Mr Brian M Peters v Snorkel Australia
[2011] FWA 4110
•8 JULY 2011
Note: Appeals pursuant to s.604 (C2011/5283, C2011/5301) were lodged against this decision.
[2011] FWA 4110 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Brian M Peters
v
Snorkel Australia
(U2010/15151)
COMMISSIONER CRIBB | MELBOURNE, 8 JULY 2011 |
Application for unfair dismissal remedy – jurisdiction – extension of time.
[1] This decision arises from an application by Mr Brian Peters (the applicant), under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of his dismissal by Snorkel Australia (the respondent). The application was lodged on 16 December 2010.
[2] The application was the subject of a conciliation conference on 21 January 2011 but the matter did not settle. The respondent lodged two jurisdictional objections to the application on 11 February 2011. The grounds of the objections were that the applicant’s remuneration was over the high income threshold and that the application had been lodged out of time. The hearing of the objections was initially set down for 9:00 am on Friday 15 April 2011. It was subsequently held on Friday 10 June 2011.
[3] At the hearing, the high income threshold issue was dealt with first. Both parties made oral submissions and witness evidence was provided by Mr Matthew Elvin, General Manager of the respondent and by Mr Peters. In addition, Snorkel Australia had filed written submissions 1 and a Witness Statement for Mr Elvin.2
[4] Having considered all of the material before me, I issued an ex tempore decision dismissing the respondent’s jurisdictional objection on the basis that Mr Peters’ remuneration for the 10 months and 1 week of employment was less than the high income threshold.
[5] The Tribunal then turned to consideration of Mr Peters’ application for an extension of time. During the hearing, Mr Elvin, General Manager, gave sworn evidence for the respondent. Written submissions had been filed by Snorkel Australia 3 and a witness statement by Mr Elvin.4
[6] Mr Peters represented himself whilst the respondent was represented by Mr Colin Shaw, Human Resources Consultant.
[7] This decision deals only with Mr Peters’ application for an extension of time.
APPLICANT
Submissions
[8] Mr Peters recounted the events preceding his dismissal. He stated that, on 21 October 2010, he was called into the office by Mr Elvin and told that there had been complaints of sexual harassment and bulling. He recalled that Mr Elvin had told him that he would do him a favour by finishing him up on the spot and not mentioning it to anyone. Mr Peters said that he was “absolutely shocked and devastated.” 5 When he returned to the Brisbane office, he found that the locks had been changed and his phone turned off.
[9] It was recalled that Mr Elvin had told him that, in two weeks time, after he had investigated the allegations, Mr Peters would have an opportunity to respond. 6 In the meantime, he was not to go near the office. Mr Peters stated that he was not told of the person who had complained nor what he was alleged to have done. Two weeks went by and he had still not been given any details regarding the allegations. He said that being told to wait while the complaints were being investigated was designed by the respondent to take him beyond the statutory timeframe for making an unfair dismissal application.7 The statutory time limit had then passed and he had not been provided with the details, an opportunity to respond or the ability to get advice.8 Mr Peters indicated that he had received an email saying that he had used the words “bitch” and “Italian bitch”. However, he did not think that these were sufficient grounds to sack the Sales Director.9
[10] Mr Peters stated that he did make an unfair dismissal application through the Tribunal’s website after midnight one night in early November. 10 He said that he did not hear back.11 He indicated that it was after the two weeks requirement but before he had to go to New Zealand for about 10 days as his father had had a heart attack.12 Mr Peters’ recounted that, when he returned from New Zealand, he had got in touch with lawyers who made contact with the company’s lawyers. It was recalled by Mr Peters that he had sent emails to the company vigorously challenging his dismissal and that he had also engaged a solicitor for this purpose.13
[11] Mr Peters also said that he had very high morals and a very, very good work ethic and that he had never sexually harassed anybody in his life. 14 He stated that he did not tolerate any bullying, harassment or fraud amongst his staff.15
[12] It was alleged by Mr Peters that the real reason for his dismissal was to allow Mr Elvin to take up the new position of sole operator of the company in Australia. 16 He said that the plan had been to remove all three directors. Mr Peters recounted that, a couple of weeks before he was told of the complaints against him, the technical director had been sacked by Mr Elvin and the finance director was bullied to the point that she left the company. Mr Peters stated that he was the third director.17
[13] With respect to the factors in section 394(3) of the Act, Mr Peters submitted that:
- He found out that he was dismissed at the time of his dismissal. 18
- He had engaged lawyers to dispute his dismissal. 19
- The respondent was not prejudiced by the delay. 20
- His dismissal was unfair because he was given no opportunity to respond to the allegations. 21
- Two other directors were in a similar situation to him and it would be fair to extend the time for him. 22
[14] Finally, Mr Peters argued that the amount of financial hardship and emotional pain that he had been put through by the company was not fair to him or to anybody. Why should the short delay prevent his application from being heard and for the truth to be heard? 23
RESPONDENT
Mr Elvin’s evidence
[15] Mr Elvin identified the letter, dated 12 October 2010 24 that had been sent to Mr Peters suspending his employment immediately due to the allegations of bullying and sexual harassment that had been made against him.25
[16] The letter of termination, dated 21 October 2010, was confirmed by Mr Elvin. 26 He stated that Mr Peters was terminated for serious misconduct relating to his conduct since 12 October 2010 together with “other discoveries”.27 His dismissal was stated to be independent of the original allegations.28
[17] Reference was made to an email Mr Elvin had received from Mr Peters on 25 October 2010, 29 in which it was said, that the applicant had acknowledged receipt of the termination letter and understood that he had been dismissed as at 21 October 2010.30
[18] Mr Elvin stated that Mr Peters had returned company property to the office on 29 October 2010. 31 He explained that the company had then engaged solicitors who wrote to Mr Peters on 1 November 2010 regarding some items that had not been returned and instructing him not to attend at the company’s office.32 A letter was received from Mr Peters returning further items on about 8 November 2010.33 It was Mr Elvin’s evidence that he had no indication during this period that Mr Peters was overseas. He said that he believed that Mr Peters had been freely participating in the discussions/negotiations.34
[19] Finally, Mr Elvin confirmed a letter from Mr Peters’ lawyers, dated 2 December 2010 regarding company documents and monies owing. 35
[20] It was explained by Mr Elvin that the 14 day period was to allow the company to interview the complainants and investigate the allegations. He said that this process had started but that the investigation had not been concluded at the time Mr Peters had been dismissed for conduct and activities not related to the allegations of bulling and harassment. 36
SUBMISSIONS
[21] On behalf of the company, Mr Shaw stated that the effective date of Mr Peters’ dismissal was 21 October 2010. He said that the finance director had resigned when Mr Elvin started. Therefore, it could not be said that they were all linked. 37 He argued that, between 21 October 2010 and 8 November 2010 (letter from Mr Peters with returned company property), eighteen days had elapsed since the applicant was dismissed. This was, therefore, beyond the 14 day timeframe. It was noted that, at the time the respondent received the letter from Mr Peters’ solicitors dated 2 December 2010, the applicant’s dismissal had been 43 days prior. Mr Shaw contended that the application had not been lodged until after a further 13 or so days had elapsed.38
[22] With respect to Mr Peters being overseas for 10 days during this period, it was submitted that there was no evidence of this before the Tribunal. 39 The applicant had attended the company’s offices 8 days after his dismissal which was said to show that he was in the country.40 He argued that the applicant, having been involved in a similar matter on behalf of the company, would be aware of the 14 day time period.41
[23] In terms of the question of exceptional circumstances, the respondent contended that there were no exceptional circumstances. 42 The Tribunal was referred to an authority in support of the argument that the longer the delay, the more difficult it would be for an extension of time to be granted.43 Mr Shaw acknowledged that the applicant had attended the company’s offices, engaged lawyers and written letters. However, during this time, no application had been lodged and it was 14 days after his lawyers wrote to the company that the application was filed.44 It was stated that there was ample opportunity for Mr Peters to have consulted his lawyers regarding an unfair dismissal claim.45
[24] With respect to the issue of prejudice to the employer, given the elapse of time, it was contended that they would have to gather evidence from employees, some of whom had left the company. All of the witnesses and associated material would then have to be transported to Brisbane. Secondly, given the nature of the complaints under investigation, it would be prejudicial to the employees to be required to give evidence. 46
[25] Mr Shaw argued that the application contained no merit as the dismissal was for serious misconduct relating to activities which were not the subject of the 12 December 2010 suspension. 47
[26] It was stated that Mr Peters was aware of his dismissal at the time, as evidenced by his email to Mr Elvin on 25 October 2010. 48
[27] Mr Shaw contended that Mr Peters had not taken any action to dispute the dismissal. He had engaged lawyers to finalise outstanding monies and company property. 49
[28] With respect to fairness to other employees, it was submitted that there were no other employees who were dismissed at the same time. 50
[29] In terms of fairness overall, it was contended that the applicant had had considerable time to consult with lawyers, ask questions and lodge a claim. Mr Shaw stated that there was no evidence before the Tribunal that Mr Peters had lodged an application past midnight in early November. It was argued that the extension of time application should not be granted as the applicant had not presented exceptional circumstances. 51
CONCLUSIONS
[30] Section 394(2) of the Act provides:
“(2) [Standard time limit] 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).
Section 394(3) provides:
“(3) [Extended time limit] 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.”
[31] I will deal with each of these in turn.
Reasons for the delay – section 394(3)(a)
[32] The applicant gave a number of reasons for the delay in lodging the application. Firstly, Mr Peters stated that, in early November, after midnight, he had lodged an application through Fair Work Australia’s website. He believed that he had provided all the details but had not heard anything back. Very soon after that he had to travel to New Zealand. On his return, he engaged lawyers who had made contact with the company’s lawyers. Thirdly, Mr Peters said that the company, by telling him that he would be able to respond to the allegations in two weeks, had ensured that the only application he could make to Fair Work Australia was a late one.
[33] The company submitted that:
- There was no evidence that Mr Peters had lodged an application after midnight in early November 2010.
- There was no evidence that he had been overseas during the relevant period.
- A letter was received from Mr Peters’ solicitors dated 2 December 2010.
- The application was not lodged until 14 days after that letter.
- Between 21 October 2010 and 8 November 2010 (18 days after the dismissal), Mr Peters had returned company property to the office and written an email and letter. Mr Peters was therefore active during this period and had ample opportunity to lodge an application.
[34] I have considered carefully all of the material before me and I find that the applicant has not provided an acceptable explanation for the delay. Firstly, there is no evidence before me that an application was lodged in early November 2010. The application that is on the Tribunal’s file was made by Mr Peters and lodged on 16 December 2010. Secondly, Mr Peters engaged solicitors to act on his behalf when he returned from New Zealand and they wrote to the company on 2 December 2010 regarding outstanding monies owing and the return of company property. However, despite Mr Peters having access to legal advice, he did not file an unfair dismissal claim until 14 days after his solicitors’ letter.
[35] Finally, it appears from the letter to Mr Peters, from the company, on 12 October 2010 that he was not terminated on that day but was suspended with pay. 52 The letter stated that the company would be in a position to provide him with further information about the allegations early in the next week. The two weeks’ timeframe that Mr Elvin gave the applicant occurred whilst Mr Peters was still employed by the company (albeit suspended on full pay). From the evidence, it appears that Mr Peters was dismissed 9 days into Mr Elvin’s two week time period for reasons other than the complaints. The statutory time limit clock did start ticking before the end of the two weeks but only as the result of the applicant’s alleged conduct and his resultant dismissal. If that alleged conduct had not occurred, Mr Peters would have most likely remained employed until at least the end of the investigation. If dismissal occurred after that, the statutory time period clock would have commenced at that point. Therefore, as Mr Peters was not terminated when he was advised of the complaints the statutory time limit clock did not commence until he was dismissed on 21 October 2011. Accordingly, I have not been persuaded that the purpose of Mr Elvin telling the applicant about the two week investigation period was to ensure that the only application he could make was a late one.
[36] During the hearing, it was very evident that Mr Peters was emotional and upset by his dismissal. However, for the reasons set out above, I have not been persuaded by the applicant’s explanation that there is an acceptable reason for the delay.
Aware of the dismissal – section 394(3)(b)
[37] It was not disputed by Mr Peters that he was aware of his dismissal at the time it took effect and not after.
Any action taken – section 394(3)(c)
[38] Mr Peters argued that he had engaged lawyers to dispute his dismissal on his behalf. It was the company’s contention that Mr Peters had not taken any action to dispute his dismissal as his solicitors had sought to finalise outstanding monies and company property.
[39] It is apparent from the evidence that Mr Peters did dispute his dismissal in that he first wrote to the company four days after his dismissal, on 25 October 2010, to this effect. Similar sentiments were expressed in Mr Peters’ letter of about 8 November 2010 which accompanied the return of some company property. It is noted that the letter from Mr Peters’ solicitors to the company’s solicitors’ letter, dated 2 December 2010, concerned outstanding monies and the return of the company’s property.
[40] On the basis of the material before me, it is clear that Mr Peters was consistent in his approach to the company – that he challenged his dismissal and that he would, in effect, see them in court. This was conveyed to the company by email on 25 October 2010 and in a letter on about 8 November 2010. The applicant did engage solicitors but, on the evidence before me, they do not appear to have contested the fairness of his dismissal nor did they lodge an unfair dismissal application on his behalf. Therefore, it appears that the actions taken by Mr Peters to dispute his dismissal were the writing of two letters to the company and the lodging of an unfair dismissal application.
Prejudice to the employer – section 394(3)(d)
[41] It was submitted by the respondent that, given the elapse of time, it would be prejudiced as some of the relevant employees had left the company. Secondly, the company stated that, given the nature of the complaints, it would be prejudicial to the employees to be required to give evidence.
[42] On the other hand, it was argued by Mr Peters that the company was not prejudiced by the delay.
[43] The application was lodged 42 days (6 weeks) after the end of the 14 day period. Having considered all of the submissions on this issue, on balance, I have not been persuaded that there is any other prejudice to the respondent other than the usual prejudice which accompanies any granting of an extension of time.
Merits of the application – section 394(3)(e)
[44] Mr Peters argued that the real reason for his dismissal was to allow Mr Elvin to take up the new position of sole operator of the company in Australia. He said that the plan had been to remove the 3 directors and that he had been the last director to have gone.
[45] The company submitted that Mr Peters had not been dismissed as a result of the complaints made against him but because of serious misconduct relating to his conduct since his suspension on 12 October 2010 together with subsequent “other discoveries”.
[46] Given the disparity between the parties with respect to the facts, together with an absence of sworn evidence from Mr Peters, it is not possible to say that the application is without merit.
Fairness as between the applicant and other persons in a similar position – section 394(3)(f)
[47] The applicant submitted that the two other directors were in a similar situation to him but that that it would be fair to extend time for him.
[48] It was contended by the respondent that the situation with the 3 directors was not linked and that the finance director had resigned when Mr Elvin started.
[49] Despite Mr Peters’ clear and passionate views on this issue, there is no evidence before me that the other two directors were in a similar position to that of the applicant.
[50] Therefore, I find that this factor is not relevant in this matter.
Are there exceptional circumstances – section 394(3)?
[51] The basis on which it is decided if an extension of time should be granted is whether there are “exceptional circumstances” taking into account those matters considered above.
[52] The term “exceptional circumstances” has been considered in a number of decisions of Fair Work Australia. A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 53summarised various decisions which dealt with the meaning of “exceptional circumstances”. The Full Bench found that:
“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.” 54
[53] I respectfully adopt this approach. In this matter, despite Mr Peters’ evident distress, his clear belief that his dismissal was unfair and his desire that the truth be told by the company and that there be justice, taking account of all of the factors set out in section 394(3) of the Act, I have not been persuaded that there are “exceptional” circumstances” such that I should exercise my discretion to grant an extension of time.
[54] Accordingly, Mr Peters’ application for an extension of time is dismissed
[55] An order 55 to this effect will be issued separately.
COMMISSIONER
1 Exhibit R1
2 Exhibit R2
3 Exhibit R5
4 Exhibit R3
5 Transcript PN 387
6 Ibid PN 388
7 Ibid PN 390
8 Ibid PN 388 - 389
9 Ibid PN 390
10 Ibid PN 390
11 Ibid PN 391
12 Ibid PN 391, 393, 402, 426 and 430
13 Ibid PN 394 - 395
14 Ibid PN 394 - 395 and 532
15 Ibid PN 532
16 Ibid PN 533
17 Ibid PN 369 and 533
18 Ibid PN 541 - 546
19 Ibid PN 547 - 548
20 Ibid PN 549 - 552
21 Ibid PN 558
22 Ibid PN 559 - 571
23 Ibid PN 603
24 Exhibit R4
25 Ibid and Transcript PN 450 and 493 - 494
26 Exhibit R3 at Attachment ME1
27 Ibid
28 Ibid and Transcript PN 470 - 471 and 492
29 Exhibit R3 at Attachment ME2
30 Transcript PN 472 - 478 and Exhibit R3 at paragraph 7
31 Exhibit R3 at paragraph 8 and Attachment ME3 and Transcript PN 479
32 Ibid at paragraph 9 and Attachment ME4 and Ibid PN 480 - 482
33 Ibid at paragraph 10 and Attachment ME5 and Ibid PN 483
34 Transcript PN 484 - 485
35 Ibid PN 487 and Exhibit R3 at paragraph 12 and Attachment ME7
36 Transcript PN 505 - 515
37 Ibid PN 581
38 Ibid PN 584
39 Ibid PN 585
40 Exhibit R5 at paragraph 14
41 Transcript PN 686
42 Exhibit R5 at paragraph 10
43 Transcript PN 587 - 596
44 Ibid PN 597 - 598
45 Exhibit R5 at paragraphs 13 and 15
46 Ibid at paragraph 19 and Transcript PN 598 - 599
47 Ibid at paragraph 20 and Ibid PN 599
48 Ibid at paragraphs 16 - 17
49 Ibid at paragraph 18
50 Transcript PN 600
51 Exhibit R5 at paragraphs 21 - 22
52 Exhibit R4
53 [2011] FWAFB 975
54 Ibid at paragraph 13
55 PR511368
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