Mr Ian Sutherland v John L. Pierce Pty Ltd

[2014] FWC 3104

[2014] FWC 3104

FAIR WORK COMMISSION

DECISION

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

Mr Ian Sutherland
v
John L. Pierce Pty Ltd
(U2013/3653)

DEPUTY PRESIDENT ASBURY BRISBANE, 12 MAY 2014

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

Background

[1] Mr Ian Sutherland applies for an unfair dismissal remedy in relation to his dismissal by John L. Pierce Pty Ltd. The application was made on 23 July 2013. In the Form F2 Application for an unfair dismissal remedy, Mr Sutherland states that he was notified of his dismissal on 26 June 2013 and that it took effect on that date. Section 394(2) of the Fair Work Act 2009 (the Act) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3) of the Act.

[2] On the face of the application it was made six days outside the time provided for in s.394(2) of the Act.

[3] Directions were issued requiring the parties to file and serve outlines of submissions and witness statements and to indicate whether cross-examination of witnesses was required. The Australian Industry Group on behalf of John L. Pierce Pty Ltd advised that cross-examination of Mr Sutherland was required. A hearing was held for that purpose, at which Mr Sutherland was represented by Mr Kroesen of Aden Lawyers and John L. Pierce Pty Ltd was represented by Mr Miller of the Australian Industry Group.

[4] At that hearing, Mr Sutherland asserted that the application was made within the required time. In this regard, Mr Sutherland contends that the letter advising of his dismissal was not received until 11 July 2013 and that he made an error when he completed the Form F2 based on his lack of understanding about the date his dismissal took effect. Accordingly it is contended that the application was made within the time required.

[5] In the alternative it is contended that there are exceptional circumstances such that an additional period should be allowed, on the basis that there was ambiguity surrounding the date of the dismissal and Mr Sutherland was hospitalised for a period following the dismissal.

[6] Mr Sutherland gave evidence on his own behalf and was cross-examined in relation to his evidence. Evidence for John L. Pierce Pty Ltd was given by Mr Emerson Pierce. Mr Pierce was available at the hearing but was not cross-examined by Mr Sutherland’s legal representative.

[7] This Decision concerns the question of whether Mr Sutherland’s application for an unfair dismissal remedy was made within the time required, and if not, whether an additional period should be allowed for Mr Sutherland’s application.

Legislative provisions

[8] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). That sub-section provides as follows:

(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

[9] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or



• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[10] Even when exceptional circumstances are established, a discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 

The date the dismissal took effect

[11] Mr Sutherland’s application filed on 23 July 2013 states that he was notified of his dismissal on 26 June 2013 and that it took effect on that date. The application also contains a statement as follows:

“The reason I’m late with this is that I have been in hospital. See attached certificate”.

[12] In response to a question in the Form F2 Application for an unfair dismissal remedy, in relation to the reasons for the dismissal, Mr Sutherland refers to an Employment Separation Certificate appended to his application. The Certificate is dated 4 July 2013 and states that the date that Mr Sutherland last worked for John L. Pierce Pty Ltd was 26 June 2013. The Certificate also states that Mr Sutherland’s accrued entitlements to annual leave were paid to him on 27 June 2013.

[13] In his witness statement Mr Sutherland said that on 26 June 2013, while on annual leave, he was contacted by Mr Emerson Pierce who required him to attend the workplace in relation to a complaint. Mr Sutherland declined this request. According to Mr Sutherland, Mr Emerson Pierce told him that Mr John Pierce was on a plane to Brisbane to discuss Mr Sutherland’s employment with a customer, and that Mr Sutherland would probably be sacked. On 11 July 2013 Mr Sutherland received a letter dated 3 July 2013, terminating his employment. That letter states:

“We wish to advise that John L Pierce Pty Ltd hereby gives you notice that your employment has been terminated.

The reasons for the termination are as follows:

● Thursday 6th June - Verbal abuse and aggression towards a Customer. This incident was raised by the customer which I became aware of on 24th June.

● 21st June - Verbal abuse and aggression towards John L Pierce Management

We note that whilst you were requested to attend a meeting at the Toowoomba offices of John L Pierce Pty Ltd on 26th June to discuss these matters you refused attendance.

We have decided that your actions constitute serious misconduct and we had no other option other than to terminate your employment immediately. Under the Fair Work Act 2009, we are not required to provide you with any notice of termination, given this you will not be required to return to work.

Your accrued annual leave entitlements have been paid to your nominated bank account.”

[14] The envelope in which the letter was sent is stamped 10 July 2013. 2 Mr Sutherland said that at the time of making his application for an unfair dismissal remedy, he thought that the 21 day period for lodging it “might have started from the phone call on 26 June 2013”. Mr Sutherland said that he was later advised, and now believed, that the period started from 11 July 2013 when he received the letter confirming that his employment had been terminated.

[15] Under cross-examination, Mr Sutherland maintained that he was on leave on 26 June 2013. Mr Sutherland also said that he did not think he swore at Mr Pierce during the telephone conversation on 26 June 2013. In response to the proposition that he said: “Am I getting the fucking sack”, Mr Sutherland said that he did not think that he swore and maintained that he did not keep insisting that he was getting the sack.

[16] Mr Sutherland agreed that he attended the workplace after his discussion with Mr Emerson Pierce, returned his uniforms and cleaned out the truck that he usually drove. Mr Sutherland said that he was asked to do this by Mr Emerson Pierce and later said that he cleaned out his truck because there was another driver standing beside the truck waiting to get into it. Further, Mr Sutherland agreed that he had previously walked out following an altercation with Mr Pierce and had returned to the workplace and resolved the issues before resuming his employment.

[17] In response to questions from the Commission, Mr Sutherland said he was usually the only person who drove the truck assigned to him. Mr Sutherland also agreed that he may have asked Mr Emerson Pierce during the conversation on 26 June whether he was getting the sack. Further, Mr Sutherland said that he took his possessions from the truck because Mr Emerson Pierce told him that Mr John Pierce was on his way to Brisbane to discuss his employment and that he would probably be sacked.

[18] Mr Sutherland also maintained that he had returned from a trip to Melbourne on 21 June 2013 and was asked to take a week of leave because there was no load for him at that point and was given a leave application form which was already filled out. Mr Sutherland was paid from 21 June until 28 June, when he would have expected to leave for a trip. Mr Sutherland said that in the period from 28 June until 11 July, he was waiting for a decision from Mr Pierce about whether he was to be dismissed. Mr Sutherland provided no documentary information to support his contentions about being on leave or being paid up until 28 June 2013.

[19] Mr Emerson Pierce said in his evidence that Mr Sutherland was employed as a long distance truck driver, in the Company’s line haul division. In this capacity, Mr Sutherland undertook long haul trips between Toowoomba and Sydney or Toowoomba and Melbourne. In June 2013, John L. Pierce Pty Ltd received a complaint from a customer about rudeness and aggression on the part of Mr Sutherland and a direction that Mr Sutherland no longer attend its premises. There was a further altercation between Mr Sutherland and the Company’s Operations Manager, resulting in Mr Sutherland storming out of the yard on the afternoon of 21 June 2013. Mr Sutherland had arrived back at the yard at around 1.00 pm on that date. Mr Pierce also said that Mr Sutherland was at home on 26 June 2013 but was not on annual leave.

[20] Mr Emerson Pierce said that he telephoned Mr Sutherland on the afternoon of 26 June 2013 and asked him to come to the office to discuss these incidents. During this conversation, Mr Sutherland asked three times: “Am I going to be fucking sacked” and Mr Pierce said that there had been complaints and Mr Sutherland was to be sacked. Shortly thereafter, Mr Sutherland came into the depot with his daughter, cleaned out the cabin of his truck, returned his uniforms and left. Mr Emerson Pierce decided to formally acknowledge events in writing and sent the letter dated 3 July 2013 for this purpose. Mr Pierce said that he accepted that Mr Sutherland did not get the letter until 11 July 2013.

Reasons for the delay

[21] Mr Sutherland gave evidence that he was admitted to the Toowoomba Base Hospital on 8 July 2013 with sudden onset weakness in his left side. Mr Sutherland was in hospital until 16 July 2013 and stated that he was totally incapacitated until 21 July 2013. Mr Sutherland’s hospitalisation and discharge was confirmed by a medical certificate and discharge report appended to his witness statement. The medical certificate indicates that Mr Sutherland was totally incapacitated for work from 8 to 16 July 2013 and unfit for duty up until 21 July 2013.

[22] Mr Sutherland also said that he initially filed his unfair dismissal application with the Office of the Fair Work Ombudsman and that it was forwarded to the Commission by that Office on the date it was filed.

Conclusions

[23] I am satisfied that Mr Sutherland was dismissed on 26 June 2013 and that he knew that this was the case. I have reached this conclusion for the following reasons. I did not find Mr Sutherland to be a compelling witness and he made several contradictory statements while giving evidence. Mr Sutherland’s evidence was also at odds with the information set out in his application to the Commission for an unfair dismissal remedy. In that application Mr Sutherland acknowledges that it has been filed outside the required time, and proffers his hospitalisation as a reason for the delay.

[24] I am also of the view that it is more probable than not that Mr Sutherland did have a heated telephone discussion with Mr Emerson Pierce on 26 June 2013. Consistent with this view is the fact that following that conversation, Mr Sutherland attended the workplace to remove his personal belongings from the truck that he usually drove. Mr Sutherland also returned his uniforms. The uncontradicted evidence of Mr Pierce was that Mr Sutherland had his daughter with him when he collected his possessions. I found Mr Sutherland’s explanation for the collection of his personal items unconvincing.

[25] The fact that Mr Sutherland returned his uniforms is inconsistent with his evidence that he was clearing out his truck so that another person could drive it. The fact that Mr Sutherland attended at work at all on 26 June 2013 is also at odds with his evidence that he was on annual leave at that time, and did not expect to be assigned any work until 28 June 2013.

[26] Seen in light of the events of 26 June 2013, the most probable scenario is that Mr Sutherland was dismissed during the telephone conversation with Mr Emerson Pierce and responded to his dismissal by attending at the workplace, removing his personal effects from the truck he was usually allocated to drive and returning his uniforms.

[27] The fact that a letter confirming the dismissal was not received by Mr Sutherland until 11 July 2013, and that following legal advice he now “believes” that he was dismissed on that date, does not alter the fact that the dismissal took effect on 26 June 2013 and that Mr Sutherland was aware at that time that he had been dismissed. I do not accept the attempt made in these proceedings to use the letter of 3 July 2013 to create ambiguity about the date of the dismissal. Mr Sutherland had that letter when he completed his Form F2 Application for an unfair dismissal remedy. The letter uses past tense and states that “we had no other option other than to terminate your employment” and was sent after Mr Sutherland cleared out the truck he usually drove and returned his uniforms.

[28] For the reasons set out above, I am satisfied that Mr Sutherland’s dismissal took effect on 26 June 2013 and he was aware on that date that he had been dismissed. The time period in which Mr Sutherland was required to make his application concluded on 17 July 2013. Mr Sutherland was hospitalised for a period from 8 to 16 July 2013 during which he was totally incapacitated. Thereafter, Mr Sutherland was unfit for work until 21 July 2013. The application was not made until 23 July 2013.

[29] Mr Sutherland has provided no evidence about any circumstances, exceptional or otherwise, that prevented him from making his application in the period from 26 June until 7 July 2013 or during the period when he was unable to work but was not totally incapacitated. Other than making his application for an unfair dismissal remedy on 23 July 2013, there is no evidence that Mr Sutherland took any action to dispute his dismissal.

[30] There is no evidence of prejudice to the employer caused by the delay. There are factual issues in dispute between the parties about the incidents which lead to the dismissal which could only be resolved at hearing. Accordingly, the merits of the application are not a factor which weighs against the exercise of the discretion to extend time. There is no evidence particular to this case raising the issue of fairness as between Mr Sutherland and other persons in a like position. There are other cases where the Commission has decided that illness or other explanation for delay covering part of the period in which an application was required to be made does not justify an extension of time being granted. 3 To refuse to allow a further period in the present case would be consistent with other similar cases where the Commission has refused to exercise discretion to grant a further period for an unfair dismissal application to be made.

[31] I am not satisfied that there are exceptional circumstances in this case such that the discretion to allow a further period for Mr Sutherland to make his application for an unfair dismissal remedy is triggered. The application by Mr Sutherland in U2013/3653 is dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr C. Kroesen on behalf of the Applicant.

Mr D. Miller and Mr E. Pierce on behalf of the Respondent.

Hearing details:

2014.

Brisbane:

February 28.

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.

 2   Exhibit 1 Annexure IS-2.

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403; Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWAFB 5933

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