Mr Joseph Fontelera v McElligotts Qld Pty Ltd T/A Protective Coating

[2014] FWC 3317

[2014] FWC 3317

FAIR WORK COMMISSION

DECISION

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

Mr Joseph Fontelera
v
McElligotts Qld Pty Ltd T/A Protective Coating
(U2014/4587)

COMMISSIONER SPENCER BRISBANE, 10 JULY 2014

Application for relief from unfair dismissal - jurisdictional objection - application filed out of time.

[1] This Decision relates to an application made by Mr Joseph Fontelera (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from McElligotts Qld Pty Ltd T/A Protective Coating (the Respondent/the Employer) was harsh, unjust and or unreasonable. The Respondent in this matter has raised a jurisdictional objection (the jurisdictional objection) to the application alleging that the application has not been filed within time. The Applicant now applies for an extension of time. This decision relates to the extension of time only.

[2] The Respondent requested that the jurisdictional objection be determined prior to conciliation of the substantive matter.

[3] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties.

[4] The Directions advised the parties that either party was at liberty to request a hearing in relation to the jurisdictional objection. No request was received. Having considered the materials and the issues in dispute, the matter was determined on the papers as the most efficient way of dealing with the matter.

[5] While not all materials and submissions filed in relation to this matter are referred to, all of such have been considered.

Background

[6] The Applicant commenced employment with the Respondent on 2 August 2008.

[7] During the Applicant’s employment, the Respondent submitted, multiple verbal warnings were issued in relation to the Applicant’s conduct and the performance of his duties. Despite these warnings, the Respondent submitted that the Applicant had continued to perform below performance and safety standards in his position. The Applicant disputes he was ever warned about the safety issue that ultimately led to his summary dismissal. These matters are not immediately relevant to the jurisdictional matter under consideration.

[8] The events that led to the Applicant’s dismissal, relevant to this application, involved an alleged breach of workplace health and safety regulations that occurred at the Respondent’s Blast Yard in Paget, Mackay.

[9] On 10 January 2014, the Applicant left his position at the worksite, resulting in another employee working unsupervised in a confined workspace.

[10] The Applicant stated that he advised the other employee before leaving his position and proceeding to the crib room, and he was unaware as to the reason why the employee continued to work in the confined space without supervision.

[11] The Respondent stated the Applicant left his position without notifying his colleague and drove to the shops, leaving his colleague working in a confined space with no spotter, consequently putting his fellow employee’s life at risk.

[12] The Applicant’s employment was terminated summarily by way of letter dated 13 January 2014. The letter of termination confirmed:

“...the termination of your employment with our Company. [...] The Reason being you have shown complete disregard for company and site policies and procedures and breached WH&S safety regulation, On Friday 10th January you abandoned your position as confined space spotter and drove to the shop and left your work mate working in confined space with no spotter, which put his life in danger.”

[13] The termination letter confirmed that the Applicant would “not be required to work from today 13th January 2014.”

[14] The application pursuant to s.394 of the Act was filed on 12 February 2014. By way of the Form F2 application, the Applicant stated that the date he was notified of his dismissal was 13 January 2014. The Applicant stated in his originating application that the “date dismissal took effect” was 13 January 2014.

[15] It is clear that the Applicant’s dismissal took effect on 13 January 2014. The Applicant did not receive a notice period due to the Respondent dismissing the Applicant summarily and without notice, on the basis of alleged serious misconduct. The Applicant did not continue to work for the Respondent after 13 January 2014.

[16] Pursuant to s.394(2)(a) of the Act, the application must have been filed by Monday, 3 February 2014. The application was filed on Wednesday, 12 February 2014, some 9 days out of time.

Relevant Provisions of the Legislation

[17] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“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.

...

(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.”

[18] The relevant consideration in relation to the jurisdictional objection is s.394(3).

Summary of the Applicant’s Submissions and Evidence

[19] The Applicant submitted that on 13 January 2014, he was unfairly dismissed by the Respondent.

[20] On 14 January 2014, the Applicant made enquiries as to the steps to take to complain about his treatment at the hands of the Employer. The Applicant does not further detail who these enquiries were directed to, but submits that he was directed to “the designated institution”.

[21] The Applicant submits he contacted the Fair Work Commission (the Commission) at around 9.00-10.00am on Monday, 20 January 2014 and reported what had happened. The Applicant does not detail what information was provided by the Commission at this stage, except to say that he was referred to the Mackay Regional Community Legal Centre (Mackay Legal Centre).

[22] The Applicant stated that at about 2.00pm on 20 January 2014, he attended the Mackay Legal Centre and was given an appointment space for Wednesday, 5 February 2014.

[23] On 5 January 2014, the Applicant spoke to Emma of the Mackay Legal Centre, and was provided with a copy of the Commission’s Unfair Dismissal Guide, in addition to information about applying for unfair dismissal through the Commission’s website.

[24] The primary submission of the Applicant is that the alleged unfair dismissal was reported (to the Mackay Legal Centre) within the 21 day period.

[25] In support of the application for an extension of time, the Applicant attached to his submissions, a letter from the Mackay Legal Centre that confirms advice was provided to the Applicant by way of an appointment on 5 February 2014, and that the appointments were being booked approximately 3 weeks from the date a client initially made contact with the Mackay Legal Centre.

Summary of the Respondent’s Submissions and Evidence

[26] The Respondent submitted that the Applicant’s application is out of time and the circumstances surrounding the filing of the application are not to be considered exceptional so as to justify an extension of that timeframe.

[27] The Respondent noted that the Applicant took steps to dispute the dismissal that included contacting the Commission and the Mackay Legal Centre. The Respondent submitted that the Commission may infer that one or both of these agencies, the Commission and/or the Mackay Legal Centre, would have advised the Applicant as to the time limits for filing an application. The Respondent submitted that this inference is supported on the basis that if the Applicant wasn’t advised as to these timeframes, this evidence should have been included in the Applicant’s submissions as a factor explaining the reason for the delay.

[28] The Respondent submitted that, in any event, the Applicant was provided with a copy of the Commission’s Unfair Dismissal Guide, which details the timeframe for filing an Unfair Dismissal application with the Commission.

[29] The Respondent noted that the application was signed by the Applicant on 5 February 2014, the same day as the appointment with the Mackay Legal Centre, but was not filed with the Commission until 12 February 2014, when it was provided by email. The Respondent submitted that this conduct can be classified as the Applicant “sitting on his hands”.

[30] The Respondent submits that ignorance or lack of knowledge of the timeframe for filing an application should not be considered an exceptional circumstance.

[31] The Respondent submitted that the cost and inconvenience of defending an out-of-time application will cause it financial prejudice. The Respondent further submitted that the substantive matter has limited prospects of success.

[32] The Respondent submitted that there was a valid reason for the termination of the Applicant, based on the Applicant’s serious misconduct in breaching the occupational health and safety procedures of the Respondent.

Consideration

[33] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 1 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services2 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)3 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 4

[34] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 5

[35] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. I will consider each of those criteria in turn.

s.394(3)(a) - reason for the delay

[36] The Applicant submits that the matter was first reported to the Mackay Legal Centre within the 21 day timeframe. The Applicant is referring to the initial contact with the Mackay Legal Centre on 20 January 2014, which occurred following his conversation with representatives of the Commission and within the 21 day timeframe. The outcome of this initial contact with the Mackay Legal Centre was to arrange for the Applicant to seek further legal advice by appointment on 5 February 2014.

[37] I am not satisfied that the Applicant seeking legal advice from a community legal centre is a sufficient reason as to explain the delay. There is no evidence of the Applicant receiving improper advice. He was directed to the relevant information source, which contains the timeframe.

[38] Where the Applicant’s conduct demonstrates an ignorance or lack of knowledge of the timeframe for filing an application, I do not consider this to be an exceptional circumstance justifying an extension of the timeframe.

s.394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[39] The Applicant accepts that he was notified of the dismissal on 13 January 2014. The Applicant also accepts that he did not work after this date.

s.394(3)(c) - any action taken by the person to dispute the dismissal

[40] The Applicant has submitted that he took various steps to ascertain his rights with regards to disputing the dismissal however based on the date of filing, he did not act in accordance on the information provided and has not provided reasons for the delay commensurate with the exceptional circumstances test.

s.394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[41] Prejudice to the employer can arise through a delay which has deprived the employer of access to evidence necessary to defend the case, such as the evidence of a key witness. 6

[42] The delay is limited. I am not satisfied that any substantial prejudice would be suffered by the Respondent if the matter was to proceed.

s.394(3)(e) - the merits of the application

[43] The merits of this application are neutral in my determination. The parties are significantly in dispute regarding the facts and circumstances surrounding the Applicant’s disciplinary history, the specific circumstances relating to the dismissal, and any inconsistent treatment that was afforded to other employees.

[44] Insufficient material has been filed in relation to the jurisdictional objection to form a view, however preliminary, about the merits of the application. Accordingly, no weight has been attributed to this criterion, although it has been considered.

s.394(3)(f) - fairness as between the person and other persons in a similar position

[45] Neither the Applicant nor the Respondent have made specific submissions in relation to this consideration.

[46] This criterion is neutral in relation to this matter.

Conclusion

[47] Where the Applicant applies for an extension of time in a matter, the onus is on the Applicant to satisfy the Tribunal of their case. It is recognised that the termination has had an impact on the Applicant and he took various preliminary steps to ascertain what avenues were available to him to dispute the dismissal.

[48] The Applicant has not demonstrated that there are exceptional circumstances to warrant the exercise the discretion to extend time. I refuse the application for an extension of time. The application has been filed outside of the time required by s.394(2)(a) of the Act. The application, filed pursuant to s.394 of the Act, must be dismissed.

[49] I Order accordingly.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) s.394(3).

 2  Wheelan C, [2009] FWA 1638, [30] and [31].

 3   Lawler VP, [2010] FWA 1394.

 4   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 5   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 6   Construction, Forestry, Mining and Energy Union v John Holland Group Pty Ltd and Others [2012] FWA 7711; Ms Jessie Mitchell v HWE Mining Pty Ltd [2012] FWA 2721.

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