Mr Jim Isik v Energy Australia Services Pty Ltd T/A Energy Australia

[2014] FWC 6515

[2014] FWC 6515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr Jim Isik
v
Energy Australia Services Pty Ltd T/A Energy Australia
(U2014/11539)

COMMISSIONER GREGORY MELBOURNE, 25 SEPTEMBER 2014

Application for extension of time.

Introduction

[1] Mr Jim Isik has worked with Energy Australia Services Pty Ltd T/A Energy Australia (“Energy Australia”) since April 2006 and was most recently employed in the position of Senior Sales Team Manager. However, he was summarily dismissed on 26 June 2014 for what Energy Australia describes as “serious misconduct.” Mr Isik then proceeded to make an unfair dismissal application, however, it was not lodged with the Commission until 7 August 2014, which is 21 days after the 21 day period set by s.394 of the Fair Work Act 2009 (Cth) (“the Act”).

[2] Mr Isik says his dismissal led to the breakdown of his marriage and he has now moved out of the family home. He says he has been preoccupied with these issues, and their impact upon him and his family, and that is why his application was not made within the 21 day period. 1

[3] Section 394(3) of the Act enables the Commission to grant an extension of time in which to make application if it believes there are “exceptional circumstances” to warrant the exercise of this discretion. It provides:

“(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.” 2

The Issue to be Determined

[4] Are there “exceptional circumstances” in this matter, taking into account the considerations contained in s.394(3), to warrant the Commission exercising its discretion to grant Mr Isik additional time in which to make his application?

The Evidence and Submissions

[5] Mr Isik did not comply with the timeframe set by the Commission for the provision of submissions and evidence. However, after being contacted by the Commission he provided a submission on the day prior to the hearing. Energy Australia then provided its submissions and witness evidence on the morning of the hearing, and Mr Isik was provided with the opportunity to consider that material prior to the hearing commencing. As indicated, s.394(3) requires the Commission to take account of the various considerations set out in the subsection in deciding whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend the time in which to make application. The submissions and evidence of the parties follow in regard to each of these considerations.

(a) the reason for the delay

[6] Mr Isik submits his application was not lodged within the requisite timeframe because he was preoccupied at the time with the impact of his dismissal upon his family. 3 He submits he and his wife have now separated after being married for twenty years, and “losing my job was the final factor in my wife’s decision to call it quits.”4 He said he has now moved out of the family home and is living with his mother. He also said he had been “having trouble” in regard to his marriage prior to his dismissal, but was still living with his wife at the time it occurred. He also said he had been concerned about the arrangements to apply for access to his children following his separation from his wife.

[7] He also submits he “was in shock when I was terminated,” 5 and the surrounding circumstances have been very stressful for him and his family. He said for a period of time he was unable to bring himself to tell his mother he had lost his job and pretended instead to be on annual leave6.

[8] Energy Australia takes issue with Mr Isik’s reasons for the delay in making application. It submits he told his Manager several months before his dismissal that his marriage had broken down and he had moved to live with his mother. 7 It submits his Manager subsequently had a number of conversations with him about these circumstances and encouraged him to use Energy Australia’s Employee Assistance Program to assist in working through these issues.8

[9] It also submits Mr Isik is able to see his children regularly and, in any case, the reasons provided by him for the delay in making application do not constitute “exceptional circumstances.” 9

[10] Ms Sandra Batey was Mr Isik’s Manager at the time of his dismissal. She said he informed her several months prior to his termination that his marriage had broken down and he had moved out of the family home and was now living with his mother 10. She said she tried to provide support to him and suggested he attend the counselling program offered by Energy Australia to its employees. She also understood he continued to live close by to his wife and family and had ready access to his children.

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

[11] There is no dispute about this. Mr Isik acknowledges he was terminated on 26 June and “advised on that day in the meeting.” 11 Energy Australia confirmed he was told in the meeting on the afternoon of 26 June that he was being summarily dismissed, effective that day. This was confirmed in a letter sent to him the next day.12

(c) any action taken by the person to dispute the dismissal

[12] Mr Isik did not make any submissions going directly to this point and it appears the action he took to dispute his dismissal is confined to the unfair dismissal application lodged on 7 August.

(d) prejudice to the employer (including prejudice caused by the delay)

[13] Mr Isik again did not make submissions about this matter. Energy Australia also acknowledges it has not suffered any prejudice to date as a result of the delay in lodging the application. 13

(e) the merits of the application

[14] Mr Isik submits his dismissal was unfair and he is able to respond to each of the allegations made against him. 14 He submits he has been the subject of a “witch hunt” and not provided with warnings or any opportunity to rectify any of the matters that led to his termination.15

[15] He said he always contacted his Manager when he was absent from work and was able to provide an explanation for his attendance at work outside of normal working hours. 16 He also submitted that any issues to do with misuse of the company credit card were not significant, and only concerned receipts being entered into the system late.17 He also submitted these issues were only raised with him in a series of three meetings in the last week of his employment.18

[16] However, Energy Australia submits Mr Isik’s application has little merit. 19 It detailed various issues that led to the decision to terminate his employment, including significant attendance issues involving 77 days when he was absent from work in a period of 18 months in what it described as “time fraud,” unusual “out of hours” access to the call centre, inappropriate conduct in using the payroll system to transfer money to another female staff member, an inability to fulfil his leadership role, and misuse of the corporate credit card.20

[17] It submits Mr Isik was provided with details about these matters in a series of meetings prior to his termination, and given ample opportunity in each case to respond. 21 It also submits he had been subject to a performance management process during 2014, in particular, because of concerns about his absences from work and his inability to fulfil his leadership role. It rejects any suggestion he was not informed about the reasons for his dismissal. 22

[18] Ms Batey said Mr Isik’s father passed away suddenly in late 2012 and this had a significant effect on him. 23 She endeavoured to provide support to him after this time, however, his work performance from that point was marked by a lack of attention to his responsibilities, absences from work, and a failure to fulfil his leadership role.24 She said the issues to do with his absence from work, without adequate explanation, amounted to 77 days in a period of 18 months.25 She said she spoke to him again earlier this year and told him his performance at work needed to improve, and she would therefore be commencing a performance management process with him.26

[19] She said she met with Mr Isik on a monthly basis from that point to discuss his performance and also had a number of informal discussions with him. 27 However, his work performance and attitude did not improve and she continued to receive complaints from members of his team that he was often not present at work, and they felt they were not being properly supported.28 A subsequent review of his attendance record again confirmed he had been absent from work on a significant number of days.29

[20] She subsequently met with Mr Isik on 20 June and again on 23 June to discuss the issues referred to earlier in Energy Australia’s submissions. 30 Ms Batey said she raised these issues with Mr Isik in the meetings and gave him the opportunity to respond.31 She took time to consider his responses. She also warned him that the allegations against him were serious and may result in his termination.32 He was also invited to bring a support person to the meetings but declined to do so.33 It was finally decided to terminate his employment following his inability to provide adequate responses to the allegations made against him.34

(f) fairness as between the person and other persons in a similar position.

[21] Mr Isik did not make submissions about this matter and Energy Australia submits it is not relevant in the circumstances. 35

Consideration

[22] As previously indicated, s.394(3) of the Act enables the Commission to grant an extension of time in which to make an unfair dismissal application if it believes there are “exceptional circumstances” to warrant the exercise of this discretion. It is also clear that in considering an application for an extension of time I must have regard to each of the considerations set out in s.394(3) of the Act. A number of decisions of this Tribunal and its predecessors have considered what is required to find “exceptional circumstances” exist to justify an extension of time being granted. I refer, in particular, to the decision of the Full Bench in Nulty v Blue Star Group. 36 It was made in the context of a general protections application, however, the principles established by the decision have been held to be of broader application. A relevant extract from the Full Bench decision is contained at paragraphs [13] to [15] and states:

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

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.

A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 37

[23] As the decision indicates s.394(3) requires the Commission to take account of each of the matters set out in subsections (a) to (f). It also makes clear that “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the relevant circumstances, and the submissions of the parties, by reference to these considerations.

(a) the reason for the delay

[24] Mr Isik is obviously disappointed and upset at having been dismissed from his employment after working with Energy Australia for more than 8 years. 38 He said he was shocked by the decision. He also submits his dismissal has led to the breakdown of his marriage and his departure from the family home.39 He submits this impact, and the associated issues to do with his children, have preoccupied him since he was dismissed and are the reason why his application was made 3 weeks after the period provided for in the Act.40

[25] However, Mr Isik did not provide sworn evidence about any of these issues, despite being provided with the opportunity to do so. In addition, he did not provide any detail about what he was actually preoccupied in doing as a result of the breakup of his marriage and him leaving the family home. For example, he did not provide any submissions or evidence about any legal or other proceedings associated with these circumstances that might have taken up his time and attention. There was nothing provided by way of evidence about any other activities or events that required his involvement and focus. Nor did he provide any specific medical or other evidence about the nature of the impacts upon him.

[26] The evidence of Ms Batey also indicated Mr Isik told her some months before his dismissal that he had separated from his wife and had moved to live with his mother. Her evidence continued to indicate she had tried to support him through this period and suggested he take advantage of the counselling services provided by his employer through the employee assistance program. She also understood he continued to live nearby to his former family home and had ready access to his children. Mr Isik acknowledged in response that he had been having difficulties in his marriage for a period of time but he had not moved out of the family home until after his dismissal. However, he did not cross examine Ms Batey about her evidence, despite being provided with the opportunity to do so.

[27] Energy Australia also made reference to the decision of Commissioner Roe in the matter of Ms Susan Rose v BMD Constructions Pty Ltd 41(“BMD Constructions”) when he held:

“It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.” 42

[28] It continued to submit that feelings of shock and distress following dismissal from employment are expected and entirely understandable reactions, rather than something that might be considered to be exceptional. 43

[29] Mr Isik submits his reaction to his dismissal was compounded by the consequent breakdown of his marriage, despite acknowledging this had been an ongoing situation, and without providing any detail about what he was actually involved in as a consequence. It therefore appears there was nothing that actually prevented him from making his unfair dismissal application within the normal 21 day period, or in the 3 weeks that followed, until his application was finally lodged on 7 August.

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

[30] This matter is not in dispute. It is agreed between the parties Mr Isik was made aware of his dismissal at the time it occurred. This was confirmed in a letter sent to him the following day.

(c) any action taken by the person to dispute the dismissal

[31] It appears Mr Isik did nothing to challenge or dispute the circumstances of his dismissal until he finally lodged his unfair dismissal application.

(d) prejudice to the employer (including prejudice caused by the delay)

[32] Energy Australia did not seek to rely upon this consideration and acknowledged it has not suffered any prejudice to date as a result of the delay in lodging the application. However, it will inevitably be inconvenienced if required to devote further time and resources to the matter if Mr Isik is provided with additional time in which to make his unfair dismissal application.

(e) the merits of the application

[33] The parties clearly have divergent views about the respective merits of Mr Isik’s application. The issues to do with his performance and behaviour that led to the decision to dismiss him have been detailed already and are not restated now. Energy Australia believes they were sufficient to justify summary dismissal. It submits they were detailed to Mr Isik in a series of three meetings that took place in the week prior to his termination. In its submission, Mr Isik was unable to provide satisfactory explanations in those meetings in response to the issues to do with his performance and behaviour. Energy Australia accordingly took the decision to terminate his employment.

[34] Mr Isik submits in response he can provide a satisfactory explanation about each matter if he is allowed to make his unfair dismissal application, however, he did not provide further evidence about what this involved. In summary, it is clear that several significant issues have been raised in regard to his performance and behaviour. However, it is also clear that the Commission is not able to form a clear view about the respective merits of those matters on the basis of the submissions and evidence now before it.

[35] The relevance of the issue of “merit” when determining an application for an extension of time was considered by a Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Limited 44(“Kyvelos”) when dealing with similar legislative provisions to those now contained in the Fair Work Act 2009 (Cth). The Full Bench held:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 45

The Full Bench continued:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those

issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 46

[36] As indicated, I have not formed a concluded view about the respective merits of the matter and in the absence of detailed evidence and submissions going to merit am not in a position to do so. In any case the decision of the Full Bench in Kyvelos makes clear it is not necessary to come to a concluded view at this point about what are clearly contested issues.

(f) fairness as between the person and other persons in a similar position.

[37] I am satisfied this is of limited relevance in the present matter and is again a neutral consideration.

Conclusion

[38] Mr Isik has clearly been through a difficult time in recent months. He has separated from his wife and moved out of the family home. He is apparently now living with his mother. He has also been summarily dismissed from his employment. Mr Isik submits his marriage breakdown was triggered by his dismissal and is the reason why he was delayed in lodging his unfair dismissal application.

[39] I am satisfied that it is conceivable an employee’s marriage breakdown, triggered by his/her dismissal from employment, could constitute the “exceptional circumstances” that might provide the basis for an exercise of the discretion to extend time for making an unfair dismissal application. This might be the case, for example, in circumstances involving an acrimonious separation and significant issues concerning custody and access of children.

[40] However, I am not satisfied those circumstances, or something similar, exist in this case. Mr Isik, firstly, provided no evidence to indicate what he was actually preoccupied in doing in regard to the breakup of his marriage in the period following his dismissal, or what actually prevented him, physically or otherwise, from lodging his application within the requisite 21 day period. He did not, in fact, lodge the application until three weeks after that time.

[41] It should also be emphasised at this point that the legislation is based on a presumption that an employee who wishes to pursue an unfair dismissal application should act in a timely fashion and make that application within the 21 day period. This proviso is not included in the Act to make life difficult for employees, but is intended instead to provide a balance between the interests of both employees and employers in terms of providing certainty about the period in which it can be expected an application for unfair dismissal will be made.

[42] There is also a question about whether Mr Isik’s dismissal was actually the cause of the marriage breakdown. He acknowledged his marriage had been “in trouble” for some time prior to his dismissal. The evidence of Ms Batey indicated he told her he had separated from his wife and moved from the family home several months before he was dismissed. I have no reason to doubt the evidence of Ms Batey and she was not cross-examined about that evidence by Mr Isik.

[43] This suggests Mr Isik’s marriage breakup was not necessarily triggered by his dismissal, but was instead something that was already happening and ongoing. In coming to this conclusion I am not seeking to downplay or diminish the significance of Mr Isik’s marriage breakdown and the impact on him. It has undoubtedly been a significant and distressing situation. However, at the same time I am not satisfied it was an unexpected event, triggered by his dismissal, as he attempts to portray it.

[44] I am also not suggesting Mr Isik’s termination of employment was not a shock to him after having been employed by Energy Australia for more than eight years. However, as Energy Australia’s submissions emphasise the Commission has found in previous decisions that it is not uncommon for employees to suffer shock and distress as a result of their dismissal from employment, and these are all too common reactions in such circumstances. It has also been determined that they don’t necessarily constitute the “exceptional circumstances” that justify an exercise of the Commission’s discretion to grant an extension of time in which to make application.

[45] In conclusion, I am not satisfied “exceptional circumstances” exist in this matter to warrant an extension of time for Mr Isik to make application. In particular, I am unable to identify any “exceptional circumstances” that actually prevented him from making an application within the requisite time period. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr Jim Isik appeared on his own behalf.

Mr Matthew Debevc appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

12 September.

Final written submissions:

Both parties filed written submissions on 11 September 2014.

 1   Outline of Submissions submitted by Mr. Jim Isik dated Thursday, 11 September 2014 at para 1.

 2   Fair Work Act 2009 (Cth) at s.394(3).

 3   Outline of Submissions submitted by Mr. Jim Isik dated Thursday, 11 September 2014.

 4   Ibid.

 5   Ibid

 6   Ibid.

 7   Exhibit D1, Witness Statement of Sandra Batey at para 5.

 8   Ibid at para 6.

 9   Outline of Submissions submitted by Energy Australia Services Pty Ltd dated Thursday, 11 September 2014 at para 11.

 10   Exhibit D1, Witness Statement of Sandra Batey at para 5.

 11   Outline of Submissions submitted by Mr. Jim Isik dated Thursday, 11 September 2014 at para 2.

 12   Outline of Submissions submitted by Energy Australia Services Pty Ltd dated Thursday, 11 September 2014 at para 13.

 13   Ibid at para 16.

 14   Outline of Submissions by Mr. Jim Isik dated Thursday, 11 September 2014 at para 5.

 15   Ibid.

 16   Transcript at PN59.

 17   Transcript at PN162.

 18   Outline of Submissions by Mr. Jim Isik dated Thursday, 11 September 2014 at para 2.

 19   Outline of Submissions submitted by Energy Australia Serices Pty Ltd dated Thursday, 11 September 2014 at para 17.

 20   Ibid at para 18.

 21   Ibid at para 19.

 22   Ibid at para 20.

 23   Exhibit D1, Witness Statement of Sandra Batey at para 9.

 24   Ibid at para 9 to 10.

 25   Ibid at para 19.

 26   Ibid at para 11.

 27   Ibid at para 12.

 28   Ibid at para 16 to 17.

 29   Ibid at para 18.

 30   Ibid at para 19.

 31   Ibid at para 21.

 32   Ibid.

 33   Ibid at para 23.

 34   Ibid at para 24.

 35   Ibid at para 25.

 36   [2011] FWAFB 975.

 37   Ibid at [13]-[15].

 38   Outline of Submissions by Mr. Jim Isik dated Thursday, 11 September 2014 at para 1.

 39   Ibid at para 1.

 40   Ibid.

 41   [2011] FWA 673.

 42   [2011] FWA 673 at [10].

 43   Transcript at PN113.

 44   Dec 1294/00 M Print T2421.

 45 Ibid at [14].

 46   Ibid.

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