Stephen Fox v Ryan Sawers T/A Road Marking Services

[2015] FWC 4123

[2015] FWC 4123

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Fox
v
Ryan Sawers T/A Road Marking Services
(U2015/7087)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 JUNE 2015

Application for relief from unfair dismissal - Extension of time.

[1] This is an edited version of a decision delivered ex tempore and recorded on transcript on 12 June 2015. Stephen Charles Fox, the applicant in these proceedings commenced employment with Mr Ryan Sawers trading as Road Marketing Services in and about October of 2011.  Mr Fox was dismissed from that employment on 22 December 2014.

[2] Mr Sawers is a sole trader and runs an unincorporated business.  He is a small business employer within the meaning of the Fair Work Act 2009 (Act).  It is apparent on the material before me that at the time of the applicant's dismissal Mr Sawers had in his employ three employees including the applicant.

[3] The Small Business Fair Dismissal Code therefore applies to this employer and relevantly to the dismissal of Mr Fox.  Mr Fox was dismissed summarily on 22 December 2014 for that which the employer regards as misconduct in that Mr Fox failed to attend for work on 21 December 2014.

[4] According to the material before me, he was due to commence work at 8 pm on that evening.  It's clear on the material that Mr Fox did not communicate with his employer about his non-attendance on that day.  He communicated with his employer on 22 December 2014 which was the date on which his employment ended.

[5] Mr Fox says that he had overslept because he had been tired from the previous shifts that he had worked for this employer and that the workload was onerous.  It is not in dispute that Mr Fox had received previous warnings about his non-attendance, although I note that Mr Fox says that in hindsight he would not have signed one of the warnings.  I take that as disputing the substance of the warnings, but the fact that they were given is not in dispute.

[6] On 22 April 2015, Mr Fox applied under s. 394 of the Act for an unfair dismissal remedy.  Such applications need to be made within 21 days after the dismissal took effect.  Self-evidently, the application should have been made by 12 January 2015.  Accordingly, the application was over three months outside of the time prescribed by the Act.  Section 394(2) allows the Fair Work Commission (Commission) to allow an application to be made within a further period, subject to being satisfied that there are exceptional circumstances as described in subsection (3).

[7] In assessing whether or not there were exceptional circumstances there are a number of matters that need to be taken into account.  Before dealing with those matters in the context of this case, I should say some things about the statutory scheme.  As is evident from the text of s. 394 of the Act, the statute allows me to extend the time within which an application may be made, but the discretion to do so will only be exercised if I am first satisfied that there are exceptional circumstances which would warrant the consideration of the exercise of my discretion.

[8] The matters that I need to take into account in considering whether or not Iam satisfied that there are exceptional circumstances are the reason for the delay; the question whether Mr Fox first became aware of the dismissal on a date after the date on which it took effect; any action that was taken by Mr Fox 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, that is, Mr Fox and person or other persons in a similar position.

[9] 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 were exceptional circumstances.  Individual matters might not, when viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and ask whether, collectively, the matters show there to be exceptional circumstances.

[10] Although "exceptional circumstances" is not defined in the Act specifically, exceptional circumstances are generally circumstances that are out of the ordinary course, unusual, special or uncommon, but circumstances do not need to be unique or unprecedented; nor do they need to be very rare.  In general, I need to be satisfied taking into account the requirements of s. 394(3) that there are in this case exceptional circumstances warranting the consideration of the exercise of my discretion.

[11] I will turn then to each of the matters that I need to take into account, beginning firstly with the reason for the delay.  Mr Fox needs to provide an acceptable explanation or a satisfactory explanation for the whole of the period of the delay.  In proceedings before me, Mr Fox says that the reason for the delay, at least initially, was that he wrote to the Fair Work Ombudsman and waited for a mediation and that only when a mediation took place was he made aware that he should make an application to the Fair Work Commission concerning his dismissal.

[12] He said that thereafter he engaged in telephone dialogue between the Fair Work Ombudsman and staff at the Commission and on several occasions he was told that the other agency had responsibility for dealing with these matters.  As I indicated during the course of these proceedings, questions about underpayment of wages are not matters within the jurisdiction of this Commission and should properly be dealt with through the complaints mechanism available with the Fair Work Ombudsman.

[13] Any suggestion to the contrary is plainly wrong.  This Commission has jurisdiction amongst other things to deal with applications for unfair dismissal remedies, which might include disputes about whether or not a person was entitled to receive notice on termination rendering the dismissal unfair, because there is a dispute about whether the conduct engaged in by the employee was misconduct of a serious kind warranting summary dismissal.

[14] It seems to me that Mr Fox's complaint was a complaint about both matters which might have caused some confusion in his mind about the appropriate agency with which to pursue his grievances.  Nonetheless, it is well-established in this Commission that ignorance of a person's right to bring an unfair dismissal claim or ignorance of the statutory time limitations will not in and of itself provide a satisfactory explanation for the delay in making an application.

[15] I would also observe that contact with or a complaint to the Fair Work Ombudsman was not made by Mr Fox until 23 January 2015.  That was 11 days after the last date on which a valid application for an unfair dismissal remedy could have been made to this Commission.  In that respect, Mr Fox says that he was delayed in making the complaint to the Ombudsman because of the Christmas/New Year period.

[16] I would simply observe that on a generous view of the Christmas/New Year period, that period would have ended on or about 4th or 5th January 2015 and does not provide a satisfactory explanation for not taking his complaint to the Ombudsman or bringing it to this Commission until 23 January 2015. 

[17] On about 19 February 2015, Mr Fox withdrew his complaint with the Fair Work Ombudsman.  He subsequently completed an unfair dismissal remedy application form, which on his version of events he downloaded from the Internet.  I accept that he did so.  That application bears his signature and is dated 27 March 2015.  It is a matter of record that the application was not lodged until 22 April 2015, which is more than three weeks after the application was signed.

[18] When this matter was last before me on 5 June 2015, Mr Fox explained that he did not have any particular explanation for the delay between the signing of the application and its lodgement in this Commission, but that it might have taken him some time to find a facsimile machine.  As I pointed out to Mr Fox then, and I do so again, there were other alternatives available to him other than lodgement by facsimile.

[19] Mr Fox could have, for example, posted the application.  He could have attended personally at the Commission's offices to file the application.  It is not as though he lives outside of the metropolitan area and, indeed, his residential address is in Ascot Vale which is only a short distance from the CBD.  He could have lodged the application form electronically.  He plainly has the wherewithal to deal with such matters electronically, having initially downloaded the application form from the Commission's web site.

[20] Nevertheless, I adjourned the proceedings at that time to allow Mr Fox to produce any further material which might explain the delay.  In resuming today, Mr Fox explained that during that period he was busy preparing a résumé, liaising with Centrelink.  He was helping a friend who was ill with some tasks.  He was job hunting, he was studying, he had doctor's appointments and he was ill during the Easter period.

[21] I accept that those are all matters that occupied his time, nonetheless they are not matters that are out of the ordinary course of human experience.  Most people lead busy lives and have other matters to attend to. In and of itself, being occupied on other things does not explain the delay. Ultimately, Mr Fox needed to prioritise making an application; that he did not do so does not provide an explanation for the delay.

[22] Taking into account the various explanations given by Mr Fox for the delay, I do not accept any of them individually or collectively amount to an acceptable explanation for the delay in lodging the application until 22 April 2015.  That is, I do not accept there has been an acceptable or satisfactory explanation for the whole of the period of delay.  The absence of an acceptable explanation weighs against Mr Fox.

[23] Turning then to the question of whether Mr Fox became aware of the dismissal after it had taken effect, it is clear and not in dispute that Mr Fox became aware both of the dismissal and the reason for the dismissal on 22 December 2014. That is the day on which the dismissal took effect.  That he became aware of the dismissal on the day it took effect is a matter that weighs against him in this application.

[24] Turning then to the question of any action that Mr Fox took to dispute his dismissal, I note that Mr Fox communicated with his former employer early in the New Year on or about 7 January 2015, in which he raised issues of payment of wages and notice.  I also note that Mr Fox made a complaint to the Fair Work Ombudsman about his dismissal, that his employer was present during the mediation and that part of his complaint concerned the failure to pay notice.

[25] I am prepared to accept that inferentially at least, Mr Fox was complaining about the manner of his dismissal; that is, that he did not receive proper notice because dismissal on misconduct grounds summarily was not justified.  Consequently, I am prepared to accept that Mr Fox took at least some steps to dispute his dismissal before lodging his application.  In the circumstances, I am prepared to consider that that matter is a matter that weighs in his favour.

[26] As to the question of prejudice, the employer submitted that it will suffer prejudice defending the application because if an extension were granted it would take Mr Sawers away from his business.  Mr Sawers also submits that the lateness of the application is compounded by the fact that the applicant has also been late in filing his materials in relation to this application to extend time.

[27] He says that the business that he is running needs to move on and needs this matter to be resolved.  He also conceded properly that there is no prejudice in the form of absence of witnesses should the matter be referred to a hearing on the merits.  The matters that Mr Sawers identified are matters that often attend any respondent who needs to deal with an application for an unfair dismissal remedy, and as such is not really prejudicial to the respondent.

[28] The absence of prejudice other than the fact of having to deal with this application in and of itself does not mean that an application for an extension of time should be granted.  In the present circumstances, I regard the absence of prejudice as a neutral factor in assessing the question of exceptional circumstances.

[29] Turning then to the merits of the application, as I indicated earlier Mr Sawers is a small business employer and consequently the Small Business Fair Dismissal Code applies to him and relevantly to the dismissal of the applicant on 22 December 2014.

[30] The dismissal of the applicant occurred because of his non-attendance for work on 21 December 2014 and in a context where prior warnings about attendance have been issued.  The dismissal was immediate and consequently no notice or payment in lieu of notice was given or provided.

[31] The Small Business Fair Dismissal Code operates in a different way to the questions whether the dismissal was harsh, unjust or unreasonable and in shorthand terms an employer will have complied with the Small Business Fair Dismissal code in relation to dismissal because of misconduct, if the employer believes on reasonable grounds that the employee engaged in serious misconduct.

[32] In my view, having regard to the material presently before me, and bearing in mind that I am not in a position to finally determine the merits of the application, it seems to me most likely that the employer will be able to satisfy the Commission that he complied with the Small Business Fair Dismissal Code.   Consequently, my assessment of the merits of the case that Mr Fox seeks to advance is that it is very weak.

[33] As to the question of fairness as between Mr Fox and other persons in a similar position, neither party put any submissions on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case or where the Commission granted an extension of time or found exceptional circumstances on facts that are similar to the facts before me.  Consequently, that matter is a neutral consideration in the present circumstances.

[34] Statutory time limitations are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention to balance the right to bring an action against the right of another party to have some certainty.  The reason for time limitations to be imposed on the bringing of particular actions is that a party should be able to know that actions that they have taken will be disputed in a relatively short time frame, otherwise the dispute cannot later be agitated.

[35] It is for that reason that the Parliament has decided that 21 days is the appropriate balance to be struck and has allowed the Commission to extend that time if satisfied that there are exceptional circumstances.

[36] A person who seeks relief from an unfair dismissal needs to make that application within 21 days and as I have indicated, it will only be in exceptional circumstances the Commission will consider exercising its discretion to allow a further period.

[37] When I consider the matters set out in s. 394(3) and consider them in the context of the present case, whether I look at them individually or collectively, I am simply not satisfied that there are exceptional circumstances in this case warranting the consideration of the exercise of my discretion.  There is no satisfactory explanation for the whole of the period of the delay.  As I have indicated, the application has very weak merits.

[38] Mr Fox became aware on the day his dismissal took effect that he had been dismissed and the delay period was a significant period. Once Mr Fox finally got around to signing his application on 23 March 2015, there is no satisfactory explanation for the further delay of over three weeks until 22 April 2015.

[39] In the circumstances as I have indicated I am not satisfied that there are exceptional circumstances.  I do not propose to consider exercising my discretion.  The application is dismissed. An order to that effect has separately been issued in PR568332.

DEPUTY PRESIDENT

Appearances:

S. Fox on his own behalf.

R. Sawers for Ryan Sawers T/A Road Marking Services

Hearing details:

Melbourne.

2015

10 June

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