Paul Masten v AGC Industries Pty Ltd

[2015] FWC 6529

[2015] FWC 6529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Masten
v
AGC Industries Pty Ltd
(U2015/9573)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Paul Masten alleged that the termination of his employment by AGC Industries Pty Ltd on 1 July 2015 was unfair.

[2] AGC disputed Mr Masten’s claim and advised that Mr Masten’s employment ended on 18 May 2015.

[3] If Mr Masten’s employment ended on either date, then his application filed on 23 July 2015 was not made within 21 days of the date of the dismissal.

[4] A hearing was conducted by telephone. My associate called Mr Masten twice but he did not answer his telephone at the time set down for the hearing. I am satisfied that the notice of listing sent to Mr Masten’s PO box number on 28 August 2015 provided Mr Masten with sufficient notice of the hearing.

[5] I determined to proceed with the hearing and Ms Elaine Buchanan, the National Human Resources Manager, gave evidence.

[6] It is necessary to determine the date on which Mr Masten’s employment ended.

[7] On 18 May 2015, Mr Masten sent an email to Ms Buchanan in which he stated “I can draw no other conclusion other than I have been constructively dismissed from employment with AGC effective immediately; or in the alternative have been discriminated against due to my association with a Trade Union.” 1

[8] On the same day, Ms Buchanan advised Mr Masten that “our recruiters would have been in contact with you when work was available. …. We have stated on numerous occasions that you are engaged on a casual, as-needed basis. Notwithstanding this, you continue to claim that you have been constructively dismissed. If this is the position you are taking, please confirm if you wish your accrued RDO (9.2 hours) to be paid out.” 2

[9] Mr Masten responded and questioned why he needed to go through a recruitment process and then in response to her question, said “Yes, please pay out my accrued 9.2 hours RDO…” 3

[10] Mr Masten stated that his dismissal took effect on the date he filed his application. I do not accept that. Mr Masten was clear on 18 May 2015 that he considered the conduct of the company caused him to be constructively dismissed. There was no explanation by Mr Masten about how the date of dismissal was 1 July 2015 or the date he filed his application. I find that Mr Masten’s employment ended on 18 May 2015.

[11] 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.

[12] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 4where 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;

[13] Mr Masten submitted that he lodged his application in time. He did not. Even if his employment ended on 1 July 2015 as stated in his application form, he did not lodge his application in time.

[14] Further, he provided no explanation of why having advised AGC on 18 May 2015 that he was going to “pursue a claim of Unfair Dismissal in the relevant jurisdiction” 5 he did not lodge his application until 23 July 2015.

[15] 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;

[16] From his own emails, Mr Masten 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;

[17] Mr Masten disputed the events that lead to him treating his employment as ending. However, there is no evidence that he took any steps between 18 May and 23 July 2015 to dispute his dismissal. I consider this criterion to be neutral.

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

[18] It was submitted that AGC would suffer prejudice because of the ongoing time and resources in recalling information and involving decision makers in addressing this claim. No evidence was called to support this submission. I consider this criterion to be neutral.

(e) the merits of the application;

[19] AGC submitted that Mr Masten’s claim has no merit because he was not protected from unfair dismissal. To support that submission, AGC relied upon Mr Masten’s contract of employment and the record of the hours worked by Mr Masten since July 2013. Mr Masten accepted employment as a casual employee and further, he worked irregular hours. In addition there were lengthy periods of time when he did not work at all, i.e. from the pay period ending 10 November 2013 until the pay period ending 9 February 2014. On the material before me, AGC have a strong case that Mr Masten was not protected from unfair dismissal.

[20] Further, Mr Masten will need to establish that he did not leave his employment voluntarily and that a course of conduct by his employer caused him to resign. There is nothing in the material before me at the hearing which would support such a conclusion.

[21] As Mr Masten did not attend the hearing, AGC’s evidence was not contested. I consider the merits of the claim weigh against a finding that there are exceptional circumstances.

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

[22] No submissions were made on this criterion and it is a neutral consideration.

Conclusion

[23] I am not satisfied that there are exceptional circumstances. Mr Masten has not provided any explanation for the delay in lodging his application. None of the other factors favour a finding of exceptional circumstances. Mr Masten’s application for an extension of time is dismissed.

DEPUTY PRESIDENT

 1   Exhibit R2.

 2   Ibid.

 3   Ibid.

 4   [2011] FWAFB 975.

 5   Above n 1.

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