Mr Thomas Osborne v Glen Industries T/A Glen Innes Recycling

[2015] FWC 8462

[2015] FWC 8462

FAIR WORK COMMISSION

DECISION

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

Mr Thomas Osborne
v
Glen Industries T/A Glen Innes Recycling
(U2015/13778)

VICE PRESIDENT CATANZARITI BRISBANE, 10 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Thomas Osborne (Applicant) applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his former employment with Glen Industries trading as Glen Innes Recycling (Respondent).

[2] At the hearing, the Applicant represented himself and was accompanied by his sister Ms Clayton as a support person. Ms Paterson sought permission to appear on behalf of the Respondent. Having regard to s.596 of the Act and noting that the Respondent’s legal representatives had filed extensive written submissions that set out the Respondent’s position, permission to appear was not granted on the basis that the matter was not complex and would not be afforded any increased efficiency through legal representation.

Background

[3] The Applicant was employed at a recycling centre by the Respondent undertaking various tasks including articulated front end loaded, conveyor belt sorting and fork lift operating. The Applicant commenced hs employment with the Respondent on 15 February 2010.

[4] In his Form F2 – Unfair Dismissal Application, the Applicant purports that on 30 July 2015 there was an incident in which he was “verbally abused, physically intimidated, sworn at repeatedly for no particular reason” by a colleague so he verbally resigned and left the workplace but did so “under extreme duress” as his “job had become untenable”.

[5] The Applicant alleges that he was not notified of his dismissal until he checked his bank account on 21 August 2015 and found approximately $4000 dollars of additional funds in his account upon which he called the Respondent and spoke to Mark Williams (General Manager) who told him he had been paid out. The Applicant also alleges that on the same day, he received a letter in the mail from Kylie Hawkins dated 31 July 2015 which sought verification of his intension regarding continued employment with the Respondent. A copy of this letter was attached to the Respondent’s Form F3 – Employer Response, and sets out that the Applicant had verbally expressed his resignation to Mr Williams on 30 July 2015 and the letter invited the Applicant to confirm this in writing. The letter clearly stated that it was in no way a termination of the Applicant’s employment and urged the Applicant to contact the Respondent and clarify his position. The letter stated that if they did not hear from the Applicant by 10 August 2015, they would accept his verbal resignation of 30 July 2015 and proceed to finalise his employment.

[6] The Applicant also received a second letter dated 17 August 2015 from the Respondent. The Applicant says that he did not receive this letter until on or around 4 September 2015. This letter stated that in circumstances where the Respondent had not received a reply to the 31 July 2015 letter, had not received any further contact from the Applicant and given his on-going non-attendance at work since 30 July 2015, the Respondent had accepted his verbal resignation of 30 July 2015 and would process his final pay in the next pay cycle (18 August 2015).

[7] The Applicant contends that he did not want to respond to the letters or make contact with the Respondent until he had legal advice so he contacted Legal Aid and left his details. After two weeks of not hearing from them he called again and was told he had provided them with the wrong telephone number. He was then given an appointment on 18 September 2015 and after he heard nothing he called again on 30 September 2015 and was told he would be contacted, but purports to have heard nothing since.

[8] The Applicant prepared and filed his application for unfair dismissal on 19 October 2015.

[9] The Respondent has made a jurisdictional objection to the application on the basis that the Applicant resigned verbally on 30 July 2015 and was not dismissed. The Respondent also objects to the application on the basis that the Applicant filed the application outside the statutory time limit on any view of the facts and in the absence of exceptional circumstances warranting an extension of time.

[10] If I am to accept the Applicant’s version of the facts, namely that his dismissal date was 21 August 2015 when he found funds paid out in his account, this puts the application some 62 days out of the statutory time limit of 21 days. The threshold question requiring determination is whether the Applicant should be granted an extension of time to file his application. If I determine that no extension of time should be granted, a finding of no jurisdiction must follow and the factual dispute in relation to whether the Applicant resigned or was dismissed falls away.

The relevant legislation and authorities

[11] One of the matters that the Commission must determine prior to considering the merits of an application is whether the application was made within the period required in s.394(2).

[12] Section 394 of the Act relevantly provides

“(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."

[13] It is well established that this section requires a consideration of all of the circumstances and that exceptional circumstances may arise from a single factor or a combination of factors. The Applicant contends that a combination of factors amount to exceptional circumstances in this matter. I propose to consider the circumstances by reference to the factors contained in s.394(3) of the Act.

[14] The term “exceptional circumstances” has been helpfully summarised by a Full Bench of the Commission in Nulty v Blue Star 1:

“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To 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. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are ‘exceptional circumstances’, taking into account the matters specified 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.”

[15] I adopt and follow the approach of the Full Bench in this regard.

Consideration

The reason for the delay

[16] The Applicant submitted that he should be given an extension of the 21 day period on the basis that:

(a) he did not receive notification that his resignation had been accepted until 21 August 2015;

(b) he was unable to obtain prompt legal advice form Legal Aid; and

(c) he has no previous experience or knowledge of the laws surrounding this type of complaint.

[17] The Respondent submitted that the reasons for delay given by the Applicant are manifestly inadequate to demonstrate exceptional circumstances as required by the Act.

[18] I do not consider that the circumstances described by the Applicant as causing the delay can be characterised as exceptional for the purposes of exercising the discretion to grant an extension of time. Even accepting the Applicant’s version of events that he only received notification of his termination on 21 August 2015, the 62 day delay in filing the Application after the date is not adequately explained by the reasons provided by the Applicant, nor do those reasons constitute “exceptional circumstances” in accordance with the manner in which that term has previously been interpreted by the relevant authorities.

[19] I find that the matters above weigh heavily against the exercise of my discretion in relation to an extension of time in this matter.

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

[20] The Applicant acknowledges that he verbally resigned on 30 July 2015 but claims that he was forced to do so under duress as his employment had become untenable. As previously noted, on his version of the facts, he claims that he only received notification of his termination on 21 August 2015, after it had taken effect.

[21] The Respondent submitted that the applicant was well aware of his resignation on 30 July 2015, and in any event it was put to him in the two letters dated 31 July 2015 and 17 August 2015.

[22] Even accepting the Applicant’s version of events, that he only received notification of his termination on 21 August 2015, the 62 day delay in filing his Applicant after this date cannot be considered reasonable nor can the reasons provided by the Application for this delay be considered exceptional. I find that this factor weighs against the Applicant in the exercise of my discretion to grant an extension of time.

Any action taken by the person to dispute the dismissal

[23] The only action taken to dispute the dismissal that is discernible from the evidence is the application itself, the subsequent proceedings before the Commission and the applicant’s claim that he sought legal advice from Legal Aid following the discovery of the funds in his account and receipt of the 31 July 2015 letter on the 21 August 2015.

[24] The Respondent submitted that no action was taken by the Applicant to dispute the cessation of his employment despite being afforded several opportunities to do so, which are set out in summary as follows:

(a) the Applicant’s termination was initiated by the Applicant in that he verbally resigned his employment 30 July 2015;

(b) the Applicant refused to speak to his General Manager on 31 July 2015 in order to discuss his resignation;

(c) the Applicant failed to respond to the Respondent’s letter sent 3 August 2015 (dated 31 July 2015) seeking confirmation of his resignation;

(d) the Applicant refused a request to meet with the General Manager of the Respondent when he attended the Respondent’s premises on 17 August 2015; and

(e) the Applicant failed to respond to the Respondent’s letter dated 17 August 2015 confirming acceptance of his resignation.

[25] At the hearing, the Applicant submitted in relation to refusing to speak to his General Manager on 17 August 2015, that this did not take place. The Applicant contends that he was at the Respondent’s premises as a customer and while he was there, he was asked by Mr Williams whether he had received any mail and he replied that he had not. He asked Mr Williams what was going on and says that Mr Williams told him he was “on leave with full pay”.

[26] I find that this matter weighs against the exercise of my discretion in relation to granting an extension of time in these proceedings. Even putting to one side what did or did not take place by way of conversations between the Applicant and his General Manager, the fact remains that the Applicant failed to make any contact with his employer after his verbal resignation and failed to respond to the 31 July 2015 or 17 August 2015 letters.

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

[27] The Respondent submitted that to consider the Application after such a delay would cause considerable prejudice to the Respondent who has replaced the Applicant in respect of its resourcing.

[28] I find that this is a neutral factor in the exercise of my discretion in relation to an extension of time in this matter.

The merits of the application

[29] The Respondent submitted that on the basis the Applicant was not dismissed and that the application is jurisdictionally barred, the application has limited prospects of success and should be dismissed.

[30] The question of whether the Applicant verbally resigned under duress is a disputed factual issue. I find that the issue of merit is a neutral factor in the exercise of my discretion in relation to an extension of time in this matter.

The fairness as between the person and other persons in a similar position

[31] There is no evidence to suggest that this factor is relevant to my consideration in this matter.

Conclusion

[32] I have considered all of the factors in s.394(3) of the Act and I am not satisfied that there are exceptional circumstances warranting the grant of an extension of time for the Applicant to make his s.394 application. The delay in lodging the application was significant and the reasons provided by the Applicant fall short of establishing exceptional circumstances. The application for an extension of time and the application for an unfair dismissal remedy are dismissed.

VICE PRESIDENT

Appearances:

Mr Osborne in person.

Ms A Paterson for the Respondent

Hearing details:

8 December

2015

Brisbane

 1   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [13]-[15].

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