Mr Scott McDonald v Foamland
[2014] FWC 5607
•18 AUGUST 2014
| [2014] FWC 5607 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott McDonald
v
Foamland
(U2014/9852)
DEPUTY PRESIDENT WELLS | HOBART, 18 AUGUST 2014 |
Issued on Transcript
Application for relief from unfair dismissal – jurisdiction – whether application made within 21 days – where day of lodgement falls on a public holiday – Acts Interpretation Act - extension of time – application due on 22nd day.
Introduction
[1] On Tuesday 10 June 2014, Mr Scott McDonald made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) regarding dismissal from his employment with Foamland.
[2] The date of dismissal is contentious with Mr McDonald stating it occurred on Monday 19 May 2014 and Foamland submitting it notified Mr McDonald of his dismissal on Friday 16 May 2014. The unfair dismissal application was therefore not made within 21 days of the date of the dismissal as provided in s.394(2)(a).
[3] On 10 June 2014 the application for an unfair dismissal remedy under s.394 of the Act was made. Should the dismissal be found to have taken effect on 19 May 2014, the 21 day requirement would make the last lodgement date as Monday 9 June 2014. The application would then be one day out of time in respect of the requirement of s.394(2)(a) of the Act and it is relevant that Monday 9 June 2014 was the Queen’s Birthday public holiday.
[4] Should the dismissal of Mr McDonald be found to have taken place on 16 May 2014, the application would be some 4 days out of time and the existence of the public holiday on 9 June 2014 would have lesser relevance.
[5] Mr Indika Gunadasa of the Hobart Community Legal Service (HCLS) sought and was granted leave to appear for Mr McDonald on the basis that there were a broad range of issues to consider and having counsel present would enable the matter to be dealt with more effectively and efficiently; and that Mr McDonald would be unable to effectively represent himself.
[6] Pursuant to s.394(2)(b), the Fair Work Commission (the Commission) can extend time for the lodging of an unfair dismissal application if it 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 date of termination
[7] There was evidence and submissions filed in this matter which do not directly relate to the jurisdictional matter to be decided. Where this material provides context to the evidence or submissions to be considered as to jurisdiction, I have had regard for them.
[8] Mr McDonald’s evidence was given both orally and by written statement1 and provided that on Friday 16 May 2014 he was given a letter2 by his Manager, Ms McGrath, demoting him to a Shop Assistant Level 1 and reducing his wage from $28 to $17.84 per hour. He stated he advised Ms McGrath he did not want to work for that wage and that Ms McGrath replied “So you’re giving your notice then?”
[9] Mr McDonald stated that he told Ms McGrath he wanted the weekend to think about it. He then left work to obtain advice from the Fair Work Ombudsman, who advised him that Foamland had to make him redundant and then re-employ him offering the lower wage.
[10] Foamland submitted that subsequent to receiving the letter transferring him to a Shop Assistant Level 1, Mr McDonald walked out of the shop and returned later demanding that he be made redundant. It was further submitted that Mr McDonald made a threat of a violent nature to the owner of Foamland and then left the shop and did not return. In its submissions, Foamland stated it believed Mr McDonald had no intention of returning to work after 16 May 2014. Foamland’s submissions went on to state the Applicant was informed during a telephone conversation with the business owner that his employment was terminated, and therefore his termination took effect from that date, relying on Plaksa v Rail Corporation NSW[2007] AIRC 333, which decision found a dismissal can be communicated orally.
[11] It was submitted by Foamland that with the termination being effected on 16 May 2014, the timeframe for filing the unfair dismissal application was within 21 days of that date, meaning the application should have been filed by 6 June 2014.
[12] Mr Anthony McRae, the owner of Foamland, gave sworn evidence at the hearing. He confirmed he had a telephone conversation with Mr McDonald in the afternoon of 16 May 2014 when a number of matters were discussed involving eBay passwords, the products in the eBay Foamland shop and whether Mr McDonald would be made redundant. Mr McRae confirmed he was aware Mr McDonald had received advice from the Fair Work Ombudsman that Foamland should make him redundant. Mr McRae said “He said he would be happy to be made redundant”. Mr McRae then told Mr McDonald he would “look into” his request for redundancy over the weekend.
[13] Mr McRae sought to rely on hearsay evidence in that he stated Ms McGrath had advised him that Mr McDonald had resigned his employment on 16 May 2014. As such I place less weight on this part of his evidence. When cross-examined on this point, Mr McRae confirmed he told Mr McDonald on 16 May 2014 he would consider a redundancy.
[14] It was Mr McRae’s evidence that after considering Mr McDonald’s actions of 16 May 2014, he made the decision to terminate his employment on Saturday 17 May 2014 and sent the termination paperwork to the store Manager on that day.
[15] It was Mr McDonald’s evidence that he returned to the Foamland store on Monday 19 May 2014 and was handed a letter of termination by Ms McGrath. Mr McRae confirmed these events given sworn evidence that Mr McDonald was given the letter on 19 May 2014 by Ms McGrath.
[16] The letter of termination,3 dated 17 May 2014 from Ms McGrath is important in determining the date of termination. The letter provides:
“Dear Scott,
Termination of your employment
I am writing to you about the termination of your employment with Foamland.
I refer to our discussions on May 16th 2014 at which time you also spoke to the owner of the business by telephone. At that time we discussed your attempt to shut down the Foamland Ebay Store and your further demands to be given the Ebay login password. You stated that you intended to appropriate the Foamland Ebay Store for your own personal use. You also made various threats to the owner of the business.
Your conduct during that incident:
● was wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment.
● Caused a serious and imminent risk to the reputation, viability or profitability of the Employer’s business in that you intended to shut down the Foamland Ebay Store and run it as you [sic] own personal business.
We consider that your actions constitute serious misconduct warranting summary dismissal.
You will be paid any accrued entitlements and outstanding remuneration, including superannuation, up to and including the date of this letter.
Yours sincerely…”
[17] The termination letter identifies a number of matters, including a discussion Mr McDonald had with the owner of the business, Mr McRae via telephone. The letter, however, makes no mention that Mr McRae terminated Mr McDonald’s employment during the phone call. Instead the letter says “We consider that your actions constitute serious misconduct warranting summary dismissal.”4 Further, it was Mr McRae’s sworn evidence that he advised Mr McDonald he would consider the request for redundancy and that he had not made a decision to terminate Mr McDonald until Saturday 17 May 2014.
[18] Had Mr McRae accepted a resignation from Mr McDonald on 16 May 2014, I am confident the letter of 17 May 2014 would have mentioned that fact, along with the other details of the conversation. Further, there would have been no need for a termination letter at all.
[19] I am inclined to accept that there was a discussion between Mr McDonald and Ms McGrath in which Mr McDonald indicated he did not want to work for the employment conditions being offered in the letter of 16 May 2014. However, that would fall short of a resignation in my view.
[20] On the balance of probabilities, based on the evidence of Mr McRae that he would consider the redundancy and that he did not make the decision to terminate Mr McDonald until 17 May 2014, I find that Mr McDonald was not terminated during the telephone conversation of 16 May 2014 and that he was still an employee of Foamland subsequent to that date.
[21] I further find that Mr McDonald’s employment ended when Foamland provided him, on 19 May 2014, with the termination letter dated 17 May 2014.
Did the application fail to comply with s.394(2) of the Act?
[22] Section 36(1) of the Acts Interpretation Act 1901 states:
Calculating time
(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
Calculating periods of time | ||
Item | Column 1 | Column 2 |
1 | is expressed to occur between 2 days | includes both days. |
2 | is expressed to begin at, on or with a specified day | includes that day. |
3 | is expressed to continue until a specified day | includes that day. |
4 | is expressed to end at, on or with a specified day | includes that day. |
5 | is expressed to begin from a specified day | does not include that day. |
6 | is expressed to begin after a specified day | does not include that day. |
7 | is expressed to end before a specified day | does not include that day. |
Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.
Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.
Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.
Example 4: If a person's right to make submissions ends on the last day of a financial year, the person may make submissions on that day.
Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.
Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28-day period begins on 3 August.
Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7-day period starting on 1 May and ending on 7 May.
(2) If:
(a) an Act requires or allows a thing to be done; and
(b) the last day for doing the thing is a Saturday, a Sunday or a holiday; and
(c) then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.
(d) Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.
(3) In this section:
"holiday" , in relation to the time for doing a thing, means:
(a) a day that is a public holiday in the place in which the thing is to be or may be done; and
(b) if the thing is to be or may be done at a particular office or other place--a day on which the place or office is closed for the whole day.
[23] In this case, the Act requires at s.394(2)(a), the that the application must be made within 21 days after the dismissal took effect. That is, the application must be made within 21 days after the date on which the dismissal took effect. This is a situation which accords within item 6 in the above “Calculating periods of time” schedule by way of example 6 above from the Acts Interpretation Act 1901.
[24] It is apparent that 21 days from 19 May 2014 (with the first day being counted as 20 May 2014) means that the statutory period of time ends on 9 June 2014. As I have mentioned above, 9 June 2014 was a public holiday for reason of being the Queen’s Birthday holiday. That is, the 21 day period ended on a public holiday.
[25] It was submitted by Foamland that the Applicant could have filed his application on Monday 9 June 2014, alleging that the Queen’s Birthday holiday was a state holiday and the Commission was open nationally to accept applications electronically. Relevantly, s.36(3) of the Acts Interpretation Act 1901 above is relevant in that it provides that if a thing may be done at another office or place which is open, then it should be done there. In reality this means that if another registry of the Commission was open on 9 June 2014 then the Applicant should have lodged his application in that registry.
[26] Foamland submitted that the Commission’s Unfair Dismissals Benchbook, at page 15, states:
“On state or local public holidays (such as Queen’s Birthday) the local Commission offices will be closed however the other Commission offices nationally will be open and able to accept applications electronically.”
[27] This guideline in the Benchbook fails to recognise that the Queen’s Birthday public holiday was observed by all States on Monday 9 June 2014, with the exception of the West Australian registry, as that State celebrates that public holiday in the month of September. Nevertheless, the Benchbook provides that if other Commission offices are open they are able to accept applications electronically.
[28] Whilst s.36(a) of the Acts Interpretation Act 1901 as set out above indicates that if a thing is to be done on a public holiday, the thing may be done on the next day, pursuant to ss(3) of that section, the application could have been lodged in the West Australian registry.
[29] In the circumstances of this matter, I am of the view the application before me was required to be made on Monday 9 June 2014.
[30] The application was made on 10 June 2014.
Do exceptional circumstances exist?
[31] I am now required to consider whether the Commission should allow a further period for the application to be made pursuant to s.394(2)(b), due to the existence or otherwise of exceptional circumstances, taking into account:
(a) the reason for the delay;
[32] Mr Gunadasa, for the Applicant, provided evidence via a statement5 in which he advised the Commission that Mr McDonald had provided him with instructions on the day of termination, 19 May 2014; that he had written to Foamland on 21 May 2014 disputing the dismissal and seeking a resolution of the dispute; that he advised Mr McDonald that the application would need to be filed within 21 days of 19 May 2014; and that following the drafting and amendment of the F2 application form, he advised Mr McDonald that he could file the application on Tuesday 10 June 2014 by virtue of Monday 9 June 2014 being the Queen’s Birthday public holiday, citing s.36(a) of the Acts Interpretation Act 1901.
[33] Mr Gunadasa conceded in submissions that he had not taken account of s.36(3) of the Acts Interpretation Act 1901 and had no knowledge that another Commission registry was open on 9 June 2014, but that subsequently he had learned that the West Australian registry was open.
[34] Mr Gunadasa submitted that it was his representational error that led to Mr McDonald’s application being lodged one day late and that Mr McDonald had done everything required of him to ensure the application was made within time. Mr Gunadasa relied on the decision of M N Robinson v Interstate Transport Pty Ltd (Robinson) [2014] FWC 4146 which referred to two cases of Davidson v Aboriginal & Islander Child Care Agency (1998) Q0784 (Davidson), and Clark v Ringwood Private Hospital (1997) 74 IR 413. In considering the principles surrounding representation error as it relates to extension of time, the Robinson decision considered at paragraph 25 that the approach taken in Clark and Davidson should be followed. That is:
● “Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
● A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
● The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different disputation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
● Error by an applicant’s representatives is only one or a number of factors to be considered in deciding whether or not an out of time application should be accepted.”6
[35] Mr McRae, for Foamland, submitted that Mr Gunadasa was a lawyer and he should not have made the mistake that he did and that there were no grounds to the representation error submission.
[36] I accept the evidence of Mr Gunadasa and Mr McDonald as to the actions taken to ensure the application in this matter was lodged on time. It is unfortunate that Mr McDonald was provided with the wrong advice in relation to the timeframe in which he was to lodge his application. I accept that Mr McDonald is blameless for the delay and only acted on the advice of this representative.
[37] I find that representation error affected the delay of this application being lodged. This criterion weighs in favour of the granting of an extension of time.
(b) whether the person first became aware of the dismissal after it had taken effect;
[38] I have found that the dismissal took place on 19 May 2014 when it was communicated to Mr McDonald. Mr McDonald was aware of this dismissal when it occurred. In the circumstances, this criterion is neutral.
(c) any action taken by the person to dispute the dismissal;
[39] Both Mr McDonald and Mr Gunadasa gave evidence that the dismissal was disputed with Foamland and Mr McRae confirmed when questioned by the Commission that he did receive the letter from HCLS dated 21 May 2014 advising of and seeking settlement of the dispute. I note the letter put Foamland on notice that Mr McDonald was contemplating lodging an application for unfair dismissal remedy. This criterion weighs in favour of the granting of an extension of time.
(d) prejudice to the employer (including prejudice caused by the delay);
[40] Mr McRae submitted that he cannot claim any prejudice associated with any delay to lodge the application in this matter. This criterion weighs in favour of the granting of an extension of time.
(e) the merits of the application;
[41] Mr McRae submitted that after considering the actions of Mr McDonald, summary dismissal was the only action open to him and that he followed the Small Business Fair Dismissal Code. As such he submitted Mr McDonald’s application was without merit.
[42] Mr Gunadasa submitted that there are considerable facts in dispute in this matter and that there were no grounds for dismissal under s.5 of the Small Business Fair Dismissal Code.
[43] There has not been a full hearing on the facts in dispute and accordingly I have made no findings about the merits of the case. This criterion is neutral.
(f) fairness as between the person and other persons in a similar position.
[44] Limited submissions were made on this criterion. Mr Gunadasa submitted that there is considerable common law precedent based on similar circumstances to this matter and that no fairness issue arises.
[45] Mr McRae stated he wished to make no submissions on this point. This criterion is neutral.
Conclusion
[46] Having regard for my findings above as they relate to the criteria to be considered pursuant to s.394(3), this is a case in which I am satisfied that the Applicant has established that there are exceptional circumstances warranting consideration of the exercise of my discretion to allow a further period within which the Applicant may lodge an unfair dismissal remedy application. There is considerable conflict as to the facts of the matter and Mr McDonald has established by evidence, a substantial reason, which I am satisfied is an acceptable and credible reason for the delay. There is no other matter which would suggest that I should not exercise my discretion and I propose to do so in favour of Mr McDonald.
[47] In the circumstances I will allow a further period within which the applicant may be made.
[48] An order to this effect will be issues forthwith.
DEPUTY PRESIDENT
Appearances:
Mr I Gunadasa, on behalf of the Applicant
Mr A McRae, for the Respondent
Hearing details:
Hobart
2014
7 August
1 Exhibit A1 - Statement of Scott McDonald
2 Exhibit A1 – Annexure A1
3 Exhibit A3 – Applicant’s Outline of Submissions, Annexure A2
4 Exhibit A3 – Annexure A2
5 Exhibit A2 – Statement of Indika Gunadasa
6 Davidson v Aboriginal & Islander Child Care Agency (1998) Q0784
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