Peter Hogan v Dandenong Club
[2014] FWC 2737
•22 MAY 2014
[2014] FWC 2737 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Hogan
v
Dandenong Club
(U2014/4601)
COMMISSIONER GREGORY | MELBOURNE, 22 MAY 2014 |
Application for extension of time.
Introduction
[1] Mr Peter Hogan worked at the Dandenong Club from March 1998 until 18 June 2013 when told he had been made redundant, effective immediately. Mr Hogan subsequently lodged an unfair dismissal application on 12 February 2014, more than seven months after the 21 day period provided for in s.394 of the Fair Work Act 2009 had expired.
[2] However, s.394(3) allows an extension of time to be granted if the Commission believes there are “exceptional circumstances” to warrant the exercise of this discretion. It provides:
“(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.” 1
[3] The matter was set down for hearing on 11 April 2014 to determine whether a further period should be allowed for the application to be made. Mr Hogan did not attend the hearing and after being contacted by telephone during the proceedings indicated he was prepared to have the matter determined on the basis of the submissions provided. Mr Nick Tindley from FCB Group was granted leave to appear on behalf of the Dandenong Club (the Club) under s.596(b) of the Act on the basis it would enable the Club to be represented more effectively.
The Issue to be Decided
[4] Are there “exceptional circumstances” existing under s.394(3) of the Act to warrant the Commission exercising its discretion to grant Mr Hogan additional time in which to make his unfair dismissal application.
The Evidence and Submissions
[5] Mr Hogan’s written submissions filed in accordance with the directions issued did not deal with the question of why his application was lodged outside of the 21 day time period. However, his original application did contain some explanation. It stated:
“There are a number of reasons why there has been a delay in submitting an application for unfair dismissal. Firstly, I suffer from anxiety, and have been on medication for anxiety for approximately 8 years. Once advised that I was being made redundant, completely out of the blue with no pre warning by written notification of the Company supposedly restructuring, no suggestion of other work arrangements, and no allowance for a witness or support person at the time of notification of the dismissal, I completely went into an anxiety meltdown. All my concentration and thoughts went into finding employment elsewhere as having anxiety, there is a feeling of insecurity. The absorption of time going back to do some schooling to improve my skills, applying for new employment didn’t help my cause in applying for unfair dismissal due to time restrictions.
As weeks and months went on with no employment I slipped into depression. My concerns of not getting good references for future employment prospects due to myself taking my employer to unfair dismissal amplified my state of anxiety. My marriage was pushed to the limits due to my mental state of mind. Eventually some casual employment has come my way, which may have slightly helped my anxiety, but made it worse to apply for unfair dismissal as it is absorbing time to make the application.
Anxiety is a chemical imbalance in the brain, which in my case I feel like I’m drowning due to time restrictions and requirements.
The advice from my doctor was to advise my wife and four children (time consumption) that I have to lock myself away for a weekend at my parents house so that all my concentration with no distractions would allow myself to finalise the application.” 2
[6] Mr Hogan’s written submission indicated he was “completely ambushed” when told he was to be made redundant. He said he had no prior knowledge of any re-structuring that was purportedly taking place. He also took issue with the way in which the termination was carried out, and said he was denied any opportunity to have a support person present in the discussions that took place on his last day at work. In addition, at no stage did any discussion take place about the possibility of offering him the opportunity to work elsewhere.
[7] The Dandenong Club’s submissions made reference to various authorities in support of the view the Commission has a limited discretion under s.394(3), and it should only be exercised when exceptional circumstances exist to prevent the 21 day time period from being complied with. It also noted Mr Hogan provided no submissions in response to the directions issued by the Commission about the reasons for his delay in filing an application. It continued to make submissions about each of the factors the Commission is required to have regard to in determining whether “exceptional circumstances” exist in response to the matters raised by Mr Hogan in his application.
[8] The reason for the delay – the Club submits Mr Hogan’s explanations for the delay in making the application, when taken individually or together, do not justify the exercise of the discretion available under s.394. It referred to the decision of Commissioner Roe in Rose v BMD Constructions Pty Ltd 3 (BMD Constructions), and the lack of any medical evidence from Mr Hogan as to his incapacity to pursue his application within the required timeframe. It also submits the matters he referred to did not prevent him from searching for work elsewhere, or from taking up some additional education and training. It also submits relevant authorities have established that a conscious decision to ignore a legislative time limit, while focusing on other matters, is not a valid reason for failure to comply with that timeframe. It also submits the fact of seeking alternative employment following termination cannot be said to be an “exceptional circumstance” but is instead something to be expected and routinely encountered.
[9] Whether the Applicant first became aware of the dismissal after it had taken effect – the Club submits the application clearly indicates Mr Hogan became aware of his dismissal on the day it took effect.
[10] Any action taken by the Applicant to dispute the dismissal – the Club is not aware of any efforts made to dispute the dismissal, other than the present application.
[11] Prejudice to the employer (including prejudice caused by the delay) – the Club submits it would be unfairly prejudiced if a further period to make an application was granted. The significant delay, in particular, would impact on its ability to identify and locate witnesses and their ability to recall the events surrounding the termination. It would also require an amount of time and effort to be directed to responding to the application.
[12] The merits of the application – the Club submits Mr Hogan was terminated due to “genuine redundancy,” but without a hearing to determine the issue this consideration should be treated as a neutral factor.
[13] Fairness as between the Applicant and other persons in a similar position – the Club submits an exercise of the discretion in this case would create unfairness, particularly given the substantial time period that has elapsed between date of termination and the date of filing the unfair dismissal application.
Consideration
[14] Mr Hogan’s unexpected dismissal from his employment with the Dandenong Club after a period of service of more than 16 years has clearly been a shock to him and a significant upheaval in his life. However, he did not take action to challenge that decision by means of an unfair dismissal application until seven months after his dismissal. In determining an application for an extension of time in circumstances where an application is lodged outside of the normal 21 day time period s.394(3) of the Act requires there be “exceptional circumstances” to warrant an exercise of the discretion to extend the time period.
[15] The Dandenong Club’s submissions referred to the decision of a Full Bench in Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers 4 when it referred to “exceptional circumstances” as:
“The word “exceptional” is relevantly defined in The Macquarie Dictionary as ‘forming an exception or unusual instance; unusual; extraordinary.’ We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.” 5
[16] The decision in Nulty v Blue Star Group Pty Ltd 6 is also often cited in support of what is required to find “exceptional circumstances” exist to justify an extension of time being granted. The Full Bench stated at paragraph [13] of that decision:
“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.” 7
[17] I now turn to deal with the evidence and submissions of the parties by reference to the various considerations set out in s.394(3) and the authorities referred to.
(a) The reason for the delay
[18] As indicated at the outset Mr Hogan’s written submissions did not deal with the reason why his application was delayed. In addition, he did not make submissions when the matter was heard or provide sworn witness evidence. However, the relevant parts of his answers in the original application have already been set out in full at an earlier point in this decision. In summary, Mr Hogan states he suffers from anxiety and has done for some time. After being told, without prior indication, he was to be made redundant the application states he went into “anxiety meltdown”.
[19] He also indicated his particular focus was on getting work elsewhere, and he took on additional training to try and assist in getting another job. He said his mental state became more fragile as time passed without being able to find work, but he was finally able to obtain some casual employment which has assisted. He also said that with the aid of medical advice he was eventually able to focus on completing and lodging his unfair dismissal claim.
[20] Mr Hogan’s reaction to his unexpected termination is understandable. The subsequent upheaval has clearly been stressful for him and his family, although he provided no specific medical evidence to clearly indicate the nature of that impact. However, the Commission has previously found that feelings of shock and distress following dismissal from employment are likely to be expected and understandable reactions, rather than something that might be considered to be exceptional. In a decision that was also referred to by the Dandenong Club in its submissions Commissioner Roe found in the earlier cited matter of BMD Constructions:
“It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.” 8
[21] Mr Hogan also said his focus after his dismissal was on obtaining work elsewhere and, in participating in some additional training to enhance his skills. This again is a sensible and understandable reaction in all the circumstances, but doesn’t necessarily provide explanation for why he did not also take the time to complete and lodge an unfair dismissal application, given his concerns about the events surrounding his dismissal.
[22] It is also of particular significance that Mr Hogan did not actually make the application until more than seven months after his dismissal. This is an extensive period of time “after the event” and, as a consequence, I am satisfied it requires evidence of some “exceptional circumstances” in response that provides particular explanation or justification for such a significant period of delay. For the reasons indicated I am not satisfied those “exceptional circumstances” exist in the present matter.
(b) Whether the applicant first became aware of the dismissal after it had taken effect
[23] It is clear that Mr Hogan was aware of his dismissal at the time it occurred.
(c) Any action taken by the applicant to dispute the dismissal
[24] There is nothing to indicate Mr Hogan took any action to formally dispute his dismissal, other than for lodging the unfair dismissal application.
(d) Prejudice to the employer (including prejudice caused by the delay)
[25] The seven month delay in making the application is clearly significant in this context. The management at the Dandenong Club had presumably long since considered that any issues that might arise as a consequence of Mr Hogan’s dismissal were at an end. The time delay might also likely impact on the availability of potential witnesses, and the ability of anyone involved to have a precise recollection of what occurred.
(e) The merits of the application
[26] I am not satisfied the Commission is able to form a clear view about the respective merits of the matter on the basis of the submissions and evidence now before it. The Dandenong Club submits Mr Hogan’s dismissal was a case of “genuine redundancy,” following a restructure within the organisation. Mr Hogan appeared to indicate there were some discussions had with him about a possible restructure, but it was never suggested he could be made redundant as part of that process. He also has concerns about the way in which his dismissal was carried out, particularly the lack of any opportunity to have a support person present in discussions, and the lack of any genuine consideration about other possible employment options. There are clearly different views about the merits of the matter, but neither party has put its case in detail. I am satisfied this is a neutral consideration.
(f) Fairness as between the Applicant and other persons in a similar position
[27] I am satisfied this is of limited relevance in the present matter and is again a neutral consideration.
Conclusion
[28] I have considered the evidence and the submissions in this matter, and the various considerations in s.394(3) I am required to have regard to. I am not satisfied, in conclusion, that the evidence before the Tribunal indicates that “exceptional circumstances” exist to warrant an exercise of the discretion to extend the time in which to make application. The lengthy time delay is clearly a significant factor in coming to this decision. A seven month delay after the expiry of the 21 day period is a long time “after the event,” and clearly warrants some particular “exceptional circumstances” in existence to justify this extended period of delay. I am not satisfied those circumstances exist. The application is dismissed.
COMMISSIONER
Appearances:
The Applicant did not appear.
Mr Nick Tindley of FCB Group appeared on behalf of the Respondent.
Hearing details:
2014.
Melbourne:
11 April.
Final written submissions:
The Applicant advised he wished to rely only on the submissions filed in accordance with directions on 27 March 2014.
1 Fair Work Act 2009 (Cth) at s.394(3)
2 F2 signed 8 February 2014 at page 5 with additional attachment
3 [2011] FWA 673
4 [2010] FWAFB 7251
5 Ibid at [5]
6 [2011] FWAFB 975
7 Ibid at [13]
8 [2011] FWA 673 at [10]
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