Stephen Draskovic and Bill Draskovic v AGM Concrete Pty Ltd

[2019] FWC 7142

[2019] FWC 7142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Stephen Draskovic and Bill Draskovic
v
AGM Concrete Pty Ltd
(U2019/6603 and U2019/6604)

DEPUTY PRESIDENT CROSS SYDNEY, 4 NOVEMBER 2019

Application for an unfair dismissal remedy Application for an unfair dismissal remedy.

[1] On 14 June, 2019, Stephen Draskovic and Bill Draskovic (“the Applicants”) each lodged applications (“the Applications”) pursuant to s.394 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicants were employed by AGM Concrete Pty Ltd (“the Respondent”). Each of the Applicants commenced their employment with the Respondent in 2016.

[2] Stephen Draskovic’s employment was terminated by the Respondent by letter dated 16 May, 2019, though he said the letter was received by registered post on 17 May, 2019. The Respondent advised in that letter that, “… as discussed on 10^th May 2019 AGM Concrete has made a decision to terminate your employment, such termination takes effect on the date of this letter.”

[3] Bill Draskovic’s employment was also terminated by the Respondent by letter dated 16 May, 2019, and he also said the letter was received by registered post on 17 May, 2019. The Respondent advised in that letter that, “I have formed the view that you have engaged in a serious breach of your contractual obligations and accordingly AGM Concrete has exercised its legal right to terminate your contractor agreement, which took effect on 10^th May 2019. Although not legally required to do so, we paid you two weeks notice.”

[4] Applications for unfair dismissal remedies must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow.  If the dismissals took effect on 10 and 16 May, 2019, applications for a remedy should have been lodged by no later than 31 May, 2019, and 6 June, 2019, respectively. The applications were therefore lodged outside of the time prescribed and were lodged 14 days (by Bill Draskovic) and 8 days (by Stephen Draskovic) after the last day on which such an application could have been made.

[5] On 2 July, 2019, correspondence was issued from the Chambers of Vice President Catanzariti directing the Applicants to file a written statement within 7 days explaining why time to file the Applications should be extended. In compliance with the Directions, the legal representative of the Applicants filed a joint Outline of Submission (“the Joint Submissions”), dated 9 July, 2019, together with annexures.

[6] On 9 July, 2019, further Directions were issued from the Chambers of Vice President Catanzariti directing the Respondent to file any submission in response to the Joint Submissions by 4.00pm on 16 July, 2019. In compliance with those Directions, the legal representative of the Respondent filed an Outline of Submission (“the Respondent’s Submission”), dated 15 July, 2019.

[7] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are contained in s.394(3) of the Act:

“Application for unfair dismissal remedy

(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] It is clear from the structure of s.394(3) that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[9] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act that there are exceptional circumstances.

[10] I have determined that neither Bill Draskovic nor Stephen Draskovic should be allowed a further period within which to lodge their applications. These are the reasons for that decision.

Submissions

(a) The Applicants

[11] As noted above, the legal representatives of the Applicants filed the Joint Submissions. Those submissions focussed on a number of relevant issues. As to the chronology of the Applicants instructing the legal representatives, it was submitted:

“We first seen [sic] our clients for an initial consultation on 6 June 2019. At the time of the consultation, we requested further documentation and all evidence in relation to all events and ongoing issues related to their employment at AGM Concrete. At that stage, and without all of the material, we were unable to provide them with advice as to their prospects of success and the options available as we were unaware of the full extent of the circumstances. Once we received all requested documentation and evidence, we provided advice and were instructed to lodge an application for Unfair Dismissal. As such, we submitted the application for Unfair Dismissal Form 2 on 14 June 2019.”

[12] A subsequent submission that appeared relevant and aligned to the above submission was as follows:

“The applicants have never experienced anything like this before and they were therefore unaware of their rights and options available in terms of the bullying, harassment and Unfair Dismissal. This is an additional reason as to why there was a delay in lodging the application.”

[13] The Applicants also relied upon matters going to the health of Stephen Draskovic. He had suffered an injury resulting from an altercation at work on 16 April, 2019. The Applicants submitted:

“We confirm that Mr Stephen Draskovic has ongoing medical appointments and treatment for his 2 front teeth due to the incident that occurred on 16 April 2019 at his work place (AGM Concrete). His father, Mr Bill Draskovic has been attending the appointments with him as Stephen is unable to drive after his treatment.”

…

“The psychical [sic] and ongoing verbal abuse that Mr Stephen Draskovic was subjected to by other employees has had a big impact on his mental health and wellbeing. Mr Stephen Draskovic finds it difficult to leave his property without being in the company of his father and/or mother. Since the psychical [sic] attack on Mr Stephen Draskovic, at his former work place, he has had great difficulties speaking properly or even eating solid foods. It is for this reason that we say exceptional circumstances exist. That is, the applicants were not in a position to bring an application within the required time frame as their focus was on Mr Stephen Draskovic’s health and wellbeing. Please see attached medical receipts of treatments and dates.”

[14] Regarding the history of the matter, the Applicants’ legal representatives noted that on 28 April 2019, the Applicants attended Springwood police station and made statements about the incident on 16 April, 2019. Prior to that, the Applicants had attended St Marys police station to give a version of the events and to provide evidence of the injuries.

(b) The Respondent

[15] As noted above, the legal representatives of the Respondent filed the Respondent’s Submissions. In response to the submissionregarding the chronology of the Applicants instructing their legal representatives, the Respondent submitted that the initial consultation of 6 June, 2019, occurred on the last day for the Applicants to file the Applications (though that was correct only for Stephen Draskovic, as Bill Draskovic’s application was due by 31 May, 2019). The initial consultation should have revealed to the Applicant’s legal representative that the matter concerned the dismissal or termination of the Applicants, and that the causes of action open to the Applicants may include relief from unfair dismissal under the Act which mandates a 21-day time limit for the lodgement of such an application. The Respondent noted that simple oral instructions with or without the termination letters given to the Applicants would have been sufficient to enable the provision of advice regarding the urgent need to file the Applications. It was not necessary for the Applicants’ legal representative to review “all of the material” to properly advise the applicants.

[16] Dealing with the question of representative error and whether delays by legal representatives may be visited upon a client, the Respondent submitted that these were not matters where the legal representatives were solely responsible for the delay. The Respondent put:

“It is further submitted that given the initial delay in the applicants raising the matter of their termination with their solicitor, their inaction would not have helped their solicitor to deal with their rights expeditiously. Therefore, it is submitted that the substantial amount of blame for the Applications being out of time, including any failure by their solicitor to properly advise that it was critical to lodge their unfair dismissal applications on 6 June 2019 to avoid them being out of time, should be apportioned to the applicants.”

[17] Regarding the health of Stephen Draskovic, the Respondent noted that his medical appointments did not hinder him from seeking legal advice on the unfair dismissal regime under the Act and acting on such advice. The Respondent noted that there was no cogent evidence to indicate that Stephen Draskovic was unfit to obtain legal advice between 16 May, 2019 to 5 June, 2019. Such advice could be secured by way of a prearranged telephone conference with a legal practitioner. Further, there was no evidence that at the relevant times Bill Draskovic was unwell, immobile or hindered from securing advice with respect to his termination.

[18] The Respondent further noted that as Stephen Draskovic was able to attend Springwood Police Station on 28 April 2019, some 12 days after he sustained his injury, it is more than likely he was fit enough to travel for the purposes of seeking legal advice after his termination on 16 May, 2019. The Respondent noted that there was no medical evidence or other evidence before the Commission to indicate that the Applicants were unfit to travel for the purposes of obtaining legal advice on or before 5 June, 2019.

CONSIDERATION

[19] I will then turn to the particular matters to which regard must be had.

The Reason for the Delay

[20] The focus of the Joint Submissions, and the replies in the Respondent’s Submissions, are primarily regarding reasons for the delays. The Applicants submissions regarding the reasons for the delay in lodging their Applications out of time may be summarised as:

(a) The Applicants not being aware of the statutory timeframe within which such an application was to be filed;

(b) The Applicants’ priorities, following their dismissals, being attending to the recovery of Stephen Draskovic; and

(c) The Applicants’ representative requiring further information from the Applicants at the initial consultation before lodging the Applications with the Commission.

(a) Knowledge of the Statutory Timeframe

[21] Ignorance of the statutory requirements would not constitute an exceptional circumstance. As the Full Bench observed in Cheyne Leanne Nulty v Blue Star Group Pty Ltd (“Nulty”)[2011] FWAFB 975:

“[14]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.”

[22] The statutory timeframe for lodging an unfair dismissal application is readily available and accessible on the Fair Work Commission’s website.

(b) Stephen Draskovic’s Recovery

[23] In the Joint Submission, the Applicants submitted that during the statutory period, Stephen Draskovic had been attending “ongoing medical appointments.” During this period, it is alleged that Bill Draskovic had accompanied Stephen Draskovic as the latter was not able to drive to and from those appointments.

[24] Based on the medical material annexed to the Joint Submission, Stephen Draskovic attended only three appointments, on 16 April, 2019, (the date of the incident), 30 April, 2019, and on 14 May, 2019. That would not constitute such a mass of medical appointments precluding attendances upon legal representatives for agitation of the Applications.

[25] That both Stephen Draskovic, with Bill Draskovic, travelled separately to both St Marys and Springwood police stations to make statements in the days before their employment was terminated is further evidence that each of the Applicants were able to travel and potentially obtain legal advice had they wanted to do so. Stephen Draskovic’s medical requirements were not an acceptable reason for the delay.

(c) The Initial Consultation

[26] The Applicants’ representatives submitted that they were “not aware of the full extent of the circumstances” and, as such, were “unable to provide [their clients] with advice as to their prospects of success and …[any] options available as [they] were unaware of the full extent of the circumstances.” Quite tellingly, those representatives do not assert a lack of knowledge of the time limitation.

[27] It was simply not necessary for the Applicants’ representative to consider “all of the material” in order for them to provide timely advice prior to commencing the Applications. As noted above, they did not assert a lack of knowledge of the time limitation, and I infer that they were aware of that limitation and the consequences of non-compliance with that limitation. The inaction of those representatives was not an acceptable reason for the delay. 1

Whether the person first became aware of the dismissal after it had taken effect

[28] As noted in paragraphs [2] and [3] above, it would appear that both Bill Draskovic and Stephen Draskovic were notified that they would be dismissed on 10 May, 2019, six days prior to the actual dismissal letters. While earlier notification is not the consideration pursuant to paragraph (b) of s.394(3), such notification disposes of the question of any weight being given to the Applicants’ allegations that their termination letters were not received until 17 May, 2019. As such, this consideration is neutral.

Any action taken by the person to dispute the dismissal

[29] Neither the Applicants nor Respondent provided submissions in relation to this consideration. It is noted that each of the Applicants provided statements to NSW Police in relation to the incident and took part in the Respondent’s investigation into the incident. However, I do not find these actions to be directly disputing their dismissal. This consideration is therefore neutral.

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

[30] Neither the Applicants nor Respondent provided submissions in relation to this consideration. This is therefore a neutral consideration.

The Merits of the Application

[31] I am satisfied that based on the material filed, and again, accepting that the material has not been tested by way of cross-examination, the Applications may be of some merit.

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

[32] Neither the Applicants nor Respondent provided submissions in relation to this consideration. This is therefore a neutral consideration.

CONCLUSION

[33] Following from the above conclusions regarding the principal matter that was the subject of submissions, consideration and weight, being acceptable reason for the delay, I find that there are no exceptional circumstances to extend the time for the filing of the applications of either Stephen Draskovic, or Bill Draskovic.

[34] I therefore propose to dismiss the Applications.

DEPUTY PRESIDENT

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 1   Cem Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479, at [21]. This decision of Deputy President Gostencnik not disturbed in the subsequent appeal.