Mr Dylan Cherrington v Brierty Ltd

[2014] FWC 4004

[2014] FWC 4004

FAIR WORK COMMISSION

DECISION

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

Mr Dylan Cherrington
v
Brierty Ltd
(U2014/1428)

COMMISSIONER CLOGHAN PERTH, 25 JUNE 2014

Unfair dismissal.

[1] On 24 April 2014, Mr Dylan Cherrington (Mr Cherrington or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Brierty Ltd (Employer).

[2] Mr Cherrington states in his application that he was dismissed by the Brierty Ltd on 2 March 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Mr Cherrington has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(a) of the FW Act, a further period for the application to be made, that is, 24 April 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[6] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

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

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 24 April 2014, I issued procedural directions to the parties on 8 May 2014 advising that the matter would be determined by written submissions.

[8] This is my decision and reasons for decision as to whether exceptional circumstances existed to allow the application to be filed on 24 April 2014.

CONSIDERATION

[9] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[10] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[11] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”. In my view, Parliament’s prescription of having applications filed within 21 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.

[12] The burden lies with Mr Cherrington to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[13] The Applicant states in his application that he was verbally dismissed on 2 March 2014 and flown off site the following morning.

[14] Mr Cherrington claims he made application to the Western Australian Industrial Relations Commission (WAIRC), “the following day when I returned to Perth, I submitted the claim through the website and paid the required fee”.

[15] Mr Cherrington submits, “at the time of submitting my claim through the WAIRC, I was not aware of the different State and National Commissions and assumed that the WAIRC was in fact the Fair Work Commission and the correct place for submission of this claim”.

[16] Having made the application to the WAIRC, the Applicant “...reviewed the response from Brierty in regards to the WAIRC claim, I contacted the [unnamed] department and was made aware at that time on the different jurisdictions. I then sought advice from the Fair Work Commission on how to proceed...I then acted as quickly as possible to rectify...”

[17] The Applicant’s submission does not set out the specified dates, accordingly, it has been necessary to seek the assistance of the WAIRC to gain better particulars.

[18] Following the application filed in the WAIRC, the Registrar of the WAIRC advised Mr Cherrington on 11 March 2014 that it had not received the required documentation to say that he had served his application within seven (7) days on the Employer.

[19] Mr Cherrington advised the WAIRC on 14 March 2014 that he had served a copy of the WAIRC application on the Employer on 11 March 2014.

[20] On 14 March 2014, the Registrar of the WAIRC informed Mr Cherrington that it was unable to accept the Form 4 (statutory declaration of service on the respondent) for filing as it was deficient in two areas.

[21] On 26 March 2014, the Employer filed its response to Mr Cherrington’s application to the WAIRC.

[22] On 27 March 2014, the Employer sent by prepaid post to Mr Cherrington its response to his application in the WAIRC.

[23] The opening paragraph of the Employer’s response to the WAIRC application is as follows:

“1. Objection to the commission hearing the unfair dismissal application

The respondent objects to the Western Australian Industrial Relations Commission hearing the unfair dismissal application. Brierty Limited is a publicly listed and trading company covered by the Commonwealth governments Fair Work Act 2009.

As such, the respondent believes that the Fair Work Act override’s the commission’s jurisdiction to enquire into, and deal with, this application served on the respondent by the applicant.”

[24] On 7 April 2014, the Applicant contacted the WAIRC and sought advice how to progress his application. Mr Cherrington was referred to industrial agents on the WAIRC website and the Employment Law Centre.

[25] On 7 April 2014, the Employer provided a further submission to the WAIRC that the WAIRC has no jurisdiction to deal with Mr Cherrington’s unfair dismissal application. Due to an error regarding the Applicant’s email address, this advice was not forwarded to him until 10 April 2014.

[26] On 24 April 2014, Mr Cherrington emailed the WAIRC as follows:

“Upon consultation with Fair Work Australia, I would like to withdraw my claim with WAIRC, at this stage...”

[27] On 28 April 2014, Mr Cherrington discontinued his unfair dismissal application with the WAIRC.

[28] I find that on or about 27 March 2014, the Employer asserted in clear and unambiguous language that the WAIRC had no jurisdiction to deal with Mr Cherrington’s application and the provisions of the FW Act applied.

[29] Mr Cherrington having been advised of the Employer’s jurisdictional objection appears to have done nothing for a further 10 days.

[30] Approximately 10 days later, Mr Cherrington contacted the WAIRC and was advised to seek further information on the Employer’s jurisdictional assertions. A further two weeks elapsed before Mr Cherrington advised the WAIRC that he intended to discontinue his application in that jurisdiction and file an application in the Commission. As it happens, Mr Cherrington did not discontinue his application in the WAIRC until four days after he filed this application in the Commission.

[31] Mr Cherrington submits that his support person during the investigation and at the time of his dismissal suggested that he pursue the matter in the WAIRC and he assumed that this was the correct place to lodge his application for unfair dismissal.

[32] Having taken up that suggestion was a matter for Mr Cherrington. However, it does not change the fact that as early as on or about 27 March 2013, Mr Cherrington became aware, from the Employer, that he was in the wrong jurisdiction and did not make this application until 24 April 2014.

[33] The Applicant states that “prior to this event I had never heard of the IRC, or process by which unfair dismissal claims can be made”.

[34] In such circumstances, the Commission has adopted, and I do so, the decision of the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 which reads:

“[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

[35] If becoming aware of the statutory provisions became exceptional circumstances or reason for the delay in making an application to the Commission, the statutory timeline would become meaningless. Being unaware of the provisions of the FW Act is not exceptional circumstances for delay in lodging applications.

[36] Mr Cherrington did not proceed with alacrity in pursuing his application in the WAIRC. The same can be said in relation to pursuing the matter in this jurisdiction when advised by the Employer that the WAIRC was not the appropriate jurisdiction on or about 27 March 2014.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[37] Mr Cherrington became aware of his dismissal on the afternoon of 2 March 2014.

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

[38] Mr Cherrington’s actions to dispute the dismissal are set out in paragraphs [13] to [36] above.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[39] The Applicant has submitted, in relation to this criterion, “n/a”. The Employer has not made any submission in relation to this criterion.

[40] I have previously expressed, and do so again, that lack of prejudice suffered by an Employer is not a satisfier of exceptional circumstances, rather it does not dissatisfy exceptional circumstances. I have adopted a neutral position regarding this criterion.

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

[41] The Employer submits that Mr Cherrington was dismissed following a serious incident involving significant damage to equipment. The Applicant does not deny that the event took place but submits “n/a”. Whether the Applicant was unfairly dismissed can only be determined after the facts are heard, evidence given and tested and the law applied. I have adopted a neutral position with respect to this criterion on whether time should be extended to file the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[42] The Applicant has submitted “n/a” with respect to this criterion. The Employer has not made a submission with regards to this criterion. To the extent it is relevant, I have adopted a neutral position with respect to this criterion.

CONCLUSION

[43] In conclusion, taking into account the criteria in s.394 (3) of the FW Act and my consideration above, I am not satisfied that exceptional circumstances existed to allow Mr Cherrington to file his application beyond the statutory timeline of 21 days. Accordingly, the application must be dismissed. An order to this effect is issued with this decision.

COMMISSIONER

Final written submissions:

Applicant: 16 May and 12 June 2014.

Respondent: 3 June 2014

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<Price code C, PR552110>