Ossie Henry v Argyle Diamonds Limited

[2015] FWC 7107

[2015] FWC 7107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ossie Henry
v
Argyle Diamonds Limited
(U2015/11170)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Ossie Henry alleged that the termination of his employment by Argyle Diamonds Limited on 8 July 2015 was unfair.

[2] His unfair dismissal application lodged on 21 August 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work 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.

[4] 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]

(a) the reason for the delay;

[5] Mr Henry submitted that his application was delayed due to him waiting for the outcome of a review of the termination decision that Argyle Diamonds had agreed to undertake. Mr Henry spoke to a friend who is a criminal lawyer and he suggested that Mr Henry seek a review of the decision to terminate his employment. He sent the letter on 23 July 2015 and received a response on 5 August 2015. He was advised that Argyle Diamonds did not intend reopening his case. Mr Henry did not have any explanation of why he then did not lodge his application until 21 August 2015 other than he, nor his lawyer friend, knew that there was a 21 day time limit.

[6] I do not consider that Mr Henry can rely upon representational error to explain his delay. His friend was a criminal lawyer. It was not reasonable for Mr Henry to rely on his advice. In any event there is no evidence that he consulted this friend after receiving the response from Argyle Diamonds.

[7] Nor can Mr Henry rely upon his ignorance of the time limit to support a finding that he had a reasonable explanation for the delay. Two weeks after his dismissal, he said he obtained new evidence to support his case. It is clear that Mr Henry and his friend discussed some kind of court action. There is no evidence that Mr Henry took any action to investigate what action he should take and what time limits applied to such actions. I accept that Mr Henry is not a lawyer and has not experienced a dismissal before, but he was required to take some action to ascertain his rights or provide some reasonable explanation of why he was not able to take such action.

[8] I do not consider that Mr Henry had a reasonable explanation for the delay. This weighs against a finding that there are exceptional circumstances.

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

[9] Mr Henry was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

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

[10] Mr Henry responded to the show cause letter on 1 July 2015. That response was not in evidence before me but I am prepared to assume that he did not agree that his employment should be terminated.

[11] On 23 July 2015, Mr Henry wrote to Argyle Diamonds disputing the dismissal.

[12] I find that Mr Henry did take action to dispute his dismissal and this weighs in favour of finding that there are exceptional circumstances.

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

[13] Argyle Diamonds submitted that it would be required to expend significant time and expense defending the application though no evidence was called to support this submission. I accept this submission but I do not consider this prejudice is sufficient to weigh against a finding that there are exceptional circumstances.

(e) the merits of the application;

[14] Argyle Diamonds submitted that Mr Henry failed to identify a positive test for Methamphetamine and THC and falsified a Chain of Custody and Request Form which resulted in a breakdown of trust and confidence required for his ongoing employment. Mr Henry disputed that the test was positive or that he falsified records.

[15] I am not able to make any final assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[16] Argyle Diamonds submitted that granting an extension would encourage late applications in circumstances where the person had failed to ascertain their rights prior to deciding to lodge an application. I accept that ignorance of the time limit without more will not provide a basis for finding that there are exceptional circumstances. However each case turns on its own facts. I consider this criterion to be neutral.

Conclusion

[17] Mr Henry has not provided a reasonable explanation for the delay. The lack of prejudice and the fact that he disputed his dismissal is not sufficient for me to find that there are exceptional circumstances. Mr Henry’s application for an extension of time is dismissed and the unfair dismissal application must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

O. Henry on his own behalf.

P. Swingler for the Respondent.

Hearing details:

2015.

Melbourne and Perth, (by video and telephone):

14 October.

 1   [2011] FWAFB 975.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR572954>