Ray Reid v Bam Wine Logistics Pty Ltd

[2013] FWC 9944

[2013] FWC 9944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ray Reid
v
Bam Wine Logistics Pty Ltd
(U2013/14105)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 DECEMBER 2013

Application for relief from unfair dismissal.

Introduction

[1] On 13 December 2013 I refused to extend the time by which an application for an unfair dismissal remedy made by Mr Ray Reid could be lodged. These are my reasons for doing so.

[2] Mr Reid commenced employment with Bam Wine Logistics Pty Ltd on 21 December 2009 where he was employed as a store person/forklift driver at his employer’s warehouse located in Dandenong. The employment came to an end on 4 September 2013. The reasons for his dismissal are set out in a letter to Mr Reid dated 4 September 2013 and principally concern his failure to attend meetings with his employer to discuss his return to work and his continued failure to verify a number of his absences by producing medical certificates.

[3] Mr Reid lodged an application for an unfair dismissal remedy with the Fair Work Commission (Commission) on 1 October 2013. Section 394 of the Fair Work Act 2009 (Act) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The dismissal of Mr Reid from his employment took effect on 4 September 2013. Mr Reid’s unfair dismissal remedy application should have been lodged by 25 September 2013. His application was therefore lodged some six days after the time prescribed by the Act.

Matters relevant to considering whether extension should be granted

[4] The Commission may allow a further period within which an application may be made 1. The discretion to allow a further period will only be exercised if the Commission is first satisfied that there are “exceptional circumstances”, taking into account2:

● The reason for the delay; and

● Any action taken by the person to dispute the dismissal; and

● Prejudice to the employer (including prejudice caused by the delay); and

● The merits of the application; and

● Fairness between the person and other persons in a position.

It is clear from the structure of s.394(3) of the Act that each of these matters is to be taken into account when assessing whether there exist “exceptional circumstances”.

Reason for the delay

[5] Mr Reid provided four reasons on which he relied to explain his delay in launching his unfair dismissal application. First, Mr Reid said that after his dismissal he had spent “a lot of time in the country learning to coal mine and tuning cars” 3. Secondly, Mr Reid said that he consulted a solicitor from Ryan Carlisle Thomas on the 21st day after his dismissal4 and then thought that he could download an application form and email it to the Commission however he could not do this because he was “not very good on computers”5. Ultimately the application was sent by express post on Monday, 30 September 2013 and arrived at the Commission for lodgement on Tuesday, 1 October 20136. Thirdly, Mr Reid says that he was not aware of the 21 days limitation period which pertains to unfair dismissal remedy applications. This is because when he had telephoned the Commission he says he was advised that there were two avenues available to him. He says that he was told “the F2 form, which is for simple unfair dismissal must be in 21 days”7 and “the F6… which is unfair dismissal plus seeking some form of compensation or seeking something extra … that can be put in at any time” 8.

[6] Finally, Mr Reid says that a reason for the delay was that during the relevant time he “wasn’t in the best place, the most switched on place at that point in time” 9. By this, Mr Reid was not suggesting that he was under some disability which prevented him from lodging an application within the prescribed period, rather he was saying that he was “just upset and confused… about [his] dismissal, and… about how to proceed forward with it”10

[7] In my view none of the reasons advanced by Mr Reid provide a reasonable explanation for the delay in lodging his unfair dismissal remedy application. It seems to me the principal reason for the delay is Mr Reid’s decision to go to the country to learn to gold mine and tune cars instead of pursuing any rights that he may have had in relation to his dismissal. He consulted a solicitor on the last day on which a valid application could be made, namely Wednesday 25 September 2013. He became aware on that day that there was a 21 day limitation period. Nonetheless Mr Reid waited until Monday, 30 September 2013 before mailing his application by express post.

[8] Having been made aware of the limitation period one would expect more earnest action would have been taken by Mr Reid in attending to lodging an application without further delay. Instead there was further delay, and the reason for this delay is not satisfactorily explained by Mr Reid.

[9] As to the purported advice that Mr Reid says he received from the Commission, I do not accept his evidence in this regard. Although there are two possible avenues of redress in connection with Mr Reid’s dismissal under the Act, namely an unfair dismissal remedy application made under section 394 or a dismissal related general protections dispute application made under section 365, both avenues of redress carry the same 21 day limitation period 11. It stretches the bounds of credulity for Mr Reid to suggest that was the given advice that there was some other avenue of redress available to him related to his dismissal for which no limitation period applied at all. With regard to Mr Reid’s reference to form F6, I simply observe that form F6 bears no connection to an unfair dismissal remedy application except insofar as it might be used to obtain an order for costs. In any event I note that the application that he ultimately made was one made on form F2, in relation to which on his own evidence, he was advised must be lodged within 21 days after his dismissal.

[10] Finally insofar as Mr Reid advances the explanation that he was upset and confused about his dismissal and about how to proceed as a reason for the delay, I note that Mr Reid did not produce any evidence which suggested that he suffered from any condition or disability which prevented him from making an application within the time prescribed. It is doubtless the case that most employees who are dismissed from employment experience some degree of upset and confusion. But that upset or confusion without more does not provide a sound basis for accepting that emotional condition as a reason for delay in lodging an unfair dismissal remedy application. Mr Reid’s experience is, with respect, a common and ordinarily reaction to a dismissal.

[11] In truth the reason for the delay is that Mr Reid chose to do other things and did not attend to or enquire about his unfair dismissal rights until it was practically too late. In the circumstances I am not satisfied there is any reasonable explanation for the delay in this case.

Whether the applicant first became aware of the dismissal after it had taken effect

[12] It was common ground that Mr Reid was dismissed on 4 September 2013 and was notified of his dismissal on that day. Consequently I am satisfied Mr Reid became aware of the dismissal on the date it took effect.

Action taken to dispute the dismissal.

[13] Other than consulting a solicitor on the 21st day after the dismissal took effect, Mr Reid does not seem to have taken any action to dispute his dismissal prior to lodging his late unfair dismissal remedy application 12.

Prejudice

[14] MrReid’s employer did not suggest that the delay in bringing the application will result in any prejudice to it. Given the relatively short period of delay there is no real likelihood of any prejudice and I am so satisfied.

Merits

[15] Although the manner in which the merits of an application are considered in the context of a hearing concerned with the granting of an extension of time are necessarily truncated and often incomplete, nevertheless there has been sufficient evidence adduced to persuade me that the merits of Mr Reid’s application are particularly weak. The evidence discloses that Mr Reid has been absent from work on unpaid leave because of an injury to his shoulder since 13 June 2013. Between 13 June 2013 and the date of his dismissal Mr Reid did not produce any medical evidence of the injury necessitating his absence despite been repeatedly requested to do so, and despite having undertaken on a number of occasions to do so. Mr Reid had received a warning on 16 January 2013 about his failure to comply with the employer’s leave policy and in particular his failure to provide medical certificates verifying absences. A further warning was issued on 30 May 2013 concerning Mr Reid’s failure to notify his employer of an intended absence and his failure to provide medical evidence as required by the employer.

[16] On 16 August 2013 the employer wrote to Mr Reid about his unverified absences and his failure to provide medical certificates. Mr Reid was invited to attend a meeting with the Group Human Resources Manager of the employer on 21 August 2013 to discuss this issue and to discuss a suitable return to work plan. The correspondence of 26 August 2013 also advised Mr Reid that a failure to attend the meeting or to communicate with the employer before that time about his attendance may result in disciplinary action including termination of his employment. Mr Reid did not attend the meeting nor did he communicate with his employer. Further correspondence dated 22 August 2013 was sent to Mr Reid again invited him to a meeting which had been scheduled for 27 August 2013. On 26 August 2013 the Group Human Resources Manager of the employer spoke to Mr Reid by telephone. During the discussion Mr Reid agreed that he would make further contact with the employer with a view to finalising a date on which he could attend a meeting. Mr Reid did not make further contact and the meeting did not take place.

[17] On 2 September 2013 yet another letter was sent to Mr Reid, this time requesting that he attended a meeting with his employer at 10.00 am on 4 September 2013. The letter makes clear that a failure to attend the meeting may result in the taking of serious disciplinary action such as the termination of his employment. Mr Reid did not attend the meeting nor did he communicate with his employer to make any alternative arrangements or to explain why he would not or could not attend the meeting. As at 4 September 2013 Mr Reid had not provided any medical certificates verifying his absences since 13 June 2013.

[18] On 4 September 2013, the employer wrote to Mr Reid advising that his employment was terminated with effect from that day. The reason for the termination was his unwillingness to comply with the employer’s request for Mr Reid to attend meetings and his continued failure to provide medical evidence verifying his absences as required by the employer. Mr Reid was paid four weeks paid notice.

[19] In addition to the evidence recited above, based on my observations of Mr Reid whilst he was giving evidence and my questions of him, I found Mr Reid’s evidence about the circumstances of his dismissal, his explanation of his failures to attend meetings with his employer and to produce medical certificates, and his explanations for the delay in lodging his application, inconsistent and unconvincing. It seems to me based on the evidence before me, the employer will have little trouble establishing that: it had a valid reason for Mr Reid’s dismissal; it gave him an opportunity to respond to its concerns; and it had counselled Mr Reid on two previous occasions about his failure to verify absences. In the circumstances the merits of Mr Reid’s application appear very weak.

Fairness is between the applicant and other persons in a similar position.

[20] I consider that the question of fairness as between Mr Reid and other persons in a similar position to be essentially neutral in this case.

Conclusion

[21] Statutory time limits for the exercise of a person’s right are in place to bring about certainty as between potential litigants. Timeframes seek to balance the person’s right to bring an action against a potential respondent’s right to know that questions about actions that they have taken, will be agitated within a particular period of time. Once that time has passed only exceptional circumstances will allow an out of time matter to proceed.

[22] It is for this reason that the legislature has determined that extensions of time will only be given if the Commission is satisfied there are exceptional circumstances, that is, circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances need not be unique, unprecedented or very rare.

[23] Mr Reid has not been able to persuade me that he has a meritorious case. Nor has he been able to persuade me that there is any reasonable or satisfactory explanation for the delay in the lodgement of his unfair dismissal remedy application. Mr Reid was notified of his dismissal on that day it took effect. Instead of pursuing his right to seek redress in relation to a dismissal that he believed to be unfair, or at the least to seek advice about it, Mr Reid chose instead to take lessons in gold mining and to tune cars.

[24] Although the employer will suffer no prejudice if an extension of time was to be granted (and in this case the period of delay is relatively short) in a case such as this where the merits are particularly weak and the reasons advanced for the delay unconvincing, the lack of prejudice does not assist Mr Reid. I am not satisfied that there are exceptional circumstances to warrant the grant of extension of time to Mr Reid to lodge the unfair dismissal remedy application. The application for an extension of time is refused and the substantive application is dismissed.

[25] In the circumstances it is unnecessary for me to deal with the employer’s application under section 399A of the Act.

DEPUTY PRESIDENT

Appearances:

R.Reid on his own behalf

N. Howells-Schramm for Bam Wine Logistics Pty Ltd

Hearing details:

2013.

Melbourne.

December 13

 1   Section 394(2)

 2   Section 394(3)

 3   Exhibit A2

 4   Ibid

 5   Transcript PN246-PN 55

 6   Transcript PN404 – PN401

 7   Exhibit A2; Transcript PN242

 8   Exhibit A 2; Transcript PN244

 9   Transcript PN 275

 10   Transcript PN282 – PN285

 11   See sections 394(2) and 366(2)

 12   Transcript PN296 – PN301

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