Mr Brenden Ede v Global Traffic Equipment Pty Ltd ATF

[2018] FWC 7618

[2018] FWC 7618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Brenden Ede

v

Global Traffic Equipment Pty Ltd ATF

(U2018/11329)

Commissioner Johns MELBOURNE, 14 DECEMBER 2018

Application for an unfair dismissal remedy.

Introduction

1. The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. [1] However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.[2]

1. This decision is about whether the Commission should allow Brendan Ede (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 3 November 2018, that being 50 days after his employment was terminated by Global Traffic Equipment Pty Ltd ATF (Respondent) on 14 September 2018 and, consequently, 29 days after the 21 day time limit provided for in the FW Act. To be within time the application should have been lodged on or before 5 October 2018.

1. When the Applicant filed his application he conceded that it was late. He explained the delay by reason of:

a)   an illness (anxiety). He said he had “not been able to function normally since termination…”, and

b)   a dispute between his brother and the Respondent that he feared would be exacerbated if he commenced an unfair dismissal proceeding. He wrote,

“only when this process was complete could I apply for unfair dismissal. This process was completed as of 02/11/2018 and I have made this application at the first opportunity since this date” (i.e. 3 November 2018).

The jurisdictional objection

1. On 16 November 2018 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.

1. On 27 November 2018 Deputy President Dean wrote to the Applicant seeking an explanation for the delay.

1. Also on 27 November 2018 the Applicant sent an email to the Commission reiterating and expanding upon the reasons for delay explained in his application.

1. The matter was then allocated to me and on 29 November 2018. I issued Directions for the parties to file and serve any material they sought to rely upon and invited them to address each subsection in section 394(3) of the FW Act. The Respondent wrote to the Commission on 6 December 2018 and made a submission (it filed no evidence). The Applicant did not file any additional material.

1. The matter was listed for hearing on 7 December 2018. At the hearing the Applicant represented himself. He was assisted by his partner, Dr K Klein. The Respondent was represented by Helen Stevenson from The HR People. She was instructed by Ms Suzanne Pfaff, the Respondent’s Operations Manager. I had previously given Ms Stevenson permission to represent the Respondent under section 596 of the FW Act.

Legislative scheme

1. Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

1. Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[3] In that matter the Full Bench held the following in relation to “exceptional circumstances”:

“[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.” [4]

Facts leading up to and relating to the dismissal

1. Based on the material filed in the matter and the evidence received on 7 December 2018 I make the following findings of fact:

a)The Applicant commenced employment with the Respondent on 22 January 2018.

b)He was paid $82,420.

c)The Applicant’s employment was terminated on 14 September 2018. The Respondent alleges serious misconduct. The Applicant denies the same. Notwithstanding the allegation of serious misconduct, the documents suggest that, more likely than not, the issue leading to dismissal was related to the Applicant’s performance rather than conduct.

d)Also on 14 September 2018 the Applicant’s brother was served with an eviction notice by the Respondent. He was told to vacate by 21 September 2018 (despite having paid rent until 30 September 2018). The eviction would have caused the Applicant’s brother hardship.

e)Following the dismissal there were discussions between the Applicant and the Respondent about him returning to work on an independent contracting basis.

f)On 17 September 2018 the Applicant received advice from Australian Dismissal Services that,

“We only have 21 days from the date you lost your job to lodge your claim.”

g)Also on 17 September 2018 the Applicant received similar advice from Supportah Operations Pty Ltd (trading as Fair Work Claims).

h)On 19 September 2018 solicitors acting for the Applicant’s brother protested the eviction notice.

i)The time for lodging an UFD application within time expired on 5 October 2018.

j)On both 5 and 6 October 2018 the Applicant attended a family medical practice. He presented “with psychological symptoms, mainly anxiety”. The Applicant had not previously attended this medical practitioner.[5]

k)At least from 1 November 2018 the Applicant was “attending sessions at Lilley Place Psychology for support with difficulties he is experiencing that impair his ability to function in a normal work capacity at present.”

l)On 2 November 2018 the tenancy issue concerning the Applicant’s brother was resolved.

m)The Applicant lodged the present application on 3 November 2018 (i.e. 29 days late).

Consideration of s.394 criteria

Paragraph 394(3)(a) - The reason for the delay

1. It is undisputable that there were 50 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission (i.e. it was 29 days late).

1. At least from 17 September 2018 the Applicant knew about the 21 day timeframe for lodging and unfair dismissal claim.

1. The Applicant says the reasons for the delay were:

a)   an illness (anxiety). He said he had “not been able to function normally since termination…”, and

b)   a dispute between his brother and the Respondent that he feared would be exacerbated if he commenced an unfair dismissal proceeding.

1. In relation to the:

a)   First reason – no medical evidence was presented to support the medical conditions asserted by the Applicant. All of the medical evidence does not deal with the 21 day period from the date of dismissal to the date when an in-time application should have been lodged.

While I accept that the dismissal caused the Applicant great stress I am afraid that stress, grief and anxiety associated with job loss is normally encountered by people following a termination of employment.

In so far as the Applicant says he was not able to function normally, I note that he was able to:

i.liaise with Australian Dismissal Services about his dismissal on 17 September 2018,

ii.liaise with Supportah Operations Pty Ltd (trading as Fair Work Claims) about his dismissal on 17 September 2018,

iii.assist his brother with the tenancy dispute in the period following his dismissal, and

iv.have discussions with the Respondent about returning to work for them on an independent contacting basis.

I do not accept that the Applicant was rendered medically incapable of making an unfair dismissal application.

b)   Second reason – it is clear that, in relation to the tenancy dispute, the Applicant’s brother had retained his own lawyers to deal with the matter. I accept that, if the Respondent moved against the Applicant’s brother in relation to his tenancy because the Applicant had threatened an unfair dismissal application (the Respondent denies the same), that conduct would be reprehensible. It might explain the delay, but does not excuse it. The Applicant conceded that he gave preference to his brother’s interests over his own.[6] Whether out of the goodness of their hearts or because of a sense of familial loyalty or friendship people routinely prefer the interests of others over their own. It is not out of the ordinary, unusual or special. It is not an exceptional circumstance.

1. Therefore this factor weighs against of granting the Applicant a further period to make his application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

1. It is uncontested that the Applicant first became aware of the dismissal on 14 September 2018.

1. Therefore this factor weighs against of granting the Applicant a further period to make his application.

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

1. Other than lodge this application late the Applicant took no action to dispute the dismissal. There were some discussions aimed at restoring a working relationship through an independent contracting arrangement, but they came to nothing.

1. The lack of action taken by the Applicant weighs against granting him a further period to make his application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

1. The Respondent did not assert any exceptional prejudice.

1. The prejudice asserted by the Respondent weighs is a neutral consideration in relation to granting the Applicant a further period to make his application.

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

1. In the matter of Kornicki v Telstra-Network Technology Group[7] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[8]

1. The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

1. Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

1. The substantive factual contest between the Applicant and the Respondent is whether the Applicant engaged in serious misconduct. There is also a contest about whether the Applicant was afforded procedural fairness. These are not factual disputes that can be resolved at a jurisdictional hearing.

1. For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

1. If the Applicant can establish to the satisfaction of the Commission that he did not engage in the conduct alleged against him and that he was denied procedural fairness then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

1. Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

1. The parties agreed that this factor is not relevant.

Conclusion

1. Having considered all of the matters that I am required to consider under section 394(3) of the FW Act, in the exercise of my discretion, for the reasons set out above, on balance, the Commission, as presently constituted, is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

1. An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

The Applicant, for himself with Dr K Klein.

Ms H Stevenson from The HR People for the Respondent instructed by Ms Suzanne Pfaff, the Respondent’s Operations Manager.

Hearing details:

7 December 2018

<PR703181>

[1] Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

[2] Section 394(3) FW Act.

[3] [2011] 203 IR 1.

[4] Ibid [13].

[5] Transcript PN34

[6] Transcript PN56

[7] PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[8] Ibid.

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