Mr Rodney Tilley v R & T Partnership Pt Ltd T/A Harcourts Ashmore

[2014] FWC 6028

[2014] FWC 6028

FAIR WORK COMMISSION

DECISION

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

Mr Rodney Tilley
v
R & T Partnership Pt Ltd T/A Harcourts Ashmore
(U2014/6796)

DEPUTY PRESIDENT ASBURY BRISBANE, 1 SEPTEMBER 2014

Application for unfair dismissal remedy - Jurisdiction - Extension of time.

[1] Mr Rodney Tilley applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment by R&T Partnership Pty Ltd t/as Harcourts Ashmore. Mr Tilley states in his Form F2 Application for an unfair dismissal remedy that he was notified of his dismissal on 13 February 2014 and that it took effect on that date. The application was made on 24 April 2014.

[2] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). Mr Tilley’s application was made 49 days outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s.394(3) for the application to be made. That sub-section provides as follows:

(3) The FWC may allow a further period 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

[3] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:

● out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
● involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional. 1

[4] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable. 2 Each of the matters in s.394(3) is considered below.

[5] Directions were issued requiring the parties to file and serve material and statements of evidence upon which they proposed to rely, in relation to the question of whether a further period should be allowed for Mr Tilley to make his application. The parties were also requested to advise my Chambers as to whether they wished to cross-examine with respect to any statements provided by the other party. Both parties have filed and served material including submissions and witness statements. Neither party has indicated that it wishes to cross-examine any person who has made a statement. Accordingly, I have determined this matter on the basis of the material on the file.

[6] Mr Tilley’s material was an email, stating that:

“1/ Until advised by FWO, I was not aware of time limits imposed on ‘unfair dismissal’ proceedings. As soon as I became aware of the 21 day limit, I applied to the FWC.

2/ Apart from the above, I originally applied to FWP to negotiate a financial settlement for monies owing in lieu of notice.

I was advised by FWO that R&T partnership p/l trading as Harcourts Ashmore refused the Conciliation process - this is the way I would have preferred - so consequently FWO could help me no further. Apart from your involvement, my only other avenue of justice is costly private legal action, which will only increase costs.”

[7] The Respondent filed submissions and a statement essentially asserting that Mr Tilley resigned his employment on 13 February and that his application is made 50 days outside the required time. The Respondent also provided an email sent by the Applicant on 24 March 2014 claiming an amount said to be owed to him, and stating that legal action will be commenced if that amount is not paid by 28 March 2014. The email goes on to state that:

“This demand is not regarding an action for unfair dismissal but to recover monies legally owed to me by your company. I reserve the right to instigate unfair dismissal proceedings.”

[8] That Mr Tilley was not aware of the fact that he could make an unfair dismissal application, or that such an application was required to be made with 21 days of his dismissal taking effect, is not an exceptional circumstance. There is also nothing exceptional about the fact that Mr Tilley chose to pursue a claim for amounts he alleges he is owed by the Respondent before deciding to make an unfair dismissal application. It is also the case that Mr Tilley did not make an unfair dismissal application immediately upon the expiration of the date by which he demanded payment of the money he claimed to be owed and instead waited a further 26 days to make such an application.

[9] The Respondent contends that the claimed amount is for notice and annual leave and that the Fair Work Ombudsman advised on 14 April 2014 that it was closing its file in relation to Mr Tilley’s claims and he still took no action to make an application for an unfair dismissal remedy for a further 10 days.

[10] There is no evidence that Mr Tilley was unaware of his dismissal or the date it took effect or that he took any action to dispute the dismissal. That Mr Tilley may have taken some action to pursue amounts he claims to be owed is not action disputing his dismissal. The amount of money Mr Tilley claimed to have been owed in the email of 24 March 2014, is the same amount that is set out in his Form F2 Application for an unfair dismissal remedy. In that application Mr Tilley also states that the remedy he seeks is the payment of that amount and to “enforce ethical standards and the law on those who do not see their importance when dealing with employees”.

[11] In relation to the merits of the application, an unfair dismissal application is not the appropriate vehicle to seek payment of notice and leave entitlements, or to enforce ethical standards. Further, the merits of the application are not so apparent that this matter outweighs the lack of exceptional circumstances. If time is extended the application will be met with a further objection on the basis that Mr Tilley resigned his employment.

[12] The Respondent has not pointed to any prejudice other than that it will be required to defend the application, but does submit that it is a small business with 9 employees and consistent with the decision in Brodie-Hans v MTV Publishing it should not be lightly put to the cost and inconvenience of defending an application made out of time unless the interests of justice so dictate. 3

[13] In relation to the issue of fairness between Mr Tilley and other persons in a like position, to extend time where the explanation for the delay is ignorance of the time limit, in circumstances where there are no exceptional circumstances would be unfair to the many applicants who have been refused extensions in cases where the facts are similar.

[14] For these reasons, I am not satisfied that there are exceptional circumstances or that the discretion to allow a further period for Mr Tilley’s application to be made should be exercised. Mr Tilley’s application for an unfair dismissal remedy U2014/6796 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Nulty v Blue Star Group[2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

 2 Ibid at [15].

 3 (1995) 67 IR 298 at 229-300.

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