Natalio Espinoza v KDR Victoria Pty Ltd T/A Yarra Trams

[2018] FWC 5594

[2018] FWC 5594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natalio Espinoza
v
KDR Victoria Pty Ltd T/A Yarra Trams
(U2018/5355)

COMMISSIONER LEE MELBOURNE, 18 SEPTEMBER 2018

Application for an unfair dismissal remedy - extension of time - application dismissed.

Introduction

[1] This matter involves an application to the Fair Work Commission (the Commission) made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Natalio Espinoza (the Applicant) claims he was unfairly dismissed from his employment with KDR Victoria Pty Ltd T/A Yarra Trams (the Respondent).

[2] There is no dispute between the parties that the Applicant was dismissed from his employment on 27 February 2018 effectively immediately. As required by s.394(2) of the Act, an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The application therefore should have been lodged by 20 March 2018. The application was lodged with the Commission on 24 May 2018 and was therefore made 65 days outside the statutory time limit.

[3] The matter was allocated to me for jurisdictional determination on the question of whether to allow a further period of time for lodging the application pursuant to s.394(3) of the Act. The matter was listed for Extension of Time Conference/Hearing on 27 July 2018 in Melbourne. The Applicant appeared on his own behalf and gave evidence and was assisted by a Spanish interpreter. Mr Thomas Page of the Victorian Chamber of Commerce and Industry appeared on behalf of the Respondent.

[4] Section 394 of the Act provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[5] As noted above, the application was not lodged within the statutory period. Therefore the matter can only proceed if a further period under section 394(3) of the Act is allowed.

Background

[6] The Applicant began working for the Respondent on 13 July 1992 as a Tram Conductor and was later employed as a Tram Driver. The Applicant was dismissed from his employment with immediate effect on 27 February 2018. The reasons for the Applicant’s dismissal related to a passenger complaint concerning an incident on 30 August 2017, where following an investigation it was found that the Applicant failed to render assistance to an injured passenger. The passenger complaint related to an alleged fall of a passenger on board the tram the Applicant was driving. The Applicant claims that he did not receive any complaints, did not have any knowledge of a passenger fall and during the investigation was not provided with any clear proof that he was communicated with by anyone in relation to the fall. 1

[7] The Applicant was verbally notified of his dismissal on 27 February 2018 during a meeting with the Respondent. The Applicant attended the meeting with a union representative as a support person. The Applicant accepts that he was notified of the dismissal verbally on 27 February 2018 and states he received the letter of termination on 6 March 2018. The Respondent claims that the letter was couriered to the Applicant on or about 28 February 2018.

[8] The letter of termination provided to the Applicant stated “you may appeal this decision by making a request in writing to the Chief Executive Officer within 48 hours”. The appeal process referred to is set out in the Yarra Trams Enterprise Agreement 2015 – Operations (Yarra Trams Agreement). 2The Applicant exercised his right of appeal. The Applicant was represented by the Australian Rail, Tram and Bus Industry Union (RTBU) throughout the appeal process. The appeal proceeding was held on 29 March 2018 and the Independent Appeal Chair, Mr Brian Lacy, verbally advised his Recommendation to the Respondent on the day of the appeal proceeding and the written Recommendation was issued to the Respondent in the evening on 29 March 2018. The Recommendation upheld the Respondent’s decision to terminate the Applicant’s employment, but recommended that the Respondent pay the Applicant five weeks’ salary in lieu of notice.3 The Respondent wrote to Mr Teasdale of the RTBU on 2 April 2018 advising that the Respondent had considered and accepted Mr Lacy’s Recommendation and on this basis it would pay the Applicant five weeks’ salary in lieu of notice within five working days.4 The Applicant claims that the RTBU notified him of the outcome of the appeal on 10 April 2018.5

[9] The application for unfair dismissal remedy was lodged with the Commission on 24 May 2018.

Consideration

Exceptional circumstances

[10] Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if the Commission is satisfied there are exceptional circumstances taking into account the criteria set out in section 394(3)(a) - (f) of the Act.

[11] The term exceptional circumstances was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd⁶, where the Full Bench stated that:

“[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.

...

[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.”⁷

[12] While Nulty v Blue Star Group Pty Ltd considered the term exceptional circumstances in relation to section 365 of the Act, the discussion is applicable to the term in section 394. I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.

[13] I will deal with each criterion of section 394(3) of the Act in turn.

(a) the reason for the delay

[14] The Applicant submits that the reason for the delay was that he applied for an internal appeal after his dismissal 8 and that he did not have information about the time within which to lodge the unfair dismissal application.9 The internal appeal proceeding was held on 29 March 2018. Mr Lacy’s Recommendation was advised verbally that day and issued in writing to the Respondent that evening. The Respondent wrote to Mr Teasdale of the RTBU on 2 April 2018 advising that the Respondent had considered and accepted Mr Lacy’s Recommendation and on this basis it would pay the Applicant five weeks’ salary in lieu of notice within five working days. The Applicant’s evidence is that on 10 April 2018 he received a telephone call from the union representative advising that his appeal was unsuccessful. The Respondent contends that the union representative was aware of the outcome from 29 March 2018. Irrespective, I accept the Applicant’s uncontested evidence that he did not receive notification of the outcome of the internal appeal until 10 April 2018.

[15] The Respondent submits that the internal appeal process in the Yarra Trams Agreement does not stay a decision to terminate. Further, that the Applicant’s letter of termination gave no commitment to stay or delay the decision subject to the outcome of an appeal. During the hearing the Applicant gave evidence that the appeal took time after his dismissal and he thought he had to wait until the result of the appeal before lodging an unfair dismissal application. While I accept that the dismissal was not stayed by the appeal process, I am satisfied that in the circumstances the Applicant has a satisfactory explanation for the delay between 20 March 2018 (the day after the last day of the prescribed 21 day period for filing the application) and 10 April 2018 (the day he was notified by the RTBU of the outcome of the internal appeal). This period encompasses the internal appeal process and the notification to the Applicant of the Respondent’s response to the outcome of that process.

[16] As stated above, the Applicant submits that he did not have information about the time within which to lodge the unfair dismissal application. 10 The Applicant also submitted during the hearing that after the appeal process he believed he had to wait for the final payment before initiating any complaint and considered that he was still on the payroll. The Applicant confirmed during the hearing that the final payment was the five weeks’ salary, as recommended by Mr Lacy, which the Applicant stated was paid on 5 April 2018. Further, the Applicant claims that he also sought advice from the lawyers Slater and Gordon. The Respondent submits, and I agree, that the Applicant has not provided any acceptable explanation for the delay in filing his application until 24 May 2018, being 43 days after he became aware of the outcome of the internal appeal. Ignorance of the timeframe for lodgement is not an exceptional circumstance.11 Further, the claims of the Applicant that he believed he needed to await payment of the additional five weeks' pay, thought he was still on the Respondent’s payroll and sought advice from a legal firm are not acceptable reasons for the delay.

[17] I have taken into account the fact that the Applicant appealed the dismissal and could reasonably have expected that this process may provide the remedy that he seeks. However, having been advised of the outcome on 10 April 2018, the Applicant took a further 43 days to lodge the application. There is no acceptable reason given for this significant delay. This is a factor that weighs against a finding of exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect

[18] The Applicant submits that he was notified of the dismissal verbally and with a letter dated 27 February 2018 received on 6 March 2018. 12 I am satisfied that the Applicant was aware of his dismissal the day it took effect.

[19] This is a neutral consideration.

(c) any action taken by the person to dispute the dismissal

[20] Action taken by the Applicant to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.¹³

[21] The Respondent accepts that the Applicant did take steps to dispute the dismissal by lodging the internal appeal process. However, submits that the Applicant has not made any other attempts to dispute the dismissal with the Respondent. 14

[22] I am satisfied that in lodging the internal appeal the Applicant took steps to dispute the dismissal. This is a factor which weighs in favour of a finding of exceptional circumstances.

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

[23] The Applicant submits that the Respondent is a large employer and will not suffer prejudice. 15 The Respondent submits that a long delay gives rise to a general presumption of prejudice and that the delay in this matter may give rise to this presumption, however, does not raise any specific prejudice.16

[24] I am not satisfied that there is any prejudice to the employer. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.¹⁷ This is a neutral consideration.

(e) the merits of the application

[25] In relation to the merits of the application, the Applicant submits that he did not have any knowledge of or receive any complaints or advice in relation to the passenger fall on the tram and nobody knocked on the door of his cabin. The Applicant claims that without knowledge of the incident he could not give assistance. Further, that the passenger on the tram was not injured and rejected the help of other passengers, based on the CCTV footage. In addition, that during the investigation he was not provided with any clear proof that he was communicated with in relation to the fall. 18 During the hearing the Applicant alleged that the investigation, which led to his dismissal, was not undertaken properly and was unfair. Finally, the Applicant submits that the dismissal is too harsh for a driver that has been working safely for 30 years, who is helpful and responsible with the passengers.19

[26] The Respondent refers to the outcome of the internal appeal process and the Recommendation from Mr Lacy that the decision to terminate should stand, albeit that it should have been on notice rather than summary dismissal without notice, in submitting that this factor should be a neutral consideration. 20

[27] Whilst the merits of the application are relevant, the Commission should not embark on a detailed consideration of the substantive case.²¹ The Applicant was dismissed for misconduct and the Applicant denies that he is guilty of the misconduct. The internal appeal undertaken by Mr Lacy found that the dismissal should stand but that the requisite notice period of five weeks’ salary in lieu of notice should be paid to the Applicant. Based on the materials before me, I do consider that the Applicant has at least an arguable case. In the circumstances, this factor weighs slightly in favour of a finding of exceptional circumstances.

(f) fairness as between the person and other persons in a similar position.

[28] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past.²² There were no particular submissions made that were relevant to this factor. This is a neutral consideration.

Conclusion

[29] I am not satisfied there is an acceptable reason for the rather significant delay and this weighs heavily against granting an extension of time. I am satisfied the Applicant took action to dispute the dismissal by lodging the internal appeal which weighs in favour of granting an extension of time and the merits of the application weigh slightly in favour. All other factors are neutral considerations. Taking into account all of the relevant factors in s.394(3)(a)-(f), I am not satisfied there are exceptional circumstances that would warrant allowing a further period for the making of an application for unfair dismissal remedy. I refuse to grant the extension of time and the application is dismissed.

[30] An order will be issued concurrently with this decision.

COMMISSIONER

Appearances:

N Espinoza on his own behalf for the Applicant

T Page on behalf of the Respondent

Hearing details:

2018.

Melbourne:

27 July 2018.

Final written submissions:

6 July 2018

Printed by authority of the Commonwealth Government Printer

<PR700115>

 1   Exhibit A1, Applicant’s Outline of Argument: extension of time at Q5, Q7 and Applicant’s Statement of Evidence

 2   AE416732

 3   Respondent’s Outline of Submissions, filed 6 July 2018 at [22] (d)

 4   Respondent’s Outline of Submissions, filed 6 July 2018 at [22] (e)

 5   Form F2 – Unfair dismissal application at Q1.4

6 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1

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

 8   Form F2 – Unfair dismissal application at Q1.4

 9   Exhibit A1, Applicant’s Outline of Argument: extension of time at Q4

 10   Exhibit A1, Applicant’s Outline of Argument: extension of time at Q4

 11   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 12   Exhibit A1, Applicant’s Outline of Argument: extension of time at Q2

13 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300

 14   Respondent’s Outline of Submissions, filed 6 July 2018 at [30] – [34]

 15   Exhibit A1, Applicant’s Outline of Argument: extension of time at Q6

 16   Respondent’s Outline of Submissions, filed 6 July 2018 at [35] – [36]

17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

 18   Exhibit A1, Applicant’s Outline of Argument: extension of time at Q5, Q7 and Applicant’s Statement of Evidence

 19   Exhibit A1, Applicant’s Outline of Argument: extension of time at Q7

 20   Respondent’s Outline of Submissions, filed 6 July 2018 at [43] – [44]

²¹ Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 at [14]

22 Wilson v Woolworths [2010] FWA 2480 at [24] – [29]