Mr Clive Smith v Nyoongar Patrol System Incorporated T/A Nyoongar Patrol

[2016] FWC 848

[2016] FWC 848

FAIR WORK COMMISSION

DECISION

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

Mr Clive Smith
v
Nyoongar Patrol System Incorporated T/A Nyoongar Patrol
(U2015/16615)

COMMISSIONER ROE MELBOURNE, 8 FEBRUARY 2016

Application for relief from unfair dismissal - extension of time.

[1] Mr Smith is seeking an extension of time in which to make his application for unfair dismissal.

[2] The following facts are not disputed:

● The employer is an indigenous organisation which serves the needs of indigenous people and Mr Smith is a member of that community.
● Mr Smith was dismissed on 26 October 2015.
● Mr Smith contacted legal aid to see if they would help shortly after the dismissal but they said that they could not help.
● Mr Smith was aware of the dismissal at the time it occurred.
● Mr Smith wrote to the employer on 2 November 2015 seeking a review of the decision.
● Mr Smith met with the CEO on 4 November 2015 to discuss the dismissal and to seek a review.
● Mr Smith was advised that his appeal would be heard by the committee of management of the organisation.
● The committee of management heard the appeal on 10 November 2015.
● Mr Smith was advised by hand delivered letter on 16 November 2015 that his appeal was rejected.
● Mr Smith wrote a further letter on 24 November 2015.
● Mr Smith contacted lawyers and met with them on 8 December 2015.
● Mr Smith lodged his unfair dismissal application on 9 December 2015.
● The application is approximately 23 days late.

[3] Mr Smith says that the reasons for the delay are:

● He was seeking to deal with the matter directly with the indigenous organisation which employed him and this was the culturally appropriate manner to deal with a dispute within the community. The various stages of that process of internal disputation took some time.
● His literacy skills are not particularly strong and this made it more difficult to know his rights and make the application.
● He was unfamiliar with the right to make an application and the time limits associated with it.

[4] I am satisfied that Mr Smith has some literacy skills. They were necessary for him to perform his work role. I do not consider that the issue of his literacy skills supports a finding of exceptional circumstances.

[5] I am not satisfied that ignorance of his rights supports a finding of exceptional circumstances even taking into consideration the particular disadvantages faced by members of the indigenous community.

[6] I am satisfied by the evidence of Mr Smith that it was culturally appropriate for him to seek to deal with the matter directly with the employer first and not take the matter outside by lodging an unfair dismissal application. I am satisfied that this internal process was finalised by the decision of the community run committee of management on 16 November 2015 to reject the appeal. Mr Smith gave evidence that if he had known about his rights he would have made an application to the Fair Work Commission shortly after 16 November 2015 and the ignorance of his rights was the main reason why he did not make an application at that time.

[7] The letter of 24 November 2015 does not make any specific request but simply expresses disappointment and disagreement with the committee of management’s decision to refuse to alter the decision to terminate the employment. It does say at the end “I will await your response” but given that no specific question is raised it is hard to see what the response which is being awaited is. Mr Smith says in the letter that he “will be seeking legal advice regarding unfair dismissal”. There is no suggestion that he is seeking some further response prior to taking that action.

[8] Employsure for the employer submit that I should infer that legal aid would have told Mr Smith about the 21 day time frame when he contacted them shortly after the dismissal. I reject that submission and accept the direct evidence of Mr Smith that he did not know about the time limit until he contacted his lawyers on 8 December 2015.

[9] If the application had been made within a few days of the board letter refusing review then I would have found that the reason for delay, in conjunction with the other factors, warranted a finding of exceptional circumstances and an extension of time. The reason for the delay concerning the culturally appropriateness of first dealing with the dispute internally would have been a strong reason for a finding of exceptional circumstances. However, given the lack of strong reason which explains the period of three weeks between the board decision and the making of the application I am not satisfied that the reasons for delay support a finding of exceptional circumstances.

[10] Mr Smith was aware of the dismissal when it occurred. This is a neutral factor.

[11] Mr Smith took a number of steps to dispute the dismissal which is a factor which stands in favour of a finding of exceptional circumstances.

[12] I am not satisfied that there is any prejudice to the employer in granting the application. Employsure submitted that there was prejudice but they did not point to anything beyond the normal inconvenience an employer might face in defending an unfair dismissal application.

[13] I am satisfied that the merits of the application are a neutral factor. If the evidence of Mr Smith was accepted then there would be an arguable case. If the evidence of the employer witnesses was accepted then the case would not succeed. There is no basis to conclude that there are no reasonable prospects of success.

[14] There is no unfairness to persons in a similar position if I was to grant Mr Smith’s application. The facts are specific to this particular case. This is also a neutral factor.

[15] Taking all of the factors into consideration I am satisfied that the absence of a strong reason for the whole of the period of the delay means that there is not an exceptional circumstance justifying an extension of time in this case. The matter is dismissed.

COMMISSIONER

Appearances:

Mr G Cleveland appeared for the Applicant.

Ms C Pellow appeared for the Respondent.

Hearing details:

2015

Melbourne with video to Perth

February 5

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