Mr Julius Vicente v Ellerslie Agriculture Pty Ltd

[2014] FWC 4576

[2014] FWC 4576

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Julius Vicente
v
Ellerslie Agriculture Pty Ltd
(U2014/5931)

COMMISSIONER WILSON MELBOURNE, 16 JULY 2014

Application for relief from unfair dismissal - reasons for decision.

[1] The following are my edited reasons for decision, originally given in transcript at Adelaide on 25 June 2014.

[2] Mr Julius Vicente has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Mr Vicente’s application relates to the termination of his employment by Ellerslie Agriculture Pty Ltd (Ellerslie). His application is date stamped by the Commission as having been received on 25 March 2014.

[3] Ellerslie argues against the application for two reasons. First, Ellerslie argues the application is out of time and that the circumstances of the matter are such that an extension of time should not be granted. Second, Ellerslie argues that in all the circumstances there has not been a termination of employment at the initiative of the employer, meaning that Mr Vicente has not been dismissed. On the other hand, Mr Vicente seeks an extension of time, and argues that he was dismissed.

[4] For the reasons set out below, I am not satisfied there are exceptional circumstances in the manner set out in s.394(3) of the Act and so I refuse Mr Vicente’s application for a further period to be allowed for the making of an application for an unfair dismissal remedy. I find that there has been termination of employment, but I do not find either way as to whether the termination was at the initiative of the employee or the employer. I note that it is not necessary for me to make such a finding given my determination of the extension of time objection.

Background

[5] The date upon which Mr Vicente commenced his employment with Ellerslie is agreed to be in late 2011. Ellerslie claims the Applicant commenced employment with Ellerslie on 1 November 2011 1. This date is consistent with the evidence given by Mr Vicente during the hearing, to the effect that his employment with Ellerslie commenced around November or December 2011. The Form F3 - Employer Response lodged by the Respondent also refers to Mr Vicente having been paid as a casual employee.2

[6] Mr Vicente worked as a farm labourer on Ellerslie’s dairy farm at Byaduk, Victoria. By all accounts, the farm is quite small. The evidence given during the hearing indicates that the farm has, at any time, five or six employees including (at the relevant time) Mr Vicente. The duties which were required to be undertaken by Mr Vicente included work associated with the dairy farm such as the milking, feeding and herding of the cows.

Termination of employment

[7] Whether or not there has been a termination of employment is contested by the employer. The circumstances of that contest arise out of an injury that Mr Vicente sustained at work on Tuesday, 17 December 2013. The Applicant provided with his application an accident report dated 17 December 2013, which is said to have been prepared by Mr Vicente. 3 The report states that Mr Vicente had an accident at work on 14 December 2013 at around 4.20 am. The report states that Mr Vicente rolled over a four wheeled ATV motorbike when he hit a rock on the paddock while pushing the cows into the shed. He sustained some serious injuries as a result of that incident.

[8] The injuries that he attested to in the course of giving evidence during the hearing include a dislocated finger and a broken leg. Also attached to the Applicant’s application is a WorkSafe Certificate of Capacity dated 24 December 2013, which records the treatment given to Mr Vicente. The Certificate, which was prepared by a medical practitioner, states that the following treatment was provided: “open reduction and internal fixation of right ankle fracture”. 4

[9] The seriousness of the injury sustained by Mr Vicente was sufficient for him to be required to have surgery in a hospital, which took place on 23 December 2013. Mr Vicente’s evidence given in the hearing indicates that he spent one night in hospital and was discharged on 24 December 2013. This is consistent with the information set out in the Certificate of Capacity. 5

[10] The Certificate of Capacity indicates that the Applicant would be expected to be fit for normal duties on 23 February 2013, which I presume to be 2014, and that he would be fit for modified duties from 9 February 2013 to 23 February 2013. I note again that I presume the dates referred to in that range are in fact references to the year 2014. There is no evidence that the Certificate of Capacity was provided to the employer. That is not to say it was not - just merely that there was no evidence to that effect.

[11] The Applicant claims that he was dismissed from employment on or around 10 January 2014. 6 In support of this claim, Mr Vicente provided a letter dated 3 January 2014 signed by Richard Prusa (as farm manager), on behalf of the owner.7 The letter is said to be from Ellerslie AG Pty Ltd, [address], Byaduk, Victoria, 3301. The letter is addressed to Maryanne and Julius Vicente, and reads:

“NOTICE:

After discussing with the owner Rick Guye, you have now been informed, that you are required to vacate the farm house at [address], Byaduk in 7 days – or no later than 10/1/2014.

Regards

On behalf of the owner

Richard Prusa

Farm manager”

[12] The evidence of the Applicant during the hearing is that he took that letter as notice of termination. He regarded it as a statement by the employer that his employment was finished.

[13] Against that, the employer submits (amongst other things) that the contract of employment as originally formed consisted of various benefits including, of course, the remuneration of weekly wages. In addition, superannuation and several benefits were provided in addition to the contract itself, for reasons of good faith, to the Applicant and his wife. One of the benefits was the provision of a house on the property of the farm. The employer strongly contested that the provision of the house did not form part of the contract of employment, and was careful in the proceedings to couch it as being a show of good faith on several occasions.

[14] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. I therefore need to consider whether or not it is necessary to allow an extension of time in circumstances when the filing of an application has been late. However, in the course of addressing this issue, it is necessary for me to consider whether or not the application was made within 21 days after the dismissal took effect. Consequently, I need to take into account whether or not there has been a dismissal.

[15] There is considerable difference between the two parties as to whether or not there has been a termination at the employer’s initiative. I take the view that there has been a termination of employment. It is not possible for me, on the basis of the facts which have been put forward so far, to determine whether or not the termination was at the employer’s initiative or at the employee’s initiative.

[16] The evidence given by Mr Guye during the hearing is strongly to the effect that there has been no termination at the employer’s initiative and that the employee is, to all intents and purposes, welcome back to the property and to the job on terms which are, or can be, agreed between the parties - particularly in terms of the workers’ compensation rehabilitation plan. However, Mr Guye also gave evidence to the effect that prior to 3 January 2014, it was known to him and to others on the property that the Applicant did not wish to return following the injury which the Applicant had sustained on 14 December 2013.

[17] I therefore have, on the one hand, the contention of the employee, that the action of the employer was tantamount to a termination. I have another contention on the part of the employer that it may well have been the Applicant’s own intention not to return to work. I take into account the lack of evidence in respect of conversations between Mr Vicente and anyone else around the time of the provision of the letter dated 3 January 2014. The effect of that evidence, which is sparse, is to suggest that at the very least there was limited discussion of the subject, the motives, or the alternatives.

[18] In respect to Mr Vicente, his recollection of what might have been said to him when the letter of 3 January 2014 was delivered is mediocre. In respect of Mr Guye, he was not directly involved in those discussions but he does have knowledge of having given an instruction to the farm manager, Mr Prusa, to offer the Applicant the use of alternative accommodation in Tarrington, which is a town approximately 23 kilometres away from the farm property.

[19] Having considered the evidence before me, the submissions and the material which has been filed by the parties, I am of the view that it is more than likely that the contract of employment has come to an end. Certainly, from the perspective of the Applicant, he has been dismissed, which enables him to make an application for unfair dismissal. Having said that, I make no finding as to whether or not there has been a dismissal that is a termination at the employer’s initiative.

Timing of application

[20] If it can be contested that there has been a dismissal, then it becomes necessary to consider whether or not there should be an extension of time granted to the Applicant for the making of his application. As previously referred to, the application was date stamped in the Commission on 25 March 2014. In addition, I note that the file records the application was provided by way of registered post, and was accompanied by a cover letter from the Applicant’s solicitors which refers to a date of 20 March 2014.

[21] I note that 25 March 2014 was a Tuesday, and that the Applicant’s signature on the application appears above a date of 11 February 2014. Having queried that date with the Applicant’s solicitor it appears more than likely that that date is in fact 11 March 2014 instead of 11 February 2014. Given that the application was made on 25 March 2014, it means that the application was some 53 days out of time. The contended dismissal took effect on or after 10 January 2014. I presume, for the sake of my consideration, that the dismissal took place on 10 January 2014. If that is the case, the last day for lodgement of the matter would have been Friday 31 January 2014, which is 21 days after 10 January. Accordingly, on that basis an application lodged on 25 March 2014 would be 53 days out of time.

Legislative scheme

[22] Relevant to the Commission’s consideration of this question are the provisions in s.394 of the Act:

“ 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”.

[23] The capacity of the Commission to extend the time for making an unfair dismissal application is set out in within section 394 of the Act. The Act provides a discretion for extension of time for making an application where I am satisfied that there are exceptional circumstances taking into account the six criteria which are set out within section 394(3).

[24] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”.  8

Consideration

[25] In considering whether I am satisfied there are exceptional circumstances which might lead to allowing a further period for the application to be lodged, I turn to consider the criteria set out in subsection 394(3) of the Act.

1. The reason for the delay

2. Whether the person first became aware of the dismissal after it had taken effect

3. Any action taken by the person to dispute the dismissal

[26] In respect of the reason for the delay the views of the Applicant and his solicitor are that, first of all, he was unaware of his rights and secondly, that he was attending to the consequences of his injury. The culmination of these matters meant that the Applicant was unable to, or unaware that he could, make an application prior to 25 March 2014.

[27] The evidence in respect of either matter raised by the Applicant is limited. The evidence, on the one hand, is that the Applicant took some time to ascertain what his rights might be and secondly, on the other hand, that he was not fit to return to work. But equally the evidence is also that he was discharged from hospital on 24 December 2013. The evidence in respect of whether Mr Vicente became aware of his alleged dismissal after the date on which it had taken effect is not extensive. However, it appears from the evidence that Mr Vicente considers that it was only some time after 10 January 2014 that he became aware that there may have been a dismissal.

[28] However, as I have said, the evidence in that regard is not extensive and it seems inconsistent with the overall facts of the matter, in which the Applicant had moved away from Byaduk at some earlier date; had stopped working and had not returned; and that the Respondent was hearing rumours that the Applicant may not wish to return. There is no evidence before me in any respect about action taken by Mr Vicente to dispute the dismissal other than making this application. The evidence of Mr Guye is that he is not aware of any contact between the Applicant and his company on that subject and that the first he became aware of the matter was upon receiving the application in this matter.

4. Prejudice to the employer (including prejudice caused by the delay)

[29] It appears to me that there is no additional prejudice to the employer merely because of the time taken to lodge the application of unfair dismissal. However, of course, the principal prejudice would be the time and cost which the employer would be put to in defending a matter if it were to proceed.

5. The merits of the application

[30] In respect to the merits of the matter, I need to have regard to whether or not, based upon the material before me, the merits of the application would lean towards the granting of the extension of time.

[31] At this stage it appears to me that the merits of the application are limited. There would clearly be a strong contest between the parties as to whether, in all the circumstances, there was a dismissal. Then there would be the stronger contest of whether or not there was an unfair dismissal in all the circumstances. Given that there is a strong contention on the part of the employer that, in any event, the Applicant may have himself walked away from the contract of employment, I consider that overall the merits of the application would be somewhat less than strong.

6. Fairness as between the person and other persons in a like position

[32] The consideration in this regard in granting an extension of time is whether that might be fair to other unfair dismissal applicants who might not receive an extension of time to their applications. In this regard, I need to take into account the reason for the delay.

[33] I consider that it would be unfair to other applicants in unfair dismissal matters if I were to grant the application on this occasion as there are no strong reasons put forward as to why the delay was necessary. The most significant part of the submissions on the part of the Applicant are that he was either unaware of his rights or that he was still dealing with the consequences of his compensable injury. In respect of the second of those matters, the question of whether or not his injury meant that he was unable to make an application at an earlier time, I do not consider his evidence to be plausible. It is not consistent with the overall facts of the matter and I think that it is being put forward as an excuse rather than an explanation as to why it was necessary that a delay occur. In respect of being unaware of his rights, certainly that is an issue to be taken into account but it is also the case that many applicants before the Commission have a limited understanding of their employment rights.

Decision

[34] For these reasons, I not satisfied there are exceptional circumstances in the manner envisaged by s.394 of the Act for the grant of a further period to Mr Vicente for the making of an application for an unfair dismissal remedy.

[35] An Order dismissing Mr Vicente’s application was issued on 27 June 2014 (PR552451).

COMMISSIONER

Appearances:

Mr J Park (solicitor) for the Applicant

Mr T Hallam (solicitor) for the Respondent

Hearing details:

2014.

Adelaide:

June 25

 1   Form F3 - Employer Response to Unfair Dismissal Application dated 21 May 2014, item 1.2

 2   Ibid, item 3.2

 3   Form F2 - Unfair Dismissal Application dated 25 March 2014, attachment

 4   Ibid

 5   Ibid

 6   Ibid, item 1.3

 7   Applicant’s submissions to the Fair Work Commission dated 4 June 2014, attachment

 8   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

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