Mr Ian Bray v Linfox Armaguard Pty Ltd

[2011] FWA 7885

[2011] FWA 7885

FAIR WORK AUSTRALIA

DECISION

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

Mr Ian Bray
v
Linfox Armaguard Pty Ltd
(U2011/11335)

COMMISSIONER CAMBRIDGE SYDNEY, 29 NOVEMBER 2011

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 1 September 2011. The application was made by Ian David Bray (the applicant) and the respondent employer is Linfox Armaguard Pty Ltd (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 2 August 2011. Consequently the application was made 16 days 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 2011, 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 C Brown who appeared with Ms P Thompson.

[4] During the Hearing the applicant provided evidence as a witness. The applicant attested to the veracity of the contents of a document that he had provided in support of an extension of time. The employer adduced evidence from two witnesses, Barry Noel Butler and Scott Andrew McIntyre who had each provided statements on behalf of the employer.

Factual Background

[5] The applicant had worked for the employer for about 6 years and 8 months. The applicant was employed in a position of Cash in Transit Officer.

[6] On 27 July 2011, the applicant was suspended from duty as part of the employer’s investigation into an alleged breach of firearm procedure. In November 2010 the applicant had been warned by the employer about his failure to follow procedures in relation to the handling of firearms.

[7] On the next day, 28 July, the applicant received a telephone call from a work colleague and Union delegate, Mr McIntyre. Although there was some direct factual conflict about the detail of this conversation it was clear that Mr McIntyre was not acting on behalf of the employer. Later that day the applicant engaged the law firm of Heard McEwan Legal and obtained advice from a solicitor about matters relating to his employment.

[8] On 1 August 2011 the applicant was contacted by the employer who requested that he attend for work on the following day.

[9] Upon arrival at work on 2 August 2011, the applicant was called into a meeting with inter alia, the employer’s manager, Mr Watkins. The meeting was part of the employer’s investigation into the firearm breach matters which had given rise to the applicant’s suspension from duty. The meeting culminated with the employer advising the applicant of his dismissal. The applicant left the employer’s premises and later that day he obtained further advice from his solicitor. This advice specifically included the issue of an unfair dismissal claim. 1

[10] On 3 August 2011 the applicant commenced various inquires with both the employer directly and also with government agencies about his termination pay entitlements. As part of these inquiries it appeared that the applicant made telephone contact with FWA, the Fair Work Ombudsman and the NSW Office of Industrial Relations. On 9 August the applicant was paid all outstanding entitlements save for an amount that was connected with adjustments made to pay rates in a recently negotiated enterprise agreement.

[11] The applicant apparently made further contact with FWA “...when everything had just calmed down ...” 2 at which time he made inquiries about his position regarding the 14 day time limit for the lodgement of an unfair dismissal claim. The applicant was apparently advised that he could make a late application and he proceeded to do so, thus the claim was filed on 1 September 2011, some 16 days out of time.

The Applicant’s Case

[12] The applicant stated that “It was not until the week commencing 29/8/11 that I felt strong enough and had capability to speak with Work Fair Australia [sic] ...” 3

[13] The applicant said that the advice that he had received from the Industrial Relations and Fair Work Ombudsman was in relation to his termination pay entitlements as opposed to any challenge to his dismissal.

[14] The applicant also provided some evidence of his partner’s illness and his own emotional state which he requested be taken into account as support for granting an extension of time. The applicant suggested that he was reluctant to lodge an unfair dismissal claim because he thought that by making claim he may not receive all of his termination pay entitlements. He said that certain statements made to him by the employer’s payroll clerk, Mr Butler, supported his concern about an unfair dismissal claim impacting upon his termination pay.

[15] The applicant said that he decided to cancel his representation by his solicitor after he had received the solicitor’s bill and this contributed to his emotional state.

The Respondent’s Case

[16] Ms Brown, who appeared for the employer, submitted that the applicant had basically advanced three reasons for the delay. The three reasons involved; the applicant’s fear that his termination pay would be reduced if he commenced proceedings; stress associated with his partner’s illness; and the applicant’s depression and emotional state. Ms Brown said that the reasons proposed by the applicant did not establish any exceptional circumstances relating to the delay with the lodgement of the claim.

[17] Ms Brown said that the applicant received his termination payments on 9 August and at that stage he still had seven days of the fourteen day time limit remaining. Therefore, according to Ms Brown, after 9 August this asserted reason for the delay could no longer represent a genuine belief held by the applicant.

[18] In respect to the distress, depression and emotional stress offered as reasons for the delay, Ms Brown submitted that these issues did not impede the applicant from making various inquiries about his termination pay entitlements, including talking to his solicitor and other government bodies, and seeking alternative employment. Ms Brown proffered that if the applicant could undertake these other activities there was no explanation as to why he could not have taken steps in relation to lodgement of an unfair dismissal claim.

[19] Ms Brown made further submissions which addressed the various matters contained within subsection 394 (3) of the Act. Ms Brown said that the applicant was made aware of his dismissal when it occurred on 2 August. Further, he took no action to dispute the dismissal before he made the claim on 1 September. Ms Brown acknowledged that the employer was not particularly prejudiced if the extension of time was granted.

[20] Ms Brown further submitted that in terms of the merit of the application there was evidence of a valid reason for dismissal and sound procedure followed by the employer. In addition, Ms Brown submitted that there was fairness between the applicant and others in a similar position because the employer consistently and strictly applied its firearm policies and procedures.

[21] In summary, Ms Brown submitted that there were no exceptional circumstances in this case that would warrant an extension of time.

Consideration

[22] 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.”

[23] 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.

[24] 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.

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

[25] In this instance it was difficult to understand the reason for the delay. It appeared that the applicant had capacity to undertake various inquiries in respect to his termination pay entitlements. The ability and capacities required to undertake these activities is little different to the actions needed to make an unfair dismissal claim. Even if the concern about potential to have his termination pay reduced was considered to be a valid basis for the applicant to “hold off” on making an unfair dismissal claim, this issue was substantially resolved by the payments made to him on 9 August.

[26] Although I could ordinarily have considerable sympathy and compassion for the applicant’s emotional state particularly when compounded by the apparently serious illness of his partner, I have not been persuaded that the applicant advanced his case with a requisite level of genuineness or veracity. In this regard my concern can be reflected by the following extracts from the Hearing transcript. Firstly, at the outset of the Hearing the applicant stated:

“PN8

MR BRAY: I'm just here today, Commissioner, to get an extension of time due to my circumstances and I was ignorant in the 14-day period. I didn't realise what I had to do to put it forward to have it heard.”

[27] Later during the Hearing the applicant revealed that he was anything but ignorant about making an unfair dismissal claim and the associated 14 day time limit. The following extract provides but one particular example of the applicant’s conscious decision to not make a claim during the 14 day period after the dismissal:

“PN152

So presumably by this stage you knew about your application regarding unfair dismissal?---That's correct, sir.

PN153

So you sure you didn't question whoever you were speaking to on or around about the 3rd about unfair dismissal?---Before the 3rd, I sought legal advice with a solicitor. I have the - and he said you have to put it in in two weeks and I said, "Okay". Then I was - - -

**** IAN DAVID BRAY XN

PN154

"It" being an unfair dismissal claim?---Yes, Commissioner.

PN155

So you were alive to the idea of an unfair dismissal claim very quickly?---He told me, yes.

PN156

The solicitor even told you about the 14-day period?---Yes, sir.”

[28] Unfortunately, when the applicant's evidence was considered in totality there was no discernible valid reason for the delay. The lodgement of the application represented little more than a belated attempt that was sadly bereft of genuineness.

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

[29] The applicant first became aware of the dismissal at the time of the dismissal, 2 August 2011. 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

[30] 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)

[31] The employer conceded that it would not suffer any particular prejudice if the matter proceeded. The employer’s truthfulness and openness in respect of this issue was commendable and contrasted starkly with the applicant’s approach. Nevertheless this factor could be considered to provide some potential assistance to the applicant.

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

[32] This factor, described in the Act as “the merits of the application” is directed towards some elementary assessment of the potential prospects of the matter at Hearing if the extension of time was granted. The employer submitted that this was a case involving limited merit. Conversely the applicant submitted that he had been treated unfairly.

[33] It is difficult and potentially unsound to develop any firm preliminary views about the merits of the substantive matter. Importantly there was no suggestion that the unfair dismissal claim was entirely without basis or involved some vital flaw which would render it open to the prospects of summary disposal. On an objective and balanced assessment it presents as a conceivably arguable case. Consequently the logical consideration of this factor would have FWA treat it as neutral.

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

[34] This factor was advanced by the employer as providing assistance to its position. However no evidence was led about other persons in a similar position to the applicant. Consequently I have treated this factor as neutral.

Exceptional Circumstances

[35] 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  4. 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

[36] In this instance the exercise of the discretion to extend time has been required in respect to a delay of 16 days, roughly the same period of time as the time limit. The factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act have been carefully considered.

[37] There was no evidence upon which a valid or proper reason for the delay could be established. Further, and most importantly, a consideration of the case advanced by the applicant has established that the application has not been made with a level of genuineness or veracity which could permit further consideration. The other factors under consideration did not assist the applicant's claim, or provided only some limited assistance, 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.

[38] 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 and an Order [PR517188] to this effect will be issued.

COMMISSIONER

Appearances:

Mr I Bray appeared on his own behalf.

Ms C Brown, together with Ms P Thompson, appeared on behalf of the employer.

Hearing details:

2011

Sydney

28 October

 1   See Exhibit 4, account entries for 2 Aug 11: “E-mail to you with advice re unfair dismissal claim”.

 2   Transcript of proceedings (28 Oct 2011) @ PN163.

 3   Exhibit 1 @ paragraph 21.

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

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<Price code C, PR516743>