Mr James Cole v City of Glen Eira

[2012] FWA 3554

[2012] FWA 3554

FAIR WORK AUSTRALIA

DECISION

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

Mr James Cole
v
City Of Glen Eira
(U2012/4440)

COMMISSIONER ROE MELBOURNE, 24 APRIL 2012

Unfair dismissal - extension of time for lodging application - not granted.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by James Cole (the Applicant) in respect of his alleged dismissal by City of Glen Eira (the Respondent).

[2] At the hearing of this matter on 17 April 2012 I had the benefit of a statement from the Applicant and a submission from the Respondent together with a statement from Betsie Young, Manager Human Resources for the Respondent. The Applicant represented himself. I granted leave for Nick Ruskin from DLA Piper to represent the Respondent.

[3] At the conclusion of the hearing of this matter I advised the parties that I was refusing to allow an extension of time. The following are the edited reasons for my decision.

[4] The parties accepted and I am satisfied that Glen Eira City Council is not a small business. The Applicant was employed from 18 October 2005 until 2 December 2011 in a customer service role in the Libraries department. The Applicant suffered illness or injury in late 2009. The Applicant made a workers’ compensation claim in late 2010 which was initially rejected. A review of the decision was pending when in mid 2011 the Applicant applied for a period of six months leave (a combination of annual leave and leave without pay) commencing 27 June 2011. The workers’ compensation claim was accepted during the period of leave without pay. On 2 November 2011 the Applicant wrote and requested that his return to work be in another area of the Council than the library service. On 16 November 2011 the Respondent responded that the return to work from 28 December 2011 would be at a library and that there would be ergonomic assessment of the work area and duties upon return to work. The Applicant responded expressing his dissatisfaction with the reply on 16 November 2011. On 2 December 2011 the Applicant wrote further to the Respondent advising that:

“Further to my email of 16th November to which I received no reply, I assume that Council is not prepared to accommodate me in any other department. In my initial email I outlined in detail why I believe I am not able to return to the library and as you have ignored virtually everything I said, I am now resigning from my position. I will not be returning to work on 28th December. After six years of employment, I am saddened and disappointed by Council’s lack of commitment to providing me with an emotionally and physically safe workplace on my proposed return.”

On 2 December 2011 the Respondent wrote to the Applicant accepting the resignation.

[5] The Applicant alleges that this was a constructive dismissal. The Applicant made his unfair dismissal Application on 30 January 2012. The Application is 42 days late although I note that three of these days were public holidays. The Applicant says that the reasons for the delay were:

• The Applicant was in Thailand on 1 December 2011.



• The Applicant was unable to get legal advice whilst he was overseas. There were floods in Thailand at the time. He then went to Cambodia and Vietnam.



• The Applicant returned to Australia on 25 December 2011. The Applicant was jetlagged and it was a holiday period.



• The Applicant spoke to a Centrelink staff member who was reviewing his application for unemployment income support on Friday 20 January 2012. The Applicant had some days earlier sought review of a decision to deny income support because he had resigned from his employment. Centrelink staff granted the review and suggested contact with FWA. The Applicant contacted FWA in response to this on Tuesday 24 January 2012. This was his first contact with FWA. The Applicant wrote a letter submitting his Application dated Wednesday 25 January 2012. The actual form was received by FWA on 30 January 2012.



• The Applicant says that had Centrelink not made an administrative error in denying him income support he would have been alerted to the issue some days earlier and would have contacted FWA some days earlier and within 14 days of his return from overseas. The Applicant says that he was not previously aware of Fair Work Australia or of any potential remedy he might have had.



• The Applicant suggests that his financial position restricted his capacity to get legal assistance.

[6] The Respondent submits that:

• Being overseas on 1 December 2011 was a situation entirely of the Applicant’s own making.



• The Applicant could have made an Application online from overseas. The Applicant clearly had internet access as he sent emails to the Respondent immediately prior to sending his resignation letter.



• The Applicant does not allege that he received incorrect advice from FWA or from Centrelink. He simply alleges that he was not aware of his potential rights or of the need to make an application within 14 days prior to speaking to a particular officer from Centrelink. There is no suggestion of representational error.



• The fact that the Applicant was jetlagged or that it was the holiday period does not constitute an exceptional circumstance.



• The Applicant provides no explanation for the delays between the advice given by Centrelink on 20 January 2012 and the first contact with FWA on 24 January 2012.

[7] The Applicant was not ill or incapacitated during this period.

[8] Section 394(2) of the Fair Work Act 2009 (the Act) provides:

“(2) [Standard time limit] 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).”

[9] Subsection 394(3) provides:

“(3) [Extended time limit] 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.”

[10] I am satisfied in respect to criteria in Section 394(3)(b)-(f) that:

• On his own submission the Applicant was aware of the alleged dismissal at the time it took place.



• The Applicant took no action to dispute the dismissal prior to receiving advice from a Centrelink employee on 20 January 2012. At this stage the Application was already more than 35 days late.



• There is no prejudice beyond the normal to the employer if the application for extension of time is granted apart from the fact that the Applicant’s position was filled by the Respondent following receipt of the letter of resignation.



• I have some serious doubts about the merits of the Application in that it is agreed that the Applicant resigned his employment on 1 December 2011 and that resignation was accepted on 2 December 2011 and no steps were taken to dispute the alleged constructive dismissal or withdraw the resignation prior to 24 January 2012. It is hard to discern what the actions of the Respondent were that left the Applicant with no choice but to resign, particularly given that the Applicant was overseas and was not due to return to work for another four weeks. However, to determine whether or not there was a constructive dismissal by the employer would require a hearing of all the evidence which I have not done. I therefore make no conclusions about the merits of the case except to observe that on the material before me the merits of this case are weak.



• There are no other persons in a similar position of which I am aware.

[11] The most relevant consideration in these circumstances is the criterion in Section 394(3)(a) that is the reasons for delay. I am not satisfied that the reasons for delay constitute exceptional circumstances either by themselves or in combination with the consideration of the other factors set out above.

[12] There is no suggestion of incapacity or representative error. Ignorance of potential rights or of the 14 day time period is not an exceptional circumstance. I am satisfied that the Applicant could have obtained the information required to submit an application through the internet. I am not satisfied that legal advice was required. I am not satisfied that being overseas or the Christmas holiday period constitutes an exceptional circumstance explaining the delay in the situation of this case. The explanation for the further delays upon return to Australia do not constitute exceptional circumstances.

[13] Taking all those matters into consideration which are specified in section 394(3) of the Act, I cannot find that there are exceptional circumstances which would justify me granting the extension of time for the application. I refuse the application for an extension of time in this matter and therefore the applicant is unable to further pursue this particular application. The Section 394 Application for unfair dismissal remedy is dismissed. The matter is now concluded.

COMMISSIONER

Appearances:

The Applicant appeared for himself.

Mr Nick Ruskin appeared for the Respondent.

Hearing details:

2012
Melbourne
April 17

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