Mr Peter McKenzie v Kartaway (Qld) Pty Ltd T/A Kartaway Miniskips Queensland

[2013] FWC 544

[2013] FWC 544

FAIR WORK COMMISSION

DECISION

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

Mr Peter McKenzie
v
Kartaway (QLD) Pty Ltd T/A Kartaway Miniskips Queensland
(U2012/14687)

COMMISSIONER SPENCER BRISBANE, 12 MARCH 2013

Unfair dismissal application - jurisdiction - extension of time.

Introduction

[1] This decision relates to an application made by Mr Peter Campbell McKenzie (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on the basis that the termination of his employment from Kartaway (QLD) Pty Ltd T/A Kartaway Miniskips Queensland (the Respondent/Kartaway) was harsh, unjust and unreasonable. The Applicant submitted that the dismissal related to performance issues and various incidents.

[2] In accordance with s.394(2) of the Act, as it then was, the application for relief must be made within 14 days after the dismissal took effect. The parties agreed that the Applicant’s employment commenced on 25 November 2009 and was terminated on 27 September 2012. The application for unfair dismissal remedy was filed with the Commission on 1 November 2012, 21 days after the then 14 day statutory time limit lapsed on 11 October 2012.

[3] This determination relates to the Respondent’s jurisdictional objection that the application was lodged out of time and whether an extension of time should be granted pursuant to s.394(3) by the Fair Work Commission (FWC or the Commission) to allow the application to proceed.

[4] The matter was listed for conciliation before a Fair Work Australia (as it then was) Conciliator which was unsuccessful. The matter was referred for arbitration of the jurisdictional objection to be dealt with as the threshold issue. The matter was listed and the standard Directions of the Commission were issued. After the close of these submissions the matter was referred to the Commission, as presently constituted, for determination of the jurisdictional point only. After a preliminary review of the material the Commission corresponded to the Parties as to whether a hearing was required or whether the jurisdictional objection could be determined on the papers, on the basis of the material previously filed. Both Partied confirmed, in writing, that the jurisdictional objection could be determined on the papers.

[5] Whilst this decision does not make reference to all of the materials filed in relation to this matter however all of such has been considered.

Relevant Legislative Provisions

“394 Application for unfair dismissal remedy 1

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

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

396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);”

Background

[6] Several factual matters have been in contention between the parties regarding the reasons for termination. However, the current jurisdictional objection centres on the issues related to the delay in filing the application. In order to provide some context, the following is a brief summary of the issues in relation to the s.394 application.

[7] The Applicant commenced work with the Respondent as the Gold Coast Regional Manager on 25 November 2009. On 16 November 2010 the Applicant received a ‘First Official Caution in relation to Performance.’ On 10 August 2012 the Applicant received a ‘Second Warning Letter,’ which specifically addressed an incident involving the use of the Respondent’s bins and contraventions of Policies and Procedures; namely the ethical culture of the workplace, safety, personal conduct and responsibility.

[8] On 27 September 2012, the Applicant received a letter from the Respondent ‘Final Warning letter - Termination of Employment.’

Summary of Submissions for the Applicant - Extension of Time

[9] The Applicant submitted that his employment was terminated by the Respondent on 27 September 2012 and that the date he submitted that the application should have been made was 17 October 2012. The date is in fact 11 October 2012, when the legislation is read on its terms. As the application was made on 1 November 2012, the Applicant contends that his application was 11 “working days” late as per the definition of that term in s12 of the Act.

[10] In regard to the late application, the Applicant submitted that at 7:30pm on 30 September 2012 he received a phone call from his sister, Ms Katrina Robson. During this phone call the Applicant was informed that his stepmother, Ms Norah McKenzie, who was living in an aged care home in Perth, Western Australia, had passed away unexpectedly.

[11] The Applicant contended that this was ‘the end of an era’ for him as he had lost his mother in January 2005 and his father, Harold Campbell McKenzie, in December 2006. The Applicant stated that his stepmother had been a part of his life for 43 years.

[12] The Applicant submitted that this was compounded by continuing troubles with his 19 year old son, who had suffered a workplace accident on 14 August 2012. The Applicant’s son had fallen from a single story roof and broken both wrists and damaged his face including a broken nose.

[13] The Applicant also submitted that he and his wife had to travel to Perth on 7 October 2012 for his stepmother’s funeral on 8 October 2012. They returned home to the Gold Coast on 9 October 2012 at approximately 11:30pm.

[14] The applicant contended that they had to return quickly from Perth as their son was scheduled for doctors and physiotherapy appointments on 11 October 2012. His son required assistance, due to medical issues resulting from his workplace accident, he experienced on 14 August 2013.

[15] The Applicant also submitted that his wife is the registered carer for their son as he has a Speech Language Impairment and Central Auditory Processing Disorder disabilities.

[16] The Applicant contended that it was during this period of time his son complained of continual back pain. This was reported to doctors, who subsequently ordered further testing and x-rays. It was discovered that his son suffered from a compression fracture of his T7 vertebrae of approximately 15%. The Applicant submitted that this was a result from the workplace accident and that it has left his son with a permanent disability.

[17] The Applicant stated in his witness statement, as a further reason for the delay that he was shaken by the news concerning his son’s compression fracture as, it had come ‘on top of a few bad weeks for our family.’

[18] The Applicant contended that these issues demonstrate exceptional circumstances in relation to his lodgement of a late claim.

[19] The Applicant referred to the decision of Mr Paul Trood v Qantas Airways Limited 2, citing the definition of exceptional circumstances, considered in that case and the circumstances during the period after his dismissal.

Summary of Submissions for the Respondent - Extension of Time

[20] The Respondent submitted that the Applicant failed to comply with the standard time limit as per s394(2)(a) of the Fair Work Act 2009 (Cth) and that the Applicant was 21 days late in filing an application for unfair dismissal.

[21] The Respondent further submitted that the Applicant had not provided sufficient reasons or evidence to justify periods in the Applicant’s delay in filing the application outside the mandatory 14 day period. Further, that there has been no evidence of any ignorance of the 14 day time limit on the Applicant’s behalf.

[22] The Respondent referred to Chevel Properties Pty Ltd v Smithers 3 in submitting that the word ‘exceptional’ had the ordinary meaning of “forming an exception based or unusual instance; unusual; extraordinary”4.

[23] The Respondent submitted that the Applicant’s employment was terminated on Thursday, 27 September 2012 and that the Applicant did not receive notice of his stepmother’s death until 7:30pm Sunday, 30 September 2012. It was also submitted that the Applicant did not provide any evidence to suggest that the Applicant was ignorant of the 14 day time limit as prescribed in s394(2)(a) of the Act.

[24] The Respondent contended that the Applicant could have filed his application prior to his stepmother’s death. In doing so the Respondent referred to the decision Geobel v QR Limited 5where the illness and death of the applicant’s stepmother was not established through evidence, as a reason to justify the filing of the application 21 days late.

[25] The Respondent also submitted that whilst the Applicant was notified of his stepmother’s death at 7:30pm on 30 September 2012, he did not fly to Perth until 7:30pm on Sunday 7 October 2012, 7 days later.

[26] The Respondent contended that the Applicant could have filed his application in the aforementioned 7 day period. In asserting this the Respondent cited the case of Cartmell v Evolution Traffic Control P/L 6. In particular the Respondent referred to the facts in that matter, namely that even though the applicant’s grandfather passed away, this was not an exceptional circumstance and that there had been opportunity to file the application prior to the applicant’s grandfather’s death and travelling for the funeral.

[27] The Respondent accepted that it may have been difficult for the Applicant to file their application whilst in Perth from 7 October 2012 until 9 October 2012.

[28] The Respondent submitted that the Applicant had until 11 October 2012 to file the application within the 14 day time limit, which meant that the Applicant could have filed it on Wednesday 10 October 2012 or Thursday 11 October 2012 after the Applicant had returned from Perth.

[29] In regards to the Applicant’s son’s injuries sustained at work on 14 August 2012 the Respondent submitted that the son was over 18 years of age and that the nominated care giver was the Applicant’s wife. The Respondent contended that the Applicant’s son’s condition could not justify the 21 day delay in filing the application.

[30] In support of this contention the Respondent distinguishes the situation from the case of Jansson v Shorefront Enterprises P/L t/a Macelleria 7. In comparison the Applicant’s time was not fully accounted for during the period. He did not have the sole responsibility for organising a funeral, whilst being the primary career of two young children.

[31] The Respondent also submitted that their records showed that on 16 July 2012 the Applicant submitted an application for annual leave for Friday 12 October 2012 until Wednesday 24 October 2012 in order to attend a school reunion in Melbourne. The Respondent referred to the case of Andrews v Concept Eleven P/L t/a B Maclean Haulage 8in submitting that a holiday cannot be taken as an exceptional circumstance to justify an extension of time.

Considerations

[32] Section 394(3) sets out the matters to be taken into account to ascertain whether exceptional circumstances exist in order to extend the period of time for making the s.394 application.

s.394(3)(a) - the reason for the delay

[33] The Applicant submitted that the reason for the delay was that the Applicant’s stepmother died and he had to travel to Perth with his wife for the funeral. It was further argued that this was compounded by various issues relating to his son’s condition and the ramifications of a workplace accident his son sustained in August 2012.

[34] It was submitted by the Applicant that the combination of his stepmother’s death, travelling to Perth for the funeral and subsequent to the funeral and the discovery of his son’s permanent disability amounted to exceptional circumstances. In support of this assertion, the Applicant relied on the definition of exceptional circumstances from Mr Paul Trood v Qantas Airways Limited 9. The definition relied on by the Applicant was as follows;

[69] A considerable body of authority has now been developed within FWA as to the meaning of ‘exceptional circumstances’ in the statutory context of s 394(3) of the Act. Many of the authorities were referred to me by the parties, but one stands out. A Full Bench of FWA in Nulty v Blue Star Group Pty Ltd summarised the meaning of the expression in the following way; albeit in the context of a general protections application:

‘[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.’ (citations omitted)

[35] The reasons for the delay do not correlate with all of the period of the 14 days of the statutory time limit and therefore commensurate reasoning has not been provided with the period of the delay.

s.394(3)(b) -whether the person first became aware of the dismissal after it had taken effect

[36] On the material provided the Applicant was made aware of the termination through the termination letter dated 27 September 2012, which was when the dismissal took effect and therefore no reasoning can be attributed to delay in communicating the dismissal.

s.394(3)(c) - any action taken by the person to dispute the dismissal

[37] On the material before the Commission there is no evidence to suggest that the Applicant took any action between the time of dismissal and the required date of lodgement to pursue an unfair dismissal application. There was also no material submitted, that suggests the Applicant took any action in disputing his dismissal with his employer. Given the Respondent was not put on notice by further action of the Applicant disputing the dismissal, this weighs against the exercise of the discretion in favour of the Applicant.

[38] The Respondent submitted that the Applicant had pre-arranged annual leave during the period of delay. The Applicant has not confirmed such. It has therefore not been taken into account.

s. 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[39] The Respondent did not provide any submissions regarding prejudice to the employer.

s.394(3)(e) -the merits of the application

[40] There were limited submissions made regarding the merits of the matter and whether the Applicant had an arguable case. Accordingly this matter has not influenced the considerations in relation to the extension of time.

s. 394(3)(f) - fairness as between the person and other persons in a like position

[41] No submissions were received referring to other specific persons in a similar position.

Conclusion

[42] Whilst I am sympathetic to the events, the Applicant refers to and it is recognised that the circumstances the Applicant experienced would have caused him distress there are however periods of days in the 14 days legislative timeframe that the events did not correlate with. That is, the aggregate of the reasons provided do not cover the whole period in question. In addition no explanation was provided as to why his application was not filed in these periods.

[43] The timeframe is expected to be met and it is set to provide certainty in dealing with dismissals for both parties.

[44] There were 3 to 4 days from the time of termination until the Applicant received news in the evening regarding his stepmother’s passing, that were not accounted for. No explanation was provided as to why the application was not filed in this initial period.

[45] The Applicant’s son had been injured in a workplace accident on 14 August 2013, more than a month prior to the termination. The reasons for the delay, commensurate with the initial days, are not provided. Nor was there any submission that the Applicant was ignorant of the timeframe. There are further remaining days in which the Applicant could have filed the application. The Applicant did not fly to Perth for the funeral until 7 days after he learnt of the passing of his stepmother. No explanation justifying the delay was provided for this further period. There was available opportunity in these periods to file the application. Leaving aside the period when the Applicant was in Perth, he returned on 9 October 2012. The Applicant had a further 2 days to file the application prior to the 14 day time limit expiring, on 11 October 2012. Whilst he learnt of his son’s injury on return, no medical evidence (apart from submissions on the appointments and condition) was provided of such, or how this totally prevented him from lodging an application. It was also submitted that his wife was his son’s carer.

[46] Accordingly the events, while traumatic, do not equate to “exceptional circumstances” that justified the total delay. For the aforementioned reasons, and after a consideration of the matters pursuant to s.394(3) of the Act, an extension of time is not granted. The application was not filed within time and is therefore is dismissed.

[47] I Order accordingly.

COMMISSIONER

 1   This extract is from the Fair Work Act 2009 (Cth) as it was prior to the incorporation of amendments following passage of the Fair Work Amendment Act 2012 (Cth).

 2   [2012] FWA 9131.

 3   [2010] FWAFB 7251.

 4 Ibid at [5].

 5   [2011] FWA 3711.

 6   [2012] FWA 4750.

 7   [2012] FWA 4651.

 8   [2012] FWA 3406.

 9   [2012] FWA 9131.

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