Mr Joseph Bowden v Just Cleaning Queensland Pty Ltd
[2018] FWC 6321
•30 OCTOBER 2018
| [2018] FWC 6321 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Joseph Bowden
v
Just Cleaning Queensland Pty Ltd
(U2018/7975)
COMMISSIONER JOHNS | SYDNEY, 30 OCTOBER 2018 |
Application for an unfair dismissal remedy.
Introduction
[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow Joseph Bowden (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 2 August 2018 that being 22 days after his employment was allegedly terminated by Just Cleaning Queensland Pty Ltd (Respondent) on 11 July 2018 3 and, consequently, 1 day after the 21 day time limit provided for in the FW Act.
[3] The Applicant subsequently alleged that, although he was notified of his termination on 11 July 2018, that it did not take effect until 16 July 2018 when he returned property owned the by the Respondent. Consequently he contended that his application was inside the 21 day time limit. Therefore, it will be necessary to determine the effective date of dismissal.
The jurisdictional objection
[4] On 10 August 2018 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.
[5] On 11 September 2018 the Commission (as constituted by her Honour Deputy President Dean) wrote to the Applicant requesting further information about the exceptional circumstances giving rise to the late filing of the application.
[6] On 19 September 2018 the Applicant wrote to the Commission in the following terms,
a) although he was notified of his termination on 11 July 2018, that it did not take effect until he returned property owned the by the Respondent (one car and iPad) on 16 July 2018;
b) he had tried to resolve the matter through correspondence to no avail;
c) his ability to lodge his application was addled by financial and emotional distress, and looking for employment;
d) he disputes the events of 11 July 2018 as recounted by the Respondent in their Form F3 – Employer response to unfair dismissal application;
e) he had not been receiving commission as per his employment agreement; and
f) that his new business venture’s social media accounts had been “hacked”.
[7] On 26 September 2018 the Commission issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection.
Hearing
[8] I conducted an extension of time hearing on 4 October 2018. At the hearing:
a) the Applicant represented himself.
b) the Respondent was represented by Mr S MacDonald, the General Manager of the Respondent.
[9] The Applicant did not file any further submissions or evidence as directed. At the hearing he stated that he was not aware of the listing. I am satisfied that the Commission had sent the Notice of Listing and Directions to the email address the Applicant had provided in his F10 application.
[10] On 26 September 2018 the Respondent filed its submissions in relation to the Applicant’s application for an extension of time and an Affidavit for Mr Scott MacDonald and Ms Lorrain Crighton (the latter of which was not relied upon). In short, the Respondent says:
•The Applicant has a history of aggressive behaviour which caused distress to two female employees.
•During the months leading up to termination, the Applicant’s performance had declined. The Respondent had received a number of complaints that the Applicant had failed to attend their premises for quotes.
•During this time he was “shifting responsibilities” onto another employee.
•Mr MacDonald had phoned the Applicant regarding his declining performance and attitude towards women.
•On 11 June 2018 during one of these phone conversations, the Applicant grew aggressive and said to Mr MacDonald that he was a “Fucking softcock”, that he should “Grow some balls”, and that he would go to the office to sort things out “Once and for all”.
•On the same day, the Applicant sent an email to a female employee using inappropriate language.
•The Applicant’s employment was terminated by Mr MacDonald by telephone on Wednesday, 11 July 2018 because of an alleged implied threat against a female staff member. This was done as it seemed like the “safest thing to do at the time”.
•The Applicant was not terminated on 16 July 2018. The fact the Applicant still had in his possession company property did not have a bearing on the date of dismissal.
•The Applicant wrote a “letter of demand” to the Respondent acknowledging that the dismissal occurred on 11 July 2018.
•That there are no exceptional circumstances which would warrant the granting of an extension of time.
Legislative scheme
[11] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(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.
[12] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following in relation to “exceptional circumstances”:
[13] 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. 5
When did the termination take effect?
[13] There is a dispute about when the dismissal took effect. The applicant says it occurred on 16 July 2018. The respondent says it occurred on 11 July 2018. This is an important matter because if the Applicant is correct his application for an unfair dismissal remedy is not out of time.
[14] The Applicant states that the termination took effect on the later date of 16 July 2018 because he was still in possession of company property until that time. Interestingly, both the Applicant’s F2 Unfair dismissal application and a letter of demand he sent to the Respondent dated 19 July 2018 refer to the earlier date of 11 July 2018. The issue of retention of company property was only raised once the Applicant was informed by Deputy President Dean that his application was out of time. During the hearing the following exchange occurred:
PN77
THE COMMISSIONER: But you understood on 11 July that your employment had been terminated, didn't you?
PN78
MR BOWDEN: Yes, I - yes, I did. Yes, I did, verbally (indistinct) from Scott.
[15] The Respondent maintains that the termination took effect on 11 July 2018 by telephone.
[16] Having regard to all the evidence I find that the dismissal took effect on 11 July 2018. I do so because the Applicant admitted that he fully understood his employment had been terminated on 11 July. I reject the contention that the dismissal took effect on 16 July 2018. Whether an employee retains company property after being notified of a termination does not have any bearing on the effective date of dismissal. It is very common for employees to be in possession of company property after a dismissal takes effect, especially when they are summarily dismissed. Employees cannot extend the duration of an employment relationship simply by retaining the property of their employer.
[17] Consequently, I find that the applicant’s application for an unfair dismissal remedy was out of time.
Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay
[18] I have already found that there were 22 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.
[19] Prior to the hearing, the Applicant did not substantially address Section 394(3)(a) of the FW Act, instead advancing the argument that his application was in time. An argument I have rejected.
[20] During the hearing, the Applicant said the reason for the delay was that he was “stressed out” and busy trying to find alternative employment, even admitting that he “should have got it in sooner”. 6 The situation the Applicant found himself in after dismissal is one that is regularly or normally encountered. Termination almost necessarily induces some degree of psychological stress and the need to find alternative sources of income. The substantive and operative reasons for the delay are his distress and ignorance of the 21 day timeframe. Neither constitutes an exceptional circumstance.
[21] Therefore this factor weighs against of granting him a further period to make his application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[22] I have found that the Applicant first became aware of the dismissal on 11 July 2018. 7
[23] Therefore this factor weighs against of granting the Applicant a further period to make his application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[24] During the hearing, the Applicant stated that the action he took to dispute the dismissal was writing the Employer a letter of demand dated 19 July 2018. 8 This letter was regarding the payment of:
a) Annual Leave;
b) Annual Leave Loading;
c) Payment in lieu of notice;
d) Commission entitlements; and
e) Payment for hours worked above a standard work week.
[25] The letter of 19 July 2018 did not dispute the decision to terminate the Applicant, rather, it acknowledged the termination, and claimed entitlements which allegedly flowed from the termination. The decision to terminate the Applicant was not actively contested.
[26] The lack of action taken by the Applicant to actually dispute the dismissal weighs against granting him a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[27] During the hearing, the Respondent made the concession that, given the application was made one day late, there was no real prejudice to the Respondent caused by the delay. 9
[28] The lack of prejudice asserted by the Respondent weighs is neutral in relation to granting the Applicant a further period to make his/ application.
Paragraph 394(3)(e) - The merits of the application
[29] In the matter of Kornicki v Telstra-Network Technology Group 10the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 11
[30] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[31] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[32] The substantive factual contest between the Applicant and the Respondent is whether there was a valid reason for the dismissal. The Applicant said that he was simply defending himself in the events of 11 June 2018, and that Mr MacDonald had taken the other staff member’s word over his own, 12 and that he had been victimised.13 The Respondent alleges that he made the decision to terminate the Applicant for the safety of his female employees, and that the Applicant has a background of aggressive behaviour.14 This is not a factual dispute that can be resolved at a jurisdictional hearing.
[33] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.
[34] If the Applicant can establish to the satisfaction of the Commission that he was in fact victimised during his employment, and that he was not a safety risk to other employees then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[35] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[36] The parties agreed that this factor is not relevant. 15
Conclusion
[37] For the reasons set out above, on balance, in the exercise of its discretion the Commission, as presently constituted, is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
[38]An Order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
The Applicant represented himself.
The Respondent was represented by Mr S MacDonald, the General Manager of the Respondent.
Hearing details:
12:00pm AEDT Thursday, 4 October 2018
Printed by authority of the Commonwealth Government Printer
<PR701238>
1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) FW Act.
3 Form F2 – Unfair dismissal application.
4 [2011] 203 IR 1
5 Ibid [13].
6 PN92.
7 PN103.
8 PN106.
9 PN126.
10 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
11 Ibid.
12 PN150
13 PN154.
14 PN160.
15 PN168, PN 170.
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