Prampan Poolperm-Johnson v Hobart Police & Community Youth Club Inc

[2016] FWC 2276

[2016] FWC 2276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Prampan Poolperm-Johnson
v
Hobart Police & Community Youth Club Inc
(U2016/716)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Poolperm-Johnson alleged the termination of his employment by Hobart Police & Community Youth Club Inc on 29 January 2016 was unfair.

[2] His unfair dismissal application lodged on 7 March 2016 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 1 where 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 Poolperm-Johnson was dismissed 29 January 2016. He did not decide to lodge his application until he was in Thailand. On 18 February 2016, Mr Poolperm-Johnson registered for e-filing. He attempted to upload an unfair dismissal application and he paid the filing fee.

[6] On the same day, Mr Poolperm-Johnson received an acknowledgement email which advised him that his application is taken not to have been filed as it would need to be reviewed. That email advised that he would be advised by email if there were any anomalies.

[7] On the same day, a telephone message was left for Mr Poolperm-Johnson asking him to contact the Commission. That message advised that there was no application form. Mr Poolperm-Johnson did not receive this message as he was not in Australia at this time. There is no record that Mr Poolperm-Johnson was ever sent an email advising him that his application had not been accepted.

[8] On 4 March 2016, Mr Poolperm-Johnson sent an email to the Commission asking about the progress of his claim. On 7 March 2016, a member of the Commission staff spoke to Mr Poolperm-Johnson and advised him that there was no record of his application. He was asked to provide copies of the documents he received. Mr Poolperm-Johnson was then advised that he needed to file an application, which he did on the same day.

[9] The filing fee was deducted from his account on 23 February 2016. The failure of the Commission to inform Mr Poolperm-Johnson that his application was not accepted in accordance with its advice meant that he was not aware until he returned to Australia that his application was deficient. That the Commission did not respond to Mr Poolperm-Johnson’s email of 4 March 2016 until 7 March 2016 further delayed matters.

[10] Mr Poolperm-Johnson acted promptly when advised that his application had not been received. The combination of factors, namely the advice of his termination immediately before his planned holidays, the technical issues he faced uploading his application, the failure of the Commission to advise him by email that his application had not been received and the failure to promptly reply to his email collectively provide Mr Poolperm-Johnson with a reasonable explanation for the delay in lodging his application.

[11] This weighs in favour of a finding that there are exceptional circumstances.

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

[12] Mr Poolperm-Johnson 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;

[13] Mr Poolperm-Johnson did not take any action to dispute his dismissal. He was advised of his dismissal and while he was given an opportunity to ask question during the meeting, he said he was in shock at his dismissal. He was not given an opportunity to ask questions at a later date and was required to leave the premises immediately. I consider this to be a neutral criterion.

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

[14] There was no submission about or any evidence of any prejudice to the Club. This weighs in favour of a finding that there are exceptional circumstances.

(e) the merits of the application;

[15] Mr Poolperm-Johnson was advised on 29 January 2016 that his position was redundant. He was invited to a staff meeting and advised of the new organizational structure. He said he was given an opportunity to ask questions. Mr Poolperm-Johnson said there was no consultation about the proposed changes. He was advised in his termination letter that there were no redeployment opportunities. He submitted that he was qualified for some of the positions that the employer subsequently advertised. Mr Poolperm-Johnson said that casual employees were now doing his work. Mr Poolperm-Johnson complained that he was not paid his appropriate entitlements.

[16] The Club said Mr Poolperm-Johnson’s position was redundant and that it had consulted with him.

[17] I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. However his claim on the sworn evidence before me is not without merit. I consider this criterion to be neutral.

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

[18] There were no submissions that there were any persons in a similar position.

Conclusion

[19] I find that there are exceptional circumstances. Mr Poolperm-Johnson has a reasonable explanation for the delay in lodging his application. That he did not dispute his dismissal at the time is not surprising. Having found that there are exceptional circumstances, I have decided to exercise my discretion to extend the time for Mr Poolperm-Johnson to lodge his application. I do so because his application was not opposed by the Club and because his claim is not without merit.

DEPUTY PRESIDENT

Appearances:

P. Poolperth-Johnson on his own behalf.

G. Tremayne for the Respondent.

Hearing details:

2016.

Melbourne and Hobart, by telephone link:

April 7.

 1   [2011] FWAFB 975

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