Sheldon Voigt v Surfers Paradise RSL Sub Branch Inc. T/A Surfers Paradise RSL
[2012] FWA 5234
•21 JUNE 2012
[2012] FWA 5234 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sheldon Voigt
v
Surfers Paradise RSL Sub Branch Inc. T/A Surfers Paradise RSL
(U2012/6593)
COMMISSIONER SIMPSON | BRISBANE, 21 JUNE 2012 |
Application for unfair dismissal remedy - extension of time- whether exceptional circumstances - extension not granted.
[1] On 29 March 2012, Fair Work Australia received an application from Mr Sheldon Voigt (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act). The application stated that the Applicant was notified of his dismissal on 9 March 2012 and the dismissal also took effect that day. The application was filed on 29 March 2012. The application was made six days outside the time limit prescribed by s.394(2) of the Act.
[2] Prior to the matter being allocated to me directions were issued on 8 May 2012 and subsequently amended on 22 May 2012 by the Unfair Dismissals Team for the filing of statements and submissions regarding both the extension of time matter, and a further jurisdictional objection of the Respondent that the Applicant was not an employee but an independent contractor. The matter was listed for hearing on Thursday 21 June 2012.
[3] On the 21 May 2012 the Applicant filed a statement with three attachments in support of his argument for an extension of time. On the 12 June 2012 the Applicant filed submissions opposing the Respondent’s jurisdictional objection that the Applicant was a contractor.
[4] On 23 May 2012 a form 53 Notice of Representative Commencing to Act was filed by Jason Donnelly of National Workplace Lawyers acting on behalf of the Respondent. On 25 May the Applicant filed an objection to legal representation and provided further submissions objecting to legal representation on 19 June 2012, and again on 20 June 2012.
[5] On 28 May 2012 the Respondent filed an outline of submissions and a witness statement in support of its jurisdictional objection that the Applicant was not an employee, and on 12 June the Respondent filed an outline of submissions in support of its objection to the granting of an extension of time.
[6] On 18 June the Respondent’s representative wrote to Fair Work Australia requesting the matter of legal representation be determined on the papers prior to the scheduled hearing and that the extension of time matter be dealt with prior to the other jurisdictional objection.
[7] I listed the matter for hearing on 20 June 2012 to deal with those two matters and for reasons set out in my decision of 20 June granted permission for the Respondent to be legally represented, and determined that the hearing of 21 June 2012 would only deal with the extension of time matter.
Applicant’s Submissions
[8] At the hearing on 21 June the Applicant relied on his previously filed material and made further oral submissions. The arguments relied upon by the Applicant included that he was dismissed without warning with no reasons given and the significant impact caused on him personally including being depressed and humiliated. The Applicant says he tried to contact Mr Robson the General Manager of the Respondent but Mr Robson did not respond. The Applicant says he only belatedly became aware that he had the rights of an employee and could apply for an unfair dismissal remedy. The Applicant referred to correspondence he forwarded to the Respondent on 14 March 2012 regarding a request for a Tax Group Certificate, a Statement of Superannuation Guarantee payments and a decision to ban him from attending the Respondent’s premises. A letter was sent from the Respondent on 23 March 2012 disputing the Applicant was an employee.
[9] The Applicant referred to his family’s strong association with the Respondent over 40 years. He also said he had been reluctant to take action against the Respondent as it may lead to being in trouble himself for accepting cash payment. The Applicant said the granting of an extension would cause no prejudice to the Respondent.
[10] The Applicant argues his case is of exceptional merit, being that it is clear he was an employee and not a contractor and he was given no reason for dismissal and no notice. The Applicant also emphasised the fact that he was self represented.
Respondent’s Submissions
[11] At the hearing on 21 June the Respondent, represented by Ms Fielding of National Workplace Lawyers, argued there are no exceptional circumstances identified by the Applicant’s submissions justifying the Tribunal allowing a further period for the application to be made. The Respondent argues the only reasons for the delay appear to be ignorance of the law and the claimed emotional impact and humiliation felt by the Applicant. The Respondent argues neither ground is a basis for establishing satisfaction of exceptional circumstances as required by s394 of the Act.
[12] The Respondent relies on the recent Full Bench decision in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 1. In this case the Full Bench stated:
“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.
Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In 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.”
[13] The Respondent points to the absence in this case of any other extenuating factors that might support an argument for extension and that, despite other extenuating circumstances being present in Nulty v Blue Star (such as the poor health of the Applicant’s father, and separate approaches to the Fair Work Ombudsman and HREOC) an extension was not granted in that matter.
[14] The Respondent says that the Applicant made no genuine attempt to dispute the dismissal until the filing of the Application, and other material filed by the Applicant including correspondence between the time the relationship was terminated and the filing of the application supports the position that he was at that time disputing entitlements regarding taxation and superannuation and a decision to ban him from the RSL, and not the dismissal itself.
[15] The Respondent denies the Applicant made attempts to contact Mr Robson and that the explanation for the relationship being terminated by SMS message was that the Respondent had made a number of attempts to contact the Applicant by phone and text and he did not respond. It is claimed the Respondent had wanted to discuss a complaint about the Applicant from the Respondents meat supplier but was unable to because he could not be contacted.
[16] The Respondent argues the application is wholly without merit and relies on the decision in Anthony Inguanti v Tru Energy trading as Tru Energy Iona Gas Plant 2 where a decision was taken not to extend time prior to consideration of another jurisdictional objection that the Applicant was a contractor and not an employee. That decision was upheld on Appeal.3
The Legislation
[17] Section 394(3) of the Act provides Fair Work Australia with a discretion to extend the time limit of 14 days as fixed by s.394(2) if it is satisfied that there are exceptional circumstances pertaining to the late lodgement.
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when 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 FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if 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.
Conclusion
[18] I must now consider the tests in the legislation. In the first instance I must consider the explanation for the delay. It is clear that the Applicant was aware his engagement came to an end on 9 March 2012. The last day the Applicant could have filed within time was Friday 23 March 2012. I am persuaded by the Respondents argument that neither of the principal grounds advanced by the Applicant constitute exceptional circumstances justifying a delay of a further 6 days, that being ignorance of his rights and distress and humiliation. A lack of knowledge about legal rights has generally not been regarded as a basis to be satisfied exceptional circumstances exist 4 and there are no peculiar features in this matter convincing me to depart from that approach.
[19] It is common for termination to lead to the emotional response described by the Applicant but again the evidence is not of such an exceptional nature regarding that issue to justify the delay.
[20] The Applicant has also relied on being self represented as a basis to explain the delay. Self-representation is common in matters before FWA and the quality of the submissions filed by the Applicant and the manner in which he presented himself during the hearings of 20 and 21 June do not support the proposition that being self-represented created a circumstance that was exceptional in justifying the 6 day delay in filing.
[21] The claim that the dismissal was without warning goes to the merits of the matter which I discuss further below.
[22] I am inclined to agree with the submission of the Respondent that the nature of the Applicant’s challenge to the termination in his correspondence to the Respondent on 14 March 2012 was directed to matters other than the termination itself and the first clear evidence of an attempt to dispute the termination itself was the filing of the application on 29 March 2012.
[23] I do not believe there is prejudice to the employer of a kind that of itself would be a strong basis to not extend time.
[24] In terms of the merits of the application, I am not prepared at this stage to express a clear view either way as there are disputed questions of fact and it would not be possible to draw any firm conclusions about the merits. It is stating the obvious to say that if the jurisdictional objection based on the Applicant being an employee were upheld the matter would be at an end.
[25] I do not regard s.394(3)(f) to be of particular relevance in this case. For all of the reasons set out above I conclude that the situation in this case does not satisfy me there are exceptional circumstances justifying an extension of time and the application must be dismissed.
COMMISSIONER
Appearances:
Mr S Voigt on his own behalf.
Ms C Fielding for Surfers Paradise RSL Sub Branch Inc. T/A Surfers Paradise RSL
Hearing details:
2012.
Brisbane.
June 21.
1 Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011]FWAFB 975
2 Anthony Inguanti v Tru Energy trading as Tru Energy Iona Gas Plant [2011]FWA 4039
3 Anthony Inguanti v Tru Energy trading as Tru Energy Iona Gas Plant [2011]FWAFB 6512
4 Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011]FWAFB 975 Anthony Inguanti v Tru Energy trading as Tru Energy Iona Gas Plant [2011]FWAFB 6512
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