Ralph Weingaertner v Sell and Parker Pty Ltd

[2015] FWC 2415

[2015] FWC 2415 [Note: An appeal pursuant to s.604 (C2015/2289) was lodged against this decision - refer to Full Bench decision dated 25 June 2015 [[2015] FWCFB 4036] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ralph Weingaertner
v
Sell and Parker Pty Ltd
(U2015/2329)

DEPUTY PRESIDENT SAMS SYDNEY, 10 APRIL 2015

Application for relief from unfair dismissal - misconduct and earlier warnings - application out of time - emailed application not received - no verification of original email being received - explanation not accepted - no explanation for further delay - no ‘exceptional circumstances’ - application dismissed .

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Mr Ralph Weingaertner (the ‘applicant’) was dismissed from his employment with Sell and Parker Pty Ltd (the ‘respondent’) on 4 December 2014. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 8 January 2015. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. His application was therefore lodged ten days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy. On 16 January 2015, the Commission wrote to the applicant in the following terms:

‘You have lodged an application seeking a remedy for what you say was an unfair dismissal from your employment.

If you have a lawyer you should provide a copy of this letter to him or her. If a lawyer is to appear for you, or present material for you, they will need to seek permission to do so. You should draw this requirement to their attention.

The Fair Work Act 2009 allows you 21 days to lodge this application. Your application appears to be outside that time frame. You must seek an extension of time if you want your application to proceed. Your application has been allocated to me to decide whether or not to extend the time for you.

When deciding whether or not to extend the time for you the Fair Work Act 2009 obliges me to consider a number of issues which I have set out below.

● the reason for the delay;
● whether the person first became aware of the dismissal after it had taken effect;
● any action taken by the person to dispute the dismissal;
● prejudice to the employer (including prejudice caused by the delay);
● the merits of the application; and
● fairness as between the person and other persons in a similar position.

Please supply me with a written statement within 14 days explaining why you think I should decide in favour of extending the time for you. Please consider the specific issues which I have set out above, and address them in your written statement if you can. Unless you request a hearing in person or request to be heard by telephone or video, this written statement and any documents you supply with it will be what I rely on when I consider your application. As an example, if you rely on a medical condition, you should supply a medical certificate or report.

If no statement is received and no request is made for you to be heard in person, by telephone or by video conference then I will consider your extension of time application on the material before me without further notice to you.

If I decide to refuse your application I will issue an Order dismissing your application. If I refuse your application and you wish to appeal my decision, you must lodge your appeal within 21 days.

If your statement persuades me that there might be exceptional circumstances justifying an extension of time for the lodgement of your application I will give your former employer an opportunity to be heard, either in writing or in person. They may make an application to me, or another member of the Fair Work Commission, if appropriate regarding how they should be heard.

If you prefer to make your statement in person I might hear the application myself or it may be listed before another member of the Fair Work Commission. Your former employer will be asked to attend on the same day and put their opposition, if any, to the extension of time. They may seek to oppose your application in writing. Consideration will be given to that request and, if granted, you will be able to respond.

If you do not understand any of the process set out in this correspondence, you may telephone my associate, Bronwyn Connell, [number supplied] to make enquiries.’

[3] On 21 January 2015, the applicant provided a brief written response by email (see para 7]). Having considered this material, I issued an order refusing an extension of time and dismissed the application on 12 March 2015. What follows are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES

[4] The relevant legislative framework, governing the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

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

(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.’

[5] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission said:

‘[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] 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.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[6] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

CONSIDERATION

Reasons for the delay (s 394(3)(a))

[7] The applicant responded to the correspondence set out above (see para [2]) by email dated 21 January 2015 as follows:

‘Good Morning, I am writing in response to your letter dated 16 Jan 2015 ... The reason for my application being submitted outside the 21 days after being terminated was that I did not realise that I was late was because I was unaware that you had not received it until you responded to an email that you sent on the 8 Jan 2015, which was the response from an email that I had sent on the 31 December 2014 asking for an up date on the email containing the application and letter of termination which I had sent on the 19 Dec 2014, at that stage I knew I had sent it 15 days after termination which was well within the 21 days of lodging the application. Below is the original email that was sent containing the relevant documents. That is why, I do not understand why you never received it in the first place.
I urge you to reconsider to favour an extension for me so that we can continue in processing this matter.

Sincerely

R. Weingaertner
[phone number supplied]

---------------------------------------------------------
From: [Email supplied]
Sent: Friday, December 19, 2014 8:24 AM
To: <[email protected]>
Subject: Unfair Dismissal Ralph Weingaertner

> To Whom this may concern,
>
> My name is Ralph Weingaertner, attached is an Unfair Dismissal
> Application, as well as the dismissal letter
>
> kind Regards
>
> R. Weingaertner
>
> [phone number supplied]
> 19 Dec 2014’

[8] Enquiries with the Commission’s IT department confirmed that no email was received by the Commission’s servers from the applicant’s email address on this date or, indeed, throughout the whole month of December 2014 until the applicant emailed the Sydney registry of the Commission on 31 December 2014 inquiring as to the status of his application. On 2 January 2015, a staff member of the Commission emailed the applicant informing him that the Commission had not received his application and asking him to resend his application and ‘any receipt/document to verify the original date and time the application was sent.’ The applicant lodged his application on 8 January 2015, but did not at this time provide any documentation verifying the original date and time the application was sent. The application set out that the application was being lodged in time. However, the applicant did not offer any reason for waiting a further six days after 2 January 2015 before lodging his application.

[9] Having considered the material filed by the applicant and the Commission’s records, I find that the application was filed on 8 January 2015. In any event, I am not persuaded that the reason provided by the applicant for the delay in filing his unfair dismissal application is an ‘exceptional circumstance’, as contemplated by the Act. Even if I am wrong as to this finding, the applicant provided no explanation for his failure to ‘re-lodge’ his application for a further six days after being informed that his application had not been received. Given that the applicant was clearly ‘alive’ to the possibility that his application had not been filed, I find it curious that he did not, after the email of 2 January 2015, take immediate steps to submit his previously-prepared application. Time was of the essence.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[10] In his Form F2 application, the applicant identified 4 December 2014 as the date on which he was notified of his dismissal and that it took effect the same day. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[11] The applicant did not identify any other action taken by him to dispute his dismissal, other than the filing of his unfair dismissal application. As earlier mentioned, I am not satisfied the applicant had sent his application on 19 December 2014. Nor was there any explanation for his waiting a further six days after his contact with the Commission on 2 January 2015. This is a neutral factor in my consideration of whether to grant an extension of time.

Prejudice to the employer (s 394(3)(d))

[12] Given my finding that the application was lodged ten days outside of the statutory time limit, I do not consider there to be any significant prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This factor is a neutral one in this case.

The merits of the application (s 394(3)(e))

[13] It is important for applicants to understand that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. In Kornicki v Telstra Network Technology Group P3168, a Full Bench of the Australian Industrial Relations Commission said:

‘The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’

[14] In his F2 application, the applicant offered the following reasons for his belief that his termination of employment was unfair:

‘1. Bullying and Harassment complaint I lodged against a colleague was used against me to then Terminate me.

2. My immediate supervisor/Manager has never tried to have a mediation between myself and the other party.

3. Any so called meeting or counseling [sic] that ever took place had never been followed up to inform me that my performance had not changed

4. I have never been informed neither by written or verbal about any Bullying/Harassment against a colleague within the work place

5. Any actions that I had mentioned to my supervisor/Manager to prevent incidents in occurring has never been dealt with seriously

6. Whatever I tried to say in my defense to be retained, was never taken on board as there [sic] decision had already been made, especially being that the dismissal letter was a copy and never dated at the bottom of the signature block

7. I was also dismissed without a follow up from workers cover [sic] in an injury that I has sustained [sic] several months earlier

8. The wrong person was terminated in that I was a hard worker which was clearly never in the interest of the company and yet the other was lazy and unreliable and would not listen to instruction, yet the supervisor/Manager knew this.

[15] The applicant’s letter of termination, dated 4 December 2014, was attached to his application. It was expressed as follows:

‘I am writing to you about the termination of your employment with Sell and parker Pty Ltd (Sell and Parker).

On 31 July 2014 you met with Steve martin (Yard Manager- Nowra). In that counselling meeting, you were advised that your conduct was unacceptable and that you had breached the Sell and Parker Anti-Bullying, Discrimination and Harassment Policy.

On 24 October 2014 you had a meeting with Steve Martin and you were advised that your conduct had not improved and there had been further breaches of company policy. You were issued with a warning letter on the same date, 24 October 2014. This letter indicated that your employment may be terminated if your conduct did not improve.

You attended a meeting with Steve Martin and Allen Floyd (Operations Manager-NSW) today, 4 December 2014. As discussed in the meeting, the investigation has substantiated that you bullied Tim Smith in a face-to-face altercation in the yard at approximately 4;15pm on 4 November 2014, the language used by you in that altercation clearly goes beyond appropriate workplace interaction, was derogatory and offensive and as such was a breach of the Code of Conduct, Anti-Discrimination, Harassment and Bullying Policy and the Equal Opportunity and Fair Treatment Policy.

Appropriate standards of behaviour and workplace interaction at Sell and parker, the Sell and Parker Code of Conduct and the Equal Opportunity and Fair Treatment Policy have been outlined to you and reviewed with you as recently as 24 October 2014, formal training on EEO, Discrimination, Harassment and Bullying has also been undertaken by you on 4 November 2014.

During the meeting today you were advised that your conduct has not improved.

We consider that your actions constitute serious misconduct and have determined to terminate your employment. As such you will not be required to perform your duties for Sell and Parker from today 4 December 2014. Your employment will end immediately. Based on your length of service, your notice period is one (1) week, you will be paid your notice in lieu.

You will also be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including your last day of employment by electronic funds transfer into your bank account within seven (7) calendar days from your final date of employment.

I take this opportunity to remind you of your continuing obligations to Sell and parker following the termination of your employment. This includes your obligation not to divulge or use any confidential information and to return any property of Sell and parker in your possession, including any confidential information.’

[16] I note the applicant did not deny the conduct alluded to in the respondent’s letter of termination nor the earlier warnings for similar conduct, but complains of the process and outcome of the investigation. The termination appears to be a conventional termination based on serious misconduct. However, given the conflicting material referred to above, it cannot be said that the applicant’s case is devoid of any merit.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[17] The applicant did not expressly address this criterion, though I note that he says that the ‘wrong person was terminated’. He appears to base this conclusion on the grounds of performance, rather than conduct. This factor is a neutral consideration in this case.

CONCLUSION

[18] Having considered and balanced all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant the Commission granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. In my opinion, the circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 12 March 2015.

DEPUTY PRESIDENT

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