Scott Yeoman v The Trustee for Fuelcraft Unit Trust T/A Liquip Victoria

[2016] FWC 629

[2016] FWC 629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Yeoman
v
The Trustee for Fuelcraft Unit Trust T/A Liquip Victoria
(U2015/13983)

COMMISSIONER GREGORY MELBOURNE, 26 FEBRUARY 2016

Application for extension of time.

Introduction

[1] Mr Scott Yeoman was employed by the Trustee for Fuelcraft Unit Trust T/A Liquip Victoria (“Liquip Victoria”) from April 2014 until he was dismissed on 8 October 2015. He subsequently filed an unfair dismissal application, which was received by the Commission one day after the standard 21 day time period.

[2] This decision accordingly deals with whether the Commission should exercise the discretion available to it to extend time in which to make application.

[3] Mr Yeoman appeared on his own behalf. Mr Jeff Borg, who is a Director of Liquip Victoria, appeared on behalf of the Company.

The issue to be decided

[4] Section 394 (2) provides that an unfair dismissal application must be made:

“(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).”

[5] Section 394(3) continues to provide that the Commission may allow a further period in which to make application if it is satisfied 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.” 1

[6] Therefore, are there “exceptional circumstances” in this matter to warrant the exercise of the discretion to grant Mr Yeoman additional time in which to make application?

The Evidence and Submissions

[7] Both parties provided brief submissions in support of their respective positions. Mr Yeoman submits he was told about his dismissal after being asked to attend a meeting on 8 October last year with Mr Steve Woods, the Workshop Manager, and Mr Mark Fox, a Director of the business, prior to starting his shift. He said he was given a letter at the conclusion of the meeting signed by Mr Woods indicating he was “terminated effective immediately.”

[8] Mr Yeoman said he took some time over the following weekend “… to consider my options, to process what had happened in regards to my termination.” He said he then decided to take up the issue with Mr Fox as he previously had a good relationship with him, and he had told Mr Yeoman during the meeting on 8 October that he could speak with him at any time if he wished.

[9] Mr Yeoman said he then sent Mr Fox an email on 13 October, however, he did not receive a response. He said he then sent another email seeking to explain his “side of things,” but again received no response. He said he then attempted to discuss the matter with his former Service Manager, but he indicated he was unable to assist in the absence of any further direction from Mr Fox.

[10] Mr Yeoman said he then prepared the unfair dismissal application, which he posted to the Commission on Tuesday, 27 October but, for some reason, it was not delivered until the following Monday, 2 November. He submits it was sent by means of an Express Post envelope, on the day the envelope was purchased, which Australia Post guarantees will be delivered on the following day.

[11] Mr Yeoman said he obtained an Australia Post tracking number for the envelope at the time it was purchased, being #604 223 636 200 91, however, he had not made any subsequent enquiries of Australia Post as to why the envelope was not delivered on the day after it was posted.

[12] Mr Yeoman also submits that Liquip Victoria would not be disadvantaged in any significant way by the application being received one day out of time. He also takes issue in his written submission with the reasons for his termination. He submits there were various medical and personal issues he was dealing with at the time, which provide an explanation for his absences from work, and the issues to do with his punctuality. However, he did acknowledge Liquip Victoria had “been very understanding” in the time that he was employed about some of the issues he was dealing with at different times.

[13] He also submits he received a second warning only 10 days after the first warning, which provided only a limited time to deal with the issues highlighted when the first warning was given. He also submits he should not have been terminated at the time of being given only a second warning.

[14] Liquip Victoria submits in response that deadlines should be adhered to, and Mr Yeoman had created the potential for his application to be lodged out of time by not filing it at an earlier point after he was terminated. It also submits the 21 day period provides ample time in which to make application, and delays blamed upon Australia Post do not provide sufficient justification for an exercise of the discretion to extend time in which to make application.

[15] It also submits Mr Yeoman’s dismissal was not unfair because he had repeatedly demonstrated poor timekeeping and unexpected absences from work. It submits these issues were raised with him on numerous occasions, however, their significance “didn’t seem to sink in.” It continued to submit Mr Yeoman also failed to provide adequate notice on the days when he was absent from work, despite repeatedly being asked to do so.

Consideration

[16] As indicated, in coming to a decision in this matter the Commission is required to take account of each of the matters in s.394(3) of the Act. In addition, the question of what is required to constitute “exceptional circumstances” has been considered in a number of decisions of this Tribunal. For example, the Full Bench in the matter of Nulty v Blue Star Group Pty Ltd 2 concluded:

“[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.” 3

[17] I now turn to deal with this matter by reference to the considerations in s.394(3) the Commission must take account of, and the authorities that are relevant to the determination of the application.

(a) the reason for the delay

[18] The reasons relied upon for why the application was not lodged within the standard time period are reasonably simple and straightforward. Mr Yeoman submits that following his termination he took some time to consider his position, and then decided to take up the matter with certain individuals within the business. When these attempts were not successful he decided to pursue an unfair dismissal application, and subsequently filed his application by means of an Express Post envelope, which Australia Post purports to guarantee will be delivered on the following day. Based on the submissions provided by Mr Yeoman about when the envelope was posted, which were not challenged by Liquip Victoria, his application should have been received within time if this guarantee had been complied with.

[19] Liquip Victoria submits in response that if Mr Yeoman had acted promptly following his termination then any problems associated with the service provided by Australia Post would not have caused an issue. It also submits the 21 day time period provides adequate time in which to make application.

[20] The parties did not refer to any authorities in support of their submissions. However, in considering “the reason for the delay” I have had particular regard to the Full Bench decision in Winnie Wai Ling Leung v Chinese Community Social Services Centre Inc trading as On Luck Chinese Nursing Home  4, handed down in March last year. It also involved circumstances in which an unfair dismissal application was lodged one day “out of time” after the application, sent by Express Post envelope, was not delivered on the day after it was posted, despite the guarantee of next day delivery provided by Australia Post.

[21] The Commissioner dealing with that application at first instance dismissed the application, in short because of his view that there was nothing exceptional in an application not being filed within time because of postal delays, particularly when the application had been posted so close to the due date. However, the matter was taken on appeal and the Full Bench subsequently found the decision at first instance had not given sufficient weight to the guarantee provided by Australia Post about next day delivery, providing the Express Mail envelope was addressed correctly and sent within the designated geographical area.

[22] The Full Bench indicated at [24]:

“This submission of CCSSC may be correct. However, we think the words on the “Express Post” envelope suggest Australia Post is guaranteeing that it will be delivered the next business day to the address put on the envelope by the sender. The only relevant caveat on the “Express Post” envelope being in respect of the delivery address and sender’s details, the posting times and the posting outlet or box. Having regard to the wording on the “Express Post” envelope, we think it is reasonable to rely on the guarantee suggested by it, subject to meeting the other caveats on the envelope to which we have referred.”

[23] In deciding to grant permission to appeal the Full Bench came to the following conclusion in dealing with the matter in terms of the “reason for the delay”:

“[29] The operative reason for the delay of one day in Ms Leung making her UDR application was that Australia Post failed to deliver to the FWC the “Express Post” envelope containing her UDR application in accordance with the guarantee of next business day delivery suggested on the envelope. The failure to deliver the “Express Post” envelope in accordance with that guarantee appears to have been caused by the diversion of the express post item from the valid street address given on the envelope to another determined by Australia Post. We consider in the circumstances that it was reasonable to rely on the guaranteed delivery period suggested on the “Express Post” envelope. Ms Leung has therefore provided an acceptable reason for the delay.”

[24] It indicated in conclusion:

“[40] Taking the above matters under s.394(3) (a) to (f) of the FW Act into account, we are satisfied that Australia Post’s failure to deliver to the FWC the “Express Post” envelope containing Ms Leung’s UDR application in accordance with the guarantee of next business day delivery suggested on the envelope, in the context of our findings on the other matters in s.394(3), constitute exceptional circumstances.

[41] It is therefore necessary for us to consider whether we should exercise our discretion under s.394(3) in favour of allowing of Ms Leung a further period for the making of her UDR application. Since Ms Leung’s UDR application would have been made to the FWC within time but for Australia Post’s failure and the matters telling against allowing the extension of time are limited, we have concluded we should allow Ms Leung a further period for the making of her UDR application to the date was made, being 7 October 2014.”

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

[25] This does not appear to be an issue of any significance. Mr Yeoman was informed about his termination in a meeting on the day it took effect, and was also given a letter of confirmation at the time.

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

[26] Mr Yeoman submits he initially took time to consider his position after being dismissed and then decided to take up the matter with certain people he had previously worked with at Liquip Victoria, who he thought might be prepared to review the decision. However, when these approaches were unsuccessful he proceeded to prepare and file his unfair dismissal application.

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

[27] There will always be some prejudice for an Employer if the discretion to grant additional time in which to make application is exercised, given it will then be required to do what is necessary to respond to the application. However, given the limited delay in this case the extent of any prejudice can also be considered to be limited.

(e) the merits of the application

[28] The submissions and evidence in the proceedings do not enable a clear view to be formed about the respective merits of the application. Liquip Victoria submits Mr Yeoman’s termination only came about following a series of issues to do with his non-attendance at work, and his lack of punctuality. It submits these matters were raised with him on numerous occasions, and he was also provided with warnings before the decision was made to dismiss him. It submits he also failed to provide adequate notice on the days when he was not able to attend at work, despite being repeatedly asked to do so. It also submits it has been very tolerant and supportive of Mr Yeoman at different times during his employment when it helped him work through various issues he was dealing with.

[29] Mr Yeoman has a different view about the merits of his application and makes reference to various factors that prevented him at different times from being at work. He also submits he was provided with insufficient time, following the first warning he received, to be able to demonstrate his behaviour had improved. He submits as a consequence his dismissal was unfair.

[30] As indicated, I am not able to form a clear view about the respective merits of the matter based on the limited submissions and evidence now before the Commission. However, I also note that a Full Bench of the Commission 5 has previously found it is not necessary to embark on a detailed consideration of the substantive case in an application of this kind. The Full Bench also noted while the issue of merit is important, exercise of the discretion to grant additional time should have primary regard to the circumstances that led to the late lodgement.

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

[31] Neither party made submissions suggesting this consideration was of particular importance in the present matter.

Conclusion

[32] Mr Yeoman’s application was only filed one day after the standard 21 day time period. This factor alone could be said to provide justification to exercise the discretion to grant additional time in which to application. However, previous decisions of this Tribunal have emphasised the requirement to comply with prescribed time limits is not a mere technical requirement, but constitutes a failure to comply with the substantive legislative provisions. The legislation also makes clear it is only in exceptional circumstances that the Commission should exercise the discretion available to it to extend the time for making application.

[33] I have considered all the evidence and submissions provided in this matter. I have also had regard to each of the considerations in s.394(3) I am required to take account of, and the authorities that might be relevant to the determination of the matter. Mr Yeoman’s application was only delivered one day after the 21 day standard time period, apparently because of a failure by Australia Post to meet the next day delivery guarantee it provides in regard to the use of Express Post envelopes. On one view delays attributed to the postal service might not be considered an unusual occurrence. However, based on the Full Bench decision in Winnie Wai Ling Leung v Chinese Community Social Services Centre Inc trading as Online Chinese Nursing Home, to which I have referred, and the similarity of the circumstances to this matter, I consider I am bound to follow the conclusions reached in that decision by the Full Bench.

[34] I have therefore concluded that Australia Post’s failure to deliver the Express Post envelope containing the application in accordance with the guarantee of next business day delivery provides evidence of “exceptional circumstances”. I have therefore decided that Mr Yeoman should be allowed a further period in which to make his unfair dismissal application, being to 2 November 2015 when the application was actually received by the Commission. An order giving effect to this will be issued in conjunction with this decision and the application will now be referred to the relevant Panel Head to enable the substantive application to be dealt with.

COMMISSIONER

Appearances:

S Yeoman on his own behalf for the Applicant

J Borg for the Respondent

Hearing details:

2015.

Melbourne:

18 December.

Final written submissions:

14 December 2015.

 1   Fair Work Act 2009 (Cth) at s.394(3)

 2   [2011] FWAFB 975

 3   Ibid at [13]

 4   [2015] FWCFB 2106

 5   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421

Printed by authority of the Commonwealth Government Printer

<Price code C, PR576581>