Ryan Serman v Burson Auto Parts Pty Ltd
[2022] FWC 2513
•30 SEPTEMBER 2022
| [2022] FWC 2513 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ryan Serman
v
Burson Auto Parts Pty Ltd
(U2022/7924)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 30 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
Mr Serman applied for an unfair dismissal remedy having been dismissed from Burson Auto Parts Pty Ltd (the Respondent) on 30 June 2022. He lodged his unfair dismissal application with the Commission on 2 August 2022, some 12 days outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the basis that the application was filed outside of time. This decision deals with that objection.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.
It is not contested that Mr Serman’s application was made out of time. However, for Mr Serman’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.[1]
The issues before me are whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted. The parties requested that the matter be determined on the papers. Having considered the views of the parties, the materials filed, and the requirement that the Commission perform its functions in a matter that is quick, informal, fair and just, I considered that this was the appropriate course.
Mr Serman advanced several reasons why I should find that there are exceptional circumstances. In short, however, I am unpersuaded that such circumstances are exceptional, and I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed. My reasons follow.
Background
Mr Serman commenced work as the Store Manager of the Respondent in August 2020.[2] In June 2021, Mr Serman is said to have signed a renewal of his employment contract that provided for use of a company vehicle. The use of such vehicle extended to private use.
Mr Serman states that on 25 June 2022, he was driving the company vehicle in Geraldton, a regional town in Western Australia, when he hit a pole in the median strip.[3] Mr Serman purports that while he was uninjured, the company vehicle was unable to be driven and he therefore secured it as best he could, and organised for his neighbour to collect him.[4]
The next day, a Sunday, Mr Serman organised for the company vehicle to be towed to a nearby yard and made a police report online.[5] On the Monday, Mr Serman advised the Perth Office of the Respondent of the accident and was asked whether he was going to lose his licence (presumedly his driver’s licence). Mr Serman said that he responded that he did not know.
On Wednesday, 29 June 2022, Mr Serman received an email whilst at work informing him that he was stood down pending a meeting to discuss the misuse of gift cards and an at fault company vehicle accident whilst driving under the influence of alcohol.[6]
Mr Serman states that he attended his workplace on 30 June 2022 and met with Mr Andrew Simmons, Project Manager, and Ms Leah Penny, Human Resources. Mr Serman says he was asked at the meeting about the use of gift cards at a staff function and also about the car accident. In response to questions about the car accident, he advised that he had been inattentive and collided with a pole.[7] Mr Serman states that he was notified that his employment was terminated immediately.
Mr Serman stated that the traumatic event (presumedly his dismissal), destroyed his reputation, placed him in a stressful position of not being able to support his children or maintain the mortgage on his house and he was emotionally incapacitated for several weeks worrying about the loss of his licence and employment.[8]
The Respondent provides a somewhat different perspective about the crash involving the company vehicle and the misuse of company gift cards. It states that Mr Serman was dismissed for serious misconduct on 30 June 2022 for the following reasons:
a) Mr Serman crashed a company vehicle and lied about how the incident occurred, initially blaming his daughter for the accident and then confessed to his State Manager two days later that he was the person driving the car;
b) Mr Serman fled the scene of the accident and did not report it to the police until the following day. Mr Serman has since been charged with six offences by the police including obstructing public officers, wilfully misleading a person performing a function under a road law, being a driver of a vehicle involved in an incident where property was damaged, failing to give details as required, being the driver of a vehicle involved in an accident in which property was damaged, failing to report an accident to police, using a mobile phone whilst driving a vehicle and dangerous driving.
c) Mr Serman lied to the insurance company and made a false claim which may result in the Respondent being unable to recuperate any compensation for the damaged vehicle;
d) Mr Serman misused company gift cards that were assigned to sales representatives as an incentive and instead spent them on taking the team out for dinner and drinks at a pub.[9]
Extension of the 21-day period
Consideration turns to whether to extend the 21-day period within which Mr Serman’s unfair dismissal application was to be brought. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[10]
In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[11] Whilst it considered the general protection provisions of the Act, the reasoning in Nulty is applicable to s 394(3). The Full Bench observed, that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.[12]
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[13] 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 can be considered exceptional.[14]
In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[15] the Full Bench provided clarification regarding the assessment of ‘exceptional circumstances’, stating:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need 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.[16]
The reason for the delay
The Commission takes into account whether an applicant has provided a credible reason for the whole of the period in which the application was delayed.[17] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[18] It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.[19]
In Pottenger v Department of Caffeine,[20] the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[21] or a reasonable explanation.[22] It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable or for that matter credible explanation.[23]
The absence of any explanation for any part of the delay will usually weigh against an applicant in such an assessment.[24] Similarly, a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, though it is a question of degree and insight.[25]
Mr Serman’s dismissal was effective as of 30 June 2022. To comply with the statutory timeframe in s 394(2), his application for unfair dismissal would have had to be made by 21 July 2022.
Mr Serman gave evidence that the reason for the delay in filing his unfair dismissal application was that he was incapacitated with anxiety and depression due to his loss of income as a single parent, potential police charges, and the loss of his employment and reputation.
In support of his having been incapacitated, Mr Serman filed a witness statement from his friend, Ms Nicole Whittle.
Ms Whittle stated that on 29 June 2022 Mr Serman telephoned her and explained that he had been involved in a traffic crash on the Saturday night and was worried he was going to lose his job and licence, and potentially face traffic charges.[26] Acknowledging that Mr Serman was dismissed on 30 June 2022, Ms Whittle stated she visited Mr Serman at his house on that same day and observed that he was shaking and was extremely upset. Concerned for his well-being, Ms Whittle said that she contacted Panaceum Medical but was told there was a two week wait time for appointments and whilst she discussed with Mr Serman going to the Regional Hospital, he informed her that the thought of leaving the house was too stressful and filled him with anxiety.[27]
The Respondent pressed that whilst Mr Serman purported to be incapacitated post his dismissal, there was no written medical evidence to support his claim of suffering from depression and anxiety due to the termination of his employment.
While sympathetic to Mr Serman’s mental health challenges, I am not satisfied that this reason constitutes a plausible reason for the delay in making his unfair dismissal application for the following reasons.
There is no objective evidence before me to support Mr Serman’s account that he was emotionally incapacitated for the period of the delay due to worrying about the loss of his licence and employment, or otherwise from anxiety and depression. Whilst appreciative that Ms Whittle provided her observations about Mr Serman’s well-being, it is uncontroversial that she is not a trained medical professional. Ms Whittle further spoke of the inaccessibility of medical treatment, noting that Panaceum Medical purportedly did not have appointments with a doctor for some two weeks. I have no reason to doubt Ms Whittle’s evidence in this respect. However, Ms Whittle’s evidence revealed that there was a regional hospital in the vicinity and that she suggested to Mr Serman attending that same hospital. Given the size of a regional town, I consider it highly probable that Panaceum Medical was not the only medical provider within the town. In short, Mr Serman could have availed himself of the available medical appointment which, notwithstanding was some two weeks after the dismissal, nevertheless fell within the timeframe in which his application was to be made. Alternatively, he could have accessed medical assistance via the regional hospital or an alternative medical provider. Rather, Mr Serman has chosen to rely upon his own assertions and those of Ms Whittle, in support of his case that he was incapacitated due to mental health reasons.
The majority of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank,[28] expressed that stress, shock and confusion, in and of themselves, are not exceptional. It is said that the loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.[29] I do not suggest that the evidence leads to a conclusion that Mr Serman’s incapacity arose simply from the loss of his employment and therefore was not unusual. Mr Serman himself acknowledged that he had received a summons from the police for dangerous driving and was facing criminal proceedings, and these events had also impacted upon his capacity to gather his thoughts and commence the unfair dismissal application process. However, in the absence of objective evidence regarding the purported medical condition of Mr Serman and its effects on his cognitive capacity, I do not consider that Mr Serman’s reason for the delay in making the application constitutes a plausible explanation of for the delay period. Briefly stated, the evidence provided does not disclose on an objective basis that Mr Serman was unable to function due to emotional incapacity such that he could not make an unfair dismissal application.
Mr Serman submitted that he was unaware of the 21-day statutory period for making an unfair dismissal claim. In the decision of Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’, it was said that:
[I]n 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.[30]
It is accepted that ignorance of the timeframe does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[31]
Ms Whittle made mention in the context of attempting to encourage Mr Serman to apply for a job that he did not have access to a computer and in her view was not in a fit state to write a job application. However, it is to be appreciated that an unfair dismissal application may be made over the phone.
While I have considered Mr Serman’s circumstances, including his responsibilities regarding his dependents and mortgage, potential criminal charges and his loss of work, there is insufficient persuasive evidence to conclude that he was so incapacitated with anxiety and depression that he was unable to make an unfair dismissal within the requisite period.
I have considered the delay as the period beyond the 21-day period, but have, in addition, considered the reasons for that delay by reference to the circumstances from the date the dismissal took effect. I am not satisfied that Mr Serman has made out an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.
Whether Mr Serman became aware of the dismissal after it took effect
At all material times from 30 June 2022 until the date the unfair dismissal application was made, Mr Serman knew that he had been dismissed – he conceded as much. Therefore, this is a neutral consideration in this matter.
Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[32] Mr Serman took no action to dispute his dismissal during the statutory timeframe. I do not consider that this weighs in favour of a finding that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted. The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. I therefore consider this to be a neutral factor in the present case.
Merits of the application
The nature of the matter is such that consideration must be given to whether the application was made within the period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
In Telstra-Network Technology Group v Kornicki,[33] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:
If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.[34]
Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application.[35] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time was granted and the matter proceeded.
In light of the materials filed by the parties, I consider this criterion to be neutral. I note however that whilst conceding that he has received a summons from the police, Mr Serman submitted that the allegations made against him by the Respondent were untrue. It is also observed that no direct evidence was adduced by either party regarding charges laid against Mr Serman or a summons having been issued.
Fairness between the person and other persons in a similar position
In Morphett v Pearcedale Egg Farm,[36] the Deputy President 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.[37]
My attention has not been drawn to other persons in a position similar to that of Mr Serman. I am satisfied that the issue of fairness as between Mr Serman and other persons in a similar position is not a relevant consideration in this matter and is therefore a neutral factor in determining whether to grant an extension of time.
Conclusion
Having considered the matters referred to in paragraphs [17] – [41] above, I am, on balance, not satisfied that there are exceptional circumstances that warrant extending the time for Mr Serman to make his unfair dismissal application.
There is no satisfactory explanation for the delay in making the application and in respect of the totality of the evidence, it is insufficient to ground a finding that Mr Serman’s circumstances were out of the ordinary course, unusual, special, or uncommon. Furthermore, I do not consider that it would be fair and equitable to grant an extension.
The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order[38] will be issued with this decision.
DEPUTY PRESIDENT
Determined on the papers
[1] Fair Work Act 2009 (Cth) s 394(3) (the Act).
[2] Applicant’s Statement of Evidence, 3.
[3] Ibid 4.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Respondent’s Outline of Argument Objections, 4.
[10] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [21].
[11] (2011) 203 IR 1, [15] (Nulty).
[12] Ibid.
[13] Ibid [13].
[14] Ibid [13].
[15] (2018) 273 IR 156 (Stogiannidis).
[16] Ibid [38].
[17] Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, [18].
[18] Henderson v Hoban Recruitment Pty Ltd[2016] FWC 5041, [10].
[19] Shaw v Australia & New Zealand Banking Group Limited (2015) 246 IR 362, [12] (Shaw); Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society [2016] FWCFB 349, [29]–[31].
[20] [2018] FWC 3403.
[21] Ibid [31], citing Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[22] Ibid, citing Roberts v Greystanes Disability Services[2018] FWC 64, [16].
[23] Stogiannidis (n 15) [40].
[24] Ibid [39].
[25] Ibid.
[26] Applicant’s Outline of Argument extension of time, 4.
[27] Ibid.
[28] Shaw (n 19).
[29] Ibid [15].
[30] Nulty (n 11) [14].
[31] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].
[32] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300.
[33] (1997) 140 IR 1.
[34] Ibid 11.
[35] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Guidice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [38].
[36] [2015] FWC 8885.
[37] Ibid [29].
[38] PR746014.
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