Mr Darryn Meade v PFD Food Services Pty Ltd T/A PFD Food Services
[2015] FWC 7022
•14 OCTOBER 2015
| [2015] FWC 7022 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Darryn Meade
v
PFD Food Services Pty Ltd T/A PFD Food Services
(U2015/11242)
DEPUTY PRESIDENT GOSTENCNIK | SYDNEY, 14 OCTOBER 2015 |
Application for relief from unfair dismissal; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to extend should be exercised; extension of time refused; application dismissed.
[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 1 October 2015. Mr Darren Meade (Applicant) commenced his employment with PFD Food Services Pty Ltd (Respondent) on or about 14 February 2005. The Applicant was employed in the position of a supervisor with the Respondent.
[2] The Applicant's employment was terminated by the Respondent with effect from 21 July 2014. The reason given by the Respondent for its decision to dismiss the Applicant from his employment was said to relate to the theft of products by the Applicant from the Respondent's premises in or about July 2014. The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). That application was lodged in the Fair Work Commission (Commission) on 24 August 2015.
[3] Applications for an unfair dismissal remedy must be made within 21 days after a dismissal took effect or in such further time as the Commission may allow. Based on the termination taking effect on 21 July 2014, an application for a remedy should have been lodged by no later than 11 August 2014. The application was therefore lodged outside of the time prescribed and was, in effect, made over one year and 13 days after the last day on which such an application could have been made.
[4] As I have indicated, the Act permits the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if satisfied that there are exceptional circumstances. Before I deal with the evidentiary matters concerning the existence of exceptional circumstances, I will say a few things for the benefit of the parties about the principles that are to be applied in considering whether I should exercise my discretion to extend time.
[5] As is evident from the text of s.394 of the Act, the statute allows me to grant a further period within which an application may be made, but that discretion will only be exercised if I first am satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion. The matters that I need to take into account are set out in s.394(3). They are:
- The reason for the delay;
- whether the person first became aware of the dismissal after it had taken effect;
- any action taken by the person to dispute the dismissal;
- prejudice to the employer, including prejudice caused by the delay;
- the merits of the application; and fairness as between the person and other persons in a similar position.
[6] It is clear from the structure of s.394(3) that each of the matters must be taken into account in assessing whether or not there are exceptional circumstances. Individual matters might not, viewed in isolation, be particularly significant, so it is necessary to also consider the matters collectively and ask whether collectively the matters show that there are exceptional circumstances.
[7] The phrase ‘exceptional circumstances’ is not defined in the legislation, but ‘exceptional circumstances’ are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique or unprecedented, they do not need to be very rare; but I must, when taking into account those matters, be satisfied that there are exceptional circumstances.
[8] I will turn to consider each of the matters. Firstly, concerning the reason for the delay; it is well established in this tribunal that when considering an explanation for the delay or the reason for the delay, the explanation or the reason must be credible or an acceptable explanation. The Applicant needs to provide credible reasons or explanations for the whole of the period of the delay.
[9] The Applicant indicated that after his dismissal, he wished to simply move on and that the cost of proceeding with an unfair dismissal application were prohibitive. He was charged by the police with theft on or about 5 January 2015 and before that time he was unaware that any charges arising out of the circumstances of his dismissal would be laid. The Applicant says that he attended the Wonthaggi Magistrates' Court on 24 July 2015 where the charges were dismissed. In his written statement, the Applicant states that it was at that point that he regarded his dismissal as unfair. The Applicant says that he didn't lodge his claim for a further month because he had other financial difficulties and he was looking for other employment.
[10] It seems to me that for the period immediately following the dismissal up to and including 24 July 2015, the day on which the charges against the Applicant were dismissed, the Applicant had no intention of bringing an unfair dismissal application. It was only when the charges were dismissed that he formed the view that his dismissal was unfair and then took belated steps to bring the application. None of that amounts to an acceptable explanation for the delay. There is no satisfactory explanation for the period between his dismissal and the date on which the charges were brought.
[11] The fact that the charges were brought on 5 January 2015 in and of itself did not prevent an unfair dismissal application being made and the explanation for delay given by the Applicant for the period following the dismissal of the charges and the actual lodging of the application, are circumstances which confront many people who lose their job and do not provide an acceptable explanation for delay. In those circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the whole of the period of the delay and that is a matter that weighs against the Applicant.
[12] Turning next to the question whether the Applicant first became aware of his dismissal after it took effect; the evidence of the Applicant was that he was made aware of his dismissal on the day it took effect. That is, 21 July 2014. That he became aware of his dismissal on that date means that he had the full benefit of the 21 day period within which to make the application and so in the circumstances that is a factor that weighs against the Applicant.
[13] Turning then to the question of whether the Applicant took any steps to dispute his dismissal; the Applicant initially said that he took no action, but the Respondent pointed out that the Applicant - within approximately two weeks after the dismissal took effect - sent an email to Mr Paul McMahon of the Respondent in which the Applicant asked for a reconsideration of his dismissal. In the circumstances, I am prepared to accept that the Applicant took some steps to dispute his dismissal after the dismissal took effect and I am prepared to weigh that in favour of the Applicant in this case.
[14] As to the question of prejudice, the mere absence of prejudice on its own is not a factor which necessarily weighs in favour of the grant of an extension of time. The Respondent submitted that there will be prejudice suffered, firstly from the period of the delay itself. That period is of course a significant period. It has been more than a year since the dismissal took effect. The Respondent also submitted that the branch manager who was involved in the decision to dismiss is no longer at the branch, but the Respondent conceded that the person was still employed elsewhere in the Respondent’s business.
[15] The CCTV footage which founds the evidentiary basis to support the dismissal is apparently still available and in possession of the Respondent and, in any event, had previously been given to the police, so in those circumstances it would not be difficult to obtain that footage. I also note that in the police brief that was handed to me by the Applicant, detailed statements concerning the circumstances are set out in that brief of evidence, so that the circumstances surrounding the dismissal have been recorded and could be relied upon in any future proceedings.
[16] I accept that there would be some inconvenience to the Respondent if I were to grant an extension of time. I am also mindful of the fact that memories of particular events wain with the passage of time and that might have a prejudicial effect, but on balance I am satisfied that the Respondent will not suffer prejudice, including prejudice if I were to grant an extension of time, beyond that which is normally associated with defending an application. In the circumstances of this case, I regard that consideration as neutral.
[17] Turning to the merits of the case, in cases such as this which are dealt with on an interlocutory basis or an interim basis, the substantial merits generally are not fully examined or agitated. The parties are not tested on their respective positions in relation to merits and so it is appropriate that I make an assessment of the merits based on the limited material that is available to me and view that material through the prism of looking at the Applicant's case at its most favourable.
[18] It seems to me, on the basis of the material, that the Respondent had some evidence which raised a suspicion that the Applicant may have been involved in a theft. The Respondent conducted a lengthy interview with the Applicant where the allegations were put to the Applicant and where the Applicant was given an opportunity to respond to those allegations. I also note that the explanation given by the Applicant now for his failure to leave a note for the receptionist in the usual way, is different to that which is recorded in the record of interview.
[19] I also take into account the fact that charges were brought in relation to those matters by the police and that those charges were dismissed. However, as the Respondent rightly points out, the standard of proof in relation to criminal charges is a higher and different standard to that which would apply in proceedings here. Whilst the Commission would need to be satisfied that the Applicant engaged in the conduct as alleged, it would only need to be satisfied on the balance of probabilities and not on a higher standard of beyond reasonable doubt; so it is not improbable that although charges were dismissed, that this Commission might nevertheless on the balance of probabilities find that the Applicant engaged in that conduct.
[20] It seems to me, therefore, the best that can be said about the Applicant’s merits claim is that it is arguable or not without merit. That is not to suggest that if an extension of time were granted, his claim would succeed, but there is at least some justifiable basis upon which the application could be brought. In those circumstances, this consideration weighs slightly in favour of the Applicant.
[21] As to fairness between the Applicant and others in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles by this Commission in cases of this kind so as to ensure that there is fairness as between the Applicant and other people in a similar position. The consideration may relate to matters that are currently before the Commission or matters that have been previously decided by the Commission.
[22] Neither party made any substantive submissions which engaged with this issue and did not draw the Commission's attention to any cases decided by the Commission which were similar to the circumstances of this case. I have not myself come across any decisions of the Commission which would be useful in assessing this matter in this case and consequently this is a neutral consideration.
[23] Statutory time limits for the application of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance an applicant's right to dispute their dismissal and the respondent's right to know that the decisions they have made will not be challenged after the time for challenge has passed. It is for that reason that the Parliament has determined that 21 days is the appropriate period and that if rights are to be exercised, they should be exercised promptly.
[24] Parliament has also recognised that there may be exceptional circumstances in which an application should be allowed to proceed even though the time for bringing the application has passed; but generally an applicant who seeks relief from an unfair dismissal must make that application within 21 days after the dismissal takes effect and it will only be in exceptional circumstances that the Commission will allow a further period within which an application may be brought.
[25] When I weigh all the matters that I need to take into account, I am not persuaded or satisfied that there are exceptional circumstances in this case warranting the consideration of the exercise of my discretion. There is no satisfactory explanation for the delay. The Applicant became aware of his dismissal on the day it took effect. The steps taken by the Applicant to dispute his dismissal were modest and, on his own evidence, the Applicant had no intention at the time of this dismissal or for the eleven months that followed, to bring an unfair dismissal claim and just wanted to move on.
[26] The merits of the case, although arguable, are certainly not sufficiently strong to warrant weighing that consideration as a powerful factornegating the other matters to which regard must be had. I do not find that there is any particular prejudice, but there would certainly be inconvenience to the employer after this lengthy period of delay. When I look at the factors individually or collectively, I am not satisfied that they establish exceptional circumstances and so I am not required to consider whether I should exercise my discretion.
[27] In those circumstances, the application for an extension of time is refused.
[28] An order giving effect to this decision is separately issued in PR572830. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr D. Meade in person
Mr M. Asmar for the Respondent
Hearing details:
2015.
Melbourne.
October 1.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR572827>
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