Scott Hendren v DeeTee Aust Pty Ltd T/A B Select
[2020] FWC 4041
•3 AUGUST 2020
| [2020] FWC 4041 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott Hendren
v
DeeTee Aust Pty Ltd T/A B Select
(U2020/8674)
DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 3 AUGUST 2020 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application by Mr Scott Hendren for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Act).
[2] Mr Hendren made an application for an unfair dismissal remedy under s.394 of the Act on 23 June 2020. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). It is not in dispute that Mr Hendren’s application was filed outside the timeframe for lodgement of the application. 1 Mr Hendren seeks that the Commission allow a further period of time for the application to be made. The respondent opposes the grant of an extension of time.
[3] For the reasons set out below, I am not satisfied that there are exceptional circumstances that warrant the grant of a further period for making the application. The application is dismissed.
The dismissal
[4] Mr Hendren commenced employment with the respondent on 3 July 2017. 2 His employment was terminated with immediate effect on 21 May 2020.3 A termination letter of even date explained the reason for termination as follows:4
“Namely, your repeated refusal to stop using your mobile phone in the workshop, which is strictly against instructions. All staff of the Company are forbidden to use their mobile phone in the workshop due to serious Occupational Health and Safety risks associated with the activity.
…
Consequently, you have been terminated effective immediately via summary dismissal.”
[5] The 21-day statutory timeframe for filing Mr Hendren’s application for an unfair dismissal remedy expired at midnight on 11 June 2020. Mr Hendren’s application for unfair dismissal remedy was received by the Commission on 23 June 2020. The application was therefore lodged 12 days outside of the statutory timeframe.
Extension of time
[6] The Commission has the power pursuant to s.394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.5In 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. 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.
[7] Under s.394(3) of the Act, the Commission may allow a further period of time for an application under s.394 to be made, if it 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] I consider each of these matters below.
Consideration
Reason for the delay: s.394(3(a)
[9] 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 or reasonable explanation. 6 The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.7
[10] The relevant period required to be considered under s.394(3)(a) is the period after the 21-day timeframe for lodging the application, being 12 June 2020 to 23 June 2020.8 However, the circumstances from the time of the dismissal must be 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.9
[11] Mr Hendren contends that he could not lodge his application for an unfair dismissal remedy until he had retrieved all of his tools and equipment from the respondent’s premises. 10 This included a forklift truck, a milling machine and other heavy machinery which took “considerable time and effort” to relocate.11 Mr Hendren said that the respondent’s director, Mr Danny Scott, had refused to grant him access the worksite during business hours. This is said to have compromised Mr Hendren’s capacity to relocate the equipment for which he required assistance. Mr Hendren said, “the struggle to get my small stuff took quite a while.”
[12] Mr Hendren submits that he conferred with Victoria Police about his right to retrieve his belongings. Subsequently, Mr Hendren attended the respondent’s premises on or around midday on 29 May 2020 to retrieve his toolbox which Mr Hendren said led to “an altercation which included verbal and physical threats from [Mr Scott].” 12 The respondent accepts that there was a “significant disagreement” between Mr Hendren and Mr Scott concerning the time at which Mr Hendren could enter the workplace to retrieve his tools and equipment.13
[13] Following this exchange, Mr Hendren said that he “feared” that lodging an application for an unfair dismissal remedy would make it “more difficult to retrieve the remaining tools and equipment.” 14 Mr Hendren said that he felt threatened and distressed by these matters.
[14] The evidence discloses that on 29 May 2020, Mr Hendren was given permission to enter the respondent’s workshop to retrieve his belongings after 5:00 pm that day, or alternatively after 12:00 pm the following day. 15 The respondent contends that the relationship between Mr Hendren and Mr Scott following the 29 May 2020 incident was “cordial” and in support of this contention relies upon a text message exchange between Mr Hendren and Mr Scott. The exchange also discloses that on 25 June 2020, Mr Hendren advised Mr Scott that he had been able to secure a forklift to relocate the milling machine. Mr Scott agreed to Mr Hendren accessing the site on 29 June 2020 for this purpose.16
[15] Having regard to the above matters, I do not accept that the delay in lodging the application was occasioned by Mr Hendren’s concern regarding the retrieval of his tools and equipment. Mr Hendren’s evidence during the proceedings is that except for a shipping container of his belongings situated on the respondent’s common property, the balance of his tools and equipment were collected on 29 June 2020. Mr Hendren’s contention is therefore at odds with his decision to lodge an unfair dismissal application on 23 June 2020, six days prior to retrieval of his tools and equipment from the respondent’s workshop.
[16] Further, there is no evidence before the Commission that following 29 May 2020 “Danny would make it further more difficult to retrieve the remaining tools and equipment.” 17 Indeed, Mr Hendren was permitted to access the workshop on either 29 or 30 May 2020. Accordingly, I reject Mr Hendren’s contention that the delay between 12 June 2020 (being the first day of the delay) and 23 June 2020 (the date Mr Hendren’s unfair dismissal application was lodged) was occasioned by a concern for the retrieval of his tools and equipment.
[17] Mr Hendren also contends that his anxiety contributed to the delayed lodgement of his unfair dismissal application. Mr Hendren says that he suffers from panic attacks. 18 In support of this contention Mr Hendren relies upon correspondence from his close friend and counsellor, which relevantly states:19
“In my opinion as a professional and friend of Mr Hendren I am certain that Mr Hendren would have lodged an application earlier had he been aware that he may have a claim and been able to make that claim without the fear and intimidation he is experiencing from his former employer.”
[18] Further, during the proceedings Mr Hendren said that he has an irregular heartbeat for which he is receiving treatment.
[19] Mr Hendren does not explain how these matters contributed to the delay in lodging his unfair dismissal application. Further, there is no probative evidence before the Commission supporting Mr Hendren’s contention. I am therefore not persuaded that the condition of Mr Hendren’s health constitutes an acceptable explanation for any part of the delay.
[20] I do not find that any of the matters relied upon by Mr Hendren, individually or collectively, constitute an acceptable reason for the delay giving rise to exceptional circumstances. This weighs against the grant of an extension.
Whether the person first became aware of the dismissal after it had taken effect: s.394(3)(b)
[21] It is not in dispute that Mr Hendren became aware of his dismissal on 21 May 2020, being the date that it took effect.
[22] Mr Hendren therefore had 21 days to lodge his application for an unfair dismissal remedy from this date. This weighs against the grant of an extension.
Action taken by the person to dispute the dismissal: s.394(3)(c)
[23] Mr Hendren contends that during the disciplinary meeting on 19 May 2020, he disputed the allegations of serious and wilful misconduct. However, this action predated the dismissal. 20
[24] There is no evidence before the Commission that Mr Hendren took any action to dispute his dismissal once it had taken effect on 21 May 2020, other than by lodging his application for an unfair dismissal remedy.
[25] This weighs against the grant of an extension.
Prejudice to the employer: s.394(3)(d)
[26] It is not contended that any prejudice to the respondent would arise if an extension of time was granted.
[27] I do not consider the mere absence of prejudice to be a factor that would tell in favour of the grant of an extension of time. 21 I consider this to be a neutral consideration.
Merits of the application: s.394(3)(e)
[28] The Commission should not embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.22
[29] The respondent contends that Mr Hendren’s repeated “refusal to stop using your mobile phone in the workshop” constitutes a failure to follow a lawful and reasonable direction. It is also contended that such conduct creates serious occupational health and safety risks. The respondent submits that Mr Hendren was also instructed to redirect calls to the respondent’s landline. 23
[30] Mr Hendren says that the respondent had not issued to him any written warnings regarding his mobile phone use, nor was he provided with any policies or legal documents said to have been breached. Mr Hendren says that the respondent circulated business cards to clients containing his mobile phone number “as it was disruptive to Danny for suppliers to call the office number.” 24
[31] This proceeding, which is essentially interlocutory in nature, does not enable a fulsome examination of these matters. The parties’ respective contentions have not been tested before me and it is therefore not possible to make any firm or detailed assessment of the merits. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position: s.394(3)(f)
[32] Mr Hendren contends that other employees of the respondent “often used their phones in the workshop” including by taking photos for guidance when reassembling parts or to identify vehicle damage. 25 Mr Hendren says that his conduct was treated differently to other employees who use their mobile phones in the workshop.
[33] Notwithstanding Mr Hendren’s contention, there is no evidence before the Commission explaining the circumstances of the other employees and the extent to which those circumstances bear any similarity to the conduct of Mr Hendren.
[34] The respondent has not advanced a position in response to Mr Hendren’s contention.
[35] I am not satisfied that the criteria of fairness as between Mr Hendren and other persons in a similar position weighs strongly in favour of either party. I therefore find it to be a neutral consideration.
Conclusion
[36] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time.
[37] Given this, there is no basis for me to allow an extension of time. Mr Hendren’s application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
S Hendren, Applicant.
R Martin on behalf of the Respondent.
Hearing details:
2020
Melbourne (by telephone):
July 21.
Printed by authority of the Commonwealth Government Printer
<PR721476>
1 Form F2 – Unfair dismissal application lodged 23 June 2020 (Form F2) at 1.4
2 Form F2 at 1.1; Form F3 – Employer response to unfair dismissal application lodged 20 July 2020 (Form F3) at 1.2
3 Form F2 at 1.3
4 Serious and wilful misconduct – termination of employment dated 21 May 2020
5 [2011] 203 IR 1
6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
7 Ibid
8 Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [40]
9 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]
10 Form F2 at 1.5
11 Witness statement of Scott Hendren dated 16 July 2020 (Hendren statement)
12 Ibid
13 Form F3 at 2.2 [6]
14 Hendren statement
15 Annexure C to Form F3; Transcript – retrieval of toolbox – 29 May 2020 at p.3
16 Annexure C to Form F3
17 Hendren statement
18 Form F2 at 1.5
19 Letter from Jaimes Walch dated 16 July 2020
20 Transcript of intention to terminate employment – meeting dated 19 May 2020
21 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
22 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]
23 above n 4
24 Hendren statement
25 Ibid
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