Shane Wright v Master Builders Association of South Australia Incorporated

[2013] FWC 1675

[2013] FWC 1675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Wright
v
Master Builders Association of South Australia Incorporated
(U2012/15927)

DEPUTY PRESIDENT BARTEL ADELAIDE, 18 MARCH 2013

Unfair dismissal - extension of time for lodging application

Introduction

[1] Shane Wright (the applicant) was dismissed by the Master Builders Association of South Australia Incorporated (the respondent or the MBASA) by letter dated 27 September 2012, initially provided to him as an email attachment. The applicant had trouble opening the attachment and it wasn’t until it was re-sent by the respondent in a different format that he became aware that he had been terminated. This may have been on the same day or the following day, being 28 September 2012. The applicant filed a Form F2 Application for Unfair Dismissal Remedy (Form F2) on 26 November 2012, some 6 weeks outside the prescribed 14 day time limit within which to bring such an application. This decision concerns whether the time limit for filing the application should be extended.

1. The Act has recently been amended to extend the time limit for filing an application for an unfair dismissal remedy from 14 to 21 days, operative from 1 January 2013. 1 As the applicant’s dismissal took effect prior to the enactment of this amendment, the previous 14 day time limit applies.

[2] The provisions of the Fair Work Act 2009 (the Act) concerning the grant of an extension of time, as in force at the relevant time, are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

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

(3) The FWA may allow a further period for the application to be made by a person under subsection (1) if the FWA 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.”

[3] The hearing proceeded on 22 February 2013. The applicant was self represented and the respondent was represented by David Putland, Member Counsel for the MBASA. Both parties filed written submissions and documents in advance of the hearing. The applicant gave evidence and Tom Earls, the Legal and Workplace Services Manager for the MBASA, gave evidence for the respondent.

[4] The applicant’s evidence was vague, confusing and contradictory in relation to most topics that he addressed and is at best unreliable. Mr Earls’ gave his evidence in a straightforward manner and it was not challenged by the applicant to any significant extent under cross-examination.

[5] The applicant argued that the time for filing his application should be extended because the delay in filing the Form F2 was as a result of initially filing his claim (the Form 20) in the Industrial Relations Commission of South Australia (IRCSA).

[6] The respondent does not accept that the applicant filed the Form 20 and argues that there are no exceptional circumstances that would justify the time limit being extended.

The relevant facts

[7] The applicant was employed by the respondent for over 2 years in the position of Training Coordinator.

[8] On or about 20 September the applicant was suspended on pay as a result of allegations made by a person outside the MBASA (the third party allegations). The third party allegations included that the applicant had engaged in fraudulent activity at several Registered Training Organisations, had used the intellectual property of these organizations for his personal benefit and had passed off and sold MBASA intellectual property as his own.

[9] As part of the respondent’s investigation, the applicant’s computer and blackberry were examined. According to the respondent, the blackberry was password protected and was unlocked by the respondent’s IT employee. A statement from the MBASA Director of Operations, David Callan, stated that he had found 21 videos containing hardcore and explicit pornography on the applicant’s blackberry, which had been downloaded between 31 July and 13 September 2012. 2

[10] The respondent contended that information corroborating the third party allegations was found on the applicant’s computer.

[11] A meeting was scheduled to discuss the allegations with the applicant but on the day of the meeting the applicant was unable to attend. The respondent decided it had sufficient material to justify instant dismissal and proceeded to terminate the applicant’s employment.

[12] The applicant stated that he went to Cairns to stay with a friend once he was suspended. During that time he received advice of the meeting to discuss the allegations and then the advice terminating his employment. The friend he was staying with sought some advice from a solicitor friend on behalf of the applicant, and it was relayed to the applicant that he needed to return to Adelaide to deal with the matter. The applicant initially said that this advice was received after he was terminated but later in his evidence stated that it was before the termination. 3 The applicant said he flew back to Adelaide in early October.

The provisions of s.394(2) of the Act

The reason for the delay

[13] The applicant relies on two reasons for the delay in filing the Form F2. The first is his claim that he filed an application within time, but in the incorrect jurisdiction. A copy of a completed Form 20 was appended to the applicant’s Form F2. He stated that he had been directed to the IRCSA website by someone he spoke to, but couldn’t recall who that was. The applicant could provide no evidence of the application having been filed or posted to the IRCSA.

[14] The applicant said that the Form 20 was sent from Cairns, contrary to his earlier evidence that he was advised to return to Adelaide to deal with his dismissal. He later reverted to his original evidence that the Form 20 was filed from Adelaide within a day or 2 of receiving advice of the termination. 4

[15] Two meetings were held with the applicant post-dismissal, on 11 October and 29 October 2012. Mr Earls stated that on neither occasion did the applicant make mention of having filed an application in respect to his dismissal, but I do not consider that this is of any weight in assessing whether such an application had been filed or not.

[16] Email correspondence to Mr Earls from the Deputy Registrar of the Industrial Relations Court and Commission of SA, Peter Kinne, states that there is no record of an application having been filed by the applicant in the IRCSA. 5 As such, the only options are that the applicant’s email was lost in the mail or it was not sent at all.

[17] Significantly, the applicant sent correspondence to the respondent dated 17 October 2012 6, which stated:

“Further to my recent dismissal as an employee of the (MBASA) Master Builders Association of South Australia I wish to advise as follows;

I refute all allegations against me.

I am currently reviewing my options regarding my dismissal especially the circumstances and manner under which the whole situation was conducted by the Master Builders Association of South Australia.

I place you on notice that I reserve all my rights in relation to this and other matters relating to my employment and dismissal.

I further advise that my dismissal was not handled appropriately by the representatives of the Master Builders Association of South Australia and that I have been denied due process and natural justice for which I hold the Association and its representatives jointly and severally responsible.”

[18] When asked to explain the contents of this letter in view of his evidence that a claim had been filed some 8 days earlier, the applicant stated that he “was instructed” by someone at the MBASA with “legal expertise” to write to the respondent in these exact words. He refused to identify who had given this advice and refused to concede that it was inconsistent with his evidence that he had already filed a claim as at the date of the letter. 7

[19] The applicant’s evidence is that he did not receive any confirmation that the Form 20 had been received so he made enquiries in the first or second week of November to Fair Work Australia (FWA), as the Tribunal was then known. 8 He stated that he waited so long before making any enquiry because he was unfamiliar with the IRCSA’s processes and time frames for dealing with such applications. The reason he contacted FWA rather that the IRCSA to follow up on the Form 20 is less straightforward, and I will return to this shortly.

[20] The applicant stated that the person he spoke with, whose name he didn’t know, checked on the FWA system to locate his application and also checked whether his application had been filed with the IRCSA, the Registry of which is located on the same floor.

[21] The person from FWA advised the applicant that he had applied to the wrong jurisdiction and he was directed to the FWA website and the correct form. The applicant initially stated that he filed the Form F2 within 2 days of receiving that advice, but later corrected this evidence when it was pointed out the Form F2 was dated 14 November but filed some 12 days later. He then explained this delay as “I was probably just going over the documentation to make sure that it was A-ok”. 9

[22] The applicant couldn’t recall where he got the FWA details from, then said he got them from his ‘work books’. The applicant had done a Human Resource Management unit while employed by the respondent and believed that this is where he found the reference to FWA. When asked why he didn’t refer to the books when he was filing the initial application he said that he couldn’t find the work books. 10

[23] The applicant was unable to provide a cogent explanation as to why he rang FWA, rather than the IRCSA, to follow up the application he allegedly filed. He then stated that he rang FWA after he had filled in the correct application to check on its progress; that he got the number from the Form F2; and that the initial conversation he had given evidence on was with the IRCSA, not FWA.

[24] The second reason advanced by the applicant for the delay in filing was that he was feeling stressed by the situation. I do not take his evidence to be that he was suffering from a medical condition, rather, that the dismissal and surrounding circumstances were stressful to him. The applicant stated that he knew how to manage his stress and did not provide any evidence as to how the way he was feeling impacted on the delay in filing, despite being given the opportunity to do so under cross-examination. 11

[25] Having regard to the applicant’s inconsistent and contradictory evidence in relation to the sequence of events that occurred, I am not persuaded that an unfair dismissal application was ever sent to the IRCSA. Moreover, the applicant’s letter of 17 October is significant in this regard and effectively confirms that no action had been taken to challenge the dismissal to that date. Even if I am wrong on this point and the applicant’s Form 20 was lost in the mail, the applicant has failed to provide a reasonable explanation as to why he waited over 4 weeks before making enquiries about his application or why he waited 12 days between signing the Form F2 and filing it with FWA.

Action taken to dispute the dismissal

[26] The applicant took issue with the fairness of the dismissal in his letter to the respondent of 17 October 2012, where he complained about a lack of fair process and he denied the allegations. His letter fell short of disputing the dismissal: he made no claim for any remedial action to be taken or for any compensation to be paid. To the contrary, he put the MBASA on notice that he reserved his right to dispute the decision to dismiss at some stage in the future. This letter was sent at least five days after the prescribed 14 day time limit had elapsed.

[27] As noted earlier, meetings took place between the parties both before and after this letter and the applicant did not raise matters connected to his dismissal at either meeting. In view of my conclusion that the applicant did not file a Form 20, I consider that the applicant took no action to dispute the dismissal until he filed the Form F2 on 26 November 2012.

Prejudice to the employer

[28] Mr Earls stated that certain allegations against the applicant were not pursued to the extent of undertaking a full forensic examination of the applicant’s computer. He said this was the case for two reasons. Firstly, the respondent was of the view that it had sufficient evidence to justify summary dismissal on the basis of the pornography found on the applicant’s blackberry and an email sent by the applicant which the respondent identified as ‘rebadged’ MBASA intellectual property. Secondly, a forensic examination of the computer was time consuming. Mr Earls indicated that, as there was no challenge to the dismissal, MBASA reassigned the applicant’s computer to another employee and consequently the applicant’s data on the computer was compromised. No further detail was provided as to why this would be the case.

[29] As the dismissal was based on the two matters referred to above, there is an issue as to whether any evidence obtained in relation to the third party allegations would be admissible and/or of any weight in unfair dismissal proceedings. On Mr Earls’ evidence, the respondent had the opportunity to engage in further investigation of the applicant’s computer prior to his dismissal but chose not do so for the reasons set out above. Such further evidence, assuming it existed, may nonetheless be relevant to the issue of remedy and on this basis I consider that there may be prejudice to the respondent if the time limit is extended.

The merits of the application

[30] In Dundas-Taylor v The Cuisine Group Pty Ltd, a Full Bench of Fair Work Australia considered an appeal against the decision not to grant an extension of time for the filing of an unfair dismissal remedy application. 12

[31] In the course of its consideration, the Full Bench turned its attention to the approach to be taken to s.394(e) of the Act, dealing with the merits of the application. The Full Bench stated: 13

“... The issue of how the merits of an application should be considered when determining an application for an extension of time for the lodgement of an application for relief in respect of termination of employment was considered by Full Benches of the Commission 14 on numerous occasions.

In Kyvelos v Champion Socks Pty Limited, a Full Bench of the Commission said:

‘[14] In considering whether to accept an application which has been lodged outside the time prescribed ... the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits... It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case... In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.’” (footnotes deleted)

[32] The Full Bench also referred to other decisions in which the merits of the application in the context of extension of time proceedings were considered. These decisions reinforce that, where there are contested facts, it is generally not open to the Tribunal to conclude that the merits should weigh materially in exercising the discretion to extend time. 15

[33] The parties in the present matter did not address in any detail the issue of theft of MBASA intellectual property. The allegation that the applicant downloaded pornographic videos onto the respondent’s equipment is a mix of admitted and contested fact. The applicant stated that he confronted his brother about the matter when he became aware of the allegations and his brother admitted accessing pornographic material on the applicant’s blackberry on one occasion.

[34] The applicant said he has not sighted the pornographic content but on the basis of the information provided by his brother, he disputes the characterization of the pornography as hardcore and demeaning.

[35] I have serious reservations about the applicant’s evidence on the issue of the pornography including his inconsistent evidence as to whether his blackberry was password protected 16 and the disparity between the applicant’s evidence of his brother’s access to the blackberry and the respondent’s evidence of the occasions on which pornographic material was accessed.

[36] MBASA accepts that the applicant was denied an opportunity to answer the allegations against him.

[37] I have concluded that the level of factual dispute and the procedural defects are such that the merit of the substantive application should not weigh against or in favour of the granting of an extension of time.

Fairness as between the person and other persons in a similar position

[38] There is no issue that arises under this heading.

Conclusion

[39] FWC can exercise the discretion to extend a time limitation only if satisfied that exceptional circumstances exist taking into account the matters set out in s.394(3)(a) to (f) of the Act.

[40] The delay in filing the Form F2 is substantial, especially in the context of a 14-day time limitation. Given my conclusions that: there is no reasonable explanation for the delay; the applicant did not dispute the decision to dismiss; and the granting of the extension of time would likely be prejudicial to the respondent; it is axiomatic that there are no exceptional circumstances which warrant the granting of an extension of time. The applicant’s unfair dismissal remedy application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr S Wright in person

Mr D Putland for Master Builders Association of South Australia Incorporated

Hearing details: 22 February 2012

 1 Schedule 6, Part 1 of the Fair Work Amendment Act 2012.

 2   Ex R2 annexure TE6 contains the names of the files found on the applicant’s blackberry and the times and dates that they were created. Annexure TE6 was a written statement from MBASA’s Director of Operations, David Callan, which addressed the pornographic content on the applicant’s blackberry.

 3   At pn71-72, pn219

 4   At pn159; pn219; This is clearly incorrect since the Form 20 is dated 9 October 2012.

 5   Ex R2 annexure TE9

 6   Attachment to Form F2

 7   At pn61-75

 8   At pn98, pn100

 9   At pn105

 10   At pn326

 11   At pn442-450

 12   [2011] FWAFB 6008

 13   Ibid, at paras [23] and [24]

 14   The Australian Industrial Relations Commission

 15   Mappas v TAAU Australia Pty Ltd [2007] AIRCFB 260; Nottage v National Australia Bank Ltd [2007] AIRCFB 716

 16   At pn107, At pn535, pn536

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