Stephen Bennett v Allied Metals

[2016] FWC 2092

[2016] FWC 2092

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Bennett
v
Allied Metals
(U2015/17103)

DEPUTY PRESIDENT BINET PERTH, 7 APRIL 2016

Application for relief from unfair dismissal - whether to extend time for lodging the application – extension of time not granted.

Introduction

[1] On 24 December 2015 Mr Stephen Bennett (Mr Bennett) filed an application (Application) pursuant to subsection 394(1) of the Fair Work Act 2009 (FW Act) claiming he was unfairly dismissed by Allied Metal Recyclers Pty Ltd (Allied Metal).

[2] Allied Metals have objected to the Fair Work Commission (Commission) exercising its jurisdiction to deal with the Application because it was lodged more than the 21 days after the dismissal took effect. Accordingly the jurisdictional objection was allocated to me for hearing and determination.

[3] On 15 January 2016 Mr Bennett filed an outline of argument and a statement of evidence on his own behalf. On 22 January 2016 Mr Bennett filed a second outline of argument, another statement of evidence on his own behalf and a statement of evidence from his partner. In summary Mr Bennett claimed that the lodgement of his application was delayed because he initially unsuccessfully sought to contest his dismissal directly with his employer and did not become aware that he could make an application to the Commission, until he was advised to do so by an employee of Centrelink.

[4] Allied Metals filed a Form F3 – Employer Response to Unfair Dismissal Application, , a Respondent Outline of Argument - Objections and a witness statement by Mr Craig Brotherson (Mr Brotherson) the company accountant. At a later date an Outline of Respondents Submissions on leave to represent and jurisdictional objection was lodged by Heldsinger Legal. In summary Allied Metals submitted that Mr Bennett had failed to provide sufficient reasons and supporting evidence to demonstrate that exceptional circumstances existed which would justify an extension of the lodgement time.

The Jurisdictional Hearing

[5] A jurisdictional hearing was conducted on 4 April 2016. At the hearing Mr Bennett represented himself. Mr David Heldsinger of counsel sought leave pursuant to subsection 596(2) to represent Allied Metals based on written submissions filed and served prior to the hearing. Mr Bennett did not object to the grant of leave. Based on the submissions and the authorities contained therein leave was granted.

[6] Mr Bennett and Mr Brotherson gave evidence. Both were cross examined.

Relevant Statutory Provisions

[7] Section 394 states:

“394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC 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 21 days after the dismissal took effect; or

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

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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] Pursuant to subsection 394(3) the Commission may allow a further period to lodge an application provided there are "exceptional circumstances" taking into account the five criteria listed in subsection 394(3). The principles to be applied are well established and set out in a decision of a Full Bench in Nulty v Blue Star Group  1as follows:

“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.”

Facts

[9] The following facts were agreed or not contested:

a. Mr Bennett commenced employment with Allied Metals as a Yard Hand on 22 September 2014.

b. On 4 November 2015 Mr Bennett was scheduled to attend a customer’s site with another employee of Allied Metals. Mr Bennett arrived several hours late. The employee reported to Allied Metals that Mr Bennett was drunk and smelt of alcohol.

c. The next day on 5 November 2015 Mr Bennett attended the same customer’s premises to oxy cut steel. The customer contacted Allied Metals and reported that Mr Bennett appeared drunk and was unwell.

d. Mr Bennett arrived at work the following day on 6 November 2015 and was advised that his employment had been terminated effective immediately.

e. In the month following his dismissal Mr Bennett sought to dispute his dismissal with Allied Metals, including contacting Mr Brotherson by telephone, and on another occasion visiting Mr Brotherson in person.

f. Mr Bennett lodged the Application on 24 December 2015.

[10] Mr Brotherson gave evidence as to the events which led to Allied Metals deciding to terminate Mr Bennett’s employment on 6 November 2016. Mr Brotherson says that Mr Bennett had a history of arriving late to work or taking excessive leave. He says that Mr Bennett would regularly arrive at work with alcohol on his breath and/or on his work clothes.

[11] According to Mr Brotherson in July 2015 Mr Bennett came to see him and offered Mr Brotherson his resignation, telling Mr Brotherson that he believed that his consumption of alcohol was impacting on his work performance and that he represented a risk to his fellow employees. Mr Brotherson says that Mr Bennett told him he was homeless and sleeping in nearby bush land. Mr Brotherson says that during the meeting he could smell alcohol on Mr Bennett’s breath.

[12] Mr Brotherson says that he immediately arranged for a Director of Allied Metals, Mr Hugh McKee, to meet with himself and Mr Bennett. According to Mr Brotherson, at that meeting Mr Bennett told Mr Brotherson and Mr McKee that he had applied for accommodation at a halfway house and was seeking medical assistance for his drinking problem. Mr Brotherson says they told Mr Bennett that his resignation was not accepted, arranged for him to be driven to the halfway house and explained to him that he could take as long as he needed to regain his health. Mr Bennett returned to work approximately one week later.

[13] In his defence Mr Bennett denies that he was ever intoxicated at work. He said that from time to time he spilt alcohol on his clothes and this could explain any reports that he smelt of alcohol. He says that if Allied Metals genuinely believed he was intoxicated at work they would have required him to undergo drug and alcohol testing and/or would have removed him from the worksite.

[14] Mr Bennett conceded that he did arrive several hours late to work from time to time but says that this occurred because of delays in public transport and that Allied Metals were aware that he depended on public transport to get to and from work.

[15] In relation to the incident on 4 November 2016 Mr Bennett says that he had celebrated a win on the Melbourne Cup the night before and had fallen asleep with a glass of alcohol in his hand which had spilt on his clothes. He said he awoke late the following morning and did not have time to shower or change his clothes before he arrived at work. He says he was not drunk or hung over and the smell of alcohol reported by his colleague came from his clothes.

[16] In relation to the incident on 5 November Mr Bennett says he was used to working in an air-conditioned cabin and that on 5 November 2016 he was required to perform work in the direct sunlight. He says that he suffered sunstroke and requested water and Panadol from the client to treat the sunstroke not drunkenness or a hangover.

Consideration

[17] The 21 day period for lodgment is calculated on the basis that the first day of the period is the day after the date that the dismissal took effect. 2 If the final day of the 21 day period falls on a weekend or a national public holiday (where the Commission is closed) the timeframe will be extended to the next business day.3

[18] Mr Bennett’s dismissal took effect on 6 November 2015. The first business day twenty one days from the day after Mr Bennett’s dismissal took effect was 27 November 2015. Mr Bennett lodged his application on 24 December 2016. The Application was therefore lodged 48 days after his dismissal and 27 days out of time.

Paragraph 394(3)(a) - The reason for the delay

[19] Mr Bennett says that in the month following the termination of his employment on 6 November 2015 he sought to dispute his dismissal with Allied Metals. Mr Brotherson agrees that Mr Bennett called him and on another occasion visited him to discuss Mr Bennett’s dismissal. Mr Bennett says he also approached other company officials during this period.

[20] Mr Bennett says that it wasn’t until it became apparent to him that he was unlikely to get his job back that he attended at a Centrelink office to claim financial assistance. He says that a Centrelink employee recommended that he lodge an application for unfair dismissal with the Commission. He says that until this conversation with the Centrelink employee he was unaware of his right to make a claim or that a time limit existed for the making of a claim.

[21] Mr Bennett included as an annexure to his Form F2 an advice confirming the commencement of payment of Newstart Allowance. The advice was dated 7 December 2015. Under cross examination Mr Bennett conceded that his conversation with the Centrelink employee in which he became aware of his right to lodge a claim must have occurred on or before 6 December 2015. The Application is dated 15 December 2015 but was not lodged until 24 December 2015.

[22] Under cross-examination Mr Bennett conceded he completed the Application on 15 December 2015 and could not provide an explanation why he did not lodge it for a further 9 days.

[23] There exists a possibility that Mr Bennett may have become aware of his right to make a claim within time had Allied Metals responded to his efforts to have them review his dismissal earlier. However I am bound by the well-established principal that ignorance of the timeframe in which a claim must be brought in itself is not sufficient to justify an extension of time.⁴

[24] Furthermore the case law is clear that an applicant needs to provide a credible reason for the whole of the period until the Application was lodged. A failure to require an applicant to do so was held in Cheval Properties v Smithers ⁵ to be an appealable error. I am therefore required to take into account Mr Bennett’s failure to provide an explanation for the delay between 15 December 2015 when Mr Bennett completed the Application and 24 December 2015 when he eventually lodged the Application.

[25] The lack of a valid reason for delay weighs against granting Mr Bennett an extension of time.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[26] It is uncontested that Mr Bennett became aware of his dismissal on the day it occurred on 6 November 2015 rather than at some later point. This factor therefore weighs against granting Mr Bennett an extension of time.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[27] It is conceded that Mr Bennett did take action to dispute his dismissal. In fact he says that this is why he did not immediately contact Centrelink. I therefore find that this factor weighs in favour of the granting of an extension of time.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[28] Allied Metals submit that it will suffer significant prejudice if the extension of time is granted. On the whole these are the types of prejudice which normally arise from the defence of a claim of unfair dismissal. Beyond this Allied Metals have also identified additional prejudice which arises from the length of the delay in lodgement. Allied Metals say that this additional prejudice arises because they have since Mr Bennett’s dismissal, contracted out his role, and the function is now no longer carried out by Allied Metals.

[29] I have treated prejudice to Allied Metals as a factor which weights against granting Mr Bennett an extension of time.

Paragraph 394(3)(e) - The merits of the application

[30] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission "should not embark on a detailed consideration of the substantive case" 6 for the purpose of determining whether to grant an extension of time to an applicant to make their Application.

[31] In the matter of Kornicki v Telstra-Network Technology Group 7 the Commission considered the principles applicable to the extension of time discretion under subsection 170CE(8) of the Workplace Relations Act 1996 (Cth) In that case the Full Bench said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[32] To require an applicant to establish more than that the substantive application was not without merit would, as noted by the Full Bench in Kyvelos v Champion Socks Pty Ltd 8,:

“… serve as an encouragement to other applicants for late acceptance pursuant to subsection 170CE(8) to put the whole of their evidentiary case and seek to cross examine the respondent’s witnesses to reduce the possibility of an adverse finding on the merits. This would lead to unjustifiable delay and expense.”

[33] I adopt this reasoning in relation to my consideration of the merits of the Application.

[34] Allied Metals submit that Mr Bennett’s application has no merit because he had a well-established history of arriving late for work often with alcohol on his breath and in some cases still intoxicated. They also say that he had a history of excessive paid and unpaid leave which they allege was a result of his dependency on alcohol. Allied Metals assert that the events which occurred on the 4^th and 5^th of November justified Mr Bennett’s termination with immediate effect on 6 November 2015.

[35] Mr Bennett denies that he ever attended work under the influence of alcohol. He points out that he was never subjected to drug and alcohol testing. He also asserts that if Allied Metals genuinely believed he was under the influence of alcohol at work they would have, or should have, directed him to cease operating machinery. Mr Bennett says he was never given an opportunity at the time of his dismissal, or since, to respond to the allegations made against him.

[36] Mr Bennett did not contest that he admitted that he had an alcohol problem in July 2015 or that Allied Metals assisted him to access temporary accommodation and medical assistance.

[37] It appears likely that Mr Bennett does have some challenges in relation to alcohol and that for a considerable period of time Allied Metals have accommodated the adverse impacts that this has had on his ability to perform his duties. However the failure to afford him procedural fairness with respect to the incident in relation to which he was eventually terminated does give rise to the possibility that his claim may have some merit.

[38] As I have not tested the evidence as it would be tested in a full merit hearing my evaluation of the merit of Mr Bennett’s case is a preliminary one and taken at it’s highest to determine whether or not it is at least a case that it not without merit. Neither party should take from my finding that Mr Bennett would necessarily succeed. This is simply a very preliminary judgement based on the limited and untested material before me.

[39] As I have found that Mr Bennett’s case is not without merit, or lacking in any substance, this factor weighs slightly in favour of granting Mr Bennett a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[40] Mr Bennett gave evidence that at least three other employees of Allied Metals had been dismissed by Allied Metals for misuse of alcohol. However he said that as none of them were aware of the possibility of lodging an application with the Commission they had not done so.

[41] The issue of fairness as between the applicant and other persons in a similar position is therefore not a relevant consideration in this matter as none of these employees had lodged applications. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[42] Mr Bennett’s circumstances are unfortunate. He is suffering an injury which is limiting his mobility. He gave evidence that he has no home and no job. The reasons for his dismissal are viewed by prospective employers negatively and he is unable to secure a new position.

[43] Unfortunately the FW Act prevents me from granting an extension of time unless an Applicant can establish that their particular circumstances are exceptional taking into account the reason for the delay; whether the applicant first became aware of the dismissal after it had taken effect; any action taken by the applicant to dispute the dismissal; any prejudice to the employer (including prejudice caused by the delay), the merits of the application; and fairness as between the person and other persons in a similar position.

[44] It is well established that ignorance of the time limit is not a valid reason for a delay. It does not make Mr Bennett’s circumstances out of the ordinary course, or unusual, or special, or uncommon. Many other applicants have been barred from proceeding with their claims for the same reason. While Mr Bennett’s claim of unfair dismissal could potentially have some merit it is not sufficient to overcome the other criteria which weight against the granting of an extension of time.

[45] A failure to establish that exceptional circumstances exist means that I am unable to grant Mr Bennett an extension of time to lodge his application.

[46] An Order [PR578665] to this effect will be issued.

DEPUTY PRESIDENT

Appearances:

Mr Stephen Bennett on his behalf

Mr David Heldsinger from Heldsinger Legal for the Respondent

Hearing details:

2016

Perth:

April, 4

Final written submissions:

 1   Nulty v Blue Star Group (2011) 203 IR 1 at [13]

 2   Acts Interpretation Act 1901 (Cth) s.36(1) (Item 6)

 3   Ibid s.36(2); See Hemi v BMD Constructions Pty Ltd [2013] FWC 3593

4 Rose v BMD Constructions Pty Ltd[2011] FWA 673, Nulty v Blue Star Group (2011) 203 IR 1 at [14]

5 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010 197 IR 403, 408-409

 6   Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14]

 7   Kornicki v Telstra Network Technology Group [Print 3168, 22 July 1997] at page 8

 8   Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [15].

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578664>