Mr Steven Campbell v Porta Mouldings

[2015] FWC 6479

[2015] FWC 6479

FAIR WORK COMMISSION

DECISION

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

Mr Steven Campbell
v
Porta Mouldings
(U2015/8913)

COMMISSIONER WILSON MELBOURNE, 18 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] This matter concerns an application made by Steven Campbell alleging unfair dismissal against his former employer, Porta Mouldings Pty Ltd. Mr Campbell’s application to the Fair Work Commission was first received in the Fair Work Commission by email on 30 June 2015. Mr Campbell’s application discloses that the date upon which his dismissal took effect is 4 June 2015. He had worked with Porta Mouldings since 2012, although he had also worked with them between about 2009 and 2011 in a separate engagement.

[2] Section 394(2) of the Fair Work Act 2009 requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 5 days out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Mr Campbell for the making of his application, and for the reasons set out below, I am not satisfied that a further period should be allowed for the making of his application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394 (3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The Respondent, Porta Mouldings, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[6] Those circumstances include an altercation between Mr Campbell and his site manager, Andrew Burnett on 4 June 2015. Mr Campbell was engaged as a timber worker, and at the time he had been working on a dry timber line, along with other employees. His shift started at 7.00am and the altercation was between about 11.30 am and 12.00pm. According to Mr Campbell, work on the line had stopped with the employees waiting for a forklift. Mr Campbell says that Mr Burnett had asked why and gave the appearance of someone who was about to become physically aggressive, and about to hit Mr Campbell;

“Andrew flexed his whole body, shoulders and arms, both fists clenched glaring wide eyed and came charging at me right up close to my face. He turned to my left side in the same way as he faced me. I thought he was going to king hit me so I hit him before he had a chance”

[7] As a result of this circumstance, Mr Campbell lost his job, being dismissed on the same day.

[8] Mr Campbell agreed in giving evidence that he had punched Mr Burnett, however, putting forward that it was an action of self-defence.

[9] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Campbell.

[10] For the purposes of s.396 of the Fair Work Act 2009 (the Act), Mr Campbell is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances, with the Respondent employing 17 employees at the time Mr Campbell was dismissed.

EXTENSION OF TIME

[11] The FW Act requires that, in deciding whether to grant an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account six criteria set out in s.394. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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”. 3

[12] In considering whether an extension of time should be granted to Mr Campbell, I am required to consider all of the criteria in s.394, which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[13] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 4 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.6

[14] The evidence about how Mr Campbell came to make an unfair dismissal application includes that after his dismissal, he received a letter of termination of employment from the Respondent. That arrived by the Tuesday or so after the events on 4 June, which was on a Thursday. The letter confirmed what he knew already; that he had been dismissed for misconduct on 4 June. It took him about a week and half after his dismissal to begin questioning his rights. At first, he contacted WorkSafe Tasmania and the Fair Work Ombudsman, who appear to have referred him elsewhere. Why that occurred, and to whom he may have been referred, is unclear. Similarly, it is unclear whether his enquiry was particularly about his unfair dismissal rights. In any event, the Applicant took some days, it seems, to realise that he had not got the information he needed. Near to that time, about 2 weeks after his dismissal, Mr Campbell broke his leg playing football.

[15] Ultimately, his unfair dismissal application was filed on 30 June 2015, 5 days after the expiry of the statutory period. When he came to make the application, he required help first from his mother and then a family friend. Each had some difficulty understanding what was required by the form and with an online lodgement. Mr Campbell says that he is almost computer illiterate, and that both his mother and the family friend had difficulties as well.

[16] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Mr Campbell to lodge his application. In all, that period was a total of 5 days.

[17] Mr Campbell’s application acknowledges that it is being made outside of the permitted time period, including a well-expressed reason for why that is the case. That reason includes his difficulties with making the lodgement as well as him not being aware of his rights until close to making the application.

[18] His evidence about when he realised the application was late is not clear. He could not point to a time when he came to that realisation.

[19] I find that Mr Campbell’s explanation about being unaware of his rights as well as his difficulties in making the application as being his explanation for their delay in making an application to the Commission.

[20] However, in context those reasons are insufficient to rise an acceptable reason for the delay. Within a week and a half after dismissal, Mr Campbell appears to have known he had rights, because at that time he commenced the process of contacting WorkSafe Tasmania and the Fair Work Ombudsman and possibly others about his situation. While breaking his leg would reasonably have interfered with that process, there is not medical evidence before me that would suggest that such situation was the reason for the delay, and Mr Campbell does not put forward that it was.

[21] While I accept that he and the people assisting him may have had difficulty in completing and lodging the application form, with the form itself acknowledging it is late, the evidence is that the work associated with completing the form only commenced the day before it was eventually lodged. Such situation does not satisfactorily explain what happened between the expiry of the statutory time period and the date on which the form was lodged, 5 days after the time limit had expired.

[22] Accordingly, this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.

2. Whether the person first became aware of the dismissal after it had taken effect

[23] On the basis of the evidence before me, I am satisfied that Mr Campbell first became aware of the termination of employment on 4 June 2015. This is therefore not a circumstance where Mr Campbell only became aware of his termination at some point after the time that it did. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[24] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 7

[25] Mr Campbell’s evidence about actions taken by him to dispute his dismissal are the actions referred to above in which he made contact with WorkSafe Tasmania and the Fair Work Ombudsman, and possibly others. Other than this action, I am satisfied that Mr Campbell took no substantive action to dispute his dismissal until the making of his application to the Fair Work Commission on 30 June 2015.

[26] Other than those steps, there is no evidence that Mr Campbell sought advice, proximate to his dismissal, about its merit or his rights. In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

4. Prejudice to the employer (including prejudice caused by the delay)

[27] The delay in the filing of the application is 5 days. The respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[28] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself create some prejudice to the former employer. However the consideration of the commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 8

[29] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[30] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[31] The matter is unusual in that Mr Campbell admits the main element of the alleged misconduct, being that he punched Mr Burnett. However, he puts forward that it was an act of self-defence and that other witnesses will give evidence that it was. Another employee, Tony Clay, has signed a short statement that would appear to verify what the Applicant says. Even so, the highest that such evidence is likely to rise is a finding that Mr Campbell hit Mr Burnett first, in order to avoid being hit himself.

[32] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings factors as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 9

[33] Given that he admits punching Mr Burnett, for the Commission to find in favour of Mr Campbell, it would be necessary for it to also be found that Mr Burnett’s actions were so provocative as to not only create a defence for his actions, but that it was harsh for Mr Campbell to be dismissed. The evidence I have seen so far on this matter does not lead in that direction. The evidence of Mr Campbell and the written, unsworn, statement of Mr Clay might lead to a finding that Mr Burnett was overbearing, or intemperate, but it does not point in the direction of a finding that the only reasonable course of action for Mr Campbell was to first punch Mr Burnett.

[34] As a result, consideration of the merits of the application resolves in favour of the Respondent.

6. Fairness as between the person and other persons in a similar position

[35] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either are currently before the Commission, or have been decided in the past. 10

[36] In applying Mr Campbell’s facts to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that there had been some process of diligent inquiry or dispute by him not long after their dismissal. However, this was not the situation in Mr Campbell’s case.

[37] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making his unfair dismissal application I am not satisfied there are exceptional circumstances that would warrant allowing a further period for Mr Campbell for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Mr Campbell’s case but also to the criteria set out within s.394 (3) of the Act.

[38] After consideration of the whole the material before me and the legislative criteria, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Campbell.

[39] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Fair Work Act and will issue an order dismissing Mr Campbell’s application as being out of time.

COMMISSIONER

Appearances:

Mr S Campbell on his own behalf

Mr A Burnett and Mr G Dunn for the Respondent

Hearing details:

2015

Hobart

16 September

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]

 3   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (2003) PR927201 [16].

 9   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 10   Wilson v Woolworths [2010] FWA 2480 at[24]‒[29]

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