Mr Bradley Wright v Brunel Energy Pty Ltd

[2014] FWC 3634

[2014] FWC 3634

FAIR WORK COMMISSION

DECISION

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

Mr Bradley Wright
v
Brunel Energy Pty Ltd
(U2014/5386)

COMMISSIONER CLOGHAN PERTH, 5 JUNE 2014

Unfair dismissal.

[1] On 4 March 2014, Mr Bradley Wright (Mr Wright or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Brunel Energy Pty Ltd (Employer).

[2] Mr Wright alleges that he was dismissed by Brunel Energy Pty Ltd on 19 March 2013.

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

[4] In its response to the application, the Employer objects to the application on two (2) jurisdictional grounds and they are:

● the application was lodged more than 21 days after the dismissal took effect; and
● the Applicant’s annual rate of earnings exceeded the high income threshold.

[5] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the Applicant to file the application on 4 March 2014.

RELEVANT LEGISLATIVE FRAMEWORK

[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.”

RELEVANT BACKGROUND

[7] The Applicant commenced employment with the Employer on 25 February 2012.

[8] The Applicant was notified of his dismissal on 19 March 2013. The dismissal took effect on the same day.

[9] The Applicant was paid $122.36 per hour while working in Perth. The Applicant was paid $145.00 per hour while working on Barrow Island. For the period of Mr Wright’s employment he was paid $426,844.28. While the Applicant contends that this figure is inflated by including GST and monies paid to the Australian Taxation Office, I am satisfied that his annual earnings exceeds the high income threshold in s.382(b)(iii) of the FW Act.

[10] The Applicant does not submit that an enterprise agreement applies to his employment or that a modern award covers him. In the absence of such information and the amount of income earned for approximately 13 months of employment, I consider there is a real and direct inference that neither an enterprise agreement nor modern award regulates Mr Wright’s employment.

[11] The application has been lodged approximately 12 months after the date Mr Wright’s dismissal took effect.

[12] I now turn to the relevant legislative provisions which relate to Mr Wright’s application.

CONSIDERATION

[13] 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.

[14] 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.

[15] 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”.

[16] The burden lies with Mr Wright to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I shall now consider those circumstances set out by the Applicant within the legislative provisions.

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

[17] The Applicant has provided a summary of the reasons for delay as follows:

● the Employer, “did not provide me with any representation or contact person on Barrow Island to address any HR or employment issues with their client KJV [KJV or KJV-Gorgon, is not a legal entity but a contractual unincorporated joint venture between four entities] or Chevron”;

● the Employer did not have any knowledge of what occurred leading to Mr Wright’s dismissal on 19 March 2013;

● KJV did not participate in the initial application [U2013/8352] although named as the Respondent;

● processes to recover monies allegedly owed;

● processes to obtain documents regarding Mr Wright’s dismissal.

[18] In conclusion, Mr Wright states:

“So 6 months after I was dismissed, and having spent thousands of $ in lawyers’ fees, I finally had some information on why I was dismissed, what the original complaint was about, who had claimed what, and who were the numerous witnesses (just one) that KJV had?”

[19] Application U2013/8352 was lodged in the Commission on 9 April 2013. Mr Wright discontinued application U2013/8352 on 8 May 2013.

[20] On 8 August 2013, Mr Wright emailed the Commission relevantly as follows:

“...

As I was employed by an Employment Agency (Brunel) who seconded me to Clough Projects Pty Ltd...I have to seek remedy/resolution via Brunel.

...

Brunel unfortunately will now have to defend the action...”

[21] The reasons for the delay can be divided into the following areas. Firstly, the Applicant named the wrong employer in his originating application. I consider this action as a mistake and there is nothing unusual or uncommon about mistakes; they regularly occur. Secondly, the Applicant was advised on or about 17 April 2013 by KJV that it was not Mr Wright’s employer. Thirdly, since discontinuing his original application on 8 May 2013, the Applicant has continued his endeavours, for at least a period of time, to find out why the Employer’s client no longer required his services.

[22] To lodge an application approximately 12 months after the dismissal took effect is a significant delay. Up to 17 April 2013, the Applicant could submit that the reasons were exceptional as to “all intent and purposes” he considered KJV to be his employer. The Applicant could argue that the period to file an application should be extended up until 8 May 2013 to take into account the filing of a notice of discontinuance.

[23] However, since 8 May 2013, Mr Wright is essentially asking the Commission to sanction his conduct of pursuing why the Employer’s client no longer required his services rather than filing an application. I am not prepared to do so.

[24] Mr Wright adopted a course of action after 8 May 2013 which he considered appropriate to his circumstances. However, the information that he was seeking was not available to him when he made the initial application on 9 April 2013. In that application he states:

“To date (08.04.13) absolutely nothing has been provided to me in writing, detailing the initial complaint, who made the complaint, who witnessed the complaint, what actual statement I was claimed to have made, during the project meeting.”

[25] The originating application was made within the standard statutory timeframe and without the information the Applicant has sought since 8 May 2013. In my view, there was nothing to stop the Applicant adopting the same approach with his second application but he chose not to do so.

[26] Mr Wright presumably was aware of the statutory imperative in his originating application. Put colloquially, “he followed the rules”. Since, at least 8 May 2013, Mr Wright adopted his own course of action and did not file the application until approximately 10 months later. Mr Wright is now claiming these circumstances as exceptional to overcome the timeline defect in this application. There is nothing in the documentation or submission to demonstrate that it took Mr Wright 10 months to obtain the information he required even if it is a relevant consideration.

[27] Finally, by way of observation, it would appear, irrespective of the delay in filing the application, Mr Wright is not protected from unfair dismissal as he does not meet the conditions of paragraph 382(a) and (b) of the FW Act.

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

[28] The Applicant does not dispute that he became aware of his dismissal on 19 March 2013.

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

[29] Mr Wright has provided the Commission with sufficient documentation to demonstrate that he took action to determine why his Employer was requested to dismiss him as a result of a complaint which involved KJV and Clough Project Pty Ltd on Barrow Island.

[30] The Employer declares that the Applicant’s actions concerning his dismissal relate to Brunel’s clients (KJV / Clough) and not the Employer.

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

[31] The Applicant does not make any reference in his submission to this criterion. The Employer does not contend in its response to Mr Wright’s submission any particular prejudice.

[32] I note the absence of prejudice to the Employer is not sufficient to make out a case for an extension of time to allow the application to be lodged beyond the statutory timeline. In the absence of any submission, I adopt a neutral position to this criterion.

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

[33] The merits of any application can only be determined after a hearing in which evidence is tested. While I have taken this criterion into consideration, I have adopted a neutral position as to its “weight” on whether time should be extended to file this application.

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

[34] It would appear that this criterion is not a relevant consideration. To the extent that it is relevant, I have adopted a neutral position with respect to this criterion.

CONCLUSION

[35] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Mr Wright filing this application. An order to this effect will be issued jointly with this decision.

COMMISSIONER

Final written submissions:

Applicant: 27 April and 19 May 2014.

Respondent: No submission filed by the Respondent.

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<Price code C, PR551328>