Paul Watkins v DuluxGroup Australia Pty Ltd T/A DuluxGroup

[2012] FWA 9510

[2012] FWA 9510

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Paul Watkins
v
DuluxGroup Australia Pty Ltd T/A DuluxGroup
(U2012/12566)

COMMISSIONER MCKENNA SYDNEY, 8 NOVEMBER 2012

Application for unfair dismissal remedy - out of time - application dismissed.

[1] Paul Watkins (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy. The applicant was formerly employed by DuluxGroup Australia Pty Ltd T/A DuluxGroup (“the respondent”) at one of its retail outlets. By letter dated 22 June 2012, the respondent formally advised the applicant of his dismissal, effective that same day, on the basis of alleged serious misconduct.

[2] On 20 August 2012, the applicant lodged this application. The matter was listed for conciliation, by telephone, before a Fair Work Australia conciliator on 11 September 2012. On 5 September 2012, the respondent lodged its employer’s response in which, among others responses, it took objection to the application on the basis it was made outside the time-frame of 14 days stipulated in s.394(2) of the Act. The respondent also confirmed it would not participate in the scheduled telephone conciliation and sought that the objection be determined.

[3] The matter was subsequently allocated to me as a regional matter. I listed the matter for a telephone mention on 18 September 2012 and gave directions for the filing of materials concerning an extension of time. The parties agreed that the question of an extension of time appropriately could be determined on the papers without the need for an extension of time conference/hearing in person. The parties duly filed written submissions pursuant to the directions.

Applicant’s submissions

[4] The applicant submitted that immediately after the dismissal on 22 June 2012 he was totally shocked, stressed and depressed at what had happened. He submitted that in his 38 year working life nothing like this had ever previously happened to him, as he had always given his very best to his employers, including the respondent. As to the stresses involved, the applicant referred to matters including his age (56 years), the dismissal, his uncertainties about future employment and financial concerns. Around the time of the dismissal, the applicant was, he submitted, more concerned about finding employment than making an unfair dismissal application.

[5] The applicant submitted that he had not been dismissed previously and did not have the benefit of access to human resources expertise. The applicant submitted he had no idea of how to make an unfair dismissal claim or of the existence of the period of 14 days to make an application.

[6] The applicant submitted that he obtained a telephone number for Fair Work Australia approximately one week after the dismissal and made a number of calls over the following weeks only to be put on hold on each occasion. The applicant submitted he should have persisted and waited longer to be connected, but at the time he was not aware of the 14 day time period.

[7] The applicant further submitted that as he had no internet at the time due to computer and modem problems, he could not access information through the Fair Work Australia website. The applicant submitted that once the computer-related difficulties had been rectified, he immediately sent an email to Fair Work Australia regarding his options and to put into action his unfair dismissal claim.

Respondent’s submissions

[8] The respondent submitted that the applicant’s application was lodged on 20 August 2012, 59 days after the date of dismissal and 45 days out of time. In this respect, the respondent’s submissions drew attention to the statutory provisions concerning the time for making applications and for granting extensions. The submissions also referred to the meaning of exceptional circumstances as considered in decisions such as Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (“Nulty”).

[9] The respondent’s submissions itemised the five principal matters relied on by the applicant as the reasons for the delay in making the application.

[10] As to the first of the five principal matters, the respondent accepted that being dismissed can be a distressing occurrence but did not consider this to be out of the ordinary course, unusual, special or uncommon. Further, no medical evidence had been submitted indicating the applicant was affected by the dismissal to such an extent that he could not function normally and was incapable of submitting a claim.

[11] Second, the respondent submitted that it accepted the applicant’s submission he was concerned about the future and financial commitments, but failed to understand how this would distinguish his circumstances from that of any other individual who has lost his or her employment. The respondent submitted that other individuals manage to submit their applications within time while managing their personal feelings and concerns. The respondent submitted, once again, that the situation described by the applicant is entirely to be expected and considerably short of unusual, special or uncommon.

[12] Third, the respondent submitted that the applicant’s lack of knowledge about how to make an application was not a valid reason for his failure to lodge within time. The applicant had obtained a telephone number for Fair Work Australia, but did not explain how he obtained this number. The respondent, citing Nulty, submitted that ignorance of unfair dismissal legislation did not constitute an exceptional circumstance.

[13] Fourth, the respondent noted that part of the applicant’s submissions concerned his endeavours to telephone Fair Work Australia on and after 29 June 2012, only to be put on hold on each occasion before what the respondent described as becoming “impatient” and ending the calls without speaking to anyone. The respondent submitted that, like many private and publicly-administered telephone help and information services, Fair Work Australia’s telephone lines are regularly congested; being put on hold and having to wait one’s turn to seek advice is an entirely normal state of affairs when calling most telephone help or assistance lines.

[14] Fifth, the respondent referred to the computer-related difficulties described by the applicant as one of the reasons for the delay. As to this, the respondent submitted there are several places in locality of the applicant’s residence where the public can access the internet, such as through paid services at internet cafés or for free at public libraries. Further, on 5 July 2012, the applicant sent an email to one of the respondent’s managers - indicating the applicant had internet and email access as early as 15 days after the date of dismissal, yet it took a further 44 days for the applicant to lodge his application

[15] The respondent’s submissions also detailed matters concerning the background to the dismissal and what it perceived to be the merits of the application. The respondent submitted the applicant was fully aware of the reasons for the dismissal and the exact time at which the dismissal was effected. The applicant had offered no indication that he intended challenging the dismissal at the time, albeit on 25 June 2012 the applicant sent an email to the respondent dealing with matters relevant to the dismissal and there was a subsequent telephone conversation between a manager and the applicant in response to that email.

Applicant’s submissions in reply

[16] In reply, the applicant noted that he did not have resources or training in human resources; that he did not have the funds to engage a representative to prepare a reply to the respondent’s submission; and that he was unable to write a reply that would compare to the respondent’s submission. He submitted he had nothing to add to his initial submission as to the reasons why the application was made out of time.

[17] The applicant made some short, further submissions describing why he had taken the actions that he did (that is, in connection with the actions that led to the dismissal) and to explain their context. The applicant also outlined concerns about matters such as the actions of the respondent in relation to certain other matters.

Consideration

[18] Section 394 of the Act, dealing with the time for making an application and extension of time, reads as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[19] I accept the respondent’s submissions that the reasons for the delay described in the applicant’s submissions, whether taken individually or collectively, could not, on the authorities, be considered to be unusual, out of the ordinary or the like. In so concluding, I do not intend any disrespect to the applicant and accept, as did the respondent, the applicant’s description of his reactions to, and concerns about, the dismissal.

[20] The applicant was contemporaneously aware of the date of the dismissal.

[21] The respondent’s submissions appear to concede that the email and discussions between the applicant and a manager on 25 June 2012 may be construed as action taken by the applicant to dispute the dismissal.

[22] The respondent’s submissions did not refer to any matters relevant to prejudice to it, including prejudice caused by the delay.

[23] As to merit, there does not seem to be any significant dispute about the circumstances that led to the respondent’s decision to dismiss the applicant. Rather, the parties differ on the appropriate characterisation of the applicant’s actions and whether dismissal was, in all the circumstances, justifiable. It seems to me that both parties have an arguable case as to that characterisation and, thus, I regard this as a neutral matter in the criteria to be considered in s.394(3) of the Act.

[24] Nothing of relevance was advanced by either party as to fairness as between the applicant and other persons in a similar position.

[25] In conclusion, I have not been satisfied there are exceptional circumstances such as to allow a further period for the applicant’s application to be made.

[26] An order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

P Watkins, in person.

M Skilling for DuluxGroup Australia Pty Ltd trading as Dulux Group.

Hearing details:

2012.

Sydney (telephone link):

18 September.

Final written submissions:

16 October 2012.

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<Price code C, PR531127>