Mr Mark Lindsay v Seaview Golf Club

[2014] FWC 4097

[2014] FWC 4097

FAIR WORK COMMISSION

DECISION

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

Mr Mark Lindsay
v
Seaview Golf Club
(U2014/1500)

COMMISSIONER CLOGHAN PERTH, 24 JUNE 2014

Application for relief from unfair dismissal.

[1] On 29 April 2014, Mr Mark Lindsay (Mr Lindsay or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Seaview Golf Club (Employer).

[2] Mr Lindsay alleges that he was dismissed by the Employer on 7 April 2014.

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

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 21 days after the dismissal took effect, pursuant to paragraph 394(2)(a) of the FW Act.

[5] Mr Lindsay has not made the application within 21 days after the dismissal took effect. However, the Commission can allow, pursuant to paragraph 394(2)(a) of the FW Act, a further period for the application to be made, that is, 11 February 2014, if it is satisfied that there are exceptional circumstances as set out in s.394(3) of the FW Act.

[6] The relevant legislative provisions are as follows:

“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.

(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.”

[7] To resolve the question of whether there are exceptional circumstances to allow the application to be filed on 29 April 2014, I issued procedural directions to the parties on 8 May 2014 advising that the matter would be determined by written submissions.

CONSIDERATION

[8] 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.

[9] 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.

[10] The burden lies with Mr Lindsay 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?

[11] Mr Lindsay sets out the reasons for the delay in filing the application as, “due to my naivety of the circumstances surrounding the application and not being aware of the timeframe of lodgement of the application”.

[12] In such circumstances, the Commission has adopted, and I do so, the decision of the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 which reads:

“[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

[13] Mr Lindsay’s honesty regarding the circumstances does him credit, however, his lack of knowledge cannot be considered as an exceptional circumstance.

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

[14] Mr Lindsay, in his application and submission, advises that he became of his dismissal on 7 April 2014.

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

[15] Mr Lindsay submits that he queried why he was being dismissed two weeks into an eight week period in which he had to rectify the maintenance and presentation of the golf course.

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

[16] The Applicant asserts there is no prejudice to the Employer. This submission is neither agreed to nor disputed by the Employer. I have adopted a neutral position as to its relevance as to whether there are exceptional circumstances to allow the application to be filed on 29 April 2014.

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

[17] The facts regarding the merits of Mr Linsday’s application are in dispute between the parties. While I have taken this criterion into account, it is only after a hearing, where evidence is tested, that a full appreciation of the merits of the application can be determined. For this reason, 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

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

CONCLUSION

[19] In conclusion, taking into account the criteria in s.394 (3) of the FW Act and my consideration above, I am not satisfied that exceptional circumstances existed to allow Mr Lindsay to file his application beyond the statutory timeline of 21 days. Accordingly, the application must be dismissed. An order to this effect is issued with this decision.

COMMISSIONER

Final written submissions:

Applicant: 18 May and 15 June 2014.

Respondent: 5 June 2014.

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