Ross Jewell v Workforce International Group T/A Workforce Road Services
[2019] FWC 3824
•5 JUNE 2019
| [2019] FWC 3824 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ross Jewell
v
Workforce International Group T/A Workforce Road Services
(U2019/4182)
DEPUTY PRESIDENT DEAN | SYDNEY, 5 JUNE 2019 |
Application for an unfair dismissal remedy.
[1] Mr Ross Jewell was employed by Workforce International Group T/A Workforce Road Services (WRS) until he was dismissed on 21 March 2019.
[2] On 12 April 2019 Mr Jewell lodged an application pursuant to s.394 of the Fair Work Act 2009 seeking relief for an alleged unfair dismissed by WRS. His application, lodged online at 12:32 am on 12 April 2019, was made one day outside the 21 day period prescribed by s.394(2) of the Act.
[3] The matter was listed for hearing by telephone on 4 June 2019 to determine whether Mr Jewell should be granted an extension of time pursuant to s.394(3) of the Act. At the hearing Mr Jewell appeared on his own behalf and Mr D Lyons of Workplace Solutions appeared for WRS. Permission was granted for WRS to be represented on the basis of s.596(2)(a) of the Act.
Effective date of dismissal
[4] In his submission filed on 24 May 2019 in support of his application for an extension of time, Mr Jewell claimed that the effective date of dismissal in the application was an error and should in fact read 26 March 2019. As a result, he said that his application filed on 12 April 2019 was made within the 21 day period.
[5] There is no dispute that Mr Jewell received an email from Mr Lyons on 21 March 2019 advising him that his employment with WRS was terminated with immediate effect. Mr Jewell argued that the notice of termination via email was not copied to anyone from WRS and did not allow any form of appeal. On 22 March 2019 he forwarded Mr Lyons’ email to Mr P Papanicolaou (General Manager of WRS) and it was not until 26 March 2019 that Mr Papanicolaou replied to confirm his dismissal. For this reason, Mr Jewell said that the termination of his employment took effect on and from 26 March 2019.
[6] A dismissal takes effect when it is communicated to the employee who is being dismissed 1, and can be communicated orally2. In this case it is clear that Mr Jewell was made aware of his dismissal on 21 March 2019. Mr Jewell has in the preceding months communicated by email with Mr Lyons for some employment related matters and was aware that Mr Lyons acted for WGS.
[7] I find that the effective date of dismissal was on 21 March 2018. It follows that Mr Jewell’s application was made one day outside the 21 day time limit prescribed by the Act.
[8] I turn to determine whether Mr Jewell should be granted an extension of time.
Extension of time
[9] 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.
[10] 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 it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the applicant.
[11] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 3 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.”
[12] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[13] Mr Jewell submitted that the reason for the delay was caused by technical issues when submitting his application by using his ‘outdated iPad’.
[14] WRS submitted that Mr Jewell attributed the delay to technical difficulties after intentionally waiting until the last moment to file the application. It submitted that Mr Jewell did not claim that he had no access to the Commission’s website for any of the 21 days after his dismissal.
[15] WRS referred to the decision in Dawson v Virgin Australia Airlines Pty Ltd to support its claim that the Commission does not permit a person to sit on their hands for the 21 day period; that computer failure is not an unusual circumstance and is something that inevitably occur at the most inopportune time 4.
[16] WRS submitted that this is not a case where an applicant has taken a proactive approach but had his or her genuine endeavours frustrated by technology 5.
[17] I agreed that technical issues are not out of the ordinary, unusual or uncommon. Accordingly, I find this factor weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[18] I have already found that Mr Jewell was advised of his dismissal on 21 March 2019, noting that he believed the dismissal could have taken effect on 26 March 2019. This weighs marginally against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[19] Mr Jewell, in his email in reply to Mr Lyons notifying him of his dismissal, stated that he would seek legal advice and make a complaint to the Fair Work Commission. This weighs marginally in favour of a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[20] I am not persuaded that granting an extension of time would result in a prejudice to WRS. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I find this to be a neutral consideration.
The merits of the application
[21] For the purpose of determining whether to grant an extension of time for Mr Jewell to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’6
[22] There is clearly a dispute between the parties as to the validity of the dismissal.
[23] 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
[24] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 7 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.’8
[25] I do not consider that there are other relevant persons in a similar position to Mr Jewell, and I therefore find it to be a neutral consideration.
Conclusion
[26] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor needs to be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[27] In Stogiannidis and Victorian Frozen Foods 9, the Full Bench said:
[39] … each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[28] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an extension of time. The circumstances of Mr Jewell are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
[29] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
R Jewell, on his own behalf.
D Lyons for Workforce International Group T/A Workforce Road Services.
Hearing details:
2019.
Sydney (by telephone):
June 4.
Printed by authority of the Commonwealth Government Printer
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1 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.
2 Plaksa v Rail Corporation NSW[2007] AIRC 333.
3 [2011] FWAFB 975.
4 [2017] FWC 3890.
5 Volchkov v Cantek[2018] FWC 4710.
6 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
7 [2015] FWC 8885.
8 Ibid at [29].
9 [2018] FWCFB 901.
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