Mr David Reid v CMK Plastering T/A CMK Projects

[2012] FWA 3739

[2012] FWA 3739

FAIR WORK AUSTRALIA

DECISION

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

Mr David Reid
v
CMK Plastering T/A CMK Projects
(U2012/4793)

COMMISSIONER SPENCER BRISBANE, 22 MAY 2012

Termination of employment - jurisdiction - extension of time.

Introduction

[1] Mr David Reid (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), claiming he was unfairly dismissed from his employment with CMK Plastering trading as CMK Projects (the Respondent).

[2] In accordance with s.394 (2) of the Act, the application for relief must be made within 14 days after the dismissal took effect. This determination relates to the Respondent’s jurisdictional objection that the application was lodged out of time and whether an extension of time should be granted pursuant to s.394 (3) by Fair Work Australia (FWA) to allow the application to proceed.

[3] The parties agreed that the Applicant’s employment commenced on 24 August 2010 and was terminated on 28 October 2011. The application for unfair dismissal remedy was filed with FWA on 7 February 2012.

[4] Directions were set for the filing of evidence and submissions and a hearing date was set.

[5] Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.

[6] After receiving legal advice on 11 November 2012, his reasons for only lodging the application on 7 February 2012 was that he was contemplating the matter and looking for work.

[7] In defence of lodging an application out of time, Mr Reid indicated he was unaware of FWA and the time frame and relied on a petition he had produced with 22 surveys, 5 of whom had not heard of FWA and 20 of whom had not heard of the statutory time limitations in which an application for an unfair dismissal remedy can be lodged.

Legislation

[8] FWA is required to consider whether an application is made within time, as well as whether the Applicant was protected from unfair dismissal by the legislation, prior to considering the merits of the application. Section 394 (3) of the Act authorises FWA to extend the time for making the application if it is satisfied that there are exceptional circumstances, taking into account specific matters.

[9] The relevant legislative provisions are set out below:-

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

…

(2) 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).

(3) 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.

396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

…

Background

[10] The Applicant was employed by the Respondent as a site manager to manage construction sites. The Respondent contended that termination of the Applicant’s employment resulted due to a workplace health and safety incident whereby the Respondent submitted that the Applicant left the site unattended. The Applicant denied this. The Respondent submitted that the incident occurred after a performance review had been conducted on the Applicant and “shortcomings” in his site management performance had been identified. As a result of this the Applicant had been offered a less senior Workplace Health and Safety position. The termination came after this. The Applicant stated the move to the alternative position was unfair, as was the dismissal.

[11] The Applicant submitted that the predominant reason for the delay in filing his application was that he was unaware of Fair Work Australia and the timeframe.

Summary of Applicant’s submissions

[12] The Applicant submitted that after the date of termination he spoke with Mr Kopper on 2 occasions to endeavour to resolve the issues and secure his entitlements. The Applicant stated that during the first phone call the Respondent had said that he had sent the other employee to terminate the Applicant’s employment as he had put the Company at risk. The Applicant stated he had called Mr Kopper ‘a liar’.

[13] The parties resolved to have a further discussion in a few days. The Applicant stated that he tried to call the Respondent but could get no answer. He stated this happened for a couple of days until he used his brother’s telephone and Mr Kopper answered. The Applicant stated Mr Kopper agreed to consider Applicant’s entitlements, if he sent an email outlining them. (There was a dispute between the parties, as to whether he was engaged as a contractor or an employee).

[14] The Applicant stated that he consulted Ms Tammy Lo, a solicitor of Macdonnells Law, on Friday, 11 November 2012 and that he was advised that there was 1 more day in which he had to lodge an application for an unfair dismissal remedy to be within the statutory time limit. The Applicant stated that he was charged $700 for this consultation. Ms Lo emphasised he had 1 more day to file such an application. This advice was followed up by Ms Lo in an email addressed to the Applicant and sent to the Applicant’s sister-in-law’s email account (which he had used to previously correspond with her) but he stated he did not receive it.

[15] The Applicant in correspondence to the Respondent stated:

“Chaz, I have spoken to my Solicitor about our conversation [and] that if all is sorted out [and] agreed upon that you stated that Money owed will be in my Bank Account by Friday Lunch Time, I have made an appointment with my Legal Representation again for Friday at 2pm 11 November 2011.”

[16] The Applicant has relied on legal representative error regarding the advice provided by Ms Lo regarding the timeframe for applications. An affidavit was provided by Ms Lo stating that the Applicant was advised about the 14 day time frame as follows:

“During the 11 November Initial Consultation, I advised Mr Reid, among other things, that an unfair dismissal application must be lodged within 14 days from the date of termination of employment.” 1

[17] This advice was then confirmed in writing on Sunday, 13 November 2011 as follows:

“...You instructed that you intent to lodge an unfair dismissal. We advised that the relevant legislation (i.e. the Fair Work Act) allows you with 14 days from the date of your termination to lodge the application. In other words, you have until tomorrow (Monday 14 November 2011) to lodge the purported application. We also advised that it is difficult to obtain an extension of time unless you can produce evidence proving that there were exceptional circumstances that caused the delay.” 2

[18] It should be noted however that this written advice was emailed to the sister-in-law of the Applicant; an email address previously used by the Applicant to communicate with Ms Lo.

[19] In summary terms the Applicant stated that he immediately contested the dismissal; with the Respondent and was focused on pursuing the entitlements he stated were outstanding. He stated that he repeatedly endeavoured to contact Mr Kopper on this matter and only had his telephone call been answered on 7 November 2012, when he used his brother’s telephone to call. He produced telephone records to this effect.

Summary of Respondent’s submissions

[20] The Respondent referred to a first email sent by the Applicant dated 9 November 2011 in which the Applicant confirmed that he had a consultation with his solicitor and had made a second appointment for Friday 11 November 2011 at 2:00pm.

[21] The Respondent referred to the extract from the Applicant’s affidavit in which he stated:

“ The Applicant states in his affidavit “I did consult a solicitor on Friday 11 November 2011 which cost me $700 for the consultation [and] said, the time for unfair dismissal was up, But we can take it [and] it could cost $20 to $30 000. I have never heard of Fair Work Australia or the Ombudsman Before” The words “Time for unfair dismissal was up clearly must relate to the period of time as stated in section 394(2)(a) of the Act. If this is the case, then it is clear that the Applicant was aware of his obligations under the Act This is contradiction to his statement contained in his submissions noted in para 8 below. 3

8. The Applicant in his outline of submissions opposing the Respondents Jurisdictional objection to the application states in item 3 Also find Attached letter from Solicitors - attendance date Friday 11 November 2011 as that was the account if he agreed with what I had sent. Koper quite well knowing that it was the 14 day deadline, that is why he picked that day [and] gave me the run around. No Solicitors Firm would tell a potential client about FWA [and] a fee of $62.40 if they could gain $20,000.00 or more for taking the case, if they had, FWA would have had the Application that weekend...”

[22] The Respondent made submissions on the Applicant’s statement in his original application whereby he stated his ignorance of FWA as follows:

“... The Applicant also states in his original application “I have never heard of Fair Work Australia or the Fair Work Ombudsman until a few weeks ago...” That statement was dated 2nd February 2012. A few weeks is generally considered to mean 3 or 4 weeks; therefore it can be said based upon the Applicant’s own evidence that he knew about Fair Work Australia on or about the 2 to the 7 of January. With respect I say that he found our as early as the 11 November 2011 when he saw his Solicitor. I say that it would have been negligent of a Solicitor not to have advised his client of Fair Work Australia if she worked in the area of Employment Law and thefore it is more likely that he had full knowledge of his rights but failed to utilise them in a timely fashion. Therefore there can be no waiver of time as there is no evidence of exceptional circumstances.” 4

[23] The Respondent stated that the Applicant wrote to the Respondent on Friday 11 November 2011 via email (6:18am) which stated “[s]ee you in Court.” The Respondent argued that on the basis of this email the Applicant had made up his mind “to litigate” and that he had made this decision prior to his solicitor’s appointment in this knowledge that the Respondent had not paid his entitlements.

Consideration

[24] The following assessment of each of the provisions in s.394 (3) of the Act, is provided; to examine whether exceptional circumstances exist to allow for an extension of time. The onus rests with an applicant to demonstrate exceptional circumstances to justify FWA to exercise the discretion to extend time.

s.394 (3) (a) the reason for the delay

[25] The Applicant submitted that the reason for the delay in filing his application was due to the fact that he did not know whether his case had merit, combined with the fact that he was unaware of the time limit of 14 days for filing the application.

[26] The Respondent submitted that the reasons provided by the Applicant, that he was unaware that there was a 14 day time limit for filing his application with FWA, could not be characterised as ‘exceptional circumstances’. The Respondent submitted further that the Applicant’s attempt to invoke the dispute resolution provisions under the Agreement, was made after the statutory time frame to file an application had already lapsed, and should, therefore, not be considered as a contributing factor explaining the reason for the delay.

[27] The Applicant’s submissions do not adequately explain the delay, in relation to the initial critical 14 day period.

s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[28] The Applicant became aware of the dismissal on the date it took effect on 28 October 2011, as per the discussion of termination. The reasons for the delay are not commensurate with the lapse of time.

s.394(3)(c) any action taken by the person to dispute the dismissal

[29] Whilst the Applicant took initial steps soon after being notified of his dismissal; that is, he was in communication with the Respondent from early November 5; and consulted a solicitor on 11 November 2012; the Applicant undertook little other action until lodging the application on 7 February 2012.

[30] While it is noted that the Christmas period occurred in this intervening time, the Applicant submitted that he ‘contemplated’ the matter. During this period, the Applicant was armed with legal advice, provided orally during his consultation with Ms Lo and in writing which was emailed to his sister-in-law’s email address. It is acknowledged that the Applicant did not receive this email, and that he was unaware of Fair Work Australia and the costs involved in lodging an application, however the advice was emailed to the address that the Applicant utilised in sending correspondence to the law firm. Furthermore, the Applicant was employed in a senior position, as a company Site Manager. It is assumed that the Applicant possessed the capacity to make further enquiries as to the relevant authorities when making an application for unfair dismissal.

[31] Given the number of unfair dismissal applications received every year by Fair Work Australia, I find the survey conducted by the Applicant unpersuasive.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[32] Neither party squarely addressed this issue.

[33] The timeframe in which an Applicant can lodge an application for an unfair dismissal remedy provides, among other things, certainty to both parties.

[34] However, with reference to these criteria, the Respondent only submitted that the alleged false allegations made by the Applicant were ‘defamatory and caused financial harm’. 6

[35] Given that there has been no real reference to prejudice; this criterion has not been given particular weight.

s.394(3)(e) the merits of the application

[36] There is a significant disparity between the parties concerning the fairness of the dismissal. Accordingly, no weight will be given to this criterion.

s.394(3)(f) fairness as between the person and other persons in a similar position

[37] No other employees were dismissed from the Respondent in the same circumstances as the Applicant.

Conclusion

[38] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 7 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)8 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, 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.”

[Mann v Minister for Immigration and Citizenship [2009] FCAFC 150]”

[39] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 9

[40] The criteria in s 394 (3) have been considered in relation to this matter. The steps taken by the Applicant to dispute the dismissal are recognised. However the steps do not equate to the period of the delay.

“[23] Importantly the onus rests with an applicant to convince FWA to exercise the discretion to extend time. The time limit is established for obvious reasons and the intention of establishing the limit would be defeated if the discretion to extend time was granted easily.” 10

[41] The reasons provided, regarding, the delay in lodgement, being questioning the merits of his application, the ability to meet with lawyers and his ignorance of the 14 day time frame, do not justify all of the period of the delay. The Applicant received unambiguous advice from his solicitor on 11 November 2011 regarding the 14 day time limit. The submissions by the Applicant that he was ignorant of FWA and its processes, even after receiving this advice, does not excuse the length of delay. Given the senior managerial role that the Applicant was employed in, the Applicant had the capacity to make further enquiries as to how to initiate an application.

[42] The Applicant has not provided reasons for a significant part of the period of delay, in particular the actions after he obtained the legal advice through to the filing of the Application. The Applicant cannot provide reasons that equate to exceptional circumstances for a significant part of the period of delay after receiving legal advice.

[43] Accordingly, on a consideration of all the material, exceptional circumstances have not been established to justify the failure to file the application, during the statutory time limit, the application is therefore dismissed pursuant to s.394(3) of the Act. I Order Accordingly.

COMMISSIONER

 1 Affidavit of Ms Tammy Lo, at [4].

 2   Affidavit of Ms Tammy Lo, attachment TYL-2.

 3 Respondent’s submissions, dated 23 April 2012, at [7].

 4 Respondent’s submissions, dated 23 April 2012, at [9].

 5   An email exchange between the Applicant and Respondent was provided with Form F2—Application for Unfair Dismissal Remedy.

 6 Respondent’s submissions, dated 23 April 2012, at [16].

 7   Whelan C, [2009] FWA 1638, [30] and [31].

 8   Lawler VP, [2010] FWA 1394.

 9   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 10   Mark Lawford v Sydney Essential Oil Co. Pty Ltd [2012] FWA 1718, at [23].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR523278>