Mr Manoel Pereira v Teekay Shipping (Australia) Pty Ltd

[2014] FWC 2497

[2014] FWC 2497

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Manoel Pereira
v
Teekay Shipping (Australia) Pty Ltd
(U2014/4061)

COMMISSIONER CLOGHAN PERTH, 15 APRIL 2014

Unfair dismissal.

[1] On 28 January 2014, Mr Manoel Pereira (Mr Pereira or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged constructive dismissal from his former employer, Teekay Shipping (Australia) Pty Ltd (Employer) on 30 June 2013.

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that:

● the Applicant was not dismissed. The Applicant resigned by email effective 30 June 2013; and further;

● the application was not made within 21 days after the dismissal took effect and there are no exceptional circumstances which would warrant allowing a further period until 28 January 2014 to allow the application to be filed.

[4] The application was unable to be resolved at conciliation because the Employer sought for its jurisdictional objection to be dealt with in the first instance. The application was referred to me on 4 March 2014.

[5] For the Commission to have jurisdiction to hear and determine the application, it is necessary for the application to be made within 21 days after the dismissal took effect pursuant to paragraph 394(2) of the FW Act. Mr Pereira has not made the application within 21 days after the alleged dismissal took effect.

[6] However, the Commission can allow a further period for the application to be made in accordance with paragraph 394(2)(b) of the FW Act, if it is satisfied that there are exceptional circumstances, taking into account the criteria in s.394(3) of the FW Act as follows:

(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.

[7] I advised the parties that I intended to deal with the issue of whether there are exceptional circumstances to allow Mr Pereira to file his application on 28 January 2014 by way of written submissions. To assist in the written submissions, I issued procedural directions on 11 March 2014.

[8] The Employer provided its submission on 26 March and 9 April 2014.

[9] The Applicant provided his submission 26 March 2014.

[10] Having received the written submissions, this is my decision and reasons for decision on whether the Commission is satisfied that exceptional circumstances exist to allow the application to be filed on 28 January 2014.

APPLICANT’S SUBMISSION

[11] The following is in summary of the Applicant’s submission:

● the Applicant resigned effective 30 June 2013. The resignation was civil and concludes, “it was a pleasure working with Teekay”;

● the purpose of the civil resignation was for Mr Perieira to get a good reference as the Employer was the only employer the Applicant had worked for in Australia (approximately 11 years);

● the reason for resigning was because Mr Pereira had formed the view that he was being deliberately bullied by co-workers so he would be forced to leave his employment;

● Mr Pereira feared further bullying and declining health;

● by being forced to leave, the Employer avoided redundancy payments which it was planning;

● once Mr Pereira learned of the redundancies, he sought legal advice and the Employer’s actions “made more sense to him”.

● the large gap [in elapsed time] between the Applicant’s resignation and application to the Commission was due to Mr Pereira being depressed and in poor health;

● the Applicant’s mental state was fragile and he “did not think about entering into legal proceedings”;

● Mr Pereira was unaware of the statutory timeline for filling the unfair dismissal application;

● Mr Pereira had no understanding of constructive dismissal; and

● there is no prejudice to the Employer.

EMPLOYER’S SUBMISSION

[12] The Employer submits that:

● none of the circumstances in paragraph [11] constitute exceptional circumstances;

● the documentation submitted by the Applicant regarding his mental health is not demonstrable of his incapacity to conduct such an ordinary transaction as lodging an application with the Commission;

● the information required in an unfair dismissal application requires little exertion and could have been easily completed by the Applicant or his representative;

● unfamiliarity with the legislation is not, of itself, a sufficient reason to constitute exceptional circumstances; and

● in any event, the Applicant sought legal advice in late December 2013 and there is no explanation for the further delay between that time and lodging the application on 28 January 2014.

CONSIDERATION

[13] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, 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.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[14] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[15] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”. In my view, Parliament’s prescription of having applications filed within 21 days is not to be undermined so that “any time is an appropriate time” to lodge an unfair dismissal application.

[16] The burden lies with Mr Pereira to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[17] It appears that the Applicant is relying on three (3) factors regarding the delay in lodging the application.

[18] In the first instance, the Applicant is relying upon his fragile state of health. However, three (3) days before his resignation, the Applicant was capable of making enquiries of the Employer, regarding “continuous service”, his entitlement to long service leave (LSL) and whether it was possible to make his LSL payment in the 2013-14 financial year. Further, on 12 December 2013, the Applicant was presumably seeking further employment as he advised one of the Employer’s representatives that “I have given your name as a reference for a job role based on land”. In addition, on 31 December 2013, Mr Pereira contacted the Employer seeking to be advised why he was not informed of recent redundancies; an email exchange ensued. Finally, all the medical documentation provided by the Applicant is dated mid-2012 with one exception which is undated. It is difficult to reconcile these facts with the assertion by the Applicant that the reason for the delay was his fragile state of health. In the absence of any further information, I am unable to accept that these circumstances were exceptional.

[19] Secondly, the Applicant asserts that he did not think about entering into legal proceedings. While that may be an explanation for the delay, that is a choice which the Applicant made and cannot be considered exceptional circumstances.

[20] Thirdly, the Applicant contends that he was unaware of the statutory timeline or the concept of constructive dismissal. If becoming aware of the statutory timeline is an exceptional circumstance for delay in making an application to the Commission, the statutory timeline would become meaningless. Ignorance of the provisions of the FW Act, as set out in similar legislation, Nulty v Blue Star Group Pty Ltd (2011) 2013 IR 1 [14], is not an exceptional circumstance for delay in lodging applications.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[21] The Employer denies that Mr Pereira was dismissed. Notwithstanding this situation, the date of cessation of employment was effected, and known to Mr Pereira, as 30 June 2013.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[22] Following, Mr Pereira’s cessation of employment on 30 June 2013, I have not sighted any documentation disputing his dismissal. I have sighted an email from Mr Pereira to the Employer dated 31 December 2013 seeking a redundancy payment. I find that formally the Applicant only took action to dispute his dismissal on 28 January 2014 when making this application to the Commission.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[23] The Applicant asserts that no prejudice is suffered by the Employer because of the delay. The Employer asserts that it will suffer unplanned expenses both economic and temporal which could be directed towards running its business. I am inclined to consider that filing an application approximately six (6) months beyond the statutory timeline is most probably prejudicial in terms of the deterioration of memory of those involved (if all can be located) and willing to give evidence. In any event, as I have expressed previously, lack of prejudice suffered by the Employer is not a satisfier of exceptional circumstances, rather it does not dissatisfy exceptional circumstances.

Paragraph 394(3)(e) - the merits of the application

[24] It is not disputed that the Applicant tendered his resignation effective from 30 June 2013. In the ordinary course, an employee who resigns from his employment is not protected from the unfair dismissal provisions of the FW Act. However, Mr Pereira claims he was “constructively dismissed”. Whether the Applicant was constructively dismissed can only be determined after a hearing in which evidence is tested. While I have taken this criterion into account, I have adopted a neutral position as to its “weight” on whether time should be extended to file the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[25] It would appear that this criterion is not a relevant consideration. To the extent it is relevant, I have adopted a neutral position with respect to this criterion.

CONCLUSION

[26] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Mr Pereira filing his application. Accordingly, the application must be dismissed. An Order to this effect will be issued jointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 26 March 2014.

Employer: 26 March and 9 April 2014.

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