Steven Spencer v UAM T/A Spotless

[2016] FWC 221

[2016] FWC 221

The attached document, replaces the document previously issued with the above code on 13 January 2016.

To correct error in endnote 10.

Basel Houchar

Associate to Commissioner Johns

Dated 18 January 2016

[2016] FWC 221

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Steven Spencer
v
UAM T/A Spotless
(U2015/13567)

COMMISSIONER JOHNS MELBOURNE, 13 JANUARY 2016

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] On 11 January 2016 the Fair Work Commission (Commission) issued an Order 1 refusing an application for an extension of time by Mr Steven Spencer (applicant) and dismissing his application for an unfair dismissal remedy.

[2] On 12 January 2016 the applicant requested reasons for that decision. These are those reasons.

[3] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 2 However, the Commission may allow a further period for lodgement in exceptional circumstances.3

[4] This decision is about whether the Commission should allow the applicant a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his

a) application was lodged on 14 October 2015
b) that being 34 days after his employment was terminated by UAM T/A Spotless (respondent) on 10 September 2015.

The jurisdictional objection

[5] On 20 October 2015, the Commission wrote to the applicant, outlining the matters the Commission was required to consider by the FW Act and asked him to provide a statement addressing those matters within 14 days.
[6] On 25 October 2015 and 1 December 2015 the applicant sent correspondence to the Commission providing reasons for the delay in lodgement. In short the applicant says that, although the termination took effect on 10 September 2015 he had been advised that the reason for the termination of his employment was due to a redundancy and he had no reason to believe this was not true until he saw his truck being used to make deliveries on 7 October 2015. He also noted that his health had deteriorated since the termination of his employment.
[7] On 10 November 2015 and 22 December 2015 the respondent filed its submissions in relation to the applicant’s application for an extension of time. In short, the respondent says the redundancy was genuine, there were an excess number of storeman/driver positions and the position of the applicant was made redundant.

Legislative scheme

[8] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[9] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 4 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  5

Consideration

Paragraph 394(3)(a) - The reason for the delay
[10] It is undisputable that there were 34 days between when the termination of the applicant’s employment took effect and when a proper application was filed with the Commission.
[11] The applicant says that he had been on sick leave from 28 September 2014; he underwent surgery to amputate two toes on 25 August 2015, following on from which he was attending outpatient services for ongoing treatment and was required to attend clinic appointments on a daily basis for six weeks following the surgery. He further says that he did not have cause to question whether the redundancy was genuine until 7 October 2015 when he observed the truck he had previously been employed to drive making deliveries and performing the same duties that he previously performed.
[12] Even in accepting the applicant’s version of events there were a further 7 days between when he says he saw the truck making deliveries and when he filed his application for an unfair dismissal remedy, there was no reasonable reason furnished for this delay in circumstances where it is necessary for the applicant to provide a credible reason for the whole of the period that the application was delayed. 6

[13] This factor weighed against granting the applicant an extension of time.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[14] The applicant was notified of the termination of his employment with effect from 10 September 2015 on 30 July 2015.
[15] This factor weighed against granting the applicant an extension of time.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[16] The applicant did not indicate that he took any action to dispute the dismissal aside from the filing of this application.

[17] The lack of action taken by the applicant weighed against granting him a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[18] The Respondent did not disclose that it would suffer any prejudice as a result of the delay in the filing of the application.

[19] Prejudice to the employer was a neutral consideration.
Paragraph 394(3)(e) - The merits of the application
[20] In the matter of Kornicki v Telstra-Network Technology Group 7the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 8

[21] The Commission, as presently constituted, notes that, for the purpose of determining whether to grant an extension of time to the applicant to file his application, it “should not embark on a detailed consideration of the substantive case.” 9

The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

The substantive factual contest between the applicant and the respondent is whether the termination of the applicant’s employment was the result of a genuine redundancy.

If the applicant can establish that the redundancy was not genuine then he may be able to establish that the termination of his employment was harsh, unjust or unreasonable and, consequently, unfair. In this regard the applicant’s case is not without merit or lacking in any substance.

Because the applicant’s case is not without merit or lacking in any substance this factor weighed in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[22] The Commission, as presently constituted is satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter.
[23] Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[24] For the reasons set out above, on balance, the Commission, as presently constituted, in the exercise of its discretion was not satisfied that there were exceptional circumstances warranting the applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

[25] The application for an extension of time was refused. The jurisdictional objection was upheld and the substantive application for an unfair dismissal remedy was dismissed.

[26] An Order to this effect was issued on 11 January 2016. 10

COMMISSIONER

 1   PR575860.

 2 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 3 Section 394(3) FW Act.

 4 [2011] 203 IR 1.

 5 Above note at [13].

 6   Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37]

 7   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 8   Ibid.

 9   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 10   PR575860.

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