Mr Sheldon Cartmell v Evolution Traffic Control Pty Ltd
[2012] FWA 4750
•1 JUNE 2012
[2012] FWA 4750 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Sheldon Cartmell
v
Evolution Traffic Control Pty Ltd
(U2011/12868)
COMMISSIONER ASBURY | BRISBANE, 1 JUNE 2012 |
Application for unfair dismissal remedy - jurisdiction - extension of time.
Background
[1] On 24 October 2011, Mr Sheldon Cartmell made an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Cartmell contended that he was forced to resign his employment with Evolution Traffic Control Pty Ltd (Evolution) with effect from 6 October 2011.
[2] The application was made four days outside the fourteen day time limit prescribed in s.394(2)(a) of the Act. The application was met with an objection by Evolution on the grounds that:
● Mr Cartmell was not dismissed; and
● The application for an unfair dismissal remedy was not lodged by Mr Cartmell within 14 days of the dismissal coming into effect.
[3] The application was listed for Extension of time Conference/Hearing and Directions were issued requiring the parties to file and serve outlines of submissions, witness statements and any documentary material in relation to the extension of time application. Evidence in support of the application for an extension of time was given by Mr Cartmell. 1 Evidence on behalf of Evolution in opposition to the extension of time was given by Mr Paul Warman,2 Group Chief Executive and Mr Paul Redman, National Training and Safety Manager.3
[4] Much of the evidence dealt with the question of whether Mr Cartmell resigned his employment, and was not relevant to the issue for determination in these proceedings. The reasons for the delay in making an unfair dismissal application given by Mr Cartmell, are essentially that he was told by his supervisor Mr Bailey that if he resigned, Mr Warman would agree to reinstate him when things had “blown over”. It is contended that Mr Cartmell disputed his dismissal internally in reliance on this misleading information. Mr Cartmell also said that the death of his grandfather on 13 October 2011 had an adverse impact on him. The combination of these matters was said to constitute exceptional circumstances which prevented him from making his application within the required time.
[5] The relevant issue in these proceedings is whether the discretion to extend time provided in s.394(2)(b) of the Act should be exercised.
Legislation
[6] By virtue of s.394(2) of the Act an application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect, or within such further period as FWA allows under s.394(3). That sub-section provides as follows:
(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
[7] The use of the word “exceptional” demonstrates an intention that the hurdle for extensions under the Act is higher than was previously the case under the Workplace Relations Act 1996, 4 and that the legislature must have intended a significant narrowing of the discretion to extend time.5
[8] This is also apparent in the distinction between the broad discretion in s.371(2) for the Federal Court or the Federal Magistrates Court to extend the time in which general protections court applications must be made and the narrower discretion in s.366(2) and s.394(3) in the case of applications to Fair Work Australia with respect to contraventions involving dismissal and unfair dismissal.
[9] Previously an applicant for an extension of time was required to establish that there was an acceptable explanation for the delay and was not required to establish special circumstances. This was one of the principles set down in Brodie-Hanns v MTV Publishing Ltd. 6 This case is referenced in the note to s.371 and continues to be relevant for the purposes of the exercise of the discretion under that section by either the Federal Court or the Federal Magistrates Court. Brodie-Hanns is not referenced in s. 394(3) and it is not sufficient for an applicant for an extension of time to establish an acceptable explanation for a delay without also establishing that the reason is an exceptional circumstance or part of a number of factors which viewed collectively constitute exceptional circumstances.
[10] In Parker v Department of Human Services 67Commissioner Whelan reviewed a number of decisions of the Full Court of the Federal Court dealing with the term “exceptional circumstances”, and noted that the following interpretation of the term had been endorsed as providing assistance:
“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance 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.” 8
[11] This approach was endorsed by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery. 9Exceptional circumstances are not necessarily unexpected circumstances and can include a single matter or a combination of ordinary factors, which, although individually are of no particular significance, when taken together, are seen as exceptional.10 A decision to extend time involves an exercise of discretion. As a Full Bench of FWA observed in Nulty v Blue Star Group Pty Ltd:11
“A finding that there are ‘exceptional circumstances’, taking into account the matters set out in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances, including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 12
Consideration
[12] It is necessary to set out some of the evidence about the background to the cessation of Mr Cartmell’s employment. On 5 October 2011, Mr Cartmell was called to a meeting with the CEO of Evolution, Mr Warman, and the National Safety Manager Mr Redman, and was told that a complaint had been made about him by the mother of a co-worker, alleging that he had made a racially derogatory comment about that co-worker. Mr Cartmell said that he denied the allegation.
[13] Mr Cartmell said that shortly after the meeting on 5 October, he had a discussion with the Area Manager, Mr Bailey, who advised that he should resign and that he would rehire Mr Cartmell when the issue had “blown over” and that Mr Warman agreed with this course of action. Mr Cartmell said that he trusted Mr Bailey as he had worked with him for a long time. Mr Bailey did not give evidence.
[14] On 6 October 2011 Mr Cartmell was called to another meeting with Mr Warman and was told that the co-worker’s mother had made further allegations against him. Mr Cartmell denied those allegations. Mr Cartmell contends that he was told by Mr Warman to resign and get all his outstanding entitlements, or be stood down without pay and risk losing his entitlements, including accrued annual leave. Mr Cartmell said that he told Mr Warman about the conversation with Mr Bailey. Mr Warman responded by saying that he would not promise to rehire Mr Cartmell, but if he was cleared of the allegations after an investigation, he would receive an apology and be reinstated. Mr Cartmell said that faced with these options, he decided to resign, and contended that he was forced to do so.
[15] Mr Warman and Mr Redman said that at the meeting on 5 October 2011, the allegations set out in the complaint were put to Mr Cartmell. On 6 October 2011, Mr Warman and Mr Redman met Mr Cartmell again and told him that the complaints would be investigated. Mr Warman denied telling Mr Cartmell that he could resign or be stood down without pay, and denied telling him that if he were stood down and then found guilty he would lose his entitlements. Mr Warman also stated that he made it clear to Mr Cartmell that he would not be rehired in a couple of months if he resigned. Mr Redman supported Mr Warman’s version of the meetings with Mr Cartmell.
[16] Under cross-examination Mr Cartmell conceded that after Mr Bailey advised him to resign so he could be rehired, Mr Warman directly contradicted this statement and said there would be no promise to rehire him. Mr Cartmell also acknowledged that Mr Warman was more senior than Mr Bailey.
[17] Mr Cartmell said that he went to Evolution’s premises on 7, 8 and 9 October 2011 and spoke to Mr Bailey and Ms MacDonald (the Depot Manager). Statements supporting Mr Cartmell’s reinstatement were obtained from other staff members. Mr Bailey told Mr Cartmell that he would do everything he could and to leave matters with him. On 11 October 2011 Mr Cartmell telephoned Ms MacDonald for an update, and was told that she had not heard anything about him being reinstated or about the allegations being investigated.
[18] On 13 October 2011 Mr Cartmell received news that his grandfather had died in Singapore, and was upset. On 15 October 2011 Mr Cartmell telephoned Ms MacDonald and Mr Bailey and advised that he was going to the Sunshine Coast to assist his parents make arrangements relating to the death of his grandfather. According to Mr Cartmell, this was a difficult and emotional task as the extended family is in dispute about the grandfather’s will and there is a lot of turmoil and grief surrounding the death.
[19] Mr Cartmell returned to Rockhampton on 22 October 2011. On 24 October 2011 he attended Evolution’s premises and spoke to Ms MacDonald. Ms MacDonald telephoned Mr Bailey, who advised that he had met with Mr Warman, but the decision was to leave the situation as it stood. After this meeting, Mr Cartmell telephoned ‘A Whole New Approach’ and engaged the firm to represent him. Mr Cartmell’s application for an unfair dismissal remedy was filed at 5:22pm that day.
Conclusions
[20] I do not accept that the reasons given by Mr Cartmell for the application being filed out of time, viewed individually or collectively, constitute exceptional circumstances. There may be cases in which an employer engages in misleading conduct which induces an employee to delay making an unfair dismissal application or to believe that he or she does not have grounds to make such an application. I accept that in such cases, misrepresentation or misleading conduct by an employer could be the basis of a finding that there are exceptional circumstances such that it is fair and equitable to extend the time in which to make an unfair dismissal application. However, in the present case, I do not accept that there has been misrepresentation or misleading conduct on the part of Evolution.
[21] Mr Bailey and Ms MacDonald were not called as witnesses by either of the parties in these proceedings. Neither party asked for or gave an explanation for the absence of Mr Bailey and Ms MacDonald, and neither party submitted that I should draw an inference in this regard. Even if Mr Cartmell’s evidence about what Mr Bailey told him is accepted, I am of the view that it was not reasonable for Mr Cartmell to believe that he would be rehired or reinstated, when things had “blown over”.
[22] On Mr Cartmell’s own evidence, he had a discussion with Mr Warman after the discussion with Mr Bailey, and before resigning his employment, and was told by Mr Warman that notwithstanding anything Mr Bailey had said, he would not promise to rehire Mr Cartmell if he resigned. Mr Cartmell knew that Mr Warman was the Chief Executive Officer of Evolution and Mr Bailey’s boss. There was no misleading conduct or misrepresentation on the part of Mr Warman and he could not have been clearer about what he told Mr Cartmell.
[23] I accept that Mr Cartmell was distressed about the death of his grandfather, and that this distress was exacerbated by the fact that the death occurred in Singapore. However, I am unable to accept that these matters constitute exceptional circumstances. Mr Cartmell’s employment ceased on 6 October 2011 and his grandfather died on 13 October. Mr Cartmell did not leave Rockhampton to travel to the Sunshine Coast for a further two days. In my view, Mr Cartmell had opportunity to make his application for an unfair dismissal remedy before the death of his grandfather or before leaving Rockhampton to assist his parents with arrangements associated with the death.
[24] It is also the case that by 11 October 2011 (two days before the death of Mr Cartmell’s grandfather), Ms MacDonald told Mr Cartmell that she had not heard anything about his reinstatement or an investigation. That information should have triggered some alarm on the part of Mr Cartmell and prompted him to make an unfair dismissal application. Mr Cartmell was able to cause an application for an unfair dismissal remedy to be made on the same day he engaged legal representation. I can see no exceptional circumstances that would have prevented him from taking these steps within the required time.
[25] In the absence of misrepresentation on the part of Evolution, and in light of what Mr Warman told Mr Cartmell, I am of the view that Mr Cartmell’s decision to pursue the matter of his dismissal through Mr Bailey and Ms MacDonald does not constitute exceptional circumstances.
[26] I do not accept that Mr Cartmell’s decision to place the matter of his dismissal and reinstatement into the hands of Mr Bailey, and to have a series of discussions about the matter with Mr Bailey and Ms MacDonald, constitutes action to pursue his dismissal. Mr Cartmell pursued these discussions even after being told by the Chief Executive Officer of Evolution that there was no guarantee he would be reinstated or reemployed. Further, Mr Cartmell did not engage directly with Mr Warman to seek reinstatement after his employment ceased but chose to continue to discuss this matter with Mr Bailey and Ms MacDonald in circumstances where he knew that both of those employees reported to Mr Warman, and on his own evidence, were telling him something that was contrary to what he had been told by Mr Warman. Further, Mr Cartmell knew that by 11 October 2011, no action had been taken with respect to investigating the allegations or reinstating him.
[27] It is submitted for Evolution that in addition to the usual prejudice associated with having to defend the application if time in which to make it is extended, Mr Cartmell has taken a job with a competitor and his position at Evolution’s Rockhampton Depot has been filled. There is no evidence before me about these matters and the proposition that he had obtained another job was not put to Mr Cartmell. Accordingly, I am unable to accept that there will be any prejudice to Evolution if time is extended, other than it will have to defend the application.
[28] It is not appropriate to make findings of fact in relation to the merits of an unfair dismissal application, when considering whether the discretion to extend time should be exercised. It is apparent however, that Mr Cartmell’s prospects of success are not overwhelming and he has an additional difficulty in that he will be required to establish that his resignation was a constructive dismissal, in circumstances where two witnesses who were present at the meeting where Mr Cartmell tendered his resignation, will give evidence to contradict his version of events. This is not a case where fairness as between Mr Cartmell and other persons in a similar position, is relevant.
[29] On balance, after weighing the factors in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances to justify the exercise of the discretion to extend the time for Mr Cartmell to make an unfair dismissal application. The application is dismissed and an Order will be issued to that effect.
COMMISSIONER
Appearances:
Mr G. Pinchen on behalf of the Applicant.
Ms Taumalolo on behalf of the Respondent.
Hearing details:
2012.
Brisbane:
February 13.
1 Witness Statement Exhibit 1.
2 Witness Statement Exhibit 2.
3 Witness Statement Exhibit 3.
4 Shields v Warringarri Aboriginal Corp [2009] FWA 860 at [4].
5 Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
6 (1995) 67 IR 298 at 299.
7 [2009] FWA 1638 per Whelan C
8 R v Kelly, Edward [2000] 1 QB 198 at 208 per Lord Bingham Cornwall CJ in Mann v Minister for Immigration and Citizenship (2009) FCAFC 180.
9 [2010] FWA 1394.
10 McConnell v A & PM Fornataro t/as Tony’s Plumbing Service (C2010/5355) per Lawler VP at [26] - [27].
11 [2011] FWAFB 975.
12 Ibid at [15].
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