Nathan Gibbings v Coles Supermarkets Australia Pty Ltd and Liquorland (Australia) Pty Ltd

[2016] FWC 3710

[2016] FWC 3710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Gibbings
v
Coles Supermarkets Australia Pty Ltd and Liquorland (Australia) Pty Ltd
(U2016/6351)

COMMISSIONER BISSETT MELBOURNE, 9 JUNE 2016

Application for relief from unfair dismissal - Extension of time application - application not granted.

[1] Mr Nathan Gibbings has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Gibbings was employed by Liquorland (Australia) Pty Ltd (Liquorland). Mr Gibbings commenced employment with Liquorland in January 2014. His employment was terminated on 22 April 2015.

[2] Mr Gibbings’ employment was terminated because he entered a Liquorland store after hours accompanied by another person and, on leaving the store, removed product from the store. Mr Gibbings was stood down from his employment because of this incident on 12 February 2016. On 12 July 2015 Mr Gibbings was charged by the police, I understand in relation to the incident. On 14 January 2016 the charges against Mr Gibbings were dropped and prosecution not pursued in relation to the charges.

[3] Mr Gibbings lodged his application for relief from unfair dismissal on 21 April 2016. His application was made 365 days after the date of his dismissal and was therefore made 344 days outside the time limit prescribed by the Act. Mr Gibbings seeks an extension of time within which to make his application.

Legislation

Section 394 of the Act states:

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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.

[4] In order to determine if exceptional circumstances exist it is necessary that I further consider each of the matters under s.394(3) of the Act.

Reason for the delay

[5] Mr Gibbings gives a number of reasons for the delay in making his application.

[6] Mr Gibbings says that, since September 2014 he has been suffering from a mental illness.

[7] In his written submissions (in the form of an amended Form F2) Mr Gibbings says he was referred to Slater & Gordon lawyers by his union in March 2015. He says that the referral was for employment law and workers’ compensation advice. In his oral evidence to the Commission he said that he attended Slater & Gordon lawyers where he consulted a workers’ compensation lawyer, an employment lawyer and a criminal lawyer.

[8] In further material Mr Gibbings says he further consulted his lawyer between 6 and 27 May 2015. This appears to have been in relation to his workers’ compensation claim.

[9] Mr Gibbings further said, in his written submission, that he resumed his workers’ compensation matter after the criminal charges were dropped by police on 14 January 2016. In his oral evidence he says he again saw lawyers sometime in March 2016 when he was advised that his application for unfair dismissal should have been made within 21 days of the date of his dismissal.

[10] Mr Gibbings says that he did not lodge his unfair dismissal claim at the time of his dismissal because he was told he could not do so until the criminal matter was resolved. Mr Gibbings does not explain how he could have received this advice when he saw his lawyer in March 2015 which was prior to this dismissal or in May 2015 when he was not aware that he had been charged by the police until 12 July 2015.

[11] Further, Mr Gibbings says that he did not make an application for unfair dismissal at the time the police charges were dropped as he needed to get a further opinion from his treating psychiatrist.

[12] Mr Gibbings received his further medical report dated 15 April 2016 on 19 April 2016 and lodged his application for unfair dismissal on 21 April 2016.

[13] Mr Gibbings provided copies of his medical reports from 20 July 2015 and 15 April 2016. No other medical evidence was given.

[14] Liquorland says that, to the extent that Mr Gibbings seeks to rely on representative error, no one from Slater & Gordon attended to explain any error such that they could be cross-examined on the matter.

[15] Liquorland also submits that, to the extent that Mr Gibbings says he sought advice from his union, the Shop Distributive and Allied Employees Association (SDA) – and that they provided incorrect advice, its experience with the SDA is that it is well aware of time limits in the Commission.

When he first became aware of the dismissal

[16] Whilst Mr Gibbings was not totally clear as to when he became aware of his dismissal. He agrees that the notice of termination was sent to him by registered post but says he received it a couple of weeks after it was dated.

[17] Accepting this, he would have received the notice of termination of employment around 5 May 2015.

Any action to dispute the dismissal

[18] Mr Gibbings says he spoke to his union who gave him incorrect advice and failed to attend a performance meeting he had with management. This incident occurred in March 2015 which was prior to his dismissal.

Prejudice to the employer

[19] Mr Gibbings says that Liquorland is a large employer and is not prejudiced by any delay in hearing his application.

[20] Liquorland says that it is prejudiced in being able to defend the application as the key witness and decision maker (Mr Karl Webber) no longer works for Liquorland.

Merit

[21] Mr Gibbings suggests that there is merit in the Commission dealing with his application because the reason for his dismissal led to the (subsequently abandoned) criminal charges.

Fairness

[22] Liquorland says it would be unfair to others who have been in similar situations who have had criminal proceedings pending who have lodged their applications on time for Mr Gibbings to be given an extension of time.

Consideration

[23] An extension of time can only be considered by the Commission if exceptional circumstances exist taking into account those matters outlined above.

[24] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group 1 where the Full Bench of Fair Work Australia found:

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…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.

[25] It is relevant to this matter that an applicant seeking an extension of time within which to make the application must be able to explain the totality of the delay. In Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 2the Full bench found:

It is apparent from the Commissioner’s decision that in being satisfied there were exceptional circumstances, the Commissioner does not consider Ms Smithers’ failure to provide a credible reason for her delay between 8 and 21 January 2010 in making her unfair dismissal remedy application to FWA.

The Commissioner’s failure to take into account such a matter is an appealable error of the type set out in House v The King. Such a matter should have been a material consideration in the Commissioner’s decision as to Ms Smithers’ reasons for delay and whether she was satisfied there were exceptional circumstances.

[footnotes omitted]

[26] It is also true that representative error does not automatically create an exceptional circumstance such that an extension of time should be granted.

[27] Liquorland referred me to a number of authorities that it says supports it submissions in respect to:

• the requirement to comply with the statutory time limit; 3



• the onus of showing that exceptional circumstances exist that warrant the granting of an extension of time rests with the Applicant;  4



• criminal charges not providing an adequate explanation for the delay such that exceptional circumstances can be found; 5 and



• in considering the merits, the Commission may consider whether the Applicant has a sufficient case. 6

[28] Mr Gibbings sought to distinguish his circumstances from each of these. In doing so Mr Gibbings has failed to appreciate that, whilst the particular circumstances of his dismissal may differ from each of those cases, the principles arising from these cases is well settled and appropriate for the Commission to consider in deciding his application. I therefore do not accept his submissions that I should not have regard to those decisions in deciding the matter before me.

[29] Mr Gibbings sought to rely on the decision of the Full Bench in Kaliyaperumal v Commonwealth of Australia as represented by the Australian Bureau of Statistics 7 in support of his claim for an extension of time. I do not find anything in this decision to support Mr Gibbings claim. The decision of the Full Bench only went to whether permission to appeal should be granted. Permission was granted but on the limited grounds that there were contested facts in the matter and, by virtue of s.397 of the Act, such a contest needed to be dealt with by hearing and not ‘on the papers’. There is nothing in the reasons for the decision to assist Mr Gibbings.

[30] In considering the reasons given by Mr Gibbings for the delay in making his application to the Commission, I am not satisfied that he has provided a satisfactory explanation for the totality of the delay.

[31] Mr Gibbings was charged by the police in July 2015. The charges were dropped in January 2016.

[32] Mr Gibbings sought and received advice on his workers’ compensation application in March 2015 (prior to this dismissal on 22 April 2015) and again in May 2015.

[33] He again sought advice with respect to his workers’ compensation claim in March 2016.

[34] There is no evidence to suggest that Mr Gibbings sought advice on an unfair dismissal application at any time prior to March 2016 when he was told it should have been made within 21 days of his dismissal. His claim to have spoken to an ‘employment lawyer’ relates to his visit to the lawyers in March 2015, prior to his dismissal. Mr Gibbings provides no evidence that he sought advice or received erroneous advice about making an application for unfair dismissal in 2015. Instead, he talks of advice that he not pursue unspecified civil proceedings whilst his criminal proceedings were on foot.

[35] Mr Gibbings does not provide any medical evidence to support a claim that his medical condition stopped him making an application for unfair dismissal for the totality of the period of the delay. The medical reports provided are for a limited time and do not cover the entire period since he was dismissed. Even if these reports were accepted as covering the totality of the period of delay they do not indicate that he was not capable of making an application for unfair dismissal during this period. Whilst I accept that Mr Gibbings says he has been unwell since late 2014 there is nothing to indicate he could not pursue an application for unfair dismissal. I do note that during this time he was well enough to pursue a workers’ compensation claim which reasonably suggests he could have taken action to pursue an application for unfair dismissal.

[36] Mr Gibbings gives no evidence of any action to dispute his dismissal after he became aware of it.

[37] I am satisfied that there is prejudice to Liquorland in being able to defend its decision to dismiss Mr Gibbings given the delay of 12 months in Mr Gibbings making his application. The decision maker in relation to the dismissal and Mr Gibbings manager at the time no longer works for Liquorland. This would create a substantial hurdle in Liquorland being able to present evidence of the matters associated with the dismissal. I do note however that Liquorland says that it does have the CCTV footage of the incident that led to the dismissal.

[38] I have considered the submissions made with respect to merit. I have not seen any evidence that might weigh one way or the other on the matter. That the criminal charges against Mr Gibbings were dismissed neither helps nor hinders in this consideration. The decision of the Commission – which must be made on the basis of the evidence before the Commission – is if, firstly, there was a valid reason for dismissal. This finding, along with other matters to be taken into account pursuant to s.387 of the Act, would then inform a decision as to whether the dismissal was harsh, unjust or unreasonable. I have therefore considered this matter neutral in my consideration.

[39] I have not considered matters of fairness as put to me relevant to my consideration.

Conclusion

[40] Whilst Mr Gibbings’ circumstances are not those normally encountered, his failure to explain the totality of the delay in making his application leads me to conclude that there are no exceptional circumstances such that an extension of time should be granted. Mr Gibbings had numerous opportunities to make his application but failed to do so with no logical or probative reason given. He was not so medically incapacitated that he could not make his application within 21 days of being dismissed or becoming aware of his dismissal and I do not accept that his actions in seeking advice with respect to workers’ compensation or obtaining medical reports for that purpose create exceptional circumstances.

[41] Even if I accepted that the criminal proceedings stopped him making his application for unfair dismissal that only explains the period from July 2015 to January 2016, and, therefore does not provide an explanation for the entire period of the delay.

[42] There is no evidence of representative error such that I should take that into account.

[43] In all of the circumstances I am not satisfied that no exceptional circumstances exist.

[44] Mr Gibbings’ application was therefore made outside the time limits prescribed by the Act and must be dismissed. An order to this effect will issue with this decision.

COMMISSIONER

Appearances:

G Rogers for the applicant and N Gibbings the applicant.

L Anderson for Liquorland (Australia) Pty Ltd.

Hearing details:

2016.

Melbourne:

1 June

Final written submissions:

Applicant, 3 June 2016

Respondent, 2 June 2016

 1  End notes

Nulty v Blue Star Group Pty Ltd (2011) 2013 IR 1 at [13].

 2 (2010) 197 IR 403, 408‒409.

 3   Robert Lim v Downer EDI Mining [2009] FWA 457.

 4   Rezaee v Felav Pty Ltd t/as M & P&M Nanovich [2010] FWA 5178 at [20]; Thomas Bee v Wesfarmers Kleenheat Gas Pty

Ltd [2009] FWA 1471.

 5   Peng Gao v Citywide Service Solutions Pty Ltd [2012] FWAFB 9830.

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

 7   [2016] FWCFB 2634.

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