Mr Shaun Alexander v DYZ Australia Pty Ltd T/A Shield Dry Cleaners
[2010] FWA 6186
•12 AUGUST 2010
[2010] FWA 6186 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Shaun Alexander
v
DYZ Australia Pty Ltd T/A Shield Dry Cleaners
(C2010/3052)
COMMISSIONER GOOLEY | MELBOURNE, 12 AUGUST 2010 |
[1] On 26 February 2010 Mr Shaun Alexander made an application to Fair Work Australia pursuant to section 365 of the Fair Work Act 2009 (FW Act) alleging his employment had been terminated because he had exercised a work place right, because he was entitled to the benefit of a workplace law or alternatively or concurrently because he had a physical disability. Alternatively Mr Alexander alleges he was engaged as an independent contractor and the contract was terminated because he was entitled to the benefit of a workplace law, is able to participate in a proceeding under a workplace law or because he exercised his workplace right.
[2] Mr Alexander had been engaged by DYZ Australia trading as Shield Dry Cleaners and his employment/contract was terminated on 15 December 2009.
[3] The Fair Work Act 2009 provides that an application under section 366:
“(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[4] Mr Alexander did not lodge his application within 60 days of his dismissal. The matter was referred for a conference before me on 23 April 2010 and the matter was not settled.
[5] The application for an extension of time was set down for hearing on 14 May 2010 and on 5 May 2010 Mallesons Stephen Jaques solicitors for Mr Alexander sought an adjournment which was not opposed by RTC Legal the solicitors for the respondent. The matter was then listed for 2 July 2010.
[6] At that hearing Ms Elliot a solicitor with Clayton Utz appeared for Mr Alexander and Mr Nath of counsel appeared for the respondent. Both legal practitioners were given permission to appear.
[7] Neither party called any witnesses and both made submissions as to factual matters which were not objected to.
[8] Section 394 of the FW Act provides as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
(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.”
[9] I will consider each element of section 394(3) in turn.
394(3) (a) the reason for the delay
[10] Ms Elliot submitted that Mr Alexander had no knowledge of employment law and that between the date of his dismissal and Christmas he was in shock and feeling very depressed about his dismissal. 1 A letter from his treating doctor tendered by Ms Elliot advised Mr Alexander had sustained a severe brain injury in 2000 and that this had left him with a significant memory impairment and depression. His doctor stated that “this results in inability to organise himself, remember important events and deadlines and keeping appointments.”2
[11] Ms Elliott further submitted that after Christmas Mr Alexander wanted to find out why he had been dismissed as he had been given no reasons at the time of his dismissal. As the store was closed over the Christmas New Year period he was not able to speak to Mr Yang until the store reopened in early January. He also sought from Mr Yang a separation certificate. Ms Elliott submitted that the separation certificate advised that the reason for termination was that Mr Alexander was unsuitable for this kind of work. As Mr Alexander had worked as a dry cleaner for more than 20 years he did not think that this could be the reason for his dismissal. 3
[12] Ms Elliott submitted that Mr Alexander called a number of bodies starting with VCAT. He also called his lawyer at Minter Ellison who was assisting Mr Alexander with unrelated legal issues. Mr Alexander had been referred to Minter Ellison through the Public Interest Law Clearing House. Mr Alexander called Job Watch, WorkSafe, Workforce Victoria, the Fair Work Ombudsman, Nowicki Carbone Lawyers and Ms Elliot submitted that none of these organisations advised Mr Alexander of any available course of action that he could bring. He was referred to websites, sent information sheets and forms and told that he could not lodge an unfair dismissal claim as he had not served the qualifying period. Ms Elliot submitted that he discussed safety in the workplace with Work Safe, sham contracting with the Fair Work Ombudsman and a personal injury claim with Nowicki Carbone Lawyers. No one told him about an adverse action claim.
[13] In late January 2010 Mr Alexander was advised by VCAT that an application had been lodged to evict him because he was not paying his rent and a hearing took place on 1 February 2010. Ms Elliot submitted that from that time Mr Alexander was focused on dealing with that issue.
[14] On 8 February 2010 after the eviction matter was resolved Mr Alexander wrote to Mr Yang outlining his grievances and requesting a settlement sum. 4 That letter advised that he had been employed by the respondent from 1 December 2009 until 16 December 2009. After making reference to a sham contract Mr Alexander states that his employment was subject to the Fair Work Act 2009 and sought compensation for injury caused by “your negligence and refusal to follow O.H+S procedures Failing in your duty of care to provide a safe healthy workplace. You caused me a huge amount of financial stress and depression due to the way that you dismissed me 10 days before Christmas without remuneration and the day after I was severely burned by the machine That I had complained (to both owners) about since day 1.” Mr Alexander advised that if he did not hear from Mr Yang in seven days he was going to approach the Fair Work Ombudsman.
[15] There was no response to this letter.
[16] In February 2010 the solicitor from Minter Ellison who was acting for Mr Alexander in another unrelated matter contacted PILCH and suggested that the employment issues be referred to an employment law specialist. Ms Elliott submitted that the Minter Ellison lawyer, had limited employment law knowledge and while she was aware that Mr Alexander did not have unfair dismissal rights she did not advise him of any adverse action rights. PILCH referred the matter to Mallesons on 25 February 2010 who accepted the referral and immediately contacted Mr Alexander to obtain instructions. Mr Glasgow of Mallesons contacted Mr Alexander the next morning and sought instructions to file this application, which were given, and the application was filed on that day. 5
[17] Ms Elliot submitted that there was a valid reason for the delay. Mr Alexander contacted a number of organisations and was not advised of his rights until 26 February 2010 and having been advised of his rights he immediately instructed his solicitors to file the application.
[18] Mr Nath submitted that the respondent took over the business on 1 December 2009 and Mr Alexander was engaged temporarily as an independent contractor to fill in for the period between October 2009 and just after settlement as the incoming owners did not hold the requisite chemical handling licences. Mr Nath submitted that Mr Alexander was never employed by the respondent and that he traded under his registered business name Mike’s Personal Valet Dry Cleaning. Mr Alexander services, after 1 December 2009, were retained on a contract basis after the settlement and that contract was terminated within two weeks to one month of the settlement. Mr Nath submitted that the previous owner had advised Mr Yang that Mr Alexander was a contractor and that Mr Alexander understood this. 6
[19] Mr Nath submitted that Mr Alexander had ample time to make his application. Mr Nath submitted that the letter of 8 February 2010 showed that Mr Alexander understood that his employment was subject to the Fair Work Act 2009 and at that date he could have lodged his application within time.
394(3) (b) any action taken by the person to dispute the dismissal
[20] Ms Elliot submitted that Mr Alexander was not told of the reasons for his dismissal and when he had recovered sufficiently from his depression he sought an explanation from his employer. Having received that information he then sought information from many sources about his rights and on 8 February 2010 he told his employer that he had some rights under the FW Act and proposed a settlement. Therefore within the 60 days required by the FW Act to lodge an application Mr Yang was aware that Mr Alexander was disputing his termination.
[21] Mr Nath submitted that Mr Alexander did not take any steps to dispute his dismissal until 8 February 2010.
394(3) (c) prejudice to the employer (including prejudice caused by the delay)
[22] Ms Elliot submitted that there was no prejudice to the respondent other than the prejudice of having to respond to the application and she submitted that this was not relevant to an extension of time application.
[23] Other than asserting that there was prejudice to the employer, Mr Nath made no submissions as to the nature of the prejudice.
394(3) (d) the merits of the application
[24] The application lodged by Mr Alexander sets out the basis of Mr Alexander’s claim.
[25] Ms Elliot did not make detailed submissions on the merits of the application other than to submit that the merits are very strong.
[26] Mr Nath submitted that the respondent terminated Mr Alexander’s contract because he made threats to the owner’s 14 year old daughter. He “verbally abused, threatened to hit Mr Hong’s daughter, 14 years old who was helping the business during her school holidays.” 7
[27] Mr Nath did not contest that the separation certificate provided to Mr Alexander stated that he was terminated because “he was unsuitable for this kind of work.” 8
[28] An assessment of the merits in this matter can only be properly made after a hearing of the substantive matter.
394(3) (e) fairness as between the person and other persons in a like position
[29] Ms Elliot submitted that this was not a relevant consideration in this matter and Mr Nath did not address this issue.
Conclusion
[30] To grant an extension of time I must be satisfied that there are exceptional circumstances taking into account the factors set out above.
[31] In Parker v Department of Human Services 9, Whelan C addressed the issue of what meaning should be given to exceptional circumstances as follows:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, 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.”
[Mann v Minister for Immigration and Citizenship [2009] FACFC 150]
[32] This approach has been adopted by other members of the Tribunal 10and I adopt this approach in this matter.
[33] Having regard to the matters set out above, in particular Mr Alexander’s illness, the failure of the respondent to provide reasons for the termination until Mr Alexander made inquiries, Mr Alexander’s need to focus on his impending eviction in January and the failure of his representatives to advise him of his legal rights I have decided that there are exceptional circumstances which warrant the granting of an extension of time.
[34] As a conference in accordance with section 368 of the Fair Work Act 2009 has already been conducted and the matter was not resolved a certificate pursuant to section 369 will be issued.
COMMISSIONER
Appearances:
M Elliott for Shaun Alexander.
V Nath of Counsel for DYZ Australia Pty Ltd T/A Shield Dry Cleaners
Hearing details:
2010
Melbourne.
July 2.
1 Transcript PN 13
2 Exhibit SA 1
3 Transcript PN 25
4 Exhibit R 3
5 Transcript PN29-31
6 Exhibit R 1
7 Transcript PN 57
8 Transcript PN 25
9 [2009] FWA 1638
10 [2010] FWA 1394, [2010] FWA 4829
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