Mr Jonathan Jaeger v Traffic Diversions Group Pty Ltd T/A Traffic Diversions Group

[2016] FWC 1231

[2016] FWC 1231

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Jonathan Jaeger
v
Traffic Diversions Group Pty Ltd T/A Traffic Diversions Group
(U2016/3708)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 29 FEBRUARY 2016

Application for relief from unfair dismissal; application lodged out of time; whether to allow a further period within which application may be lodged; not satisfied there are exceptional circumstances; application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 19 February 2016. Mr Jonathan Jaeger (Applicant) commenced employment with the Traffic Diversions Group Pty Ltd T/A Traffic Diversions Group (Respondent) on or about 23 March 2015. I note that he had been previously employed for a period between 24 June 2013 and 16 July 2014. For present purposes the precise starting date of employment is not particularly relevant. In any event, he was employed as a casual employee in the position of a traffic controller with the Respondent.

[2] The Applicant's employment was terminated by the Respondent with effect on 11 December 2015. The reasons given by the Respondent for its decision to terminate the Applicant was that the Applicant was said to have been conducting a business on his own without the knowledge or approval of the Respondent and that by conducting such a business, that action conflicted with his duties to the Respondent as an employee. The business is said to operate in the same area as the business conducted by the Respondent and is said to compete with the Respondent.

[3] On or about 24 December 2015, the Applicant was provided with an employment separation certificate completed by the payroll officer of the Respondent which indicated cessation of employment on 11 December 2015 and gave as a reason for the separation as shortage of work. The Applicant has applied to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). That application was lodged in the Commission on 11 January 2016.

[4] An application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. Based on the termination of employment taking effect on 11 December 2015, the application for a remedy should have been lodged no later than 4 January 2016. That takes into account that Friday, 1 January 2016 was a public holiday, and the following two days were a weekend and so consistent with the Acts Interpretation Act 1901 (as in force on 25 June 2009), the next available day on which an application could be filed was 4 January 2016.

[5] The application was therefore lodged outside of the time prescribed by the Act. It was in effect, seven days late. Section 394(2)(b) allows the Commission to accept an application within such further period as it considers appropriate, having regard to the terms of s.394(3). That subsection confers a discretion to allow an application to be made within a further period if I am satisfied that there are exceptional circumstances.

[6] Before I deal with the evidentiary matters, for the benefit of the Applicant in particular, let me say a few things about the principles that are to be applied in considering whether or not I should exercise my discretion to extend the time and before that, the principles that are applied in determining whether or not there are exceptional circumstances.

[7] As is evident from the text of s.394 of the Act, the statute allows me to give an applicant a further period in which to lodge an application, but that discretion will only be exercised after I am satisfied that there are exceptional circumstances which warrant exercise of that discretion. The Act sets out the matters to which I need to have regard and they are:

• the reasons for the delay



• whether or not an applicant first became aware of his dismissal after it had taken effect;



• any action taken by the applicant to dispute his or her dismissal



• any prejudice suffered by the employer including any prejudice that might be caused by the delay;



• the merits of the application;



• and a fairness as between an applicant and other people in a similar position.

[8] It is clear from the structure of s.394 that each of these matters need to be taken into account and need to be viewed not only individually, but collectively, because one matter in and of itself, may not be exceptional, but when weighed against all of the other matters, this might result in the considerations amounting to exceptional circumstances in a given case.

[9] The phrase 'exceptional circumstances' does not have any particular definition in the Act, however, exceptional circumstances are things that are out of the ordinary course, unusual, special or uncommon, but do not have to be unique or unprecedented, nor do they have to be very rare. But ultimately, before turning to consider whether I should grant the Applicant, an extension of time, I need to be first satisfied that there are exceptional circumstances which would warrant that.

[10] So I will turn to consider those. First, the reasons for the delay. A reason for the delay needs to explain the whole of the delay and the reason needs to be a credible or acceptable reason. The Applicant submitted that the reasons for the delay were that firstly he was waiting to receive an employment separation certificate from the employer which he did not receive until 24 December 2015. Thereafter the Christmas, New Year period ensued and he was not able, during that period, to lodge his application.

[11] The Applicant also indicated that he had sought advice from a solicitor with whom he otherwise conducts business, but that the solicitor was overseas and was unable to provide assistance. He also gave evidence that he did not know about the existence of a statutory time limit until he downloaded the application from the Commission's website which, on his evidence, occurred on 8 January 2016.

[12] It is also clear from the evidence, that the Applicant disputed the reason for the dismissal given during his discussion with a representative of the Respondent on 11 December 2015.

[13] There are 13 days between the date of dismissal and Christmas day, 10 of those days were normal business days on which the Commission operates. There were a further three normal business days which followed Christmas and the Christmas, New Year period provides no explanation for the delay of lodging the application until 11 January 2016.

[14] I do not accept that the intervention of Christmas and New Year provides a satisfactory explanation for the delay. Nor do I accept that the seeking of legal advice provides a satisfactory explanation. A number of things might be said about that, the first of which is that the unfair dismissal jurisdiction is designed to enable Applicants to work their way through making applications and indeed, running their cases without the need for legal assistance. This is one of the reasons why the parliament made it a condition that lawyers need to seek permission to represent a party and that permission would only be given in the particular circumstances set out in s.596 of the Act.

[15] It should also be pointed out that there are a not inconsiderable number of lawyers or other avenues through which legal advice might be obtained including through community legal centres which could have been explored if legal assistance was needed. So, I am not satisfied that the absence of a legal representative to give advice provides a satisfactory explanation for the whole of the delay.

[16] The late issuing of a separation certificate, even if I accept that that provided some confusion as to the reason for the dismissal and even if I accept that the Applicant did not clearly know the reasons for his dismissal or the fact that he was dismissed until he received the separation certificate, there was still ample time, following the receipt of the separation certificate, within which an application could have been lodged within time. And it certainly does not provide any satisfactory explanation for the delay until 11 January 2016.

[17] Ultimately, I accept the submission of the Respondent that the fundamental reason the Applicant was late would appear to be the absence of any knowledge that a time limit applied. As decisions of this Commission have made clear, ignorance of the statutory time limitation does not provide a satisfactory explanation for the delay.

[18] In those circumstances I am not satisfied that the Applicant has provided an acceptable explanation for the whole period of the delay. Consequently, that is a matter that weighs against the Applicant in this case.

Turning then to the question of when the Applicant first became aware that his dismissal took effect, and in particular, whether he first became aware after it took effect. It seems clear on the evidence of the Applicant that he was told on 11 December 2015 that his employment would end on that day. In answer to questions from me, it seems clear that the Applicant understood, albeit he disputed the reason, that his employment had ended on that day and as a consequence the Applicant appears to have the full benefit of the 21 day period within which to lodge the application, indeed, taking into account the public holidays that fell in between that time, the Applicant in effect, had 24 calendar days because the time for lodgment actually expired on 1 January 2016. In those circumstances, the knowledge that his employment ended on 11 December 2015, is a matter that weighs against the Applicant in this case.

[19] Turning next to any step or action taken by the Applicant to dispute his dismissal, on the Applicant's evidence he did not take any step to dispute his dismissal and in the circumstances, this is a matter that also weighs against the Applicant.

[20] As to prejudice, the Respondent submitted that apart from the usual prejudice that a respondent to an application will suffer by way of the cost and inconvenience of defending an application, it could not point to any other prejudice that would flow from the grant of the application. That is a concession that is properly made in the circumstances of this case.

[21] The mere absence of prejudice, as decisions of this Commission have consistently pointed out, in or of itself, does not give rise to exceptional circumstances, but in this case, it is a matter that I will weigh in favour of the Applicant.

[22] As to the merits of the case, because cases involving applications for extension of time are necessarily dealt with on an interlocutory basis, there is not a substantive hearing on the merits and the evidence of both parties is not the subject of cross-examination and testing. Consequently, this necessarily means that an assessment of the merits, is made on a preliminary basis.

[23] So it is appropriate that when I make an assessment I look at the Applicant's case at its highest. The Applicant says that he was given particular reasons to which I have referred earlier and he says that his case will be that his business, although in existence, was not operating as a business as such, and was not trading, and consequently there was no issue of conflict that arose. He also points to the inconsistent reason given in the employment separation certificate. It is also apparent that he will be able to argue that he was denied procedural fairness in that he did not appear to have been given any opportunity to defend himself against the allegation of conflict.

[24] Those matters are all in dispute, but that is his case. It seems to me on that basis, that his case is at least an arguable case and consequently it cannot be said that his case is without merit. On that basis, I am satisfied that the Applicant's case is not one that is without merit. That is not to suggest that if I were to grant an extension of time that he would succeed, but merely in my assessing the merits of the case, the Applicant seems to have some justifiable reason to pursue an unfair dismissal claim. In the circumstances, this is a factor that weighs in favour of the Applicant.

[25] As to the fairness between the Applicant and other persons in a similar position, generally cases of this kind turn on their own facts but consideration needs to be given to the important principle of consistent application of the statutory framework in circumstances that are the same or similar. By doing so, that ensures there is fairness between the Applicant and other people who are in a similar position and who have made an application or who are making their way through the system currently. This consideration therefore relates to both present applications and past decided matters.

[26] The Respondent, in its written submissions referred to two decisions in particular, Smith v KJM Contractors 1, a decision of Richards SDP, and Mikhail v Ingram Micro Pty Ltd T/A Ingram Micro2. In those cases, the Applicants cited the Christmas, New Year period as an explanation for the delay and in those cases that explanation was held not to provide an acceptable explanation for the delay.

[27] During oral argument today, the Respondent also drew my attention to four further decisions of the Commission, firstly Carroll v Daravit Pty Ltd T/A Harvey Norman AV/IT Superstore Darwin 3, a decision of Cloghan C;he decision in Legros v David Morris Pty Ltd as the Trustee for the Gustose Unit Trust T/AS The Pantry Door4 ,a decision of McCarty DP; Lockley v Westug T/AS North West Crewing5, a decision of Williams C; and finally, Scuderi v Mount Isa Mines Ltd T/A Xstrata6, a decision of Simpson C.

[28] Those decisions variously dealt with explanations for a delay involving the need to obtain legal advice, ignorance of a time limit and requiring information from the employer or a third party. In each of those cases, the reasons that were advanced as explanations for delay were held not to be acceptable explanations in the circumstances of those cases.

[29] I have considered those cases and will take them into account. It seems there are factors in this case which are similar to the factors that were considered by other members of the Commission in the cases to which I have just referred. In the circumstances, the fairness consideration seems to weigh against the Applicant.

[30] Statutory time limits that apply to the exercise of a person's legal right, and relevantly to bring an unfair dismissal remedy application, are generally an expression of the parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits are established by the parliament to balance competing interests, on the one hand to give an applicant sufficient time to agitate a grievance in a Court or Tribunal and on the other, to allow the other party who has taken a particular step to know that after a point in time, that will be the end of the matter.

[31] It is for that reason that the parliament struck a balance and determined that 21 days is the appropriate time limit for matters of this kind. But the parliament also recognises that there might be circumstances which would warrant the Commission considering the exercise of a discretion or to extend time and so it makes provision in the Act for the Commission to extend periods of time, but only where there are exceptional circumstances.

[32] Generally, however, a party who wants to agitate an unfair dismissal claim needs to take the step of lodging an application within 21 days, after which the right to bring such an application would be lost. That does not speak to the fairness or otherwise of a dismissal, it is just the statutory time limit which is imposed on this particular type of action.

[33] As I indicated at the outset, I need to be satisfied before I even consider extending time that there are exceptional circumstances. When I take into account all of the factors that I am required to take into account and when I weigh those, Iam simply not satisfied that there are exceptional circumstances which would warrant my considering the exercise of my discretion.

[34] There is not an acceptable explanation for the delay. The Applicant has given reasons, but none of those reasons alone or in combination provide an acceptable explanation for the whole period of delay. The Applicant was advised of his dismissal on the day it took effect. The fairness factor also weighs against him. The fact that there is an arguable case on the merits and that no prejudice will be suffered by the Respondent do not provide a sufficient basis to persuade me that there are exceptional circumstances in this case.

[35] As I have indicated, I am not satisfied that there are exceptional circumstances, so there is no basis for my giving further consideration as to whether I should exercise my discretion. As a consequence, I am not going to extend the period within which the Applicant can make his application.

[36] The application was therefore out of time and is dismissed. An order giving effect to this decision has previously been published in PR577264.

DEPUTY PRESIDENT

Appearances:

Mr J. Jaeger appeared in person.

Mr C Ni, solicitor for the Respondent.

Hearing details:

2016.

Melbourne.

February 19.

 1 (2010) 201 IR 356.

 2   [2012] FWA 4314.

 3   [2012] FWA 1039.

 4   [2010] FWA 4417.

 5   [2010] FWA 7186.

 6   [2011] FWA 7045.

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