Nickolous Devenney v Motor Trades Association of Western Australia Incorporated T/A Motor Trades Association of Western Australia Inc

[2016] FWC 3360

[2016] FWC 3360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nickolous Devenney
v
Motor Trades Association of Western Australia Incorporated T/A Motor Trades Association of Western Australia Inc.
(U2016/4618)

DEPUTY PRESIDENT KOVACIC CANBERRA, 26 MAY 2016

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Nickolous Devenney (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 17 February 2016 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the Motor Trades Association of Western Australia Incorporated T/A Motor Trades Association of Western Australia Inc. (the Respondent) on 25 January 2016 was unfair.

[2] On 24 February 2016 the Commission wrote to Mr Devenney indicating that his application appeared to have been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was received two days outside the 21 day statutory timeframe.

[3] The extension of time issue was listed for a telephone hearing on 31 March 2016. However, Mr Devenney was unable to attend that hearing as he was hospitalised for the period 31 March to 4 April 2016. The issue was the subject of a telephone hearing on 24 May 2016. At the telephone hearing, Mr Devenney appeared on his own behalf, while Mr Ron Ballucci, the Respondent’s Industrial Relations Manager, appeared with Mr Stephen Moir, the Respondent’s Chief Executive Officer (CEO), for the Respondent.

[4] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Mr Devenney’s application cannot proceed and will be dismissed.

Background

[5] Mr Devenney commenced employment with the Respondent on 19 August 2013. Mr Devenney was employed as an Employment Based Trainer.

[6] Mr Devenney was suspended on full pay on 20 January 2016 after the Respondent received a complaint from a member of the public regarding allegations of Mr Devenney speeding, road rage, texting while driving and talking on and holding a mobile phone while driving one of the Respondent’s vehicles on 19 January 2016. Also on that day, Mr Devenney was invited to a meeting on 21 January 2016 to discuss the complaint.

[7] Following that meeting an investigation was conducted by the Respondent. Mr Devenney also subsequently provided the Respondent with a witness statement from a colleague relating to the alleged road rage incident. The Respondent contended that during the investigation it was brought to Mr Moir’s attention that the motor vehicle provided by the Respondent to Mr Devenney was in an atrocious and appalling condition. More specifically, the Respondent contended that an inspection of that vehicle discovered a gas bottle which is not part of the equipment issued by it to trainers and which appeared to have been used in the re-gassing of vehicles. Also discovered were copies of invoices for vehicle parts which had been invoiced to “Mechanick”, a business operated by Mr Devenney. The Respondent submitted that it appeared from this evidence that Mr Devenney was doing work outside his normal job description and using the vehicle it had provided to him for personal gain.

[8] Later that day Mr Devenney was advised that Mr Moir would like to meet with him on 25 January 2016 to discuss other issues that had been raised during the investigation and to seek his responses. The Respondent contended that at that meeting Mr Moir outlined a number of issues arising from the investigation and that Mr Devenney decided to resign from his employment with immediate effect. Mr Devenney, on the other hand, contended that he had no option but to resign as the Respondent had advised him that he was operating an unlicensed business and also indicated that unless he resigned it would be obliged to report him to the relevant regulator, which carried with it the risk of a fine of $120,000.

[9] As previously noted, Mr Devenney’s application was received by the Commission on 17 February 2016, two days outside the 21 day statutory timeframe.

The Relevant Legislation

[10] Section 394 of the Act provides:

“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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] Mr Devenney relied on two main reasons for the delay in lodging his application. The first was technical difficulties he encountered in lodging his application using the Commission’s electronic filing (e-filing) system. The second was that he just could not face another fight at the time given various things that were happening in his life, including being heavily medicated at the time.

[13] The Respondent disputed that Mr Devenney’s medical condition precluded him from lodging his application within the 21 day timeframe. In support of that view, the Respondent pointed to posts on Mr Devenney’s Facebook page of 5 and 16 February 2016 which indicated that he was available to regas motor vehicle air conditioners, with the latter post stating “So glad to be self-employed, happily fixing cars and working closely with my customers to keep them happy …” 1. The Respondent also relied upon a letter of 18 January 2016 from Mr Devenney’s doctor stating that Mr Devenney “has made a satisfactory recovery from his recent illness and is now fit for full work duties.”2 Specifically, the Respondent contended that if Mr Devenney was fit enough to work, he was fit enough to lodge his application within the 21 day timeframe.

[14] Given the first reason for the delay relied upon by Mr Devenney, the Commission interrogated its e-filing records to establish the time of any attempts by Mr Devenney to lodge his application. Those e-filing records indicate that Mr Devenney first logged on to the Commission’s website at 01.06.03pm (AEDT) on 16 February 2016. This is already one day outside the 21 day statutory timeframe. As such, this reason cannot be relied upon to explain the delay in Mr Devenney lodging his application.

[15] As to the second reason relied upon by Mr Devenney, he provided no medical evidence to substantiate his contention that due to his medical condition he was unable to lodge his application within time. While Mr Devenney did provide medical evidence to substantiate his unavailability for the hearing of 31 March 2016, that evidence relates to a period several weeks after his application had been lodged and therefore cannot be relied upon as a reason for the delay in lodging his application.

[16] Further, the Facebook posts provided by the Respondent point to Mr Devenney continuing to work during the 21 day period after his employment had ended. While Mr Devenney submitted that he had not written those posts, that contention is highly implausible, particularly in the absence of any evidentiary material from the alleged author of the posts.

[17] Taken together, the above considerations do not point to the existence of exceptional circumstances.

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

[18] It was not disputed that Mr Devenney was aware that his employment ceased on 25 January 2016, with the Respondent contending that Mr Devenney had not been dismissed but had resigned on 25 January 2016 with immediate effect.

[19] I therefore consider this factor to be a neutral consideration.

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

[20] Mr Devenney submitted that he contacted the Respondent following the cessation of his employment to discuss the possibility of lodging a workers’ compensation claim but was advised that he could not do so in his case.

[21] The Respondent submitted that Mr Devenney was not dismissed but had resigned on 25 January 2016 with immediate effect. In the material provided by the Respondent were was a File Note of the conversations which Mr Devenney had with Ms Tracy Watts, the Respondent’s former Group Human Resources Manager, over the period 2 to 4 February 2016 3. In the first of those conversations, Mr Devenney requested that the Respondent provide a letter indicating that he was suicidal, while in the second conversation he indicated to Ms Watts that he had only operated his business in 2012. It was only in the third conversation that Mr Devenney raised the possibility of lodging a workers’ compensation claim.

[22] Based on the material before the Commission, it appears that Mr Devenney took no action in respect of the cessation of his employment prior to lodging his application. Inquiring as to the possibility of lodging a workers’ compensation claim does not in my view involve Mr Devenney disputing the cessation of his employment. Taken together, these considerations do not point to the existence of exceptional circumstances.

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

[23] Mr Devenney submitted that the Respondent would not be disadvantaged were an extension of time granted.

[24] The Respondent contended that it would be prejudiced as a result of having to devote time and resources to defending Mr Devenney’s application were an extension of time granted. While I note the Respondent’s submission in this regard, the Respondent’s concerns do not constitute prejudice in the sense that it would be disadvantaged in defending the application as a result of the delay in lodging the application.

[25] Against that background, I consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[26] Mr Devenney contended that he was given no alternative but to resign at the meeting of 25 January 2016. At the telephone hearing, Mr Devenney submitted that he did not feel medically fit to participate in the meeting of 25 January 2016, adding that at the commencement of the meeting he referred to himself being heavily medicated and advised that he had contemplated suicide. Mr Devenney indicated at the telephone hearing that his support person at that meeting was willing to give evidence to support his contentions in this regard.

[27] The Respondent maintained that Mr Devenney verbally resigned with immediate effect at the meeting of 25 January 2016 and later that day confirmed his resignation in writing. The Respondent disputed that Mr Devenney indicated at that meeting that he was under medication and relied on the File Note prepared following that meeting and the statements of Mr Moir and Ms Watts to support that contention.

[28] From the above, it is clear that a number of key issues in this matter are disputed. Against that background and in the absence of a substantive hearing of all the evidence, I am unable to form a considered view as to the merits of Mr Devenney’s application. I therefore consider this factor to be a neutral consideration.

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

[29] Mr Devenney did not directly address this factor in his submissions but rather set out the impact that the cessation of his employment had had on him both financially and personally. While I note Mr Devenney’s submission, it does not draw a comparison with others in a similar situation to himself but rather focusses on his personal circumstances which are not relevant to this factor.

[30] The Respondent submitted that it would be unfair to employees in similar positions who had not been granted an extension of time should Mr Devenney be granted an extension of time.

[31] I consider this factor to be a neutral consideration.

Conclusion

[32] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 4(Nulty) in the following way:

“[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.”

Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[33] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I am not satisfied at there are exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy.

[34] Accordingly, Mr Devenney’s application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

N. Devenney on his own behalf.

R. Ballucci with S. Moir for the Motor Trades Association of Western Australia Inc.

Hearing details:

2016.

Canberra and Perth (telephone hearing).

May 24.

 1   Respondent’s Document List – Attachment 2

 2   Ibid – Attachment 5

 3   Ibid – Attachment 6

 4 (2011) 203 IR 1

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