Simon Morgan v Sargeant Transport Services

[2015] FWC 3268

[2015] FWC 3268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Morgan
v
Sargeant Transport Services
(U2015/4419)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Simon Morgan resigned from his employment with Sargeant Transport Services on 18 September 2014. Mr Morgan says he was forced to resign because of his employer’s conduct.

[2] Mr Morgan’s unfair dismissal application lodged on 30 March 2015 was not made within 21 days of the date of the dismissal.

[3] Sargeant applied to be represented by a lawyer on the grounds that that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. It was put that the matter raised issues of complexity because Mr Morgan’s claim involved alleged breaches of the state legislation. It was put that there were complex factual issues in dispute.

[4] I declined to grant permission for Sargeant to be represented by a lawyer. I was not satisfied that representation would enable the matter to be dealt with more efficiently taking into the complexity of the matter. The dispute about the matters that led to Mr Morgan’s resignation would not be determined at an extension of time conference/hearing. The witness evidence disclosed no particular complexity. The criteria to be applied in determining whether to grant an extension of time are not complex.

[5] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[6] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

[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." [Endnotes not reproduced]

(a) the reason for the delay;

[7] Prior to his resignation, Mr Morgan had made a complaint to WorkSafe about safety issues and about being bullied for raising safety issues. He gave evidence that he sought legal advice on 6 October 2014, and was told that because he was a casual employee and had resigned his employment, he could not make an unfair dismissal application.

[8] Mr Morgan became aware in late 2014/early 2015 that he could make a claim for unfair dismissal but did not act on this information because he was unsure of what effect this would have on his bullying complaint to WorkSafe. He met with WorkSafe on 23 February 2015 and was told that an unfair dismissal claim would not affect his current bullying complaint.

[9] Mr Morgan commenced preparing his application but he found this to be a difficult task as he had moved house and some of the information he needed was packed away. One of his children’s condition was exacerbated by the move and required more attention than usual. That child’s behavior had a negative impact on his other child who also required more attention than usual. At the same time his wife was diagnosed with a serious illness. She required additional medical appointments and this diagnosis exacerbated her preexisting medical conditions.

[10] Mr Morgan gave evidence that in mid February 2015 his computer system blew up and it took a couple of weeks to get it repaired. He found preparing his application mentally exhausting.

[11] Sargeant submitted that the matters outlined do not weigh in favour of extending time.

[12] It submitted that there is no evidence to support a finding that there was representational error. There is no evidence that Mr Morgan told his lawyer anything more than he was a casual employee who resigned his employment. In those circumstances it cannot be said that his representative gave him incorrect advice.

[13] It further submitted that there was no evidence of any action taken by Mr Morgan between October 2014 and February 2015 to investigate his rights and seek advice. Further, there was no evidence that Mr Morgan, despite knowing about constructive dismissal, took any steps to get advice about the impact on his bullying complaint on any potential unfair dismissal complaint.

[14] It further submitted that Mr Morgan’s personal circumstances are not unusual. He could have lodged his application on line using facilities at the local library. He could have got a representative to lodge his application.

[15] Mr Morgan was required to lodge his application by 9 October 2014. He did not do so for another 173 days.

[16] It was submitted that Mr Morgan’s delay was caused by matters beyond Mr Morgan’s control. I do not agree. Some of the matters were beyond his control but not all.

[17] I do not consider Mr Morgan had a reasonable explanation for whole of the delay from the time of his dismissal.

[18] The lawyers he consulted gave him incorrect advice. This provides a reasonable explanation for his initial delay. I
[19] Mr Morgan did not accept that advice and researched the issue for himself. By late 2014/early 2015 he knew he could make an unfair application. His explanation for the delay between then and late February 2015 was that he unsure about the impact an unfair dismissal application would have on his WorkSafe complaint. Mr Morgan sought no advice about this from WorkSafe, the Commission or anyone else.

[20] Mr Morgan, when faced with what he thought may be a conflict between his bullying complaint and his possible unfair dismissal claim, opted to continue with his complaint about the bullying. He was perfectly entitled to do so. However that decision was not beyond his control. Had he sought advice he would have been made aware that there was no conflict. I do not think Mr Morgan’s reliance on his uncertainty about impact of an unfair dismissal application on his bullying complaint was reasonable in all the circumstances.

[21] Mr Morgan’s explanation for the delay after 23 February 2015, namely his difficult personal circumstances, provides a reasonable explanation for that part of the delay.

[22] Mr Morgan has a reasonable explanation for some of the delay but not for all of the delay.

[23] On balance, I find that the lack of a reasonable explanation for the whole of the delay weighs against extending time.

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

[24] Mr Morgan was aware of his resignation when it took effect. He had the full 21 days to lodge his application. This weighs against extending time.

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

[25] Mr Morgan took no action to dispute his dismissal with his employer at the time. The first Sargeant knew that Mr Morgan considered he had been forced to resign was when he lodged this application. This does not weigh in favour of extending time.

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

[26] Sargeant made submissions that it would be prejudiced if Mr Morgan was given an extension of time. It submitted that its witnesses may have difficulty in recalling the complex series of events set out in Mr Morgan’s application. Mr Walker, Sargeant’s Chief Executive Officer, gave evidence that he may have some difficulty locating the records of the events relied upon by Mr Morgan. I am prepared to accept the submission of Sargeant that its witnesses will have difficulty recalling events that occurred over 12 months ago. However, I do not consider the prejudice suffered by Sargeant weighs against extending time in the absence of any direct evidence that the relevant employees had difficulty recalling the events or that records were missing.

(e) the merits of the application;

[27] Mr Morgan resigned his employment. He said he did so because of a course of conduct by Sargeant. He said going to work was making him ill. He had already made a complaint to WorkSafe. He gave evidence that he did not go to a doctor or make a worker’s compensation claim because of the impact on his future job prospects.

[28] Mr Walker gave evidence that there were performance issues with Mr Morgan’s work which were being dealt with. He gave evidence that after an earlier Commission finding, that they had not followed the correct procedure prior to dismissing an employee, he had reviewed the procedures to ensure the same errors were not repeated. Mr Morgan had been issued with a warning about his performance and when the conduct was repeated he organized a meeting to discuss the issue with Mr Morgan. The meeting with Mr Morgan was scheduled for 19 September 2014 but Mr Morgan resigned his employment prior to the meeting occurring.

[29] Mr Walker did not address in his evidence the many allegations made by Mr Morgan about the events that led to his resignation. That is unsurprising given this was a hearing to determine if Mr Morgan should be granted an extension of time. It was not an occasion for determining the merits of the application otherwise the extension of time hearing would replace the hearing on the merits.

[30] I accept the submissions of Sargeant that the test of whether Sargeant’s conduct gave Mr Morgan no choice but to resign must be objectively determined.

[31] On Mr Morgan’s own evidence, his complaints about safety matters and the consequential bullying were being investigated by WorkSafe. He acknowledged that he could have taken leave due to the stress he said he was suffering and/or made a worker’s compensation claim.

[32] I am not able to make a final determination of the merits of Mr Morgan’s claim that he was forced to resign because of a course of conduct by his employer as the allegations have not been tested. However as I am unable to conclude that Mr Morgan’s claim is unarguable, this weighs in favour of extending time.

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

[33] No submissions were made on this criterion and I consider it to be neutral.

Conclusion

[34] Mr Morgan did not lodge his application until 173 days after the time for lodging had expired. On balance, I was unable to find that he had a reasonable explanation for the whole of the delay. I am also not able to conclude that the merits of Mr Morgan’s claim that he was constructively dismissed is sufficiently strong so as to counter his lack of a reasonable explanation for the whole of the delay. I find that there are no exceptional circumstances and consequently Mr Morgan’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Morgan on his own behalf.

G. Walker for the Respondent.

Hearing details:

2015.

Melbourne:

11 May.

 1   [2011] FWAFB 975

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