Mr Luke Smith v A1 Waterproofing & Applications Pty Ltd

[2013] FWC 5462

[2013] FWC 5462

FAIR WORK COMMISSION

DECISION

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

Mr Luke Smith
v
A1 Waterproofing & Applications Pty Ltd
(U2013/9014)

COMMISSIONER SPENCER BRISBANE, 9 SEPTEMBER 2013

Application for relief from unfair dismissal - extension of time.

Introduction

[1] This determination relates to an application made by Mr Luke Smith (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on alleging that the termination of his employment from A1 Waterproofing & Applications Pty Ltd (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] A Conference was held in the matter with both parties agreeing that the jurisdictional objection should be determined on the papers. After taking into account the circumstances of the application, the issues for determination and the views of the parties the Commission determined it was appropriate to determine the matter on the papers.

[5] While this decision does not refer to all of the evidence and submissions in this matter all of such have been considered.

Background

[6] The Applicant was initially engaged by the Respondent in 2001. The Applicant continued to perform work for the employer, in various capacities, until his termination in 2012.

[7] The Applicant’s employment was terminated on 15 May 2012, with immediate effect, with the Respondent relying on allegations of serious misconduct as the basis for the dismissal.

[8] On 1 May 2013, the Applicant made an application to the Commission for unfair dismissal relating to the termination of his employment by the Respondent.

[9] The Employer objected because the application was made to the Fair Work Commission (the Commission) on 1 May 2013, whereas the date the dismissal took effect was 15 May 2012. That is, the application was made some 351 days after the dismissal took effect, and therefore outside the 14 days stipulated at s.394(2)(a) of the Act (as it was at the time of the dismissal).

Relevant Provisions of the Legislation

[10] The substantive application has been made pursuant to s.394 of the Act. Section 394, as it was at the time of the dismissal, provides as follows:

“394 Application for unfair dismissal remedy

...

(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.”

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

Summary of the Respondent’s Submissions and Evidence

[12] Mr Robert Kelly, Director and sole shareholder of the Respondent, filed submissions and affidavit evidence on behalf of the Respondent.

[13] The Respondent is a small business, with staff levels fluctuating between six to eight employees, including Mr Kelly and his wife, Ms Brenda Kelly. The Respondent submitted that the Applicant was first engaged as a sub-contractor in 2001, and commenced permanent employment with the Respondent on 1 September 2011.

[14] The Respondent terminated the Applicant’s employment on 15 May 2012, by letter, relying on allegations of serious misconduct on the part of the Applicant in the course of his employment.

[15] The Respondent acknowledged that the Applicant suffered a period of ill health following an assault that occurred in the course of the Applicant’s employment, however, the Respondent submitted that the ill health was not sufficient to prevent him or his wife, who was generally acting on the Applicant’s behalf in various matters, from filing the application within the required time limit, or a reasonable time after that time limit.

[16] The Applicant was assaulted approximately five months prior to his dismissal and, following the assault, had recovered sufficiently to attend work. The Respondent submitted that the Applicant was also able to attend medical appointments, progress his workers’ compensation claim, and seek legal advice regarding his employment rights from various external agencies (including his relevant Union, Shine Lawyers and IRIQ).

[17] The Respondent submitted that at various times prior to the date of lodging the application, the Applicant and/or the Applicant’s representative were aware of their ability to challenge the Applicant’s dismissal, including the requirement that an application for unfair dismissal be filed within the timeframe prescribed by the Act.

[18] There is no contention regarding the fact that the Applicant was aware of the termination of his employment when it took effect, however, the Applicant did not take steps to challenge his dismissal before making the application on 1 May 2013.

[19] The Respondent submitted that it will suffer prejudice due to the exceptionally late lodgement of the application and the significant lapse in time between the events that lead to the dismissal and the point at which the matter would be heard by the Commission. Additionally, the Respondent argued, as the Applicant was summarily terminated due to allegations of serious misconduct, the dismissal was consistent with the Small Business Fair Dismissal Code, and has little prospects of success.

[20] The Respondent submitted that the circumstances of the matter do not justify the grant of an extension of the time for the lodgement of the application under s.394(3) of the Act and the application should, therefore, be dismissed.

Summary of the Applicant’s Submissions and Evidence

[21] The Applicant filed various statements, affidavits and supporting documents in response to the extension of time issue.

[22] On 25 January 2012, the Applicant was involved in an incident at work where he was attacked by a former employee of the Respondent. The attack involved the Applicant receiving several blows to the head and neck with a blunt object, and resulted in the Applicant being unable to attend work for several days.

[23] The Applicant submits that the resulting health complications, including Post Traumatic Stress Disorder, headaches with migraine features on top of chronic daily headaches, Post Trauma Vision Syndrome, depression and anxiety, meant that the Applicant was unable to file the application for unfair dismissal within the prescribed timeframe and justifies an extension of time being granted in the circumstances.

[24] The Applicant’s wife, Ms Sonia Smith, in her statement in support of the extension of time being granted, refers to increased pressure on the family unit following the Applicant’s injury, subsequent medical complications, and the dismissal of the Applicant.

[25] The Applicant was aware of the termination of his employment when it took effect, however, it is submitted by the Applicant that at the time the dismissal took effect, the Applicant was “in a state of shock” and was not “well enough to talk about [the dismissal] for a number of months.”

[26] In the period between the dismissal and the application being made, the Applicant’s wife (on behalf of the Applicant) approached a number of different agencies, including representatives of the Construction, Mining, Forestry and Energy Union, Shine Lawyers, and IRIQ, for information about disputing the dismissal.

[27] On making such enquiries, the Applicant’s wife was advised that the Applicant would be “out of time” with regards to the unfair dismissal application, however, she was not advised that the Commission has jurisdiction to extend the timeframe involved in making an unfair dismissal application, in specific circumstances.

[28] The Applicant submits that the Respondent would not suffer prejudice by being required to respond to the application, as the allegations of fraud that formed the basis for the dismissal, would be able to be substantiated based on documents that should still be available to the Respondent.

[29] The Applicant submits that the circumstances of the dismissal as to merits are strong, including allegations that the Respondent made no attempt to properly investigate the allegations against the Applicant, gave no prior warning and that some findings were not based upon the evidence. The essential complaint of the Applicant in relation to the alleged unfairness of the dismissal relates to issues regarding procedural fairness.

Consideration

[30] It is agreed between the parties that the Applicant’s employment was terminated on 15 May 2012. The application was filed on 1 May 2013.

[31] Pursuant to s.394(2)(a) of the Act, as it was at the time, the application must have been made by 29 May 2012. The application was filed 337 days out of time out of time.

[32] 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

[33] 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

[34] 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

[35] The Applicant primarily relies on the various medical complications arising out of the assault that occurred on 25 January 2012, as the reason for the delay in making the application.

[36] The Commission has considered whether the Applicant’s physical and mental health represented an acceptable reason for the delay. The Applicant submitted numerous medical certificates and medical opinions in one form or another as evidence that, following the assault and “as a result of his injuries and residual symptoms, he was unable in May 2012 to have made any formal response to his unfair dismissal from his workplace.”

[37] Based on this evidence, the Commission accepts that in the period following the dismissal on 15 May 2012, the Applicant was experiencing personal difficulties through his medical condition, the medical condition of his wife and other family members and the processes involved in that.

[38] Nevertheless, it appears that, in the period between the assault and the filing of the unfair dismissal application, the Applicant (or his representatives) possessed the requisite physical and mental fortitude to attend medical appointments, to lodge and pursue his workers’ compensation claim, and to seek legal advice regarding his employment rights from separate agencies. Given the Applicant’s ability to attend to these other matters the Commission is not satisfied that the matters related to the Applicant’s physical and mental health provided an acceptable reason for the entire period of delay for the Applicant’s filing.

[39] These matters of shock complained about by the Applicant have not been ignored, while they are at the higher levels than ordinary, they are not unusual when compared with any person who has lost their employment. Most people will suffer a period of disbelief, shock or anger. However the Act requires that the Applicant demonstrate “exceptional” circumstances. The evidence clearly establishes that the Applicant’s wife has been continuously taking steps, throughout the period between dismissal and filing, to follow-up the Applicant’s entitlements, workcover claims, medical assessments and other various matters. This is evidence that the Applicant and his representative were not incapacitated so as to be prevented from filing an application in time. Or, even if it were accepted that some period of delay was accounted for, for the entire period of what is an extensive delay in filing.

[40] The Applicant also incidentally raises the issue of ignorance this area of law in general and specifically, ignorance of the Commission’s jurisdiction to extend that timeframe on application. Continuous decisions of this Tribunal and other Courts have held that “lack of knowledge of a time limitation has been rejected ... as a ground for the exercise of the Tribunals discretion”. 6 Further, “delay on account of ignorance of the statutory time limits is not, of itself, an exceptional circumstance”.7

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

[41] The Applicant accepted that he become aware of the dismissal on 15 May 2012.

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

[42] The Applicant became aware of the availability of an unfair dismissal application, and of the statutory timeframes involved in making an unfair dismissal application, at unspecified times in 2012 and 2013.

[43] Despite being aware of the ability to dispute the dismissal, no evidence was submitted of the Applicant taking substantive steps towards making an unfair dismissal application prior to filing this application on 1 May 2013.

[44] The Applicant has relied upon his state of shock after the dismissal and that it was not a subject that he was “well enough” to talk about for several months. The Applicant submitted that his diagnosis of post traumatic stress disorder at the time “could explain” those reasons.

[45] The Applicant submitted some emails between the Applicant’s wife and various industrial officers of the CFMEU and Workcover. However these emails do not assist the Applicant’s case.

[46] The email chain commencing 13 July 2012 8 is evidence that the advice sought from the CFMEU was in relation to wage matters not unfair dismissal. In relation to a question from the Applicant’s representative to the Union regarding, what the Applicant identified as “false allegations”, the Union responded “WHAT WOULD YOU HOPE TO ACHIEVE BY DOING SO”. The Applicant’s representative did not respond to this email until 12 October 2012 to which is was responded that the Applicant sought to clear his name.

[47] This correspondence was already significantly out of time in any event and did not directly seek the Union’s advice in relation to the termination.

[48] The Applicant also relied upon contact that his wife had with Shine Lawyers in February 2013 and subsequently IRIQ. In all this time the Applicant does not advise that any steps were taken to contact the Fair Work Commission or to review the Commission’s website.

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

[49] Granting of an extension of time in this matter would prejudice the Respondent to the extent that evidence about the Applicant’s authority to make certain payments on the company credit card would depend on recollections of conversations that took place over 12 months ago.

[50] Prejudice which has deprived the employer of access to evidence necessary to defend the case, such as the evidence of a key witness has previously been considered prejudice in the sense of s.394(3)(d) of the Act. 9 The Commission is satisfied that the Respondent would suffer prejudice in this matter given the extensive delay since the time of the dismissal and preceding incidents.

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

[51] In the matter of Kornicki v Telstra-Network Technology Group 10the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 11

[52] I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[53] The parties are significantly in dispute as to the fairness or otherwise of the Applicant’s dismissal. The material before the Commission includes some serious allegations against the Applicant which, if proved, would no doubt amount to serious misconduct within the meaning of the Act.

[54] Given the interlocutory nature of this decision the Commission has not had an opportunity to assess the full evidence which would otherwise be undertaken in the full hearing of a merits application. The parties have also not had the opportunity to fully test the evidence of either party in relation to the merits application. Given the seriousness of the allegations and the significant disparity between the parties as to even the basic facts about the Applicant’s employment, this item is considered to be neutral in the consideration of the extension of time decision.

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

[55] There is no evidence adduced in these proceedings that there is an issue of fairness arising between the Applicant and another person in a similar position.

Conclusion

[56] 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.

[57] It is not in contention between the parties that the Applicant was dismissed on 15 May 2012 and that the Applicant was aware of the dismissal on this date.

[58] The Applicant has not demonstrated that there are ‘exceptional circumstances’ sufficient to warrant the exercise of the discretion to extend time. For the aforementioned reasons 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 as it was at the time of the dismissal. The application is therefore dismissed.

[59] 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   Matt Dain v Sam Bradley & Robert Grant [2012] FWA 7276.

 7   Nulty v Blue Start Group Pty Ltd [2011] FWAFB 975.

 8   Annexure (c)A to Applicant’s submissions.

 9   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.

 10   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 11   Ibid.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR539917>