Mr Karl Coe v Darwin Trailer Boat Club

[2015] FWC 3480

[2015] FWC 3480

FAIR WORK COMMISSION

DECISION

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

Mr Karl Coe
v
Darwin Trailer Boat Club
(U2015/4462)

COMMISSIONER WILSON MELBOURNE, 21 MAY 2015

Application for Unfair Dismissal Remedy; extension of time for the making of application. Application refused.

[1] This matter concerns an application made by Karl Coe alleging unfair dismissal against his former employer, Darwin Trailer Boat Club. Mr Coe’s application to the Fair Work Commission (FWC) was first received on 30 March 2015 and the date on which he left employment is stated by him as 20 January 2015. 1 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), and the Respondent asserts that the application has not been made within the time allowed by the Act. As such, the application is 48 days out of time. As a result it is necessary to consider whether an extension of time should be granted to Mr Coe for the making of his application.

[2] At the conclusion of the hearing of Mr Coe’s application for an extension of time for the making of his application, on 15 May 2015, I informed him that I would not grant his application for an extension of time and I undertook to provide written reasons for my decision as soon as possible.

[3] 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 which are specified within s.394(3) of the Act. A decision as to whether to extend time under s.394(3) involves the exercise of a discretion. 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. 2

[4] It has been said many times in relation to the consideration of these matters;

“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.” 3

BACKGROUND

[5] The Respondent, Darwin Trailer Boat Club, 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. It argues that Mr Coe’s substantive application lacks merit, including for the reason that it argues he resigned and was not dismissed; and that the reasons he advances for the delay in filing are not plausible or consistent with the evidence; and that his reliance on a mistake associated with filing is not a reasonable excuse and therefore not an exceptional circumstance.

[6] The circumstances of Mr Coe’s employment include that he was employed by the Darwin Trailer Boat Club as Head Chef at the time his employment finished. The Club operates a bistro for members and guests and his role was to run the kitchen and associated staff, and in doing so provide food to bistro patrons. He had originally been employed in December 2012 in a casual capacity, however over time and certainly by the date referred to in his application, 3 November 2014, he had become Head Chef. The Respondent submits that his employment was subject to the Registered and Licensed Club Award 2010.

[7] 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 Coe, the Applicant, and Mr Alexander Ehrlich, General Manager of the Darwin Trailer Boat Club.

[8] The material before me discloses that the circumstances by which Mr Coe’s employment ended include a conversation between Mr Coe and Mr Ehrlich, likely argumentative, on 20 January 2015. The evidence allows that in the meeting, Mr Ehrlich had that day returned from leave since the start of January, but that during his period of leave Mr Ehrlich had been made aware of perceived problems with Mr Coe’s performance, reported by Monica, a manager responsible for operations and administration.

[9] Mr Ehrlich confronted Mr Coe about the issues, which included his use of “reward points” provided by one or more suppliers to purchase items; concerns held by Monica about whether he would accept her direction; the costs of doing the bistro’s business, for which Mr Coe was said to be responsible; and questions about Mr Coe’s hours of attendance for work. The conversation did not go well, with Mr Coe alleging that Mr Ehrlich dismissed him after referring to his work performance concerns and saying words, as stated in the hearing, to the effect of “I’m firing you and giving you two week’s notice”. Mr Coe sees this as a repetition of earlier behaviour on the part of his employer, in which his performance was questioned. Mr Coe says he responded along the lines of “not this again”, being a reference to some of the performance matters having been brought up previously.

[10] Mr Ehrlich sees the discussion differently, saying that after he raised the matters that Mr Coe said “I’ve had enough of this and I’m gone” which Mr Ehrlich took to be a resignation, since Mr Coe then proceed to pack knives, books and other personal effects and left the premises, not to return again.

[11] The matter before me involves not only a question of whether the time period for the making of Mr Coe’s time should be extended, but also allegations that he resigned and was not dismissed.

[12] For the reason that I have found against Mr Coe’s application for an extension for the making of his application for unfair dismissal remedy, it is not necessary for me to resolve whether his termination came about by means of a dismissal at the initiative of the employer, a resignation, or a forced resignation.

[13] I find on the basis of the material before me that, for the purposes of s.394(2)(a), the date that Mr Coe resigned or was dismissed from employment, and the date on which either took effect, was 20 January 2015. Accordingly, it is from this date that I must consider the period in which an application for unfair dismissal should have been made. Unless an extension of time is granted by the Commission, applications for unfair dismissal must be made within 21 days after the dismissal took effect. For it to be within that time period, the application should have been made by 10 February 2015, whereas Mr Coe’s application was made for the first time on 30 March 2015. The application is therefore 48 days out of time.

[14] For the purposes of s.396 of the Act, Mr Coe is a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances.

EXTENSION OF TIME

[15] 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 six criteria set out in s.394. That section 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.

[16] In considering whether an extension of time should be granted to Mr Coe for the filing of his application, I must have regard to all of the statutory criteria set out in s.394(3), which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[17] There must be an acceptable reason for the delay. 4 The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable for the time period to be so extended.5 Further, an applicant needs to provide a credible reason for the whole of the period that the application was delayed.6

[18] In relation to Mr Coe, the evidence indicates the following;

● The same day that he was dismissed he consulted a union, who later advised that it could not assist him and suggested he contact the Fair Work Commission;

● He then consulted a friend who he thought was experienced in these matters; the friend proof read the draft and provided it back to Mr Coe, who then finalised it;

● He submitted the application by email, from his wife’s computer, on or around 9 February 2015, which was about 20 days after his termination of employment took effect, and still within the time period allowed;

● At around that time he went on holiday with his son and wife to visit her relatives in Taiwan; and it was not until when he returned, close to 30 March 2015 that he realised he had not had contact with the FWC about his application, whom he thought “could have been very busy” 7;

● When he realised he had not had contact from the FWC he called the Commission and spoke with a clerical officer who told him that an application had not been received, after which he submitted a fresh application.

● Upon submitting the fresh application on 30 March 2015, the FWC advised him the application was out of time and it was not signed, which he remedied by submitting an amended application on 31 March 2015, which was signed and also included some basic reasons as to why the application was submitted late and out of the time period allowed. The FWC staff member who spoke with him on 31 March recorded that Mr Coe told her that he had sent the application form on 9 February 2015 to an address he thought was the Commission’s.

[19] The conjunction of these matters indicate two reasons for the application being late;

● Firstly, that he mistakenly believed he had filed an application within time and that he sought to remedy the problem as soon as he realised the error; and

● Secondly, that he was also waiting on Mr Ehrlich to call him and ask him to come back to work.

[20] I find these two matters are Mr Coe’s explanation for the whole period of the delay between the last date the application should have been filed in order for it to be within time, which was 10 February 2015, and the date that it was actually filed, for the first time on 30 March 2015.

[21] Mr Coe’s explanation as to the delay relies upon him having made a mistake in the submission of the application. His evidence in this regard is that at some time near to 9 February 2015 he had endeavoured to email an application to the Fair Work Commission from his wife’s computer and email account and thought that such application had been submitted. However, he submitted no evidence, other than his oral evidence, that would support such a contention.

[22] The evidence of the Respondent that Mr Coe resigned relies upon Mr Ehrlich’s statement that he never said to the Applicant that he was dismissed, but rather that the Applicant took exception to being counselled, becoming angry and saying words to the effect of “not this again, fuck this, I’ve had enough”, then leaving the area in which he was having the discussion with Mr Ehrlich; going to the kitchen and collecting his personal property and leaving the Club.

[23] I find Mr Ehrlich’s evidence is plausible and capable of acceptance. In this regard, Mr Ehrlich gave a detailed, and I believe honest, recollection of the circumstances of how Mr Coe’s employment came to end. I accept that evidence and prefer it to Mr Coe’s to the extent that there is a difference between the two. On the basis of the evidence before me, it is more likely than not that Mr Coe did leave the premises allowing Mr Ehrlich to form the view he had resigned.

[24] The circumstance of resignation would explain why the Applicant was waiting for Mr Ehrlich to invite him back to work, which is one of the reasons he puts forward as there being a delay in filing his unfair dismissal remedy application. The contrary situation – of the termination being a dismissal and not resignation – would not explain why Mr Coe was waiting for a call to return to work. If it was a dismissal, such expectation would be implausible in the absence of evidence that would allow formation of the view that an invitation to return to work could be expected.

[25] Overall, and in the context of the other evidence that has been given, I find this reasoning does not fully explain the circumstances of the delay that took place. By 30 March 2015, when the application had been filed, Mr Coe had waited 7 weeks since the date he says he emailed the application to hear from the Commission about the application, and that he thought the reason for this was that the Commission was busy. I consider that explanation to be implausible, and not to present a credible reason for the whole of the period that the application was delayed. The Applicant also has provided no evidence that would support his claim the application was emailed, but perhaps to a wrong address, on 9 February 2015.

[26] As a result of these circumstances, I consider an acceptable reason has not been put forward for the delay. Accordingly, this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.

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

[27] On the basis of the evidence before me, I am satisfied that Mr Coe first became aware of the end of his employment on 20 January 2015, for the reason either that he was dismissed, as he contends, or that he resigned his employment, as the Respondent contends. This is therefore not a circumstance where Mr Coe only became aware of his termination at some point after the time that it did. Accordingly, this is a neutral factor in my consideration.

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

[28] 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

[29] Mr Coe’s evidence about actions taken by him to dispute his dismissal are that he made contact with a union on the same day his employment ended, and that by 9 February 2015 he had endeavoured to file an application for unfair dismissal remedy after consulting with a friend about what the application should contain. There being no evidence before me that would either corroborate Mr Coe’s contentions or disprove them, I make no findings about them, and accordingly this is a neutral factor in my consideration.

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

[30] The delay in the filing of the application is 48 days. 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.

[31] 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. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. 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. 9

[32] 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.

5. The merits of the application

[33] 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.

[34] For his part, Mr Coe contends that he was told by Mr Erhlich that he was dismissed and should leave. The Respondent contends that Mr Coe resigned and was not dismissed. It is possible that, even if this contention is correct, that any resignation might be a “forced resignation” within the meaning of s.386 of the Act.

[35] 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 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. 10

[36] In considering Mr Coe’s application, I am satisfied that he likely has a weak case, which turns on the Commission not being satisfied with the explanation put forward by the Darwin Trailer Boat Club that there was a resignation. In the context of this matter, that proposition would rest on the Commission preferring Mr Coe’s evidence and rejecting that of Mr Ehrlich. Ultimately, determination of the matter will rest on matters of credit in the evidence. Without determining the subject, and noting that the case is as yet untested, I consider it is more likely that the Commission would find against the Applicant. His recollections of key conversations were vague, requiring prompts from his written material, and he suffers from poor hearing, which I think led him to not hear things that were said to him as accurately as would be required to make his evidence reliable and more persuasive than that of the Respondent’s. I note though that while no corroborative evidence was called from either side in the matter before me, it is possible that another witness may be able to attest positively to Mr Coe’s claims.

[37] For these reasons, I consider Mr Coe’s case to be a weak one, and accordingly consideration of this criterion resolves in the Respondent’s favour.

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

[38] 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 currently before the Commission, or have been decided in the past. 11

[39] In applying Mr Coe’s facts to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him gives rise to an expectation that there be a greater process of diligent inquiry or dispute by him not long after the dismissal. The evidence he advances is that of contact with a union, who did not directly help him, and a friend who did. His assertion of submission to the Fair Work Commission of an application within time may well be true, however no evidence supporting the assertion was provided. That he then waited 7 weeks before contacting the Commission about whether his application had been received and when he could expect to hear from the Commission about the application is both implausible as well as insufficient to say that he should be treated differently from other applicants in a similar position.

[40] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an adequate explanation for the delay in making his unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant an exercise of the discretion afforded me under the Act. In forming this view I have given consideration not only to the particular circumstances of the Applicant’s case but also to the criteria set out within s.394(3) of the Act.

[41] Accordingly, I decline to grant an extension of time pursuant to s394 of the Fair Work Act and will issue an order dismissing Mr Coe’s application as being out of time.

COMMISSIONER

Appearances:

Mr C Coe on his own behalf

Mr A Ehrlich for the Respondent

Hearing details:

2015.

Darwin:

15 May.

 1   Amended Form F2, 31 March 2015, item 1.2

 2   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 3   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, at [13]

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 5   Ibid

 6   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409

 7   Amended Form F2, 31 March 2015, item 1.4

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299

 9   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 (2003) PR927201, at [16]

 10   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 11   Wilson v Woolworths [2010] FWA 2480, at [24]‒[29]

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