Mr Fred Antoun v ANZ Banking Group Limited

[2010] FWA 8610

[2010] FWA 8610

FAIR WORK AUSTRALIA

DECISION

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

Mr Fred Antoun
v
ANZ Banking Group Limited
(U2010/11897)

COMMISSIONER CAMBRIDGE SYDNEY, 9 NOVEMBER 2010

Unfair dismissal – request for FWA to allow extension of time for lodgement of application.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 25 August 2010. The application was made by Fred Antoun, (the applicant) and the respondent employer is ANZ Banking Group Limited, (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 10 August 2010. Consequently the application was made 1 day after the standard time limit prescribed by subsection 394 (2) of the Act. The employer made a jurisdictional objection to the application on the basis that the application had not been made within 14 days of the dismissal.

[3] On 28 October 2010, Fair Work Australia (FWA) conducted a Hearing to deal with the question of extension of time. At the Hearing the applicant appeared unrepresented and the employer was represented by Ms K Srdanovic a solicitor from the firm Blake Dawson.

[4] During the Hearing the applicant provided evidence as a witness. The applicant attested to the veracity of the contents of an e-mail that he had provided in support of an extension of time. The employer called Peter Tindall as a witness. Mr Tindall is the employer's State Manager Asset Finance, and he confirmed the contents of an affidavit that had been filed on behalf of the employer.

Factual Background

[5] The applicant had worked for the employer for more than 14 years. The applicant was employed in a position of Asset Finance Manager and from about 2002, he utilised a motor vehicle provided by the employer. The motor vehicle was used in connection with the applicant's work and some private usage of the vehicle was apparently permitted.

[6] On 29 July 2010 Mr Tindall who was the applicant's immediate superior, inquired of the applicant as to whether he had a valid driver's license. The applicant told Mr Tindall that he did have a valid driver's license.

[7] On 4 August 2010 Mr Tindall questioned the applicant further about the status of his driver's license. When asked to produce his driver's license the applicant admitted that he had been caught by police driving with a prescribed level of alcohol in the high range and that his driver's licence had been suspended. The employer immediately removed the applicant's access to the motor vehicle and conducted an investigation into the applicant's driving record.

[8] This investigation revealed that the applicant’s driver's license had been suspended on 30 April 2009 and subsequently disqualified by Order of Bankstown Local Court for a period of one year until 1 May 2010. The investigation also revealed that the applicant’s driver's license had been further suspended on 10 June 2010.

[9] On 10 August 2010 the employer met with the applicant who made various admissions which confirmed that he had been disqualified from driving during the period 30 April 2009 to 1 May 2010 and subsequently suspended from driving on 10 June 2010. The applicant also confirmed that he had initially lied to Mr Tindall when asked about the status of his driver's license. The employer dismissed the applicant effective from that day, 10 August 2010, and provided him with a letter of termination dated 11 August 2010. The applicant was paid four weeks remuneration in lieu of notice and in addition to all leave entitlements.

[10] The applicant apparently made contact with FWA on Friday, 20 August 2010 at which time he was advised of the 14 day time limit for the lodgement of any unfair dismissal claim. The applicant apparently had a telephone discussion with someone at FWA in Melbourne who mentioned that there may be some delay associated with posting application documents from Melbourne to the applicant in Sydney. Notwithstanding this discussion about the potential implications of any delay, the applicant awaited the provision by post of application documents which he received on 24 August 2010. On the following day, 25 August 2010 the applicant completed the documentation and sent it by facsimile transmission to FWA one day after the 14 day time limit fixed by subsection 394 (2) of the Act.

The Applicant’s Case

[11] The applicant made mention of an understandably disturbing event involving his children going missing in the Blue Mountains. The children were found the next day but the applicant submitted that this event was a horrific ordeal that created residual medical problems including of a psychiatric nature. The applicant appeared to connect the event involving the missing children with the more recent suspension of his driver's license and the delay in the lodgement of his unfair dismissal claim.

[12] The applicant also referred to the delay with the provision of the application documentation that was posted from Melbourne. The applicant also stressed that the claim had been filed only one day beyond the 14 day time limit. The applicant said that he felt “a bit hard done by” when he compared the one day with the 14 years that he had given “his blood and heart and soul” to the employer’s organisation.

[13] The applicant said that the exceptional circumstances to provide for the extension of time for lodgement of the claim related to the mental trauma that he had suffered as a consequence of the event involving his children going missing in the Blue Mountains.

The Respondent’s Case

[14] Ms Srdanovic, who appeared for the employer, submitted that the applicant was required to discharge an onus to demonstrate that exceptional circumstances existed in order to permit FWA to exercise the discretion to extend time. Ms Srdanovic said that the material provided by the applicant did not establish any exceptional circumstances relating to the delay with the lodgement of the claim.

[15] Ms Srdanovic made further submissions which addressed the various matters contained within subsection 394 (3) of the Act. Ms Srdanovic acknowledged that the claim was only one day late. However, she said that the application had been filed outside of the prescribed time and it was therefore necessary to properly consider the factors relevant to granting any extension of time.

[16] In particular Ms Srdanovic stressed that one of the relevant factors involved the merits of the application and this was particularly important in this case. Ms Srdanovic said that FWA had been provided with some details of the basis for the employer's decision to dismiss the applicant. According to the submissions of Ms Srdanovic, this material disclosed that the application had little, if any, prospects for success.

[17] Ms Srdanovic referred to a number of Decisions which had examined the meaning of the term “exceptional circumstances” and the basis upon which that term would have application for the purposes of subsection 394 (3) of the Act. Ms Srdanovic submitted that the material provided by the applicant, Exhibit 1, when considered in the context of the factors identified in subsection 394 (3), did not establish exceptional circumstances so as to permit the extension of time.

[18] Ms Srdanovic mentioned that the applicant had not actually established the reason for the delay in the lodgement. Ms Srdanovic said that there was no reason provided for why the applicant waited until he had received the application documents by post from Melbourne. Ms Srdanovic said there were a variety of other methods to provide for the lodgement of the claim either on 20 August or even on the 24th when he received the documentation. Ms Srdanovic said that the applicant had provided no explanation for why he did not act within the timeframe.

[19] Ms Srdanovic rejected any proposition that the event involving the missing children could represent some reason for the delay with the lodgement of the application. Ms Srdanovic said that she fully accepted that children going missing would be quite distressing. However, she said that the missing children event occurred around 14 July 2010, not during the period between dismissal and the lodgement of the application. Further, according to the submissions of Ms Srdanovic, there was no evidence upon which to establish any medical or other issues that in any way impeded the applicant from making an application within time.

[20] Ms Srdanovic made further submissions which dealt with the applicant being aware of the dismissal at the time on 10 August 2010. Further, there was no evidence that the applicant had taken any other action to dispute the dismissal. Ms Srdanovic also submitted that the employer would be prejudiced if FWA allowed the matter to proceed to Hearing. In particular it was submitted that a relevant consideration involved the employer being put to the cost and inconvenience of defending an unfair dismissal claim.

[21] Ms Srdanovic made further submissions which concentrated upon subsection 394 (3) (e) of the Act. In these submissions Ms Srdanovic stressed that the claim had very limited prospects of success. Ms Srdanovic submitted that the evidence disclosed a pattern of dishonest conduct which provided strong basis for the summary dismissal of the applicant. However, the employer had regard to other factors such as the applicant's length of service and instead decided to provide for a four-week payment in lieu of notice, thereby allowing the applicant access to payment in respect to long service leave. Ms Srdanovic submitted that there was little prospect that a dismissal in these circumstances and with these characteristics, could be held to be unfair.

[22] In summary, Ms Srdanovic submitted that a consideration of all of the factors mentioned in subsection 394 (3) of the Act could not establish that exceptional circumstances existed. In particular Ms Srdanovic said that the applicant had failed to discharge the onus that anything like exceptional circumstances existed. Ms Srdanovic said that the application had been made outside of the prescribed time and that because no exceptional circumstances existed to provide for the late lodgement, the matter should be dismissed.

Consideration

[23] Subsection 394 (3) of the Act provides FWA with a discretion to extend the time limit of 14 days as fixed by subsection 394 (2). Subsection 394 (3) is in the following terms:

(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.

[24] As can be seen from subsection 394 (3), FWA must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which FWA is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a prescribed time.

[25] Importantly the onus rests with an applicant to convince FWA to exercise the discretion to extend time. Although in this instance the application was made only one day after the 14 day time limit it was nevertheless made contrary to the Act and therefore required the exercise of the discretion provided by subsection 394 (3).

[26] Although the length of the delay was of the shortest duration that could conceivably be the subject of the exercise of any discretion to extend time, a proper consideration of the relevant factors must still be undertaken.

Subsection 394 (3) (a) - the reason for the delay

[27] In this instance it was difficult to understand the reason for the delay. It appeared that the applicant had made telephone contact with FWA on Friday, 20 August 2010 at which time the 14 day time limit became an obvious issue. There was no explanation provided as to why a process involving the posting of application documents from Melbourne was adopted. This process would have provided obvious and significant potential for the application to be late. There were a variety of other methods for lodging the application that were available and would have ensured that it was made within time. There was no evidence provided to explain why the slowest possible method of lodgement was utilised.

[28] In addition, there was no explanation for why the applicant did not complete the application documents and fax them back to FWA on 24 August 2010. The applicant was clearly aware of the 14 day limit and the expiry of that limit on 24 August 2010. This matter had been the subject of the telephone discussion with administrative staff of FWA on the preceding Friday, 20 August 2010.

[29] The applicant suggested that the distressing event involving his children going missing in the Blue Mountains was connected with the late lodgement of the unfair dismissal claim. Anyone would naturally have great sympathy for a parent of missing children and an event involving missing children could conceivably create residual stress and anxiety. Importantly however, there was no evidence provided to FWA upon which it could be established that the applicant was suffering from anxiety or some form of psychological problem which operated as an impediment to the lodgement of an unfair dismissal application in the period between 10 August and 25 August 2010.

[30] Further, the applicant made some statements about the connection between the missing children, the most recent suspension of his driver’s license and late lodgement of the unfair dismissal claim which can, most generously, be described as misleading.

[31] Mr Tindall provided uncontested evidence that when he pressed the applicant about producing a valid driver's license, the applicant said that his most recent license suspension occurred when he drove under the influence of alcohol because he was driving to the Blue Mountains to look for his missing children 1. The children went missing on 14 July 2010. The applicant’s driving record subsequently obtained as part of the employer’s investigation, shows that the applicant’s licence was suspended by police on 10 June 2010.

[32] During the proceedings held on 28 October 2010 the applicant appeared to suggest that his children had gone missing during the time between his dismissal and the lodgement of the application. The following extract from transcript reveals the applicant’s very curious use of the word “prior” :

“THE COMMISSIONER:   We've gone past all that now, we are dealing today with a question of extension of time, and I am trying to work out what it is that you seek to rely upon - - -

MR ANTOUN:   Sir, I was terminated on 10 August this year.  My application yes, was submitted on the 25th.  It was accepted on the 25th.  During that time my children prior went missing in the Blue Mountains and I was taking my children...” 2

[33] Unfortunately, when the applicant's evidence was considered in totality there were numerous incidents that involved questionable veracity.

[34] Importantly, there was no evidence to establish what caused the applicant to delay until 20 August before contacting FWA by telephone. Further, there was no evidence to provide explanation for why the applicant did not lodge an unfair dismissal claim between 20 August and 24 August, although at that time he had been fully alerted to the time limit. In addition, there was no evidence upon which FWA could establish that the physical or psychological state of the applicant arising as a consequence of the missing children event, or otherwise, acted as an impediment to the making of a claim within time. Consequently the applicant has not established any reason for the delay in the lodgement of the application.

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

[35] The applicant first became aware of the dismissal at the time of the dismissal, 10 August 2010. Consequently this factor does not provide any assistance to the applicant.

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

[36] There was no evidence that the applicant had taken any other action to dispute the dismissal. Therefore this factor does not assist the applicant.

Subsection 394 (3) (d) - prejudice to the employer (including prejudice caused by the delay)

[37] The employer submitted that the cost and inconvenience associated with the defence of an unfair dismissal claim represented some prejudice. I reject the proposition that the ordinary defence of a claim for unfair dismissal could represent prejudice to the employer in the context of a factor for consideration in respect of extension of time. This submission misconstrued the prejudice that is contemplated by subsection 394 (3) (d) of the Act. Consequently this factor could be considered to provide some potential assistance to the applicant.

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

[38] This factor has attracted significant importance in this case. Although at times the applicant attempted to blur the factual circumstances that underpinned his dismissal there was an inescapable pattern of misconduct and dishonesty that provided ample justification for summary dismissal. The unlawful act of driving a motor vehicle whilst disqualified also manifests as gross misconduct when the vehicle is provided by an employer as a “tool of trade”. The misconduct was not diminished or altered in any way because the applicant believed that an immediate superior was aware of it. The repeated occurrence of the misconduct over a prolonged period and the blatant lies used as attempted concealment amplified the misconduct with deceit.

[39] The employer did not hastily move to summary dismissal. Instead it acted with commendable caution and compassion. The employer considered the entirety of the applicant’s employment circumstances and having regard for the applicant’s length of service, it decided to dismiss with notice. The applicant received payment in lieu of notice and long service leave. The employer’s benevolence appeared to be unrecognised by the applicant.

[40] A reasonable consideration of the essential elements of the dismissal of the applicant would undoubtedly suggest that the application would have very limited prospects for success. However, when these essential elements are combined with the identification of further incidents of regrettable absence of concern to ensure the veracity of assertions and statements made to the Tribunal, the application has been rendered to be without merit.

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

[41] This factor was not relevant in this instance.

Exceptional Circumstances

[42] Having examined each of the factors contained within subsection 394 (3) of the Act it is necessary to conclude whether exceptional circumstances exist. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery  3. The consideration therein established a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

Conclusion

[43] In this instance the exercise of the discretion to extend time has been required in respect to a very short delay of only one day. Despite the very short delay the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have required careful consideration.

[44] There was no evidence upon which a reason for the delay could be established even though the delay was of only one day. Further, and most importantly, a consideration of the essential elements of the dismissal of the applicant in combination with the applicant's approach to the prosecution of his complaint, has established that the application is without merit. The other factors under consideration either did not assist the applicant's claim or were of neutral impact. Importantly none of these factors had any unusual characteristic that might provide basis for a finding that exceptional circumstances existed.

[45] Consequently, there is no basis to establish exceptional circumstances and therefore FWA is unable to exercise the discretion to extend time. The application has been made beyond the time limit set by subsection 394 (2) of the Act. Consequently the application is dismissed.

COMMISSIONER

Appearances:

Applicant for himself.

Ms. K. Srdanovic (Blake Dawson) for the Respondent.

Hearing details:

Thursday 28 October 2010.

 1   Exhibit 2 @ paragraph 13

 2   Transcript of proceedings (28 October 2010) @ PN49 -PN50

 3   Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

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