Mr John Dunn v Electricity Generation and Retail Corporation T/A Synergy
[2016] FWC 4312
•4 JULY 2016
| [2016] FWC 4312 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mr John Dunn
v
Electricity Generation and Retail Corporation T/A Synergy
(U2016/7247)
Bryce Kaurin
v
Electricity Generation and Retail Corporation T/A Synergy
(U2016/7248)
COMMISSIONER BISSETT | MELBOURNE, 4 JULY 2016 |
Jurisdiction - Extension of Time. Application for relief from unfair dismissal Application for relief from unfair dismissal.
[1] Mr John Dunn and Mr Bryce Kaurin were both employed by Electricity Generation and Retail Corporation T/A Synergy (Synergy). Each finished employment with Synergy on 5 May 2016 and each subsequently made an application to the Fair Work Commission (the Commission) for relief from unfair dismissal on 27 May 2016, one day outside the statutory time limit of 21 days. Each now seeks an extension of time within which to make their applications.
[2] Both Mr Dunn and Mr Kaurin had their applications filed on their behalf by their legal representatives at Rochfort Workplace Solutions.
[3] As the circumstances, timing and representation of each of the applicants is essentially the same, their lawyer requested that the extension of time application for each of them be dealt with together. There was no objection to this approach by Synergy.
[4] At the hearing of the matters I granted permission to all parties to be represented by lawyers.
[5] Whilst there are two distinct applications before the Commission to consider, where the relevant facts are the same for each applicant, I have not distinguished between them. Where it is necessary to do so, the facts, as they relate to an individual applicant only, are identified.
Legislative provisions
[6] Section 394 of the Fair Work Act 2009 (the Act) states:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.
[7] In deciding if I should grant an extension of time, it is necessary that I am first satisfied that exceptional circumstances exist taking into account those matters at s.394(3) of the Act.
[8] The meaning of ‘exceptional circumstances’ as considered in Nulty v Blue Star Group Pty Ltd 1, where a Full Bench of Fair Work Australia found:
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…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. 2
[9] I have taken this into account in reaching my decision.
Consideration
Reason for the delay
[10] Mr Dunn gave evidence that he lives on the outskirts of Collie, less than 10 kilometres from the centre of town. He said that the mobile telephone signal is not reliable where he lives but it is reliable in town. Mr Dunn says that he did have difficulty receiving communications from his lawyer in the period between his dismissal and the date of making his application. Mr Dunn stated that he did everything within good time to enable his application to be made within the 21 days required and the only reason for the delay was that he was unable to communicate with his lawyer to give final instructions to file the application.
[11] During the period 6-26 May 2016, Mr Dunn says he was not employed and he did travel into town at least three times during this period.
[12] Mr Dunn said that his mobile phone is a ‘smart’ phone and he can send and receive emails on it and that, during the period following the termination of his employment, he sent emails to and received emails from Synergy.
[13] Mr Dunn also said that he meet with representatives from Synergy at least twice in the 21 days following the termination of his employment.
[14] Mr Dunn said that in discussions with his union he was aware that he had 21 days within which to make an application for unfair dismissal. He said that on the 21st day after his dismissal he did not receive a message from Synergy so proceeded to contact his lawyer to have his application for unfair dismissal made. He said that he did not have his phone with him during the day and when he got home it was after 5.00pm and the deadline had passed.
[15] Mr Dunn does not claim any representative error on the part of his lawyer.
[16] Mr Dunn also said that, at this time, he was going through a difficult relationship break up which involved children.
[17] Mr Kaurin said that phone coverage in Collie is hit and miss but that email is generally reliable. He said he can sometimes get mobile phone reception at home but there is reception in (the town centre of) Collie. He said that he has a land line at home in addition to his mobile phone and has a computer and internet access at home.
[18] Mr Kaurin confirmed that he is able to receive emails on his mobile phone and that he did receive emails from Synergy after his dismissal.
[19] Mr Kaurin said that he did a bit of work on a friend’s property but otherwise was not employed for the period 6-26 May 2016. He says that in this period he did some research with respect to unfair dismissal matters and that he met at least twice with representatives from Synergy.
[20] Mr Kaurin said that he was aware of the 21 day time limit within which to make an application for unfair dismissal through conversations with his union. He said that he contacted his lawyer a couple of days prior to the expiration of the 21 day period and was told that he needed to hasten his application as the time period was almost up. He agreed he received a message from his lawyer expressing the urgency of providing information before the 21 days had expired. He said he delayed in responding as he did not have all of his information together and communication was difficult both with his lawyer and in getting clear answers from Synergy.
[21] I am satisfied that Mr Dunn was aware of the 21 day time limit for making an application for unfair dismissal. That he was alert to the difficulties (which I accept) in mobile phone communication around Collie makes his decision to not provide final advice to his lawyer to make his application until the end of the 21st day following his dismissal frankly astounding. The only reason Mr Dunn’s application for unfair dismissal was lodged outside the 21 day period was because he did not give final instructions to his lawyer in time for his lawyer to make the application on time in full knowledge of the time limitations.
[22] The same is true for Mr Kaurin. His situation is, perhaps, worse than Mr Dunn. Mr Kaurin had a computer and internet access at home and a fixed-line telephone. There is no reason he could not have communicated earlier with his lawyer if he was having mobile phone reception problems to ensure his application was made within time.
[23] This weighs against any finding of exceptional circumstances in either case. The only mitigating factor on Mr Dunn’s part is that he was going through a personal relationship break up though, beyond this stated fact, no evidence was given as to how this affected his ability to provide instructions on time.
When the person became aware of his dismissal
[24] Both Mr Dunn and Mr Kaurin were advised on or about 28 April 2016 that their contracts would not be renewed or extended beyond the contracted date of 5 May 2016.
[25] I am satisfied that both were aware that their employment would be terminated on 5 May 2016 prior to this date and certainly they were aware on 5 May 2016 that their employment had been terminated.
[26] This is a neutral factor in deciding if exceptional circumstances exist.
Actions taken to dispute the dismissal
[27] Both Mr Dunn and Mr Kaurin had at least two meetings each (separately) with Synergy about the circumstances surrounding their dismissals.
[28] It can be gleaned from the evidence that they sought to understand or have explained to them the reasons for termination of employment and each hoped to reverse that decision in their discussions.
[29] In Gao v Department of Human Services 3 the Full Bench of the Commission accepted that a delay due to an employee seeking an internal review was not a reasonable explanation for the delay:
…Furthermore, Mr Gao’s request that DHS further review the dismissal did not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after an application had been lodged. 4
[30] Whilst I accept that both Mr Dunn and Mr Kaurin had expressed some dismay and/or concern at the decision not to renew or extend their contracts and that they participated in meetings with Synergy after the date of termination of employment, this does not weigh in favour of a finding that exceptional circumstances exist, particularly in in this case where the applicants were well aware of the 21 day time limit within which an application to the Commission should be made and were well aware of it well before the expiration of the 21 day time period.
[31] That Mr Dunn and Mr Kaurin were continuing discussions with Synergy is no reason to delay the making of their applications or the provision of advice to their lawyer so that he could make the application. This finding weighs against a finding of exceptional circumstances.
Prejudice to the employer
[32] No claim of prejudice is made by Synergy.
[33] I consider this a neutral factor in my consideration.
Merits of the applications
[34] Both Mr Dunn and Mr Kaurin were employed as a mechanical fitter. Each had received a letter on 19 April 2016 that said:
…(Synergy) is pleased to offer you an extension to your current temporary employment as a mechanical fitter at the Maju Power Station from 26 April 2016 to 5th May 2016.
[35] Ms Rhonda Stone, the Senior HR Business Partner, said, in her witness statement, that she understood from reviewing the personal records and speaking to the Maintenance Supervisor that both Mr Dunn and Mr Kaurin had been employed on a fixed term basis to back fill for permanent employees seconded elsewhere. Both had had their fixed term contracts extended on several occasions. A decision had been taken in April 2016 not to further extend the contracts of either of them. Their employment was terminated due to the time expiration of the fixed term contract.
[36] Mr Dunn and Mr Kaurin say that they worked beyond the fixed term periods provided for in the various contracts such that each was entitled to be regarded as being employed on an on-going basis. They say that there was no valid reason for the termination of their employment.
[37] It is not practice for the Commission to make any findings as to the merits of a case involving contested facts where evidence as to those facts has not been given. 5 It is therefore not my intention to make any findings as to merit. I consider this matter as neutral in determining if exceptional circumstances exist.
Fairness
[38] No submissions were made on this matter. It is a neutral matter in my considerations.
Conclusion
[39] I am not satisfied that there are exceptional circumstances such that I should consider the grant of an extension of time to either applicant within which to make his application for unfair dismissal.
[40] Both applicants admit they were well aware of the 21 day time limit within which an application should be made. They knew this from discussion with their union, from advice from their lawyer and, in Mr Kaurin’s case, his exploration of the Commission website. Armed with this knowledge each left it too late in the day on the 21st day after the termination of employment to advise their lawyer that he should proceed to make an application.
[41] Problems with phone reception outside the town centre of Collie do not create an exceptional circumstance. Both Mr Dunn and Mr Kaurin were aware of that issue. Both had been advised by their lawyer of the need to act promptly. Neither said that they tried but could not make a call to their lawyer on time because of mobile phone reception difficulties but, in any event, each had access to email and Mr Kaurin had access to a fixed-line telephone.
[42] Whether the extension of time sought is a day or year is not relevant to whether there are exceptional circumstances. It is not the period of the delay (although this may have some impact) but the reason for it that must be considered. The Parliament has determined that an application must be made within 21 days of the date the dismissal took effect. If it was the length of the delay in making the application that was relevant in determining if an extension of time should be granted it can be presumed the legislation would say so. It does not.
[43] No claim is made of representative error. In fact, the lawyer for the applicants says that his firm did everything possible to ensure both Mr Dunn and Mr Kaurin provided information to allow it to file the applications on time. As Mr Rochfort rightly said he could not make the applications without clear instructions from his clients to do so.
[44] Taking into account all of the matters I am required to consider, I find that there are no exceptional circumstances such that I should exercise my discretion and grant an extension of time within which Mr Dunn or Mr Kaurin may make an application for unfair dismissal.
[45] Mr Dunn’s application for unfair dismissal is therefore not made within the time period required by the Act. His application for unfair dismissal is dismissed. An order 6 to this effect is being issued at the same time as this decision.
[46] Mr Kaurin’s application for unfair dismissal is therefore not made within the time period required by the Act. His application for unfair dismissal is dismissed. An order 7 to this effect is being issued at the same time as this decision.
COMMISSIONER
Appearances:
P. Rochfort with M. Nasser for Mr Dunn and Mr Kaurin.
B. Pole for Electricity Generation Retail Corporation T/A Synergy.
Hearing details:
2016.
Melbourne and Perth (video hearing):
June 27.
1 [2011] FWAFB 975
2 Ibid at paragraph [14].
3 [2011] FWAFB 5605.
4 Ibid at paragraph [10].
5 Kyvelos v Champion Socks Pty Limited Print T2421 at paragraph [14].
6 PR582305.
7 PR582306.
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