Robert Bailey v Cater Care Australia Operations Pty Ltd T/A Cater Care
[2018] FWC 2942
•5 JUNE 2018
| [2018] FWC 2942 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Bailey
v
Cater Care Australia Operations Pty Ltd T/A Cater Care
(U2018/2189)
DEPUTY PRESIDENT DEAN | SYDNEY, 5 JUNE 2018 |
Application for an unfair dismissal remedy.
[1] On 2 March 2018 Mr Robert Bailey lodged an application pursuant to s.394 of the Fair Work Act 2009 claiming that he had been unfairly dismissed by Cater Care Australia Operations Pty Ltd T/A Cater Care (Cater Care).
[2] On 12 March 2018, Cater Care filed its Employers Response, objecting to the application on the ground that Mr Bailey had filed his application outside of the prescribed 21 day time limit.
[3] On 13 April 2018, correspondence was sent to Mr Bailey asking him to confirm the effective date of his dismissal. He had previously advised the Commission that his date of dismissal was 16 February 2018, however Cater Care had submitted in its Employers Response that it was 7 February 2018.
[4] On 18 April 2018, Mr Bailey confirmed in writing that he had been notified by telephone on 7 February 2018 that his employment had been terminated. As such, Mr Bailey’s application had been filed 2 days outside the prescribed time limit.
[5] The matter was listed for hearing on 25 May 2018 to decide whether there were exceptional circumstances which would warrant the granting of an extension of time for Mr Bailey.
[6] At the hearing, Mr Bailey appeared on his own behalf. Ms Peta McDonnell appeared for Cater Care.
Extension of time
[7] Section 394(3) of the Act 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.
[8] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if I am satisfied that there are exceptional circumstances can I then exercise my discretion to extend time. The onus of establishing exceptional circumstances rests with the applicant.
[9] 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.”
[10] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[11] In his submissions, Mr Bailey stated that the main reason for the delay in making his application was that he had been waiting for an investigation into and review of his dismissal, and was also waiting for receipt of a Separation Certificate and letter of termination from Cater Care.
[12] During the hearing, Mr Bailey gave evidence that during the telephone discussion on 7 February 2018 with Ms Massey (his supervisor) in which he was informed of his dismissal, he immediately asked for an investigation and review of the decision to dismiss him. His evidence was that Ms Massey agreed that Cater Care would conduct an investigation/review. He said that as a result, he did not consider that his dismissal had taken effect while the investigation was ongoing.
[13] He said he received formal notice of his dismissal on 16 February 2018, which he followed up with an email to Cater Care’s Chief Operations Officer, Mr East. Mr Bailey gave evidence that Mr East knew nothing of an investigation or the circumstances of his dismissal and agreed to follow up and get back to him.
[14] Mr East wrote to Mr Bailey on 2 March 2018, confirming that a thorough review of the termination of his employment had been conducted and the decision to dismiss him was confirmed.
[15] Mr Bailey’s evidence regarding the agreement by Ms Massey to conduct an investigation on 7 February 2018 was unchallenged by Cater Care.
[16] It is clear that Mr Bailey was advised on 7 February that he was dismissed. However, I accept that he genuinely believed that his dismissal did not take effect on 7 February 2018 because of the agreement to conduct an investigation and review into the circumstances of his dismissal.
[17] Having considered the evidence and submissions, I find that the matters addressed by Mr Bailey as reasons for the delay in lodging this application weigh in favour of granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[18] Cater Care gave evidence that it emailed Mr Bailey’s termination letter to him on the afternoon of 7 February 2018. It said that the termination letter confirmed the verbal advice by Ms Massey to Mr Bailey earlier that day.
[19] Mr Bailey’s evidence was that he was first aware of his dismissal when he spoke to Ms Massey by telephone on 7 February 2018. However, as set out above, he believed that this decision was overtaken by the agreement of Ms Massey to conduct an investigation into his dismissal.
[20] I find that this weighs in favour of an extension of time.
Any action taken by the person to dispute the dismissal
[21] Mr Bailey submits that he immediately sought a review of his dismissal, and had asked that a Separation Certificate and termination letter be emailed to him. Mr Bailey submits that he received a termination letter on 16 February 2018 and his Separation Certificate on 1 March 2018, although he was waiting for the outcome of the investigation during this time.
[22] Overall, I find that this weighs in favour of the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[23] There is no evidence of prejudice to Cater Care if I were to grant an extension of time.
[24] I am not persuaded that Cater Care would suffer prejudice if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[25] For the purpose of determining whether to grant an extension of time for Mr Bailey to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’2
[26] Mr Bailey contends that he did not behave inappropriately on the day of the incident that led to his dismissal. He maintains that no offensive language was used by him; that threats were not made to other staff members; and that he had not raised his voice to an unacceptable level.
[27] Cater Care submits that Mr Bailey’s employment was terminated due to serious misconduct and unacceptable workplace behaviour.
[28] Overall, on the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[29] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4
[30] I do not consider that there are other relevant persons in a similar position to Mr Bailey, I therefore find this to be a neutral consideration.
Conclusion
[31] Having considered all of the matters to which my attention is directed by the Act, I am satisfied that Mr Bailey’s circumstances were not circumstances that are regularly or routinely encountered. The circumstances were uncommon in that an agreement to investigate and review the decision to dismiss Mr Bailey was made immediately following advice from Ms Massey that he would be dismissed. I consider it reasonable in the circumstances that he relied on this agreement, and hence did not think his dismissal took effect at that time.
[32] Accordingly, I am satisfied that the circumstances can be regarded as exceptional, and so I will exercise my discretion extend the statutory time limit for the lodgement of this application.
[33] An order to that effect will issue with this decision, and the application will be referred for conciliation.
DEPUTY PRESIDENT
Appearances:
R Bailey on his own behalf.
P McDonnell on behalf of the respondent.
Hearing details:
2018.
Sydney (By telephone):
May 25.
Printed by authority of the Commonwealth Government Printer
<PR607393>
1 [2011] FWAFB 975.
2 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
3 [2015] FWC 8885.
4 Ibid at [29].
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