Stephen Hickson v Coates Hire

[2015] FWC 3311

[2015] FWC 3311

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Hickson
v
Coates Hire
(U2015/1228)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 MAY 2015

Application for relief from unfair dismissal

[1] This is an edited version of a decision delivered in transcript on 8 May 2015. Mr Stephen Hickson commenced employment with Coates Hire Operations Pty Ltd at its transport hub at 120 South Gippsland Highway, at Dandenong, Victoria. On or about 20 December 2004 he was employed in the position of a yard person.

[2] Mr Hickson’s employment was terminated by Coates Hire with effect from 13 February 2015. The reason given by Coates Hire for the decision to terminate Mr Hickson’s employment is contained in a letter issued to him dated 3 February 2015, a copy which is attached to the exhibit R1. That reason is that based on the material available to the employer at that date, it was of the view that Mr Hickson could not perform the inherent requirements of his pre-injury position as a yard person. It advised him that his employment would end on 13 February 2015 and attached an estimated termination payment to that letter.

[3] Mr Hickson has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 18 March 2015. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. Based on a termination date taking effect on 13 February 2015, the application for a remedy should have been lodged by no later than 6 March 2015. It is therefore outside of the time prescribed. The application was made in effect, 12 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[4] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[5] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are the reason for the delay, whether Mr Hickson first became aware of the dismissal after the date it took effect, any action taken by Mr Hickson to dispute his dismissal, prejudice to the employer including prejudice caused by the delay, the merits of the application and fairness as between Mr Hickson and other persons in a similar position.

[6] It is clear from the structure of section 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. 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 section 394(3) that there are exceptional circumstances.

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

Reason for the delay

[8] Firstly, as to the reason for the delay. In Mr Hickson’s unfair dismissal remedy application, in answer to the question whether the application was made outside or within 21 days of the dismissal taking effect, Mr Hickson provided the following reason as to why the application was lodged outside of the time prescribed by the Act. Mr Hickson’s answer as contained in the application is: “The final payment was not paid to me until 26 February 2015 and I wanted to see the end payment processed was”. I take this to mean that he was concerned that he would not be paid correctly and is as apparent from the evidence today, he wanted to see whether he would be paid a redundancy payment instead of his normal termination pay.

[9] In evidence given today, Mr Hickson said that the reason for the delay was that he was not aware that a time limitation applied to the lodgement of an unfair dismissal remedy application. His evidence was also that he began, with the assistance of his wife, to make enquiries about whether he could bring an unfair dismissal application sometime during the weekend before he filed his application on 18 March 2015, that is, he began to make enquiries on or about 14 or 15 March 2015.

[10] It is well established in this tribunal that when considering whether or not an explanation for the delay, or the reason for the delay is a credible or acceptable explanation, that ignorance of the time limit within which an application may be made will not constitute, by itself, an acceptable explanation for the delay. On the evidence available to me, such queries as were outstanding in relation to Mr Hickson’s final payment were answered on 26 February 2015 when Mr Hickson received his final pay. At that point, Mr Hickson still had more than one week within which to file his application within time. The evidence is that no step was taken by him to make enquiries during that week. The evidence is that he did not act during that week because he was unaware of the statutory time limitation.

[11] As I have indicated, there must be an acceptable explanation for the delay and Mr Hickson needs to provide credible reasons explaining the whole of the period of the delay. Mr Hickson has indicated his principal reason for the delay was his ignorance of the time frame. As I have explained the authorities in this Commission have consistently held that ignorance of the delay will not constitute an acceptable explanation for the delay. Moreover, it is clear that he became aware of the time limitation during the weekend of 14 and 15 March 2015. There is no explanation for why the Applicant waited a further three days before lodging his application in the Commission.

[12] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the whole of the period of the delay and that is a matter that weighs against the Applicant in this case.

Whether Mr Hickson first became aware of the dismissal after the date it took effect

[13] Turning then to the question of whether Mr Hickson first became aware of the dismissal after it took effect, the evidence is that Mr Hickson was advised on 3 February 2015 that his employment would end on 13 February 2015. He became aware of his dismissal before the dismissal took effect. The letter which is marked Exhibit R1 is clear and unambiguous and I am satisfied that Mr Hickson was well aware on 3 February 2015 that he would be dismissed from his employment with effect on 13 February 2015.

[14] In any event, were there to be any doubt, the evidence is clear that on 13 February 2015, Mr Hickson was aware that his dismissal took effect that day. In the circumstances, that is a matter that weighs against the Applicant.

Action taken by Mr Hickson to dispute his dismissal

[15] Turning next to the question of the action taken by Mr Hickson to dispute his dismissal. The evidence was that he disputed the reason for his impending dismissal before the dismissal took effect. This occurred during a meeting on 3 February 2015. I accept that that is the case. The evidence also establishes that after being dismissed, other than making this application, the Applicant did not take any other step to dispute his dismissal. In the circumstances I regard this consideration as weighing against the Applicant.

Prejudice

[16] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The Respondent submitted in its written material that it had employed a further person to replace Mr Hickson and the role that he was performing at the time of his dismissal. It is clear that the employment of the new employee commenced on 23 March 2015, that is a date after the date on which Mr Hickson lodged this application, and in the circumstances, I am not satisfied that the employer will suffer any prejudice if I were to grant the extension of time, other than the usual prejudice associated with having to defend applications of this kind. I regard this consideration as neutral in the instant case.

Merits of the application

[17] As to the merits of the application, the employer says that it dismissed the Applicant because on the basis of the material available to it Mr Hickson could not perform the inherent requirements of his pre-injury position as a yard person. The evidence about the duties of a yard person, and in particular the question of the performance of forklift duties, is in dispute.

[18] The evidence of the Respondent in this proceeding, is that forklift duties can comprise up to 30 per cent of the duties of a yard person. Mr Hickson’s evidence is that he performed forklift duties for a period of approximately four or five occasions on each shift and the average time spent was five to ten minutes on those duties. Mr Hickson maintains that he could have performed all of his other duties satisfactorily and that the forklift duties were only a small portion of his overall duties.

[19] In cases such as this, where the substantial merits of an application are not properly enquired into, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing Mr Hickson’s case at its most favourable. It seems to me at least arguable, that Mr Hickson will be able to establish that whilst he was unable to perform the full range of his duties, namely the forklift driving duties, those duties constituted a small portion only of his overall duties and consequently, that he was otherwise able to perform the inherent requirements of his position.

[20] It seems to me therefore, that his claim, and this is an assessment on a preliminary basis only, is not without merit. That is not to suggest that it will succeed, but I am satisfied that there is at least some merit which would give Mr Hickson justifiable reason to pursue his unfair dismissal claim. The merit of the application is a factor that weighs in Mr Hickson’s favour.

Fairness as between Mr Hickson and other persons in a similar position

[21] As to fairness between Mr Hickson and other persons in a similar position, for present purposes I am prepared to assign a neutral weighting to that consideration. Mr Hickson did not address me on that question and the Respondent, in its submission says that no relevant weighting should be given to the matter, so I am prepared to accept that that is the case.

Conclusion

[22] Statutory time limits that 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 that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[23] A person who seeks relief from an unfair dismissal, must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[24] As I have indicated, I do not regard Mr Hickson’s application as being without merit and that is certainly a factor that I have taken into account. But it is also clear that there is no acceptable or credible reason for the delay. The reason articulated by Mr Hickson is one that has generally not been accepted by the Commission as an acceptable explanation and I see no reason why in this case I should take a contrary view. Mr Hickson was well aware that his dismissal would take place in advance of the date of effect of his dismissal. There was ample opportunity for Mr Hickson to pursue his rights or at least to obtain some advice about his rights. Even on the explanation given in the application, a significant period of time elapsed between that date, that is 26 February 2015, and the date on which he ultimately made his application.

[25] As I indicated earlier, there was no explanation for the delay beyond 15 March 2015. The Applicant is required to establish an acceptable explanation for the whole of the delay. In addition, as I have indicated, he became aware of his dismissal well in advance. He did not take any particular action to dispute his dismissal beyond filing or lodging this application and, on balance, those factors outweigh such merit as exists in Mr Hickson’s application.

[26] In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by Mr Hickson is dismissed. An order to that effect has separately been issued in PR567537.

DEPUTY PRESIDENT

Appearances:

S. Hickson for the Applicant

M. Sandon for Coates Hire

Hearing details:

Melbourne.

2015.

8 May

Final written submissions:

Applicant, 22 April 2015

Coates Hire, 6 May 2015

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