Mr Lucas Kellaway v Perth Mech Pty Ltd
[2020] FWC 362
•24 JANUARY 2020
| [2020] FWC 362 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Lucas Kellaway
v
Perth Mech Pty Ltd
(C2019/6205)
DEPUTY PRESIDENT CROSS | SYDNEY, 24 JANUARY 2020 |
Application to deal with contraventions involving dismissal - jurisdictional objection - out of time - extension of time consideration.
[1] On 9 October 2019, at 12.57pm AWST, Mr Lucas Kellaway (the Applicant) lodged a Form F8 general protections application involving dismissal pursuant to s.365 of the Fair Work Act 2009 Cth (the Act) (the Application). The Applicant claims that his employment with Perth Mech Pty Ltd (the Respondent) was terminated on 16 September 2019.
[2] General Protections Applications involving dismissal must be made within 21 days after a dismissal takes effect or in such further time that the Fair Work Commission (the Commission) allows. As the dismissal took effect on 16 September 2019, the Application should have been lodged by no later than 7 October 2019. The Application was therefore two days late.
[3] Section 366 of the Act determines the permissible time limit for a general protections application, and provides:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).”
[4] The Applicant acknowledged in his application that he was making the Application later than 21 calendar days of his dismissal taking effect. He said:
“I had previously filled out an unfair dismissal claim by mistake and have just been informed to complete this one. U2019/11246. I thought I had completed an Unlawful Termination claim. I am only 1 day out.”
[5] In the Applicant’s later submissions, he amends his reference to “1 day out” to two days.
[6] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[7] On 7 November 2019, I convened a directions hearing to outline how the Commission would determine whether the Applicant would be granted a further period to make the Application. The parties agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The parties also agreed that the Application would be determined upon the materials filed. The directions timetable was as follows:
“1. The Applicant (Lucas Michael Kellaway) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing his out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of his application in this matter by no later than 4.00pm on 21 November 2019.
2. The Respondent (Perth Mech Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 12 December 2019.
3. The Applicant (Lucas Michael Kellaway) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 19 December 2019.
4. The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for the hearing of evidence.”
[8] In the directions hearing, I guided both the Applicant and the Respondent to the five factors that must be taken into account pursuant to paragraphs (a) to (e) of subsection 366(2) of the Act as outlined in [6] above.
The Applicant’s case
On 21 November 2019, the Applicant filed and served submissions (the Applicant’s Submissions):
“Please see below timeline of my termination, final payment, paperwork receival date from Perth Mech Pty Ltd and my Fair Work submission dates that lead to my current application being submitted 2 days past the 21-day lodgement timeframe.
1. I was terminated after close of business Monday 16th September, no termination letter or paperwork provided, and I was not made aware that I was being terminated for serious misconduct.
2. I then did not receive my final pay until the evening of Monday 23rd September. According to the award I am covered under, Vehicle Manufacturing, Repair, Services and Retail Award 2010 section 24.4 payment of wages on termination, I was not paid my final wages within the required timeframe.
a) Upon termination of the employment, the employer will pay wages due to an employee:
i. On the day of such termination;
ii. By forwarding such wages to the employee on the next working day; or
iii. At the employer’s place of business on a stated day not later than seven days after such termination. If the employer requires the employee to visit such place of business to collect wages then, in addition to the amount of moneys due, the employer will pay the employee an additional four hours’ ordinary pay.
Except that where an employee abandons his or her employment or the employee’s employment is terminated without notice for serious and wilful misconduct the employer will pay the wages due to the employee within two business days (not including a Saturday, Sunday or public holiday) of the termination.
My payslip was very unclear of what I had been paid for as the individual items e.g. annual leave, ordinary hours etc. had been lumped together on one line of the payslip rather than being listed separately as they should. It then took some time to work through it to discover what I had and hadn’t been paid for within that final payment.
3. I had requested a separation certificate which only arrived by mail on Friday 27th September however I was out of Perth on a family holiday which was pre-planned and Perth Mech Pty Ltd was aware as I had requested annual leave for that trip. When I finally received the certificate that was when I realised, I had been terminated for serious misconduct.
4. When I arrived back in Perth on Friday 4th October, I started completing the Fair Work paperwork and submitted claim U2019/11246 - Application for Unfair Dismissal on Monday 7th October (on the 21st day), response received from Fair Work 8th October to advise that I was not eligible for that claim as I had not been working at Perth Mech Pty Ltd for long enough to meet the requirements. I then completed the required documents for this current claim and lodged it on Wednesday 9th October.
Due to only receiving my separation certificate 11 days post my termination and being made aware of my termination reason at that point in time resulted in a delay to research my rights for a claim and lodge an application. Had I have known of my termination reason and received my final payment promptly as per my award my lodgement would have been much sooner.”
The Respondent’s case
[9] On 3 December 2019 the Respondent filed submissions:
“Please see below timeline of events for Lucas Kellaway’s termination, final payment, paperwork receival date from Perth Mech Pty Ltd.
1. Lucas Kellaway was Terminated at close of business on Monday 16th September 2019, We had the termination letter ready to be signed but Lucas became quite aggressive towards us. We arranged for him to be dropped home and organised for him to come in the next few days to collect tools once cooled down. Lucas was still very agitated on Wednesday the 18th of September and would not talk to us or allow us to help him remove his toolbox from van. We feel like we made it very clear the terms of Lucas Kellaway’s Termination as it was very serious.
2. We believe we had 7 days to arrange Lucas Kellaway’s final pay as we had to account for job payments, several parts left in vehicle that were not allocated to jobs or charged out that needed returning, un-banked cash which has still not been received and severe damage to the work vehicle provided. We needed to get several quotes to repair. Which we have not charged Mr Lucas Kellaway for.
Mr Kellaway was paid all his entitlements and remaining annual leave with deductions added for tools that he had purchased with out any authorisation.
3. We sent the separation Certificate to Lucas Kellaway’s postal address. He had 2 address’ logged in the system, so we were unsure of which address his permanent residency was. This could have been the reason for the slight delay.
We were not aware of any holidays that Lucas had up coming as there were no official dates logged in the employee self serve portal or mentioned to Wade Harvey or Harley Owens to approve the leave.
4. I Have a text msg on the 24th of September which Lucas was asking about how it was serious misconduct? We believe he was well aware at the time of dismissal and from the 24th of September. Taking into account Lucas was aware of the situation on the 24th of September we believe Lucas Kellaway still had ample time of around 13 days to research and seek information to lodge a correct claim with in the time frame.
We don’t believe he has justified extreme circumstances for logging the claim late.”
The Applicant’s reply
[10] On 17 December 2019 the Applicant filed reply submissions as required by the directions timetable.
“In response to point 1 - Still to this day there has been no termination letter received and as per the National Employment Standards to end an employee’s employment an employer has to give them written notice of their termination. I am not obligated to sign the letter upon receipt of it so at the time of termination it could have just been handed to me, there was then opportunity to provide the letter to me when I collected my tools 2 days later. At the very least it could have been posted out to me. In my view any “aggression” on part was due to an argument at the time of my dismissal as I was not allowed to take my own personal tools with me on the day of my termination.
In response to point 2 - In regard to the damage to the work vehicle this was due to a traffic accident approx. a month before my termination. The damage sustained was to the bumper and number plate and did not impact on the use of the vehicle as they still had me driving it daily until my termination date. This damage did not impact on my termination and was not a cause and was covered by their insurance. As mentioned previously my payslip is not separated to show work hours and annual leave payments and no deductions for tools is listed either so my final payment was not clear. As listed in my original timeline submission final payment was to be made within two business days as per section 24.4.
In response to point 3 – The request for leave was asked to Wade Harvey on the date of the previously mentioned PR meeting and Wade agreed and placed the dates in his personal notebook/diary and said this would be ok.
Regardless of any speculation, emotions and he said/she said the key facts regarding my claim are:
• Incorrect termination pay, incorrect payslip and late payment of my final pay.
• I felt pressured to close my Workers Compensation claim and once it was closed ultimately , I feel lead to my termination.
• Termination due to serious misconduct. They never conveyed this to me during the conversation on September 16th and only bought it to light once I received my separation certificate which was incorrectly completed as they stated I did not have any workers compensation claim.
• Not being provided a termination letter as per the NES.
• Being incorrectly paid for my Saturday hours as per section 28.2 of the Vehicle Manufacturing,Repair,Services and Retail Award 2010 which states “An employee required to work outside the ordinary house as prescribed by the award will be paid as follows:
c) on any other day – time and a half for the first three hours and double time thereafter.
My rostered ordinary hours were Monday – Friday 8.00am to 4pm. I never received any double-time rates for my Saturday hours after the first 3 hours, they were always classed as ordinary hours but as per the award this is incorrect.
• During my employment I was consistently paid late.
As per section 24.3 of the above mentioned award - ‘Wages will be paid as follows: d) Wages will be paid in the employer’s time not later than Thursday in any pay cycle, provided that wages will be paid if possible not later than Wednesday in a week in which a public holiday falls on the Thursday or Friday.”
Throughout my entire employment I did not receive my wages until Friday afternoon/evening.”
Consideration
[11] I will now turn to the matters I must consider.
(a) Reasons for the delay
[12] When making this determination, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 stated at [30]:
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
[13] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39] and [40]:
“[39] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”
[40] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.”
[14] The reason for the delay advanced by the Applicant is that he erroneously completed and filed an unfair dismissal application pursuant to s.394 of the Act on Monday 7 October 2019, the last day of the 21 day period. On 8 October 2019, he was advised that he was not eligible to make such a claim. He then completed the Application and lodged it on Wednesday 9 October. 2019
[15] The Respondent submits that, while it concedes the Applicant may have been unaware of the basis for his dismissal until 24 September 2019, he still had 13 days to research and seek information to lodge a correct application within the time frame.
[16] The unfair dismissal application was made within time. That application was erroneous because such an application was not available in the circumstances. Further, I have concluded the Applicant did not become aware of this until the following day, after which he promptly filed the Application. To the extent that this explains the two day delay in the lodgement of the Application, I consider it represents an acceptable reason for the delay, and this weighs in the Applicant’s favour.
(b) Any action taken by the person to dispute the dismissal
[17] The Applicant did take action to dispute at least the basis for his dismissal. The Respondent noted in its submission that it had “a text msg on the 24th of September which Lucas was asking about how it was serious misconduct” (original text retained). Also, as noted above, he filed the unfair dismissal application, albeit on the last day of the 21 day period. I accept the Applicant took steps to dispute his dismissal before making this application. That he did so, weighs in his favour.
(c) Prejudice to the employer (including prejudice caused by the delay)
[18] The period of delay is short. Further, the Respondent does not in its submission contend that there is any prejudice. I consider this factor weighs slightly in favour of the Applicant.
(d) The merits of the application
[19] This is a general protections claim. In order to maintain such a claim, the Applicant must show that an adverse action took place and this action took place because of a protected reason. There is no dispute that adverse action in the form of a dismissal occurred. The Application claims the Applicant was dismissed because he exercised a workplace right, by making a workers compensation claim. There was no Form F8A filed by the Respondent.
[20] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:
“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”
[21] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.
(e) Fairness as between the person and other persons in a like position
[22] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.
Conclusion
[23] The Applicant has established that, when viewed holistically the circumstances surrounding his delay are out of the ordinary, unusual, special or uncommon. When the appropriate weight is assigned to each relevant consideration, particularly to the reasons for delay, action taken to dispute the dismissal, and the absence of prejudice to the Respondent, the circumstances are such to establish the status of exceptional.
[24] I therefore propose to allow the Applicant further period within which to lodge the Application. The Application may therefore be lodged by 9 October 2019.
[25] The Application will be progressed by way of a conference at a time and date to be advised.
DEPUTY PRESIDENT
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