Mr John Robertson v Red Energy
[2015] FWC 3831
•5 JUNE 2015
| [2015] FWC 3831 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Robertson
v
Red Energy
(U2015/1586)
COMMISSIONER WILSON | MELBOURNE, 5 JUNE 2015 |
Application for Unfair Dismissal Remedy; extension of time for the making of application. Application refused.
[1] This matter concerns an application made by John Robertson alleging unfair dismissal from employment by his former employer, Red Energy Pty Ltd. Mr Robertson’s application was first received in the Fair Work Commission on 8 April 2015. The document itself is dated 7 April 2015. Mr Robertson’s application discloses that date upon which his dismissal took effect is 12 March 2015.
[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 6 days out of time.
[3] In this decision, I have considered whether an extension of time should be granted to Mr Robertson for the making of his application, and for the reasons set out below, I am not satisfied that a further period should be allowed to Mr Robertson for the making of his application.
[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application, taking into account the criteria specified within s.394(3). The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2
[5] The Respondent, Red Energy, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.
[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Robertson, the Applicant. Formal evidence was not received from representatives of Red Energy.
[7] The circumstances revealed by this material and which are relevant to this decision include that Mr Robertson was first employed on 27 August 2015 in the capacity of Customer Solutions Consultant at Red Energy’s Richmond, Victoria site. During his period of employment, Mr Robertson received several warnings relating to the procedures he should follow in reporting unplanned absences to the company.
[8] In particular, the issue was that there had been, according to the company, circumstances in which Mr Robertson had failed to properly advise that he would not be attending for work. This led to Mr Robertson being issued a final warning in the early stages of 2015. While that warning is not before me, the company’s representatives indicated to me that the crux of the warning had been specific directions given to Mr Robertson about the procedures he was to follow in case of any further unplanned absences. Mr Robertson was then absent from work between 2 and 5 March 2015 and, according to Red Energy, had failed to follow the directions he had been specifically given for the reporting of those absences.
[9] Upon returning to work this circumstance was reported to Red Energy’s employee relations staff who initiated a meeting with Mr Robertson. The company’s representatives indicate that Mr Robertson was invited to bring a support person to the meeting. The content of the meeting, held on Thursday, 12 March 2015, has not been advised in detail to the Commission other than to report that in the course of the meeting Mr Robertson was dismissed for his failure to follow the company’s procedures. The dismissal was immediate with Mr Robertson’s employment ending on the same day as the meeting. The fact of the dismissal and its reasons were advised in writing to Mr Robertson in a letter from Red Energy, which Mr Robinson reported receiving a few days after the meeting.
[10] For the purposes of s.396 of the Fair Work Act 2009 (the Act), Mr Robertson is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances.
EXTENSION OF TIME
[11] As referred to above, the Act requires that, in deciding whether to grant an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account the criteria set out in s.394. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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”. 3 In considering whether an extension of time should be granted to Mr Robertson, I am required to consider all of the criteria in s.394, which I now do.
[12] Section 394 of the Act provides the following;
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.
Consideration of the factors set out in section 394(3) of the Act
The reason for the delay
[13] There must be an acceptable reason for the delay 4 and an applicant needs to provide a credible reason for the whole of the period that the application was delayed.5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.6
[14] The last day on which the application could have been made in order for it to be within the 21 day prescribed period is Thursday, 2 April 2015, that is, the day before Good Friday. The day upon which the application actually was made was Wednesday, 8 April 2015, that is, within two business days after Easter Monday.
[15] In this regard, and pertinent to the fact that the last day on which the application could have been made was the day before the Easter period, when the Commission’s offices were closed, it is relevant to explain that the 21 days for lodgement does not include the date that the dismissal took effect, and the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day. However, public holidays or weekends that fall during the 21 days will not extend the period of lodgement. 7
[16] Having been dismissed, Mr Robertson was focused upon supporting his family, which consists of his wife and a young son who is presently aged about 10 months. Mr Robertson’s evidence indicates that both were ill around the time of his dismissal. His evidence about the extent of their illness was guarded, with him preferring not to detail exactly what had occurred. No medical certificate or other reliable evidence was provided in respect of the illnesses of either. However in giving evidence, Mr Robertson agreed with my description that his son’s illness, upon the basis of what he had put to me, might be regarded as routine childhood illnesses. In relation to his wife, Mr Robertson gave evidence that her illness was more significant, but again without giving details. In response to a question asked by me as to whether her illnesses might be described as being in need of crisis care, he indicated that they were not in that category, but serious nonetheless. During the period after his dismissal his wife had needed to attend hospital on several occasions. One instance had required an overnight attendance, and another did not require in-patient care, but nonetheless required attendance for about 6 hours.
[17] Mr Robertson also reported that it took him a few days to come to terms with his dismissal and that after having come to terms with it he was focused on his family’s financial needs, as well as its health needs. Part of his focus on his family’s financial needs included making arrangements with Centrelink about his eligibility for social security payments.
[18] In the first week after his dismissal from employment, Mr Robertson discussed his circumstances with his wife and whether he might be able to seek an unfair dismissal remedy. He made some basic research of the subject through the Fair Work Commission website and at some stage during the first week after dismissal he and his wife formed the view that an application should be made to the Fair Work Commission. He gave evidence that at some point after having been dismissed he became aware that applications to the Fair Work Commission needed to be made within a 21 day period, but he was unclear as to when he became aware of that deadline.
[19] Mr Robertson’s evidence indicated that he was aware that the 21 day period existed and that, in his case, it ended near to Easter. He made some calculations as to what effect the weekend days and public holidays would have upon the time limit.
[20] Near to the end of this period he spoke to JobWatch about his circumstances who gave him general advice about the making of an unfair dismissal application.
[21] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Mr Robertson to lodge his application. In all, that period was a total of 6 days, albeit a period that included 4 days of weekend and public holidays.
[22] There is no significant explanation before me as to what might have occurred within the period of that delay, other than a reiteration about Mr Robertson’s family priorities.
[23] I find that Mr Robertson’s explanation about his prioritisation of his family’s health and financial needs as being his explanation for his delay in making his application to the Commission.
[24] As a result of the circumstances to which I have referred, I consider Mr Robertson has not put forward an acceptable reason for the delay in making an unfair dismissal application. Accordingly, this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.
Whether the person first became aware of the dismissal after it had taken effect
[25] On the basis of the evidence before me, I am satisfied that Mr Robertson first became aware of the termination of employment on Thursday, 12 March 2015 in the course of the meeting held with him by Red Energy. This is therefore not a circumstance where Mr Robertson only became aware of his termination at some point after the time it occurred. Accordingly, this is a neutral factor in my consideration.
Any action taken by the person to dispute the dismissal
[26] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 8
[27] Mr Robertson's evidence about actions taken by him to dispute his dismissal is limited to the discussions he held with his wife in the week after being dismissed and then speaking with JobWatch about his circumstances closer to the end of the time period allowed for making an application, but on an unspecified date. Other than these actions, I am satisfied that Mr Robertson took no substantive action to dispute his dismissal until the making of his application to the Fair Work Commission on 8 April 2015.
[28] In the circumstances of this matter, I take the view that consideration of this criterion is a neutral factor.
Prejudice to the employer (including prejudice caused by the delay)
[29] The delay in the filing of the application is 6 days. While noting that “mere absence prejudice to the employer is an insufficient basis to grant an extension of time” 9 the Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.
[30] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 10
[31] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.
The merits of the application
[32] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
[33] Mr Robertson contends that he complied with directions given to him for the notification of unplanned work absences. On the other hand, Red Energy in its submissions and also in its termination of employment letter referred to Mr Robertson having had “a series of breaches of Red Energy’s Code of Conduct over the course of eight months”.
[34] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 11
[35] In considering Mr Robertson's application, I am satisfied that there is at least an arguable case on his behalf, while noting that the case is as yet untested and that the former employer strenuously opposes what he has to say on this matter. Ultimately, of course, the matter could only be resolved through the taking of detailed evidence on the subject and a determination made by the Commission in accordance with usual practice.
[36] Notwithstanding the submissions on behalf of the former employer, it is my view that consideration of this criterion resolves in Mr Robertson's favour, but not sufficiently so as to lead to acceptance of his explanation for the delay in making his application.
Fairness as between the person and other persons in a similar position
[37] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either are currently before the Commission, or have been decided in the past. 12
[38] In applying Mr Robertson's facts to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that there had been some process of diligent inquiry or dispute by him not long after their dismissal. However, this was not the situation in Mr Robertson's case. The health and financial circumstances relating to his family about which he gave evidence do not appear to be so great or overwhelming to take the view that this factor would resolve in his favour. In some respects what has been reported to the Commission would be considered to be within the range of the usual exigencies of a young family.
[39] On that basis, consideration of this factor resolves in favour of the Respondent.
[40] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in Mr Robertson making his unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for him for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Mr Robertson’s case but also to the criteria set out within s.394(3) of the Act.
[41] After consideration of the whole of the material before me and of the legislative criteria, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Robertson.
[42] For these reasons, I decline to grant an extension of time pursuant to s394 of the Fair Work Act 2009 and will issue an order dismissing Mr Robertson’s application as being out of time.
COMMISSIONER
Appearances:
Mr J Robertson on his own behalf
Ms A Bonadeo and Ms C Pigeault for the Respondent
Hearing details:
2015.
Melbourne
3 June (by telephone).
1 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
2 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]
3 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848
4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
5 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409
6 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287
7 see Hemi v BMD Constructions Pty Ltd[2013] FWC 3593 and Kristia Cahill v Bstore Pty Ltd[2015] FWCFB 103, citing Acts Interpretation Act 1901 (Cth) ss.36(1) and (2)
8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
9 Ibid
10 Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 [16].
11 Haining v Deputy President Drake (1998) 87 FCR 248, 250
12 Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP, 15 April 2010) [24]‒[29] (in passing).
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