Mr Paul Raymond v Clark Rubber Pty Ltd
[2024] FWC 827
•2 APRIL 2024
| [2024] FWC 827 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Paul Raymond
v
Clark Rubber Pty Ltd
(U2024/1888)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 2 APRIL 2024 |
Application for an unfair dismissal remedy – extension of time – store robbery – dismissal – applicant awaiting outcome of police investigation – stress and depression – whether exceptional circumstances – extension refused – application dismissed
On 21 February 2024 Paul Raymond (Mr Raymond or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy in relation to a dismissal by Clark Rubber Pty Ltd t/as Clark Rubber Kent Town (Clark Rubber, the respondent or the employer) which took effect on 13 January 2022.[1]
The application is seven hundred and forty eight days outside the statutory 21-day period for making unfair dismissal claims. Mr Raymond seeks an extension of time. Clark Rubber oppose an extension.
This decision determines whether an extension of time should be granted.
I issued directions on 15 March 2024.
I heard the extension of time issue (by video) on 26 March 2024.
Mr Raymond and Clark Rubber were self-represented; Clark Rubber by their National Operations Manager Mr Smulders. I heard evidence from Mr Raymond.
The facts are largely not in dispute.
Facts
Clark Rubber is a retail business operating nationwide.
Mr Raymond was employed as Store Manager of the Kent Town store in suburban Adelaide.
As store manager, Mr Raymond was responsible for adherence to Clark Rubber policies concerning cash handling and cash banking.
A robbery occurred at the store in the early hours of 12 January 2022. A safe and an amount of cash were stolen. The South Australian police (SAPOL) attended and commenced an investigation.
Mr Raymond was dismissed summarily by written notice the following day, 13 January 2022, for failure to comply with polices and instructions concerning cash handling, cash banking and related matters.[2]
According to Mr Raymond, approximately two days after dismissal SAPOL attended his private residence and, as part of the investigation, took possession of certain personal property he had on hand.
Also according to Mr Raymond, approximately a week later he (Mr Raymond) spoke to Clark Rubber and questioned why he had not been paid what he considered his full entitlements on termination. Clark Rubber rejected any liability for further payments.
Approximately two weeks after dismissal Mr Raymond moved out of his rental property and moved in with family members due to having lost his job and financial pressures.
In approximately April 2022 Mr Raymond secured employment in the mining sector and moved to Kalgoorlie, Western Australia.
After some nine months, in approximately January 2023 Mr Raymond ceased employment in the mining sector and returned to South Australia and continued to live with family.
Mr Raymond sought alternative employment.
In the first half of 2023 Mr Raymond undertook a four week training programme with a prospective employer. However, with the SAPOL investigation into the robbery still continuing, he was unable to obtain a required police clearance and could not commence the prospective employment.
Mr Raymond secured other employment in the following months. He also enrolled in two training courses for qualification as a dogman and a rigger in the construction sector. According to Mr Raymond, each training programme occupied approximately three weeks of full time study.
On 13 September 2023 Mr Raymond was telephoned by a detective from SAPOL who was involved in investigating the store robbery. Mr Raymond was informed that the investigation had concluded and that he was able to collect property seized. The SAPOL detective followed up that day with two emails to Mr Raymond and a letter confirming arrangements for the return of the property.[3]
According to Mr Raymond’s evidence, he understood from the telephone call and emails with SAPOL on 13 September 2023 that:
the police investigation had been completed;
he would not face any charges; and
he could reclaim his property.
Prior to this, and apart from the occasional call he (Mr Raymond) made to SAPOL in the twenty months February 2022 to September 2023, Mr Raymond had no other contact from SAPOL about the status of the investigation or whether he was a suspect or would be charged until the communication on 13 September 2023.
Mr Raymond collected his property from SAPOL in the days immediately following 13 September 2023.
In the period following 13 September 2023 Mr Raymond continued to live in family premises, undertook some paid employment and completed the aforementioned training courses.
In this period Mr Raymond had access to the internet and commenced researching his rights to claim monies from Clark Rubber that he considered he was owed.
In the first week of February 2024 Mr Raymond decided to take action to advance his employment rights against Clark Rubber. His research had informed him that he could obtain assistance from the Fair Work Ombudsman (FWO) in relation to monies believed to be owed. In that first week of February 2024 Mr Raymond travelled to the FWO office in Adelaide to discuss steps he wished to take. The FWO had no shopfront open. Mr Raymond then walked to the Fair Work Commission offices in Adelaide.
At the Commission registry counter, Mr Raymond spoke to a client services officer who provided Mr Raymond with a copy of an unfair dismissal form and informed Mr Raymond that unfair dismissal claims had to be filed within 21 days of dismissal, that he was out of time, and would need to seek an extension of time if he was to make a claim.
Mr Raymond decided to make a claim. Over the following week Mr Raymond populated the form by hand and dated it 10 February 2024. In the application form he applied for an extension of time as follows:[4]
“I was managing that store and it was robbed. I was then blamed, investigated by police which has ended in Nov 2023. Proven innocent. I could not do a thing.”
In his evidence, Mr Raymond indicated that the reference to “Nov 2023” was in error and should have read September 2023.
Mr Raymond gave the application to his mother to send to the Commission.
In the period between giving the competed application to his mother (on or about 10 February 2024) and it being filed in the Commission (21 February 2024) Mr Raymond’s father fell ill. This, according to Mr Raymond’s evidence, impeded the immediate filing by his mother.
The application was filed by email sent to the Commission by Mr Raymond’s mother on 21 February 2024.[5]
Consideration
Unfair dismissal applications are required to be filed within twenty-one days of a dismissal taking effect. However, s 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[6]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[7] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[8]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[9]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[10]
It is not in dispute that Mr Raymond’s application is seven hundred and forty eight days out of time.
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[11] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[12]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[13]
The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[14]
The delay period commenced from 4 February 2022 (21 days after dismissal). The delay period can be conveniently divided into three sub-periods:
the period the police investigation was active insofar as it concerned Mr Raymond (4 February 2022 to 13 September 2023 inclusive) (nineteen months);
the period between Mr Raymond not being subject to police investigation and completing the unfair dismissal application form (14 September 2023 to 10 February 2024 inclusive) (five months); and
the period between completing the unfair dismissal application and it being filed (11 February 2024 to 21 February 2024 inclusive) (eleven days).
In his application and submissions, Mr Raymond states two reasons for the delay:
the police investigation into the store robbery that did not conclude until 13 September 2023; and
stress and depression created by the dismissal and the police investigation, and their lingering effects.
Do either of these explanations individually or collectively constitute an acceptable reason for the delay as a whole or parts of it?
Police investigation
A police investigation into the store robbery commenced on the day of the robbery (13 January 2022). It did not conclude (at least insofar as it concerned Mr Raymond) until twenty months later on 13 September 2023 when Mr Raymond understood from the investigating detective that he would not be charged and was informed that he could collect personal effects which had been seized.
Thus, throughout the first period of delay Mr Raymond was unsure whether he would be charged with matters associated with the robbery.
The lengthy delay in Mr Raymond being ‘cleared’ by the police authorities no doubt created stress and anxiety (considered below). That aside, that a former employee is the subject of a prolonged police investigation into a potential criminal matter connected to his former workplace may but does not necessarily explain a delay in filing an unfair dismissal claim.
Though a factual link (the robbery) existed between the dismissal and the police investigation, Mr Raymond was dismissed, as store manager, for an alleged failure to abide by Clark Rubber’s cash management and related polices. His employer did not allege that Mr Raymond was dismissed for participation in the robbery or commission of an offence relating thereto. That was left to the police investigation.
Mr Raymond could have but elected not to press his industrial interests in the weeks following dismissal and in this first nineteen month period of delay, whether those interests concerned the dismissal or the more limited issue of the correctness of payments made by Clark Rubber on dismissal. The evidence is that in this period Mr Raymond moved out of rental accommodation, moved interstate, procured employment in the mining sector, applied for other employment and undertook training for other employment.
On the evidence before me, it does not appear to be the case that Mr Raymond was unable to apply for unfair dismissal. Rather, he chose not to do so because the outcome of the police investigation was unknown. Is this a reasonable explanation?
Given that unfair dismissal proceedings are civil not criminal, given that Mr Raymond was dismissed for alleged policy breaches and not an allegation of criminal conduct, and given that during this period he was, at its highest, a subject of investigation but not subject to or advised of any impending charge or criminal proceedings, the mere fact of a police investigation of the robbery, that may or may not have resulted in charges against Mr Raymond, only somewhat explains, but not reasonably so, the delay over this nineteen month period.
I now turn to the second period of delay. Even if the police investigation had reasonably explained the first period of delay, it did not do so in the five month period that followed.
In this second period Mr Raymond was not at risk of charges or compromising potential criminal rights by having an active unfair dismissal claim on foot. Rather, his explanation for the delay in this period is stress and adverse impacts on him (considered below) and undertaking a training programme.
That Mr Raymond completed two three-week training programmes to be certified as a dogman and a rigger does not reasonably explain the delay. Study or employment in a period after dismissal, whether full time or not, does not reasonably explain a delay in claiming unfair dismissal. In any event, Mr Raymond was not, according to his evidence, studying in the months of December 2023 and January 2024.
In the five months September 2023 to February 2024 Mr Raymond had access to the internet and capacity to inform himself of his industrial rights. At its highest, the evidence is that he did a limited amount of research but took no active steps to press those rights until the first week of February 2024.
Nor is it evident that Mr Raymond was, to the extent he sought information about his industrial rights, considering making an unfair dismissal claim. His evidence was that he was primarily interested in claiming sums he believed due on termination.
The second period of delay (16 September 2023 to 10 February 2024) is not reasonably explained by the police investigation or otherwise.
The period of delay that is reasonably explained is the third period – the eleven day period from the application being completed and being filed. Although have I have no more than Mr Raymond’s evidence, it is plausible that the delay was caused by his mother being understandably preoccupied by her husband’s ill health.
Stress and depression
Mr Raymond submits that the shock of the dismissal, robbery, risk of police charges, confiscation of personal property and sense of being blamed (directly or indirectly) for the robbery or cash losses caused him stress and depression which continued for two years up until he sought to assert his workplace rights in the first week of February 2024. In the words of Mr Raymond “I could not do a thing”[15], “the actions of Clark Rubber completely turned my life upside down”[16], “it will take me some time to get my life back on track”[17] and “my life had been completely disrupted by the police investigation”[18].
Mr Raymond led no evidence of health impacts or the extent to which any health and wellbeing impacts effected his capacity to function or file proceedings.
Despite this, it is plausible that a person in Mr Raymond’s position would be shocked and adversely effected by the combination of these circumstances, and that this shock and upset may lead to depression beyond that normally experienced by a dismissed employee. I take this fully into account.
However, three factors diminish the force of this consideration.
Firstly, whilst it is not essential that an applicant for an extension of time leads evidence from medical professionals, the absence of evidence from a health expert makes it difficult to draw specific conclusions as to the nature or intensity of any adverse health impacts.[19] This is particularly so in this matter given the potential for such impacts to wax and wane over a prolonged period of time.
Secondly, a material component of Mr Raymond’s stress and anxiety was the worry that police charges may be laid. However, after 13 September 2023 Mr Raymond was, on the face of it, allayed of that concern. I do not find convincing Mr Raymond’s written submission that it took him months after 13 September 2023 to “understand that this meant that the matter would not be taken any further”.[20] His evidence at the hearing was that he understood on 13 September 2023 that the police investigation was closed insofar as it concerned him and that he would not be charged. Hence, in the five months prior to filing, a material cause of stress and worry had somewhat dissipated. In the absence of evidence from a health expert I am unable to conclude that Mr Raymond was unable to process that fact during this period.
Thirdly, there is no evidence that the stresses and worries which understandably concerned Mr Raymond were such that they rendered him incapable of pressing his workplace rights by filing an application. As noted, Mr Raymond was able even prior to this second period to apply for jobs, search the internet, undertake training and move interstate and back. Although worried and stressed about what had happened and the difficult position the robbery and dismissal placed him in, Mr Raymond was able to get on with at least the basic routines of life. In the absence of evidence from a health expert I am unable to conclude that there was a relevant impairment to making a claim.
The stress and anxiety caused by the dismissal, the prolonged police investigation and related matters such as the seizure of property somewhat, but only somewhat, explains the delay during the first period of delay, but do not materially do so during the second or third periods. The third period is otherwise reasonably explained.
Considered overall, the reason for the two year delay until early February 2024 is only somewhat explained by the police investigation and its impacts, but not the five month period that followed. The eleven day period of delay before filing is reasonably explained.
The absence of a reasonable explanation over the two year period, except for the final eleven days, weighs against a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Mr Raymond was aware that he was dismissed with immediate effect on 13 January 2022.
Mr Raymond was also aware of the reason.
In the circumstances, this is a neutral factor.
Action taken to dispute dismissal (s 394(3)(c))
At its highest, Mr Raymond made the employer aware two weeks after dismissal that he was in dispute over monies paid on termination.
Although Mr Raymond may not have made it expressly clear at the time that he also considered the dismissal unfair, given the heightened state of Mr Raymond and the employer arising from a robbery and police investigation, I do not count it against Mr Raymond that he may not have made this expressly known.
Considered overall, this is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
Clark Rubber would incur time and effort in responding to an unfair dismissal claim. It submits that it would sustain prejudice given the very prolonged period of delay.
There is some limited force in the submission that a delay of two years in making a claim has a unique element in that it is likely to have some prejudicial impact on the quality of evidence to be led associated with the dismissal events. However, in this matter that consideration should not be overstated given that this was a policy based dismissal, and given that Mr Smulders, the National Operations Manager who signed off on the dismissal, remains employed and represented Clark Rubber in this hearing.
That said, even the absence of prejudice would not of itself be a reason to grant an extension.[21]
In the circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
The merits of Mr Raymond’s unfair dismissal application appear to concern whether his cash handling practices accorded with polices, instructions and representations made to Clark Rubber in the period prior to the store robbery.
Not having heard evidence on these issues, it is not safe to express a provisional view on the merits.
In this matter, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
This issue does not arise in this matter.
Conclusion
The seven hundred and forty eight day period of delay is significant particularly in the context of a twenty-one day statutory time limit.
It is somewhat unusual that a dismissed employee becomes the subject of a prolonged police investigation following dismissal, and that the investigation concerns or raises matters that are directly or indirectly connected to the dismissal events.
However, considered overall the explanations for the delay, and in particular the lengthy period of delay after the conclusion of the police investigation (18 September 2023) until Mr Raymond took action to assert his rights (the first week of February 2024), are not reasonably explained.
Taking all factors into account, I do not find exceptional circumstances to exist warranting an extension of the time for late lodgement.
Disposition
There being no exceptional circumstances, the time for lodgement of application U2024/1888 cannot be extended.
By way of concluding comment, I observe that to the extent that Mr Raymond seeks, via this application, to claim monies he believes are owed on termination, rights exist to take proceedings for such sums independent of unfair dismissal applications. Those are matters on which Mr Raymond may wish to take independent advice.
Being out of time, the unfair dismissal application must be dismissed.
An order[22] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
P. Raymond, on his own behalf
D. Smulders, of Clark Rubber Pty Ltd.
Hearing details:
2024.
26 March
[1] The application stated dismissal was notified and took effect on 2 February 2022; it was an agreed fact at the hearing that dismissal took effect on 13 January 2022
[2] A1
[3] A2 and A3
[4] A4 item 1.6
[5] A5
[6] Smith v Canning Division of General Practice[2009] AIRC 959
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21]
[8] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[9] [2011] FWAFB 975, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251, [5]
[10] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954, [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167, [6]
[11] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [30] and [36]
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, [35]-[45]
[13] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[14] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[15] A4 item 1.6
[16] A6 point 7
[17] A6 point 3
[18] A5 point 6
[19] Artery v Gavin Case Marine Services[2021] FWC 4367, [25]; Rosso v Teddy Bear Cottage Early Childhood Services Pty Ltd[2022] FWC 189, [21]; Keith Long v Keolis Downer t/as Yarra Trams [2018] FWCFB 4109, [36]
[20] A7 point 2
[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
[22] PR772921
Printed by authority of the Commonwealth Government Printer
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