Mr Kori Burgoyne v Festival City Wine & Spirits Pty Ltd T/A Festival City Wines & Foods
[2010] FWA 7908
•30 NOVEMBER 2010
[2010] FWA 7908 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Kori Burgoyne
v
Festival City Wine & Spirits Pty Ltd T/A Festival City Wines & Foods
(U2010/9475)
COMMISSIONER HAMPTON | ADELAIDE, 30 NOVEMBER 2010 |
Application for unfair dismissal remedy - preliminary point - extension of time - whether extension of time required - manner of reckoning of 14 day period - extension required - whether exceptional circumstances - whether discretion should be exercised.
INTRODUCTION AND CASE OUTLINE
[1] The matter arises in the context of an application made by Mr Kori Burgoyne (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The respondent employer is Festival City Wine & Spirits Pty Ltd T/A Festival City Wines & Foods (the respondent).
[2] The applicant was dismissed by the respondent on 24 May 2010 and this application was lodged with Fair Work Australia on 8 June 2010. The applicant has sought an extension of time to permit the matter to be lodged beyond the 14-day period nominated by s.394(2) of the Act.
[3] The unfair dismissal matter has been subject to conciliation but not resolved and the respondent opposes the extension of time being granted. The file has been assigned to me to deal with the extension of time application.
[4] Following a telephone directions conference, both parties filed materials in support of their respective positions and having considered such I determined that there were relevant factual disputes. Given the relevant provisions of the Act, I have now heard further from the parties and received evidence pertaining to the extension of time application. 1
[5] The applicant, who was not represented, contends that the extension of one day within which to have lodged the application should be granted by Fair Work Australia. He contends that he was upset with the decision to dismiss him for things that he had not done. Further, he focused upon obtaining alternative employment and attended interviews and associated medicals in the first week after his dismissal.
[6] The applicant also contends that on or about 31 May 2010, he searched the internet for information as to his rights and left his details with a “Legal Services Company”. When he did not receive a call back, he was referred by a friend to an officer who worked for a union. Upon receiving advice that he could make an application to Fair Work Australia, the applicant contends that he contacted Fair Work Australia on 7 June 2010 and was advised that he should file the application as soon as was possible given the 14-day limit.
[7] The applicant further contends that as he did not have access to a fax machine or an alternative means of filing at that particular time, he made arrangements to send in the application very early on the morning of 8 June 2010.
[8] The applicant provided evidence in the form of a statutory declaration and by way of evidence in person at the hearing of this matter.
[9] The respondent (represented with permission by Ms Perry and later Mr Doyle) contends that there are no exceptional circumstances as required by the Act and that as a result, the unfair dismissal application should be dismissed. The respondent asserts that the applicant was dismissed on the basis of alleged serious and wilful misconduct that took place on Saturday 22 May 2010 at a private function being held by its Managing Director, to which the applicant was not invited.
[10] Further, the respondent asserts that the applicant originally accepted the dismissal and that an employment separation certificate indicating a redundancy, which was given in order to assist the applicant, was the result of a “deal” made at the time of the dismissal.
[11] Mr Totino, the respondent’s Managing Director gave evidence in relation to the events leading to the dismissal and more particularly in relation to the discussions which took place with the applicant on the day of dismissal and in the following weeks.
[12] The respondent also made various submissions in terms of the considerations cited in s.394(3) of the Act and I will deal with the matters raised in those submissions as part of the consideration of this matter.
THE STATUTORY CONTEXT
[13] Section 394 of the Act in dealing with applications for a remedy in relation to dismissals provides relevantly as follows:
“….
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[14] Section 396 of the Act relevantly provides that Fair Work Australia must determine whether the application was made within the period required by s.384(2), which includes the potential extension to the 14-day period, before dealing with the merits of the application.
CONSIDERATION
[15] The alleged dismissal of the applicant was communicated on 24 May 2010. The unfair dismissal application was lodged with Fair Work Australia on 8 June 2010.
[16] Section 394(2) of the Act provides a 14-day period within which to lodge an unfair dismissal application. The period is defined as being 14 days after the dismissal took effect. The applicant was paid two weeks in lieu of notice, and I have taken the day the dismissal took effect to be 24 May 2010 for present purposes. 2
[17] The Acts Interpretation Act 1901 relevantly provides as follows:
“36 Reckoning of time
(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.”
[18] That is, subject to any contrary intention within the Act, the 14-day period is exclusive of the day of the event, in this case, the dismissal. There is no contrary intent within the Act and indeed, the natural reading of s.394(2) would be consistent with that approach.
[19] On that basis, this application was filed on the 15th day after the dismissal took effect and accordingly an extension of time of one day is required if the unfair dismissal application is to be heard.
[20] Section 394(3) of the Act provides Fair Work Australia with discretion to extend the time for lodgement beyond the 14-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take account of the considerations outlined in paragraphs (a) to (f) of s.394(3) of the Act. I have done so in this matter.
[21] The fact that the extension is only one day does have a significant impact upon some of the relevant considerations, however I do need to be persuaded that the relevant circumstances exist in order to consider an extension of time for the lodgement of the s.394 unfair dismissal application.
[22] There is a significant factual dispute between the parties in relation to the discussion which took place between the applicant and Mr Totino on 24 May 2010. It is clear on both counts that upon attending for work, the applicant was directed to wait for Mr Totino and that he was aware that the pending discussion was to be in relation to the applicant’s continuing employment following the events at the private party on the previous weekend. It is also clear that the applicant was dismissed at the commencement of that discussion on that basis.
[23] However, the applicant denies that there was any discussion about the terms of an employment separation certificate at that time or about an alleged assault of a company employee and that the matter had been reported to the Police.
[24] Mr Totino testified that the applicant acknowledged he was in the wrong and apologised, sought suspension rather than dismissal and in effect reluctantly accepted dismissal. He also testified that he advised the applicant that he would treat the dismissal as a redundancy, provide two weeks pay in lieu of notice and provide a verbal reference if sought. Further, the respondent’s case is that the applicant indicated in that light that he would, in effect, not be contesting his dismissal.
[25] Mr Totino also gave evidence that the applicant sought some assurance as to whether police charges would be pursued in relation to the alleged assault and that there were two subsequent discussions involving the applicant in the week after the dismissal.
[26] Having heard and considered the conflicting evidence in this matter, I generally prefer the evidence of Mr Totino where it conflicts with the applicant. I found Mr Totino to be more convincing and credible. In reaching that conclusion, I note that Mr Totino avoided the temptation to supplement his evidence on certain matters to make it more consistent with the scenario explained by his counsel during the proceedings. 3 There were however some uncertainties in the detail and sequence of events in the evidence of Mr Totino and I have had regard to this in my assessment of the facts.
[27] Even based upon the evidence of Mr Totino, it would not be appropriate to describe the discussions that occurred on the day of the dismissal as amounting to a deal. The applicant did not accept the dismissal, but in the context of its inevitability, did seek some concession from his former employer given his family circumstances. This was accommodated to some degree by Mr Totino and the applicant did then indicate to the effect that he would not be contesting the dismissal.
[28] In relation to the activities following the dismissal, and subject to the evidence of Mr Totino about the nature of discussions between them in that period, I generally accept the contentions of the applicant. This means that in the first week, the applicant was mainly preoccupied with seeking new employment. He did make efforts to ascertain his potential rights in the second week and when advised of the capacity to bring this application and the 14 day limit, made all reasonable endeavours to file expeditiously. Indeed, it was filed with Fair Work Australia before normal business hours on the morning of the 15th day.
[29] It is against this background that I have considered the various considerations cited by the Act.
[30] Although the statutory discretion requires the considerations relating to the existence of exceptional circumstances to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act.
The reason for the delay
[31] There are a number of relevant aspects in terms of the reasons for the delay. These generally arise from the conduct of the applicant in pursuing this matter.
[32] The delay, of one day in the context of the statutory period, is a product of the applicant’s response to the dismissal, his decision to initially concentrate upon seeking new employment and an apparent delay in the response to his request for legal advice.
[33] These are, at least in general terms, reasonable explanations. The major issue here is the outcome of discussions on the day of the dismissal. I have found that there was not a deal as such, albeit the applicant did seek some concession that was partly accommodated by the employer. It was not however a case where these concessions were offered and accepted in the promise that the applicant would not contest his dismissal.
[34] The applicant initially decided not to contest the dismissal and subsequently sought to reconsider that approach. The fact that this occurred within the 14 day period allowed by the Act is however relevant to this consideration.
[35] In the end result, the applicant was aware by the 14th day that he had the apparent right to make this application and that it should be filed on that day in order to be within time. The applicant became aware of the exact timeframe for lodgement on that day and apparently received an application form from the offices of Fair Work Australia in the latter part of that day. There is an absence of evidence about the precise timing of the receipt of that material from Fair Work Australia, 4 however it is reasonably apparent that he then took steps to file the matter expeditiously given it was filed before normal business hours on the following morning.
[36] The above factors are a consideration to be taken into account in determining the existence of relevant exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[37] The applicant was dismissed on 24 May 2010 and he was aware that it had taken effect.
[38] This fact is a consideration that does not assist the applicant with a finding of exceptional circumstances.
Any action taken by the person to dispute the dismissal
[39] This consideration is clearly related in this case to the reasons for the delay as discussed above.
[40] The applicant took steps to attempt to mitigate his losses and in due course to seek advice about the dismissal within the statutory period.
[41] When he did not receive a prompt response to his request for legal advice he made contact with a friend who was in a position to arrange for some advice. Having accessed that advice, the applicant then acted promptly to contact Fair Work Australia and pursue a lodgement of the application.
[42] The respondent was not aware that the dismissal would be contested until the receipt of this application. Indeed, the respondent was under the impression there would be no challenge from the applicant.
[43] These are competing considerations in the present context.
Prejudice to the employer (including prejudice caused by the delay)
[44] The respondent has indicated that prejudice will arise however no evidence of that prejudice has been provided. In the alternative, it has argued that the absence of such prejudice is not in itself a reason to grant an extension. 5 I accept that broad proposition however the absence of demonstrable prejudice is a relevant consideration.6
The merits of the (unfair dismissal) application
[45] The merits of the substantive application are contested. Indeed, the respondent has argued that the application should be dismissed pursuant to s.587 of the application on the basis that it is frivolous or vexatious and has no reasonable prospects of success.
[46] The consideration of the merit of the application in this context is limited to the prima facie merits. It is not appropriate to canvass and attempt to resolve the substantive application as part of this exercise. 7
[47] The respondent contends that the applicant was dismissed on the basis of his conduct in “gate crashing” a private party organised by its Managing Director including the alleged verbal and physical abuse of one of its Managers. Further, the respondent asserts that this conduct was accepted as inappropriate and grounds for dismissal at the point of the termination.
[48] The applicant accepts that elements of his behaviour at the private party were inappropriate but denies the most serious conduct. He also contends that it did not affect the way he had or would perform his work. The applicant implies that although uninvited he did not “gate crash” the party, was not affected by alcohol when he arrived and he was supplied with alcohol at the party. Further, the applicant contends he was not given a genuine opportunity to respond prior to his dismissal.
[49] The applicant’s recall of the events leading to his dismissal is apparently not good. There are also serious allegations that would go a long way to provide a valid reason for dismissal. However, there is to be a contest on some of the more serious of those matters and their relationship to the workplace. There is a prima facie case that procedural fairness considerations of the Act 8 may be open to the applicant. It is sufficient to indicate for present purposes that on face value the applicant has an arguable, but not strong, case in relation to the merit of the unfair dismissal application.
Fairness as between the person and other persons in a similar position
[50] This consideration as it applies to other employees of the respondent does not arise in this matter. To the extent that this consideration contemplates the circumstances of employees more broadly, 9 nothing has been put to me in this regard. The consistent application of principles adopted by Fair Work Australia in similar matters is however in line with this consideration and I have sought to adopt that approach in this matter.
CONCLUSIONS
[51] In the context of the facts of this application and the one day extension required, and having considered each of the statutory matters, I am on balance, convinced that there are exceptional circumstances as contemplated by s.394(3) of the Act. Given my findings as to the quality of the applicant’s evidence and the challenge that faces him in relation to the substantive unfair dismissal application, I have seriously considered whether I should decline to exercise the extension of time discretion.
[52] However, I am mindful that the applicant has not presented his full case on the merits and the delay in filing in this matter is the shortest that could arise.
[53] Having considered all of the circumstances of this matter, I have on balance decided that I should exercise my discretion to extend the time for lodgement of this application by one day, to 8 June 2010.
[54] Arrangements will be made to have the substantive matter listed for a hearing. I would however indicate that in light of the findings to date, it would be prudent for the applicant to seek some professional advice on this matter at the earliest opportunity and to confirm his intentions with both Fair Work Australia and the respondent.
Hearing Details:
2010.
Adelaide;
18 November.
Written submissions:
Applicant 23 August 2010
Respondent 22 September 2010
1 S.397 of the Act permits a matter to be determined without conducting a conference or holding a hearing where there is an absence of factual disputes.
2 This is the date cited by both parties.
3 There were certain elements of the subsequent discussions with the applicant that put to the applicant in cross-examination (which was witnessed by Mr Totino) that he did not confirm during his own evidence.
4 The applicant was apparently unable to produce a copy of an email that would have demonstrated this timing.
5 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344.
6 Brodie-Hanns v MTV Publishing Ltd, (1995) 67 1R 298 at 300, 31 October 1995, per Marshall J.
7 Although also determined in a slightly different statutory context the decision in H Kyvelos V Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.
8 Such as those to be considered as a result of s.387(c) of the Act.
9 This factor as referred to in Brodie-Hanns v MTV Publishing Ltd (cited in the Explanatory Memorandum to the Fair Work Bill 2008) would appear to be capable of having a broader application than only employees within the business concerned.
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