Mr Neil Fischer v The Personnel Group Limited

[2013] FWC 7709

[2013] FWC 7709

FAIR WORK COMMISSION

DECISION

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

Mr Neil Fischer
v
The Personnel Group Limited
(U2013/10497)

COMMISSIONER CARGILL SYDNEY, 8 OCTOBER 2013

Termination of Employment - extension of time.

[1] This decision arises from an application by Mr N Fischer (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of the termination of his employment by The Personnel Group Limited (the respondent). The application has been made outside the statutory time limit. The respondent objects to the time being extended.

[2] Directions were issued for the filing of written material in relation to the question of whether the time for lodgement should be extended. Both parties complied with those directions. The matter was heard in Wodonga on 25 September 2013. The applicant represented himself and the respondent was represented by Mr Corrigan, a paid agent. I gave permission for such representation pursuant to section 596(2)(a) of the Act.

[3] The applicant gave sworn evidence and was cross-examined on that evidence. The following brief summary of facts and evidence is drawn from that testimony and the written material provided by the parties.

FACTS AND EVIDENCE

[4] The respondent is an organisation which assists job seekers with disabilities. The applicant commenced his employment with the respondent in March 2011. There is a difference between the parties as to the basis of the employment. The respondent submits that the applicant was engaged as a casual employee. The applicant’s case is that he should have been employed on a permanent part-time basis. Whatever the position, it is not an issue for this decision.

[5] The applicant carried out his duties at the Australia Post centre in Wodonga. He was engaged in sorting mail and other related tasks. On 9 April 2013 there was an incident between the applicant and another Australia Post contractor. It is alleged that the applicant verbally abused the other contractor and a witness to the encounter. The applicant agrees that he made inappropriate comments to the other contractor. He apologises for the comments and states that he was provoked by the contractor.

[6] The respondent says that the applicant was stood down on 10 April pending a disciplinary process. The applicant says that he was “sacked” that day and was told that Australia Post had revoked his security clearance into its building. The applicant agrees that the termination of his employment did not occur until 30 April. He also agrees that he was paid for the period 10 to 30 April but contends that it was not the correct amount. Again, that is not an issue for this decision.

[7] Several meetings were held between representatives of the respondent and the applicant and his representative, an independent workplace advocate. The process culminated in a meeting on 30 April when the applicant was informed that his conduct was unacceptable and that the employment relationship could not continue. A letter to the applicant dated 29 April which conveys the same information is contained in the respondent’s material although it is unclear when or how this was given to the applicant, if at all.

[8] On 2 May 2013 Australia Post issued an Improvement Notice and Direction to Remove Personnel. Among other things the notice informed the respondent that the applicant’s access to Australia Post’s computer systems and premises had been cancelled. It also directed the respondent to permanently remove the applicant from carrying out services under the respondent’s contract with Australia Post.

[9] The applicant’s evidence is that he was incapacitated between 10 April and 16 June. He testified that, during that period, he was in and out of hospital and other medical facilities for stress and heart tests and was also being treated for depression. The applicant was not hospitalised overnight. He testified that he attended for medical tests and appointments on three dates, 6 May, 21 May and 6 June, Exhibit Applicant 1. The applicant also provided a Workcover Certificate of Capacity dated 16 April 2013 which diagnosed depression with anxiety.

[10] The applicant’s evidence is that, after the termination of his employment, his representative told him that he should lodge a claim with the Fair Work Commission (FWC). He testified that he knew that there was a 21 day time frame and also testified that if his representative had lodged the claim it would have been in time or even early. However he stated that he then had a falling out with his representative and did not know what he should do to make a claim.

[11] The applicant’s claim was lodged on 13 June 2013. That is 23 days outside the time limit if the date of dismissal is 30 April or 43 days if the date of dismissal is 10 April.

APPLICANT’S SUBMISSIONS

[12] The applicant submitted that there were two reasons for the delay in the lodgement of his claim. The first was his medical incapacity. The second reason was his reliance on his representative to file the claim and, subsequent to their falling out, his lack of knowledge of the process of lodgement. In a covering letter to his original claim the applicant also stated that the delay was partly due to an absence of paperwork from the respondent. However during the hearing he indicated that was not the case and was not a reason for the delay.

[13] The applicant submitted that there would be no prejudice or inconvenience to the respondent if the time was extended. He submitted that all of the witnesses to the incident were still employed and would be available to give evidence.

[14] The applicant submitted that his claim had merit. The entire incident on 9 April had been caused by the actions of the other contractor who was still engaged on the site. He was the only person who had been dismissed.

[15] The applicant also submitted that there were several flaws in the process which had led to his dismissal. These included, the failure to have an independent investigation into the incident, the failure to inform him that he had a right to an internal appeal, the failure to provide him with a written warning or letter of dismissal, the respondent’s reliance on statements which were not signed or contained other flaws and the fact that one of the respondent’s employees had lied.

[16] The applicant also made submissions relating to the issues of the nature of his employment and the alleged underpayment during the period 10 to 30 April 2013.

RESPONDENT’S SUBMISSIONS

[17] The respondent submitted that the applicant had not provided an acceptable reason for the delay in lodgement. The original medical certificate does not cover any of the period after the termination of the applicant’s employment. The other certificates at Exhibit Applicant 1 do not support the applicant’s submission that he was completely incapacitated.

[18] The respondent submitted that the applicant’s reliance on representative error had not been raised prior to the hearing and was not supported by any evidence. It submitted that no weight should be given to the applicant’s submissions on this point.

[19] The respondent submitted that the applicant took no action to contest the dismissal other than lodging this claim. It noted that, despite the applicant stating that he had been sacked on 10 April, he continued to attend each of the meetings until the termination.

[20] The respondent submitted that, as a not for profit organisation, it would be prejudiced by any extension of time as it would cause unnecessary costs and have an adverse impact of requiring staff to be absent from the business in order to attend any hearings.

[21] The respondent submitted that the merits of the claim had not been tested and should be a neutral fact in my consideration. The respondent also submitted that, if an extension of time was granted where no reasonable explanation had been provided for the delay, it would render the statutory time limit meaningless. It noted that the applicant had been aware of the time limit and his right to bring a claim.

[22] The respondent referred to and relied on the following decisions: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298; Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 (Cheval Properties); and Brisbane South Regional Health Authority v Taylor [1996] HCA 25.

CONCLUSIONS

[23] Section 394(3) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period FWC allows under subsection (3). That subsection is in the following terms:

“(3) FWC may allow a further period for the application to be made by a person under subsection (1) if 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.”

[24] The Full Bench in Cheval Properties made the following comment in relation to the meaning of the word “exceptional” in section 394(3):

“[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.”

[25] I have adopted and followed the approach of the Full Bench in this decision.

[26] Before addressing the factors in section 394(3) it is necessary to deal with the issue of the date of the applicant’s dismissal. As indicated earlier the applicant’s position is that, although the termination of his employment occurred on 30 April 2013, he had been sacked on 10 April.

[27] I have no reason to disbelieve the applicant’s evidence that someone informed him on 10 April that he had been sacked. However it is clear that, in reality, that was not the case. Between that day and 30 April the applicant and his then representative engaged in a series of meetings with the respondent about the incident on 9 April. Although the applicant contests the amount of payment he received from the respondent during that period, he agrees that he was paid. The earnings history report which is part of the applicant’s written materials also reflects this.

[28] Consequently I find that the date on which the applicant’s dismissal took effect is 30 April 2013. It follows that the application was lodged 23 days out of time. I now return to the factors in section 394(3).

[29] The applicant has advanced two reasons for the delay in making his claim. The first is his medical incapacity. The Certificate of Capacity dated 16 April 2013 relates to a period prior to the dismissal and therefore cannot provide the basis for any of the delay. The medical evidence at Exhibit Applicant 1 and confirmed in the applicant’s oral evidence is that he attended medical practitioners on 6 May, 21 May and 6 June. Even allowing for some recovery period after the tests which were conducted on 6 and 21 May, the evidence does not support the applicant being medically incapacitated for an extended time or explain the whole of the delay.

[30] The second reason for the delay relates to the applicant’s representative. Representative error has been found to be the basis for an extension of time under this and previous legislative provisions. However in this matter it is not representative error that is relied upon. Rather, the applicant thought his representative would lodge the claim. They then had a falling out. The applicant was aware of the 21 day time limit but did not know how to go about making his claim. Unfortunately, there is nothing exceptional or unusual in this circumstance.

[31] The applicant became aware of the termination of his employment on 30 April, the date on which it took effect.

[32] The applicant took no action to dispute his dismissal other than by lodging this claim.

[33] I accept that the respondent will suffer some prejudice if the time is extended.

[34] There is insufficient material before me on which I could form any concluded views in relation to the merits of the substantive application. In the circumstances I am prepared to accept that it is not without merit.

[35] I have taken account of the respondent’s submission concerning the issue of fairness as between the applicant and others in a similar position. I consider this factor to be neutral in my decision making.

[36] After having taken account of each of the factors set out in paragraphs (a) to (f) of section 394(3) I have determined that I am not satisfied that there are exceptional circumstances in this case which would justify the exercise of my discretion to extend the time for lodgement.

[37] Consequently, the applicant’s claim is dismissed. An order reflecting this is issued at the same time as this decision.

COMMISSIONER

Appearances:

N. Fischer, applicant on his own behalf.

M. Corrigan on behalf of The Personnel Group Limited with N. Black.

Hearing details:

2013:

Wodonga:

September 25.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR542817>