I find that the matters above weigh heavily against the exercise of my discretion in relation to an extension of time in this matter.

Whether the person first became aware of the dismissal after it had taken effect

[19] The Applicant submitted that he became aware of his dismissal on 15 September 2014 when he returned to work after time he had taken off to take care of his second wife following her surgery.

[20] As mentioned above, the Respondent submitted that the Applicant chose to resign on 29 August 2014 to pursue being a contractor. The Respondent submitted that the Applicant made it known that if they could not accommodate him as a contractor, then he would leave to work at another smash repair centre and he did so. The Respondent submitted that after the Applicant’s resignation, they heard rumours that the Applicant’s wife, after having breast enlargement surgery in Thailand, had returned to Australia and had left the Applicant. As already noted, the Respondent submitted that the Applicant contacted Mr Huskisson on 13 September regarding working for the Respondent as an Estimator but was advised on 15 September 2014 that the Respondent could not accommodate this request. The Respondent submitted there was no dismissal letter because there was no dismissal and the aforementioned staff termination form signed 29 August 2014 was the relevant document demonstrating the manner by the Applicant left the Respondent’s employ.

[21] Given my findings with respect to credit, I prefer the evidence of the Respondent and consider that the Applicant was not dismissed and was aware of the termination of his employment on 29 August 2014, which he himself initiated. I find that this matter weighs against the exercise of my discretion in relation to an extension of time in this matter.

Any action taken by the person to dispute the dismissal

[22] The only action taken to dispute the dismissal that is discernible from the evidence is the application itself and the subsequent proceedings before the Commission.

[23] The Respondent also submitted that during late November 2014, Mark Reid, the Business Development Director of the Respondent, contacted the Applicant about possible short term subcontracting opportunities. During these conversations, the Applicant allegedly did not dispute the dismissal and Mr Reid reported that the Applicant was chirpy and inquisitive about the opportunity and told Mr Reid that he would think about it. The Respondent submitted that the Applicant did not further follow up the opportunity with Mr Reid. The Applicant concedes that he was contacted by Mr Reid and spoken to about an opportunity in Brisbane. 11

[24] I find that this weighs against the exercise of my discretion in relation to an extension of time.

Prejudice to the employer (including prejudice caused by delay)

[25] The Respondent submitted that the Centre Manager, Mr Huskisson who the Applicant reported to and also liaised with during his resignation, has since left the Respondent’s employ and this may prejudice the Respondent case.

[26] I find that this is a neutral factor in the exercise of my discretion in relation to an extension of time in this matter.

The merits of the application

[27] The Applicant submitted on his F2 – Application form that the dismissal was unfair because he was told by his manager a week before his alleged dismissal, that he would be fully supported in taking a week off to care for his wife following her surgery. However, when he returned to work the following Monday (15 September 2014), the Applicant alleges that he was told he was no longer needed and was not given a reason for this or a dismissal letter.

[28] Given my comments as to credit and given the Respondent’s contention that the Applicant resigned and was not dismissed, a finding of no merit would be likely in the event that the matter proceeded. I find that this weighs against the exercise of my discretion in relation to an extension of time in this matter.

Fairness as between the person and other persons in a similar position

[29] There is no evidence to suggest that this factor is relevant to my consideration in this matter.

Conclusion

[30] I have considered all of the factors in s.394(3) of the Act and I am not satisfied that there are exceptional circumstances warranting the grant of an extension of time for the Applicant to make his s.394 application. The delay to lodging the application was significant and the reasons fall short of establishing exceptional circumstances. The application for an extension of time and the application for an unfair dismissal remedy are dismissed.

VICE PRESIDENT

Appearances:

B Garrett for the Applicant.

V Reid for the Respondent.

Hearing details:

7 July

2015

Brisbane.

 1   PN108-PN114.

 2   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [13]-[15].

 3   Exhibit G

 4   Also tendered as Exhibit A

 5   PN10- PN19.

 6   PN20.

 7   PN28-PN31.

 8   PN28-PN50.

 9   PN51- PN59.

 10   Ibid

 11   PN 132-133

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