Nathan Byrne v Caterpillar of Australia Pty Limited T/A Caterpillar
[2016] FWC 4925
•21 JULY 2016
| [2016] FWC 4925 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nathan Byrne
v
Caterpillar of Australia Pty Limited T/A Caterpillar
(U2016/6620)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 21 JULY 2016 |
Application for relief from unfair dismissal - extension of time not granted.
[1] Mr Nathan Byrne alleged that the termination of his employment by Caterpillar of Australia Pty Limited (Caterpillar) was unfair.
[2] There was no dispute that the date of termination was Monday 22 February 2016 or that Mr Byrne was notified of his dismissal that day. Mr Byrne registered on the Fair Work Commission (Commission) web site as an eFiling User on 21 March 2016 and maintains that that he also filed his Form F2 - Unfair Dismissal Application (Application form) on that day (the Application). There was no record of the Commission having received the Application form or Application on 21 March 2016 and it was not until Mr Byrne contacted the Commission on 2 May 2016 and was asked to send it in, that the Application form was received.
[3] Whether received on 21 March 2016 (7 days late) or 2 May 2016 (49 days late), Mr Byrne’s unfair dismissal application was not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).
[4] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:
“[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." [Endnotes not reproduced]
[6] At the hearing, Mr Byrne gave evidence and addressed the material he had filed. Represented by its in-house lawyer, Mr Sam Waters, Caterpillar made submissions only.
Section 394(3)(a) the reason for the delay;
[7] There must be an acceptable reason for the delay in making the unfair dismissal application. 2 Mr Byrne must provide a credible reason for the whole of the period that the application was delayed.3
[8] 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. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 4
[9] The Full Bench of the Commission explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 5:
"For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."
[10] Mr Byrne said he called the Commission once or twice following his termination. The first time was on 24 February 2016, two days after. 6 He said he was “trying to get confirmation of putting it in”7 but that he was not sure that the Commission was the correct place for him to go. This was because he had been told by a Supervisor with whom he had worked he might be over the high income threshold.8 In the Application form, Mr Byrne recorded “someone told me that I would not be eligible as I earned over $100,000 last year. I only found out today that it was not true. If I knew I had the option I would have been on to this immediately.”9
[11] In his Outline of Argument, Mr Byrne gave the following explanation as to why the Application was made more than 21 days after his dismissal by stating:
1. The first few days I was in total shock and I was not able to function in any reasonable way.
2. I tried contacting the Fair Work Commission but was unable to get through to any person to speak to. After reading a few things on the web site it appeared that I was not able to lodge an Unfair dismissal as I had earned in excess of $136700
3. I had also tried to call the Employment Law Centre of WA more than 20 times but just kept getting a message saying we cannot take your call at the moment try again another time. They only allow calls on Monday Tuesday and Thursdays and do not allow you to leave a message.
4. After not being able to get any information or being able to speak to anyone about this matter I decided to lodge an Unfair dismissal form. I was under the impression from looking at all of the documents on line that it was 21 days to lodge the form. Weekends are obviously not included as you cannot lodge a form with any Government department on Saturday or Sunday. There were 4 Saturdays and 4 Sundays before the 21st March 2016
5. I lodged the form on the 20th day of which was Monday the 21st March at 14:44 and received an E-filing email reply from the Fair Work Commission stating “Acknowledgement of Registration”. I took this to mean as it stated, that the forms I put in on line at this time had been lodged.
6. In between all of the above I have been fully focused on trying to regain employment, look after my kids and also hold off the banks as I can’t afford my Mortgages. 10
[12] Mr Byrne said his “main goal was to try and deal with the Employment Law Centre” because they would “directly deal with it.” 11 He said he first called the Employment Law Centre on Wednesday 24 February 2016 but it only worked Mondays, Tuesdays and Thursdays. The call went straight through to a message bank that advised that no messages could be left and to call back later. He said that on one particular day he tried ten times over a two hour period but could not get through.12
[13] Mr Byrne said he established ‘fairly early on,’ or within the first week, there was a 21 day limit from the Commission’s website. 13 He waited to lodge the Application form because his main goal was to talk with someone at the Employment Law Centre. He thought the 21 day time limit for lodgement was 21 working days on the basis that the Commission was a Government department and that lodgement would not be possible on a weekend or public holiday.14
[14] On 21 March 2016, Mr Byrne said that he completed the Application form online with all his details, sent it in and then received by way of reply an acknowledgement of registration from “[email protected]” stating he had been registered on the FWC site as an eFiling User. 15
[15] Mr Byrne said he thought he had submitted the Application form on time, that he did not like hounding or harassing people and that he is not very good at confrontations. 16 As to what happened next, he said that having seen things going on with the Commission on television he thought the Commission was “snowed under” or “had a lot of work.” Mr Byrne thought the Application would be reached in due course and he did not need to follow it up because he had acknowledgement of the registration.17 It was only following prompting from his wife and her discovery that the application fee had not been deducted from their bank account or credit card that he followed up by telephoning the Commission. He thought this was on 2 May 2016. 18
[16] Mr Byrne sent an email to the Perth Registry of the Commission on 2 May 2016. He attached a ‘screenshot’ of his ‘Acknowledgement of Registration’ to the following message:
“I put in an unfair dismissal application on the 21 March and received a email back saying Acknowledgement of Registration registration received. After trying to call several times I managed to get through to someone in Melbourne who told me there was no information or form received and that I should email you directly with a screen shot of the Acknowledgement of Registration. I was also asked to resend the form and documents. Everything should be attached.”
[17] Mr Byrne said he received a reply from ‘Rebecca’ and she told him that he had missed one of the questions on the form. The Commission file includes a file note record of a phone call from a Commission staff member to Mr Byrne detailing that she told Mr Byrne that his efiling acknowledgement established that he had registered as a ‘user’ but not that he had submitted the Application form. This file note record also includes the following:
“Applicant had never made an efiling payment which suggests the application was not efiled. Explained if he could not provide the acknowledgement, we could not establish if the application was sent to us earlier and the jurisdictional issue would need to be dealt with. Also requested answer to 3.2.”
[18] Mr Byrne acknowledged in a reply email that he did miss a section of the Application form. He subsequently completed it and sent it back to the Commission. He also advised that his spam/junk folder had been cleaned out on 21 April 2016 and that he had gone back through his file and could not find anything else. Mr Byrne said he made the payment on 3 May 2016. 19
[19] Mr Byrne said that because he had received an acknowledgement of registration, he had assumed the Application form had been received by the Commission and that it would be attended to in due course. 20 I caused enquiries to be made of the Commission’s IT Department as to whether the Application form was filed on 21 March 2016 and the advice received was an Applicant logged in that day but did not lodge anything.
[20] In relation to the reason for his delay, Mr Byrne summarised as follows:
“Okay. Now, Mr Byrne, were there any other reasons that you want to put forward going to the reason for the delay in lodging your application forms?---Yes. Look, I mean, no. I mean, I - basically I thought I put it in in the correct amount of time. I really didn't want to go down this path. I wanted – as I said, I wanted to speak to the Employment Law Commission. I wasn't sure on – I heard a few different things from different people and friends, not people of any useful information, and I wasn't sure whether or not I would actually be able to utilise the Fair Work Commission, and when I could really get in – because I live out in the country, I can't just drive anywhere and so after not being able to contact people and different things I just decided, all right, well, you've got lodge it today, and lodge it and then worry about whether it's actually – you know, whether you have a case specifically or not, and with hindsight and from information I got from many different people I believe that I do so I lodged it.” 21
[21] The evidence establishes Mr Byrne was aware at an early stage that there was a 21 day time limit but he incorrectly assumed it was 21 working days. Ignorance of the timeframe for making an unfair dismissal application is not an exceptional circumstance. 22 It has previously been acknowledged by the Commission that it is common for employees to suffer shock and trauma as a result of dismissal from employment.23 In this case, the evidence does not establish that Mr Byrne experienced a level of incapacity following his termination creating circumstances which justify an extension of time. I acknowledge that Mr Byrne’s experience trying to contact the Employment Law Centre would have been frustrating, but this did not mean he was prevented from filing the Application. I am therefore not satisfied that Mr Byrne has provided a reasonable explanation for why his attempt to lodge the Application on 21 March 2016 was seven days late.
[22] As to this already late attempt to file the Application on 21 March 2016, it seems clear that while Mr Byrne was registered as an eFiling User at that time, the Application form was not attached as required by Rule 13 of the Fair Work Commission Rules 2013 and nor was the eFiling payment successfully made. Therefore, I do not consider that the material received by the Commission on 21 March 2016 should be regarded as an unfair dismissal application made pursuant to s.394 of the Act. Unlike other cases that have come before the Commission, 24 Mr Byrne was not advised on 21 March 2016 that the Commission would be in contact with him or that it would be reviewing the Application. It was not until 2 May 2016, six weeks later, that Mr Byrne followed up with the Commission and filed the Application. I do not regard the factors behind this further six week delay as constituting exceptional circumstances. Mr Byrne laboured under a misapprehension that was solely based on his own assumptions.
[23] Therefore, having considered the period from 22 February 2016 until 2 May 2016, I am not satisfied that Mr Byrne has established a reasonable explanation for the delay. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(b) whether the person first became aware of the dismissal after it had taken effect;
[24] Mr Byrne first became aware of his dismissal when his supervisor, Mr Terry Lewis, handed him a letter advising him of the termination of his employment with immediate effect at a meeting on 22 February 2016. He was aware of the dismissal on the day it took effect and had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.
Section 394(3)(c) any action taken by the person to dispute the dismissal;
[25] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 25 Caterpillar submitted that Mr Byrne took no action to dispute his termination, other than filing the Application.26
[26] Mr Byrne said he tried to dispute the dismissal at the meeting on 22 February 2016 but it was apparent to him that the termination was going to happen and there was no way he was going to be able to change the outcome. 27 In his Outline of Argument, Mr Byrne submitted that he stated straight away that the termination was unfair but he was not in any shape to be able to argue because he was in shock, crying and in total disbelief.28
[27] I do not consider the mere assertion that a dismissal is unfair without something more weighs in favour of a finding there are exceptional circumstances.
Section 394(3)(d) prejudice to the employer (including prejudice caused by the delay);
[28] Prejudice to the employer will weigh against granting an extension of time. 29 Caterpillar submitted that it will be prejudiced if an extension of time were granted due to bearing the inconvenience of defending a claim without merit. Mr Byrne submitted that there was no prejudice to Caterpillar however, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.30 Prejudice to Caterpillar is a neutral consideration.
Section 394(3)(e) the merits of the application;
[29] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group 31, it said:
"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."
[30] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case" 32 for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.
[31] Caterpillar submitted that in testing positive to cannabis during a drug test conducted by its client, Fortescue Metals Group, Mr Byrne was unambiguously in breach of Caterpillar’s Drug & Alcohol-Australia policy.
[32] In his Outline of Argument, Mr Byrne submitted:
● “As far as I know it is not a zero tolerance policy at Caterpillar. No documentation easily accessible to me or any other personnel.
● I had 2 weeks at home before being terminated to search the entire Caterpillar web for any documentation similar to the document that was handed to me at the termination. That document could not be found and was not easily accessible or known by myself.
● I asked other work colleagues and nobody else was under the impression that instant termination was the result of 1 positive test.
● The Caterpillar Hand Book does not mention anything about being terminated under for “testing positive on site” yet I was handed a document from my manager at my termination meeting from “Asia Pacific Human Services Policy and Procedures” that does mention “testing positive on site”
● I was told by my Manager and Superintendent that it did not seem fair referring to FMG’s zero tolerance policy and they would fight for me and argue the point to FMG. This indicated to me from their point of view that Caterpillar did not have a zero tolerance policy especially one that they knew of. They also stated that they would not let me go easily. It was then mentioned to me that they would look at the option of getting me on to another site and keep working for Caterpillar.
● At no stage was I tested for impairment or intoxication. It was a urine test and had been many days since I had inadvertently eaten the marijuana. I admitted that I ate it. I made an unintentional mistake.
● I was not tested by Caterpillar afterwards of which would have proven my innocence as far as being impaired or intoxicated.
● I was not offered any counselling or help even though it was obvious I was in a distressed state and not of sound mind due to the termination.
● I knew I was going to be terminated when I saw Terry’s face. He also told me that he got the email with the termination letter 8 minutes before the meeting leaving me belief there was nothing I could have done to stop it.” 33
[33] I am not able to make a final assessment of the merits as there is clearly a factual dispute between the parties that has not been tested. I consider this criterion to be neutral.
Section 394(3)(f) fairness as between the person and other persons in a similar position.
[34] The question of fairness as between Mr Byrne and other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm ,34 as follows:
“cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
[35] Mr Byrne stated that he did not know of anyone else in a similar position, adding that he worked as part of a small group from Caterpillar, while Caterpillar submitted Mr Byrne does not have any special characteristics that would weigh in favour of allowing the extension of time. I consider this criterion to be neutral.
Conclusion
[36] Having taken into account the matters referred to in paragraphs [7]-[35] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Byrne’s application to be made. Mr Byrne’s circumstances were not out of the ordinary course, unusual, special or uncommon and he has not provided a reasonable explanation for the whole of the delay. None of the other criteria weigh in favour of a finding of exceptional circumstances and a lack of prejudice alone is insufficient to find exceptional circumstances.
[37] During the conduct of the Application, a question arose as to whether Mr Byrne was a person protected from unfair dismissal pursuant to s. 382 of the Act due to his annual rate of earnings. As I have not found there are exceptional circumstances that warrant an extension of time for Mr Byrne’s application to be made, it is not necessary for me to make a determination on this question and I decline to do so.
[38] Mr Byrne’s application for an extension of time is refused and therefore his unfair dismissal application is dismissed. An order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr N Byrne on his own behalf.
Mr S Waters on behalf of the Respondent.
Hearing details:
2016.
Melbourne and Perth by video link:
May 31.
1 (2011) 203 IR 1.
2 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
3 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
5 Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].
6 Transcript PN 91.
7 Transcript PN 92.
8 Transcript PN 92-93.
9 Form F2-Unfair Dismissal Application at 1.4.
10 Applicant’s Outline of Argument at Question 4.
11 Transcript PN 92.
12 Transcript PN 94.
13 Transcript PN 151-152.
14 Transcript PN 95-98.
15 Transcript PN 99-112.
16 Transcript PN 227.
17 Transcript PN 113.
18 Transcript PN 114.
19 Transcript PN 144.
20 Transcript PN 156.
21 Transcript PN 164.
22 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].
23 Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [10].
24 Poolperm-Johnson v Hobart Police & Community Youth Club Inc.[2016] FWC 2276 and Sawyer v Employment Innovations T/A Michel’s Patisserie [2015] FWC 5000.
25 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
26 Respondent’s Submissions at [9].
27 Transcript PN 195.
28 Applicant’s Outline of Argument at Question 5.
29 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
30 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
31 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
32 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
33 Applicant’s Outline of Argument at Question 7.
34 Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29].
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