Mr Perrin LeFebour v Prow Pty Ltd T/A Club Bay View

[2015] FWC 50

[2015] FWC 50

FAIR WORK COMMISSION

DECISION

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

Mr Perrin LeFebour
v
Prow Pty Ltd T/A Club Bay View
(U2014/199)

COMMISSIONER CLOGHAN PERTH, 16 JANUARY 2015

Application for relief from unfair dismissal - jurisdictional objection - out of time - jurisdictional objection dismissed - exceptional circumstances.

[1] On 24 January 2014, Mr LeFebour (Mr LeFebour or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Prow Pty Ltd T/A Club Bay View (Employer).

[2] Mr LeFebour alleges that he was dismissed by Prow Pty Ltd T/A Club Bay View on 13 January 2014.

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

[4] In response to the application, the Employer asserted that:

• Mr LeFebour’s application was not made within 21 days after the dismissal took effect; and, in any event,



• the Employer is a small business employer and the dismissal was consistent with the Small Business Fair Dismissal Code.

[5] 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) of the FW Act.

[6] The application was unable to be resolved at conciliation and referred to me for arbitration on 1 April 2014.

[7] To determine whether Mr LeFebour’s application was made within 21 days after the dismissal took effect, it is necessary to determine the date of his dismissal in the first instance. Having determined the date of the dismissal, it is necessary, if the application is beyond the statutory timeline of 21 days after the dismissal took effect, to consider whether there are exceptional circumstances to allow the application to be filed on 24 January 2014.

[8] To resolve the question of the date of dismissal and, if necessary, whether there are exceptional circumstances, I issued Directions to the parties on 3 April 2014. I advised the parties that I intended to determine the first dot point in paragraph [4] above, by way of written submissions.

[9] On 11 July 2014, I advised the parties that, due to the contested facts as set out in the respective submissions and statements, I was unable to determine the date of the Applicant’s dismissal, and consequently, whether the application was made within 21 days after the dismissal took effect.

[10] On the same date, 11 July 2014, for reasons of efficiency, I advised the parties that I would hold a hearing into whether the application was filed beyond the statutory timeline and the substantial merits of the Applicant’s case in one hearing on 4 August 2014. I also advised the parties that I would hold a conciliation conference on 1 August 2014.

[11] On 18 July 2014, Dr Sainken, for the Employer, advised the Commission that he was in the United States and not available to attend on the scheduled dates. Dr Sainken asserted that, if the dates were not amended, the Employer would suffer due to being unrepresented at the hearing. In addition, Dr Sainken submitted that the issue of whether the application was made within the statutory timeline, should be heard and determined, before the merits of the application were considered.

[12] In view of Dr Sainken’s request, the conciliation conference and hearing were postponed.

[13] On 31 July 2014, Mr Heathcote, the Applicant’s representative, advised the Commission that he had been advised by Mr Richard Clark that he was now taking responsibility for the Employer’s defence of the application. A copy of Mr Heathcote’s email was forwarded to Mr Clark and Dr Sainken.

[14] On 20 August 2014, I held a conference of the parties in which the Applicant, Mr Heathcote and Mr Clark attended. Discussions between the parties failed to resolve Mr LeFebour’s application.

[15] On 2 September 2014, I issued further Directions which relevantly state that:

• the essential issue for determination is the date of the Applicant’s dismissal; and



• the parties have agreed that this issue, and whether there are exceptional circumstances to allow the application to be filed on 24 January 2014, should be determined in the first instance.

[16] The Directions also provided for the Applicant to submit, if he wished, a supplementary statement of facts, witness statements or documentary material in relation to the date of the dismissal, and whether there are exceptional circumstances, to allow the application to be filed on 24 January 2014.

[17] The Employer was given the opportunity to respond to any supplementary material provided by the Applicant. In addition, the Employer was also provided with the opportunity to provide further supplementary material similar to the Applicant.

[18] The Directions and Notice of Listing, dated 2 and 3 September 2014, respectively advised the parties that a hearing into the Employer’s jurisdictional objection would take place on 26 November 2014.

[19] At the hearing on 26 November 2014, the Applicant was represented by Mr S Heathcote of Counsel. Mr LeFebour gave evidence on his own behalf.

[20] The Employer did not attend the hearing. No communication was received from the Employer why it was unable to attend.

[21] This is my decision and reasons for decision.

RELEVANT LEGISLATIVE FRAMEWORK

[22] 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.”

RELEVANT BACKGROUND

[23] Mr LeFebour commenced employment at the Club Bay View and The Avenue (Club) on 13 August 2012, as its Night Time Operations Manager 1.

[24] The Applicant worked with, and reported to, Mr Daniel Blackley (Mr Blackley was also allegedly a director of the company which owned the Club) 2.

[25] On 2 December 2013, Dr Jon Sainken, another director of the Employer, advised Mr LeFebour that “he had sold the Club”.

[26] On the same day, 2 December 2013, Mr Richard Clark, another director of the Employer, attended the Club and “assumed control and told me [Applicant] that he had bought the Club”. 3

[27] Mr LeFebour carried on working with Mr Clark.

[28] From 5 to 8 December 2013, Mr Clark worked in the Club with Mr LeFebour and Mr Blackley 4.

[29] On 9 December 2013, Mr Clark advised Mr LeFebour and Mr Blackley, that he had to “halve what it was costing to employ us”. 5

[30] Mr Blackley advised Mr LeFebour that he was going to “hand in his notice”. Mr LeFebour understood Mr Blackley was going to cease his employment on 11 December 2013, and that this would achieve the reduction in savings that Mr Clark was seeking. 6

[31] On 12 December 2013, Mr LeFebour attended work for his next rostered shift. Mr Blackley was not in attendance and the Applicant presumed that he had resigned.

[32] On 12 December 2013, Mr Clark informed Mr LeFebour that he was going to run the Club by himself and Mr LeFebour “had to take a couple of weeks so he could decide whether he needed me”. 7

[33] Mr LeFebour enquired as to who would be paying him during the two weeks; Mr Clark advised it would be Dr Sainken.

[34] Mr LeFebour provided the Employer’s laptop computer to Mr Clark and left the Club as instructed.

[35] On 19 December 2013, Mr LeFebour attended the Club to pick up some personal belongings and a soft copy of his employment contract.

[36] Shortly after leaving the Club, Mr LeFebour was telephoned by Dr Sainken who requested to meet with him.

[37] When Dr Sainken and Mr LeFebour met, Dr Sainken had a copy of the Applicant’s contract of employment. Dr Sainken apologised “that it went down like this” and enquired as to Mr LeFebour’s contractual entitlements. 8

[38] After this meeting and prior to 21 January 2014, Mr LeFebour engaged a firm of solicitors to act on his behalf (initial solicitor). On 6 January 2014, the initial solicitor sent a “letter of demand” to Dr Sainken setting out contractual entitlements and asserting that Mr LeFebour’s employment ceased on 2 December 2013. It is this correspondence, and the asserted date that the employment ended on 2 December 2013, that the Employer, in part relies upon for its jurisdictional objection.

[39] On 21 January 2014, Mr LeFebour engaged the services of Mr Heathcote. Mr Heathcote advised the Applicant of the statutory timeline of having to lodge an application within 21 days after the dismissal took effect. Later that day, Mr Heathcote advised Mr LeFebour that he could not find any indication that the Club had been sold. Mr LeFebour instructed Mr Heathcote to file an unfair dismissal application.

[40] The Employer, in submissions and unsigned and unincorporated witness statements, disputes the above background. The hearing on 26 November 2014 was to enable the Employer to put its jurisdictional objections and have them tested. The Employer failed to attend and test the evidence of Mr LeFebour or give evidence on its own behalf. For this reason, the Commission has admitted into proceedings the background set out and given by Mr LeFebour in his evidence.

CONSIDERATION

[41] 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.

[42] 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.

[43] 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”.

[44] The burden lies with Mr LeFebour to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I shall now consider those circumstances as set out by the Applicant within the legislative provisions.

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

[45] Time is of the essence for an employee who alleges that he or she has been unfairly dismissed from their employment.

[46] At the conference in the Commission on 26 August 2014, Mr Clark tabled an unsigned letter dated 11 December 2013 of Mr LeFebour’s termination of employment which relevantly reads:

“I am writing to inform you that effective immediately, your employment with Prow Pty Ltd at Club Bay View and The Avenue has been terminated as a result of my enquiries into the matters discussed with yourself and Daniel regarding misuse of impropriety and missing funds.

This matter will be investigated further and may be referred to other authorities.

Any further information you have which may [be] helpful to our enquiries into the matters discussed would be appreciated.

Sincerely

Richard Clark
Manager For Prow Pty Ltd”

[47] The letter of termination of employment is addressed to Mr LeFebour at the Club and is a summary dismissal of his employment relating to “issues of impropriety and missing funds”.

[48] The Commission presumes that the purpose of the correspondence is to demonstrate that Mr Clark summarily dismissed Mr LeFebour on 11 December 2013.

[49] Mr LeFebour gave uncontested evidence that he had not seen the letter of termination of employment until a couple of days before the Commission conference on 26 August 2014. Until that time, the termination of employment letter had not been provided to the Commission by the Employer. It is surprising that such a significant document could be overlooked.

[50] The Employer’s response to Mr LeFebour’s application states that the Applicant was notified of his dismissal on “Dec 9-10, 2013”.

[51] The Employer’s submission of 8 May 2014, states that Mr LeFebour was dismissed on 2 December 2013 and “he was further informed that any ongoing employment at the Club would be a matter for him and the new Owner...It could not have been any more definite that the existing employment was necessarily at an end”.

[52] However, the Employer’s submission of 8 May 2014 further states that from 5 to 8 December 2013, Mr LeFebour worked with Mr Clark at the Club.

[53] With respect to the Applicant’s evidence that Mr Clark informed him to take two weeks off so he could decide whether he needed him, the Employer’s submission refers me to Mr Clark’s comment. Mr Clark’s comment is:

“I’ve been made aware of Perrin’s claim that I told him to take 2 weeks holiday at Jon’s expense and deny this emphatically. The only mention of a time-frame was me making a loosely worded offer to reconsider the position further after I’d handled the Club alone for a week or two.”

[54] At this point, I am unable to reconcile why Mr Clark, the Employer’s Manager, would summarily dismiss the Applicant on 11 December 2013 because of a significant financial irregularity, and on the following day, 12 December 2013, state that he would reconsider Mr LeFebour’s position after he “handled the Club alone for a week or two”.

[55] Finally, Dr Sainken provides the following statement:

“Perrin [Mr LeFebour] and I engaged in active discussion about these matters from mid-December 2013 through January 6, 2014.

On January 6, 2014 I received letters from solicitors acting for Perrin...

Concurrently with the above events...[significant financial irregularities]

Upon consulting Perrin’s employment agreement I found that it contained a serious misconduct provision. I decided that the wording of this provision allowed me to fairly invoke it. It did not use the term Summary Dismissal...

...at the time [I] relied on the fact that the mater (sic) had been or was about to be reported to the Police...”

[56] The dates of the text message are 20 December 2013 to 6 January 2014.

[57] In response to the Applicant’s submission that “until 13 January 2014, that he hadn’t been given any written notification that he had been dismissed”, the Employer states “Disputed: not exceptional”. As I have stated, time is of the essence to employees who allege that they have been unfairly dismissed. In this respect, I refer to s.117(1) of the FW Act.

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

[58] The Applicant formally became aware of his dismissal and the reasons for his dismissal when a copy of his letter of termination was provided to him in the days leading up to a conference in the Commission on 26 August 2014. Up until that time, the Applicant was speculating on the date of his dismissal advanced by the Employer following various discussions, legal representation on his behalf and responses from the Employer.

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

[59] The Applicant sought legal advice on 16 December 2013. On 20 December 2013, Mr LeFebour provided documentation to his legal representative concerning his dismissal. On 23 or 24 December 2013 and 3 January 2014, the Applicant’s parents followed up Mr LeFebour’s concerns regarding his dismissal with his legal representative.

[60] On 6 January 2014, the Applicant’s legal representative communicated with the Employer regarding the dismissal. On 13 January 2014, Dr Sainken responded on behalf of the Employer.

[61] On 21 January 2014, Mr LeFebour engaged different legal representation. On 22 January 2014, Mr LeFebour met with his legal representative. On 22 January 2014, the Applicant requested Mr Heathcote file an application alleging unfair dismissal. This application was filed on 23 January 2014.

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

[62] The Applicant contends that the Employer suffers no prejudice from the delay in filing the application.

[63] The Employer disputes the Applicant’s submission and asserts that its “financial position has further deteriorated [and] the Employer’s ability to find time and resources to defend the action and/or pay the amounts due has diminished. The Employer is being unfairly harassed in this matter...”

[64] The Employer’s response is not the test regarding prejudice. However, lack of prejudice suffered by the Employer is not, of itself, a satisfier of exceptional circumstances. I have adopted a neutral position with respect to this criterion.

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

[65] The Applicant states that he “has a strong case”. The Employer responds, among various assertions that, “there is no good case for Unfair Dismissal”.

[66] Whether Mr LeFebour was unfairly dismissed, particularly given the nature of the reasons given by the Employer for his dismissal, can only properly be determined after a hearing in which evidence is tested. While I have taken this criteria 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

[67] The Applicant states that there are no other persons in a similar position and accordingly, it is irrelevant to my considerations. The Employer asserts that two other employees were “let go” in similar circumstances. The Commission has not been provided with documentation to demonstrate that these employees were summarily dismissed regarding issues of “impropriety and missing funds” as set out in Mr LeFebour’s letter of termination of employment.

[68] To the extent it is relevant, I have adopted a neutral position with respect to this criterion.

CONCLUSION

[69] There is no dispute between the parties that Mr LeFebour has been dismissed by the Employer. Mr LeFebour alleges that he had been unfairly dismissed and seeks a remedy for alleged unfairness of his dismissal.

[70] The Employer has raised the jurisdictional objection that Mr LeFebour’s application has not been made within 21 days after the dismissal took effect. However, the Employer did not prosecute its jurisdictional objection on 26 November 2014 when it sought and was given the opportunity to do so.

[71] A number of dates have been put forward as to when Mr LeFebour was dismissed. They are 2 December, 9 and 10 December, 11 December 2013 and 6 January 2014. These dates have been the subject of robust disputation.

[72] Pursuant to s.394 of the FW Act, the burden lies with the Applicant to satisfy the Commission that there are exceptional circumstances to allow the application to be filed more than 21 days after the dismissal took effect. The best evidence I have of the Applicant’s dismissal, is the Employer’s letter of termination of employment dated 11 December 2013; all the other dates are contested. I have evidence from the Applicant that he did not see the letter of termination of employment until a couple of days before the Commission conference on 26 August 2014. In these circumstances, it would be plainly wrong to say that there were not exceptional circumstances and valid reasons for the delay in filing the application.

[73] In conclusion, for the reasons set out above, I am satisfied, pursuant to paragraph 394(2)(b) of the FW Act, that exceptional circumstances existed which led to a delay in the Applicant filing his application beyond the statutory timeline of 21 days after the dismissal took effect.

[74] Having determined that there were exceptional circumstances for the delay in filing the application, my Associate will contact the parties for a conference to program directions for a hearing into the substantive merits of Mr LeFebour’s application.

COMMISSIONER

Appearances:

S Heathcote, of Counsel, for the Applicant.

No appearance by the Employer.

Hearing details:

2014:

Perth,

26 November.

 1   Exhibit A5

 2   Exhibit A5

 3   Exhibit A5

 4   Exhibit A5

 5   Exhibit A5

 6   Exhibit A5

 7   Exhibit A5

 8   Exhibit A5

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