Richard King v Sell Lease Property Pty Ltd

[2015] FWC 3022

[2015] FWC 3022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard King
v
Sell Lease Property Pty Ltd
(U2015/3736)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Richard King alleged that the termination of his employment by Sell Lease Property Pty Ltd (SLP) on 18 December 2014 was unfair.

[2] Mr King’s unfair dismissal application lodged on 6 March 2015 was not made within 21 days of the date of the dismissal.

[3] In the employer response form filed by SLP, it objected to Mr King’s application on the grounds that his application was out of time and that he resigned his employment on 18 December 2014 as part of an agreement reached by the parties at a mediation conducted by the Fair Work Ombudsman (FWO). The terms of settlement also released SLP from any further claims. SLP submitted that Mr King’s claim had no reasonable prospects of success and should be dismissed.

[4] At the hearing, I granted permission for SLP to be represented by a legal practitioner. Mr King objected on the basis that there were no complexities or jurisdictional issues and that in two previous matters SLP had represented itself. He submitted that there would be no efficiencies gained by allowing representation.

[5] SLP submitted that it should be permitted to be represented as the matter involves some complexity due to the interrelationship between the common law rights arising from the terms of settlement and Mr King’s statutory rights and that representation would enable the matter to be dealt with more efficiently. Further, it was submitted that it would be unfair not to allow SLP to be represented as it could not effectively represent itself. It submitted that while Mr Brett Quinn, the CEO of SLP, had represented SLP in conciliation, he had not appeared as an advocate in the Fair Work Commission.

[6] At the hearing, I advised that I would permit SLP to be represented. While extension of time matters do not normally raise issues of any complexity, the issue of the deed both in relation to the extension of time and the application to dismiss raised some complex issues and further, I accepted the submission of SLP that it would be unfair not to permit it to represent itself.

[7] The 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.

[8] 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;

[9] Mr King had a dispute with SLP about his employment. That dispute was mediated by the FWO. The parties reached an agreement on 18 December 2014 which was reduced to writing and signed by the parties. It was a term of that agreement that Mr King resign his employment and he did so on the same day. Mr King then had a further dispute with SLP about whether the payments received by him were in fact payments made under the agreement or payments made for commissions already earned. That dispute was on going and Mr King sought further assistance of the FWO in resolving that dispute. On 9 March 2015, after he had lodged this application, Mr King was advised by the FWO that it was taking no further action because there was a legally binding agreement.

[10] It cannot be said that Mr King sought the assistance of the FWO to deal with his dismissal because when he contacted the FWO, he had not been dismissed. There was no evidence that Mr King sought the advice of the FWO about whether his resignation was a constructive dismissal. It was Mr King’s evidence that sometime in mid to late February 2015, someone at the FWO raised with him the prospect of an unfair dismissal. He then researched the issue and decided to lodge this application. Mr King signed his application on 2 March 2015 but because he posted it to the Commission, it was not lodged until 6 March 2015.

[11] Mr King explained the delay in lodging his application after his discussion with the FWO as being due to the need for him to research the matter and complete the form.

[12] Mr King said he was forced to resign as a part of the mediation process conducted by the FWO. He gave evidence that it was proposed as part of the settlement offer made by SLP. It was his evidence that the FWO allowed this. He said that this clause was not discussed at mediation. Mr King gave evidence that he read the terms of settlement before he signed the document and he provided his resignation to SLP.

[13] In cross examination, Mr King accepted that he had entered into the settlement agreement freely. He read the document before he signed it. It was his evidence that he did so because otherwise he would not receive the benefits of the settlement agreement. Mr King said he had no choice but to agree. When he did not receive the benefits he was expecting, he sought to reagitate these matters with the FWO and SLP. When it became clear that he was not going to receive those benefits, he took the view that his resignation was forced.

[14] Mr King had no explanation other than his dissatisfaction with SLP’s compliance with the terms of settlement to explain why he waited until 6 March 2015 to lodge his application. If, as Mr King submitted, he was forced to resign, then that occurred in December 2014. Mr King did not lodge an application until 6 March 2015. I do not consider that Mr King has a reasonable explanation for the delay. While he may have a dispute with SLP about its compliance with the terms of settlement, that does not alter what occurred on 18 December 2014. Mr King cannot rely on conduct that occurred after his dismissal to support his contention that he was forced to resign. If Mr King thought he was forced to resign on 18 December 2014, then he should have lodged his application within 21 days of that date. He did not and has not provided a reasonable explanation for the delay. This weighs against extending time.

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

[15] Mr King was aware of the circumstances of his resignation on 18 December 2014 and therefore had the full 21 days to lodge his application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[16] Mr King did not dispute the dismissal until he lodged this application. He disputed with both SLP and the FWO what he saw as SLP’s failure to comply with its obligations under the deed and under his contract of employment, however, he did not advise SLP at the time of signing the deed or during his correspondence with SLP about monies owed that he considered his resignation to be a constructive dismissal. This weighs against extending time.

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

[17] There was no evidence of any prejudice to the employer. This weighs in favour of extending time.

(e) the merits of the application;

[18] It was submitted that Mr King’s application has no merit because Mr King resigned his employment as a result of a mediation conducted by the FWO and because Mr King accepted that he freely entered into the terms of settlement because he would not have received the benefits of the terms of settlement without agreeing to this term.

[19] Mr King submitted that SLP have not complied with the terms of settlement because it had not paid him the monies payable under the terms of the deed nor waived his debt.

[20] Mr King was paid $14,000, but he claimed that this was other monies owed to him. He stated that his debt had not been waived but produced no evidence to support this allegation. He relied upon a document dated 13/4/14 to support this claim. It is not clear how this was evidence that his debt was not waived as it predated the terms of settlement. Mr King gave evidence from the bar table that this was given to him in December as proof that it had been waived and that the figures in the document were incorrect. If this is what occurred, then it is difficult to see how this was not evidence that the debt was cleared, as the document discloses that the amount due was $0. However, the obligation was to waive the debt. In the event that SLP sought to recover any of the monies, Mr King would be able to rely on the terms of settlement to defend any claim. There was no evidence that SLP had taken any action to recover the debt.

[21] Mr King was not in a position where his employer placed before him terms of settlement and told him to sign “or else.” Mr King entered into terms of settlement as a result of a mediation conducted by a neutral third party, the FWO.

[22] The Fair Work Commission does not have the power to set aside terms of settlement or to resolve disputes over the terms of settlement

[23] I do not find Mr King’s contention that he was forced to resign compelling, however, I am not required to make a final determination about this issue. I am required to take account of the merits as part of an assessment of whether there are exceptional circumstances.

[24] I find on the evidence before me that the merits of Mr King’s claim do not weigh in favour of such a finding.

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

[25] Mr King submitted that other employees had been dismissed or offered new contracts. I do not consider this to be relevant to this criterion. This criterion is a neutral consideration.

Conclusion

[26] I do not consider that there are exceptional circumstances. The merits of Mr King’s claim are not such as to outweigh the lack of a reasonable explanation for the delay. Because I have not extended time for the lodging of the application, I do not need to consider whether I would dismiss the application because it has no reasonable prospects of success.

DEPUTY PRESIDENT

Appearances:

Mr R King on his own behalf.

Mr S Heathcote for the Respondent.

Hearing details:

2015.

Melbourne and Perth via video link:

29 April.

 1   [2011] FWAFB 975.

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