Taylor Meek v Baycorp Pty Ltd T/A Baycorp Pty Ltd

[2016] FWC 1291

[2016] FWC 1291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taylor Meek
v
Baycorp Pty Ltd T/A Baycorp Pty Ltd
(U2016/4416)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 MARCH 2016

Application for relief from unfair dismissal - extension of time.

[1] Mr Taylor Meek alleged that the termination of his employment by Baycorp Pty Ltd T/A Baycorp Pty Ltd (Baycorp) on 15 January 2016 was unfair.

[2] His unfair dismissal application lodged on 9 February 2016 was not made within 21 days of the date of the dismissal.

[3] The matter was listed for a telephone hearing/conference on 29 February 2016. On 25 February 2016, Mr Meek asked if he was ‘allowed to have representative speak on his behalf, so [he was] provided with a fair hearing.” On the next day Mr Meek was advised that s.596 of the Fair Work Act 2009 provided that parties who sought to be represented by a lawyer or paid agent required permission of the Commission. On 29 February 2016, Mr Meek sought further advice in relation to having his lawyer take over correspondence for him and asked that all matters be pushed back until after 20 May 2016 “as there is an ongoing legal matter which is vital to this case”. Mr Meek advised that he “cannot and will not have any direct correspondence with Baycorp, in any form whatsoever, until after the 20^th of May.” Mr Meek was advised that his lawyer would need to complete a form F53 and that I had determined that I would not vacate the conference/hearing scheduled for that afternoon. Mr Meek then advised that he would not attend because he “cannot and will not have any direct correspondence with Baycorp.”

[4] In a telephone conversation Mr Meek advised that he could not participate for legal reasons. He was advised that the matter would proceed and I would determine the issue on the material before me. Mr Meek ended the call before he could be asked to provide evidence to support his claim that he was unable for legal reasons to participate in the telephone conference. A message was left for him to provide a copy of any order which prevented him from speaking to the Respondent.

[5] Mr Meek did not participate in the telephone conference. At the commencement of the hearing I asked Baycorp if there were any orders or reason that they knew of why Mr Meek could not participate in the telephone conference. I was advised that Mr Meek faced charges arising from the incident that led to his dismissal.

[6] I determined that it was appropriate that the matter proceed. Mr Meek was on notice from 17 February 2016 of the telephone hearing/conference to determine if he should be granted an extension of time. He had filed material in support of that application on 15 February 2016. While Mr Meek may be facing criminal charges Mr Meek would have retained his right at this conference to refuse to answer questions related to those charges. Mr Meek did not advise Baycorp of his request for an adjournment and he did not provide adequate reasons to support an adjournment application. Simply saying he could not participate for legal reasons is insufficient. The Commission does not automatically grant an adjournment if a party is facing other legal proceedings. A party seeking an adjournment must make such an application in a timely fashion and provide supporting evidence. The other party is of course entitled to be heard in relation to any such request.

[7] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[8] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 where the Full Bench said:

“[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." [Endnotes not reproduced]

S.394(3)(a) The reason for the delay

[9] Mr Meek’s employment was terminated with immediate effect on 15 January 2016 following an investigation into allegations of serious misconduct at the workplace.

[10] Mr Meek argues that his employment was terminated while he was on sick leave and that he was not afforded an opportunity to properly respond to Baycorp’s allegations. Following his dismissal, Mr Meek said he was ill and only began to research his options and seek advice on 20 and 21 January 2016. Mr Meek provided a medical certificate for 12-19 January 2016. That medical certificate advised that he was unfit for work.

[11] Mr Meek says that he completed an application for unfair dismissal and posted it within 21 days of his termination date.

[12] Mr Meek’s application was signed and dated 1 February 2016 however, the registered mail envelope shows that it was not posted until 8 February 2016, and it was received by the Commission on 9 February 2016. Mr Meek’s states that although posting it within 21 days, he was aware that “the posting date and receipt date must have been closer than [he] would of liked and a delayed (sic) appears to have resulted in the application been received after the 21 days.” In fact Mr Meek did not post his application within 21 days of his dismissal. The 21 days expired on 5 February 2015. Had Mr Meek posted his application when he signed it he would have lodged his application in time. Mr Meek provided no explanation as to why he waited until after the 21 days had passed to lodge his application.

[13] Baycorp submitted that Mr Meek was aware that he could lodge an unfair dismissal application as he made references to this being an unfair dismissal both before and after the dismissal. In an email dated 13 January 2016, Mr Meek said if he was dismissed he would contact Fair Work Australia. Again on 19 January 2016, Mr Meek sent a detailed email to Baycorp and advised that his dismissal was an unfair dismissal under the Fair Work Act. Again on 25 January 2016, Mr Meek advised that he would be contacting and lodging a Fair Work claim.

[14] I am not satisfied that Mr Meek has provided a reasonable explanation for whole of the delay which weighs against a finding of exceptional circumstances.

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

[15] Mr Meek was notified of his dismissal on the day it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

S.394(3)(c) Any action taken by the person to dispute the dismissal

[16] Mr Meek provided written responses to Baycorp on 11, 12 and 13 January 2016. Additionally he provided further emails on 19 and 25 January 2016. In these emails he disputed the dismissal and the manner in which Baycorp terminated his employment while he was on sick leave.

[17] Mr Meek submits that following his dismissal he sought advice and “[spoke] to people”.

[18] Mr Meek clearly disputed the allegations made against him and put Baycorp on notice both before and after the dismissal that he would lodge an unfair dismissal claim. This weighs in favour of a finding that there are exceptional circumstances.

S.394(3)(d) Prejudice to the employer (including prejudice caused by the delay)

[19] Baycorp did not submit that there was any prejudice to it if an extension of time were granted. This weighs in favour of a finding of exceptional circumstances.

S.394(3)(e) The merits of the application

[20] Baycorp submitted that it had a valid reason for the termination of Mr Meek’s employment and that he was afforded procedural fairness. Whilst not on oath Mr Meek denied the allegations and claimed that it was unfair for him to be required to participate in Baycorp’s process whilst he was unwell. He said he was not given a reasonable time to respond and seek advice. Further he submitted that the evidence relied upon by Baycorp was tainted.

[21] I am not able to make a final assessment of the merits as there are factual disputes, between the parties that have not been tested. I consider this criterion to be neutral.

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

[22] Mr Meek submitted that it was unfair as normally people are not ill during the investigation. He also claims that it was illegal for him to be dismissed whilst on sick leave and this contravened the Fair Work Act. Mr Meek has misunderstood the provisions dealing with termination of employment whilst an employee is on sick leave. It is not illegal to terminate an employee whilst the employee is on sick leave. It is however a breach of the general protections provisions of the Act to dismiss an employee because the employee is on sick leave.

[23] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 2 considered this criterion and said “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other person is a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.3

[24] There was no submission that there were other persons in a similar position to Mr Meek. I find this criterion to be neutral.

Conclusion

[25] I am not satisfied that there are exceptional circumstances. While Mr Meek disputed vigorously his dismissal and there is no prejudice to Baycorp that is not sufficient to enable a finding of exceptional circumstances. I am not able to conclude on the material before me that the merits of this matter are such so as to outweigh the lack of reasonable explanation for the whole of the delay. Mr Meek’s application for an extension of time is dismissed and his unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance by Applicant.

P Catanach and J Purcell for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

February 29.

 1   [2011] FWAFB 975.

 2   [2015] FWC 8885

 3   Ibid at [29]

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