The Applicant v The Respondent

[2013] FWC 2637

[2013] FWC 2637

FAIR WORK COMMISSION

DECISION

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

The Applicant
v
The Respondent
(U2013/5406)

COMMISSIONER SPENCER BRISBANE, 18 JUNE 2013

Application for unfair dismissal remedy — extension of time s.394(3) - late discovery of alleged differential treatment - not exceptional circumstances

Introduction

[1] This decision relates to an application made by the Applicant pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from The Respondent was harsh, unjust or unreasonable (the substantive matter).

[2] The Respondent raised a jurisdictional objection to the substantive matter, as the application was not filed within time. The Applicant now applies for an extension of time. The Respondent requested that the jurisdictional objection be determined prior to conciliation of the substantive matter.

[3] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objection. Material was filed by both parties. The Respondent sought to rely upon submissions filed on 24 April 2013 and upon the job description applicable to the Applicant’s former position filed on 26 April 2013. The Applicant sought to rely upon email correspondence filed on 16 April 2013.

[4] The matter was listed for a directions conference on 15 March 2013. The Applicant was self represented. The Respondent was represented by Nemann & Turnour Lawyers, with the Chief Executive Officer of the Respondent. The parties agreed to have the jurisdictional issue considered on the papers.

[5] This decision relates to the extension of time only.

[6] It is noted that whilst not all of the evidence and submissions are referred to, in this matter, I have considered all of such, in making the decision.

Background

[7] The Applicant commenced employment with the Respondent in November 2003. Immediately before his termination, the Applicant was employed as ‘House Manager’ of the Respondent’s residential programs. In this role, the Applicant was responsible for providing support to young people in out-of-home care, which included individual case management, the co-ordination of programs to support the needs of young people, and the management of staff.

[8] The Applicant was summarily dismissed from his employment on 3 July 2012 for alleged gross misconduct, in relation to conduct involving another of the Respondent’s employees to whom the Applicant held delegated authority (the other employee). The basis of the alleged gross misconduct as stated by the Respondent was twofold: that the Applicant used his position with the Respondent to gain access to an out-of-home care facility at a time when the other employee was on duty. The Applicant at the time was not on duty. The Applicant engaged in sexual activity with the other employee.

[9] The application was filed on 2 January 2013, 188 days after the dismissal took place and 174 days after the (then) 14 day statutory period for filing expired.

Relevant Provisions of the Legislation

[10] Section 394 of the Fair Work Act 2009, as it stood at the time the Applicant’s dismissal took effect. In particular, the relevant criteria for examining an extension of time application are in s.394(3) as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

[11] The relevant considerations in relation to the jurisdictional objection are set out above in s.394(3).

Summary of the Applicant’s Submissions and Evidence

[12] In regards to the extension of time issue, the Applicant made the following submissions in relation to s.394(3) of the Act. Given the Applicant was self represented, he was provided with an additional opportunity to address the relevant criteria of s.394(3).

[13] The Applicant lodged a number of documents in support of his submissions regarding the extension of time issue. Primarily his application was based on his allegation that there had been differential treatment between him and the other employee and that he only discovered this some time after the dismissal.

[14] The Applicant said he discovered that they had been treated differently with respect to their respective dismissals on 23 December 2012 and hence lodged his application on 2 January 2013. The Applicant argued that he learnt of the differential treatment from the other employee when he commenced living with her. He stated that he was not living with the other employee until 23 November 2012, which he claimed was, one month, before they discovered they had been treated differently in relation to the conduct which led to the termination of the Applicant’s employment.

[15] The Applicant provided a number of written references as evidence of where he was staying and with whom he was staying following the termination of his employment, before he began living with the other employee.

[16] The Applicant also made submissions in relation to the merits of his application and in addition argued the effects of being treated differently to the other employee, despite engaging in the same conduct.

[17] The Applicant’s main contention in terms of his delay in filing was that he did not know that he and the other employee had been treated differently in regards to the conduct, and the termination of his employment until he had a discussion with the other employee on 23 December 2012. Following this he lodged his application for an unfair dismissal remedy with the Commission. The Applicant’s supplementary submission is that his application has merit and that due to the difference in treatment he had not received his long service leave. That different treatment being that he was dismissed as opposed to being denied the ability to resign as he alleged he was originally offered and the other employee was allowed to do.

Summary of the Respondent’s Submissions and Evidence

[18] In regards to the extension of time issue, the Respondent made the following submissions in relation to s.394(3) of the Act.

Respondent’s submissions — s.394(3)(a) — reason for the delay

[19] The Respondent submitted that the Applicant’s reason for the delay is not a valid reason as the Applicant is “expected to act expeditiously in unfair dismissal proceedings”, 1 that the Applicant was aware of the facts concerning the cessation of his and the other employee’s employment, and that the parties were at no time precluded from discussing the matter between themselves.

[20] The Respondent further submitted that if the Commission were to find that the Applicant’s time for submitting the application could start from when he started cohabiting with the other employee, that it still took him 30 days to lodge the application, after this time.

[21] The Respondent added that there was nothing stopping the Applicant from lodging an unfair dismissal application within the 14 day time limit, that he had simply not been duly proactive in pursuing his claim, and, that in all the circumstances, a delay of 169 days is manifestly unreasonable.

Respondent’s submissions — s.394(3)(b) — whether the person first became aware of the dismissal after it had taken effect

[22] The Respondent submitted that the Applicant admitted on 28 June 2012, his conduct may well be the cause for his dismissal. The Respondent gave notice of the dismissal on 3 July 2012, which took effect immediately.

Respondent’s submissions — s.394(3)(c) — any action taken by the person to dispute the dismissal

[23] The Respondent submitted the Applicant demonstrated acceptance of his dismissal and undertook to enquire from the Respondent as to his long-service leave entitlements and whether those would be paid to him. The Applicant subsequently applied for and obtained new employment and indicated he did not want his job with the Respondent back.

[24] The Respondent also referred to an email sent by the Applicant on 1 April 2013 in which he stated: “what I did by having an affair and using the Respondent’s property to do it was nothing but wrong”. 2 The Respondent submitted that this demonstrated the Applicant’s full understanding of the nature of the breaches, of his employment contract, and the reason for the dismissal.

Respondent’s submissions — s.394(3)(d) — prejudice to the employer (including prejudice caused by the delay)

[25] The Respondent argued it will suffer unplanned expenses “economic and temporal” which would otherwise be directed to developing its welfare programs, if it were put to the cost of defending the substantive matter.

[26] The Respondent is concerned that if the substantive matter proceeds to decision and a public decision is issued, the reputation of the Respondent may be injured with reference to the Respondent’s and its managers’ fairness, integrity and competence. The Respondent is also concerned that acceptance of the Applicant’s substantive application so long out of time, may unintentionally affirm the Applicant’s conduct, before other managers and employees of the Respondent.

Respondent’s submissions — s.394(3)(e) — the merits of the application

[27] The Respondent submitted that in relation to whether the dismissal was harsh, unjust or unreasonable, that the Applicant’s dismissal was valid, due to the Applicant’s conduct, and that the Applicant was notified of the decision and had an opportunity to respond to any reasons, and that the Applicant’s dismissal was due to gross misconduct.

Respondent’s submissions — s.394(3)(f) — fairness as between the person and other persons in a similar position

[28] The Respondent submitted that whilst the Applicant and the other employee were engaged in similar work, their positions were substantially different. The Respondent argued that the Applicant was a frontline manager whilst the other employee was an employee youth worker. The Respondent referred to Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 drawing the conclusion that the applicant’s position in that case, was different to that, of other persons in a similar position as the applicant was on probation.

[29] The Respondent, referring to the facts at hand, stated that the other employee did not misuse her position or breach duties related to delegated authority in the manner that the Applicant had. The Respondent submitted that the correct comparison would be another manager in a similar position, not the other employee.

Respondent’s submissions — other matters

[30] The Respondent also raised ancillary issues alleging the Applicant was inappropriately using the unfair dismissals regime for the collateral purpose of pursuing purported unpaid long service leave entitlements, matters related to a Commission of Inquiry, and of “‘exposing’ a ‘culture of lying and bullying’ within the Respondent”. The Respondent denied each of these matters.

Consideration

[31] There is some disagreement as to when the Applicant’s employment was terminated by the Respondent. The Applicant claimed it was 28 June 2012, whereas the Respondent’s documents indicate the Applicant was dismissed on 3 July 2012. There is no need at present to determine on which date the Applicant’s employment was terminated — on either scenario the Applicant filed his application significantly out of time and this is not a matter where a few days is in issue.

[32] The application was filed on 2 January 2013.

[33] The application was filed between some 169 and 174 days out of time.

[34] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 3 In addressing the issue of “exceptional circumstances”, I adopt the approach taken by Whelan C in Parker v Department of Human Services4 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)5 as set out below:

[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” 6

[35] In addition the Full Bench in Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers, characterised exceptional circumstances as:

[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act. 7

[36] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. I will consider each of those criteria in turn.

s.394(3)(a) — reason for the delay

[37] The Applicant claimed that facts relevant to his lodging of the unfair dismissal application only came to light on 23 December 2012 during a conversation with the other employee. There was no evidence to suggest the Applicant was unaware or ignorant of the 14 day time frame for lodging an unfair dismissal application from when the dismissal took effect.

[38] During the 14 day period following the Applicant’s dismissal nothing prevented him from lodging an application for an unfair dismissal remedy. That the Applicant took no action for 169-174 days until by chance he discovered further information that may have been relevant to his application is not a circumstance which is unusual, special or uncommon. I am not satisfied the Applicant’s reason for delay contributes an exceptional circumstance. The Applicant could have made relevant enquiries of the other employee, at the time of dismissal; this information was available at the time.

[39] This factor does not weigh in favour of granting the extension of time.

s.394(3)(b) — whether the person first became aware of the dismissal after it had taken effect

[40] The Applicant made no submissions in this regard. The Respondent reiterated a very brief chronology of the Applicant’s dismissal.

[41] On the evidence before the Commission it is clear that by 28 June 2012 the Applicant was aware his conduct may result in dismissal, and that he was notified by the Respondent on 3 July 2012 of the termination of his employment.

[42] This factor does not weigh in favour of granting the extension of time.

s.394(3)(c) — any action taken by the person to dispute the dismissal

[43] The Applicant made no submissions in this regard.

[44] On the evidence before the Commission it appears that the Applicant’s first action taken to dispute the dismissal was on 2 January 2013 when he lodged his application for an unfair dismissal remedy, some 169-174 days out of time. The Applicant’s conduct indicates he accepted the dismissal and was cognisant of the reasons for the dismissal at the time his employment was terminated.

[45] This factor does not weigh in favour of granting the extension of time. However it is noted that an Applicant in proceedings of this nature is required to actively pursue their response to the dismissal and the lodgement of an application.

s.394(3)(d) — prejudice to the employer (including prejudice caused by the delay)

[46] Prejudice in this context refers to the passing of time which leads to the Respondent becoming deprived of access to the evidence necessary to defend the case, such as the evidence of a key witness, 8 or causing further disruption to the Respondent’s employment arrangements,

[47] The Applicant made no submissions in this regard. The Respondent made a number of arguments regarding the impact of responding to an unfair dismissal matter would have on it in terms of its fiscal position and its reputation. The Respondent did not indicate whether they had been deprived of the necessary evidence to defend the case.

[48] This factor is neutral in weighing whether to grant the extension of time.

s.394(3)(e) — the merits of the application

[49] The Applicant made some submissions in regard to the merits of his application, which focused on the different treatment between himself and the other employee, rather than on disputing the basis for the dismissal or providing submissions in relation to s.387 of the Act.

[50] The Respondent submitted that the Applicant could not meet any of the elements of an unfair dismissal and that the dismissal was not harsh, unjust or unreasonable. The Respondent also referred to a number of admissions the Applicant had made regarding his dismissal and submitted that the Applicant fully understood the reasons for his dismissal.

[51] If the Respondent is able to bring evidence to support the reason for the dismissal, as set out in the consideration of the merits of the application, this factor weighs in favour of the Respondent as to the extension of time consideration.

s.394(3)(f) — fairness as between the person and other persons in a similar position

[52] This provision has previously been considered by O’Callaghan SDP in Mrs P v The Employer, wherein his Honour considered s.394(3)(f) on two bases: firstly, consideration of fairness issues on the basis of other employees dismissed by the Employer at about that time; and, the relatively small amount of decisions regarding this legislative provision.

[53] The Applicant’s position is that both he and the other employee were dismissed for engaging in the same conduct, but that the outcomes were different.

[54] The assessment of this element would require the examination of sworn evidence.

Decision

[55] I have considered all of the circumstances of the matter at hand and the submissions against the relevant case authorities on exceptional circumstances. The Applicant has not demonstrated that there are exceptional circumstances, to justify the exercise of the discretion to extend time, pursuant to s.394(2)(b) of the Act. Accordingly the application for an extension of time is refused. The application has been filed outside of the time required by s.394(2)(a) of the Act.

[56] Therefore application pursuant to s.394 of the Act is dismissed.

[57] I Order accordingly.

COMMISSIONER

 1   Sharkey v TRUEnergy T/A TRUEnergy Pty Ltd [2012] FWA 6298.

 2   Email of the Applicant dated 1 April 2013.

 3   Fair Work Act 2009 (Cth) s.394(3).

 4  Wheelan C, [2009] FWA 1638, [30] and [31].

 5   Lawler VP, [2010] FWA 1394.

 6   In this regard Wheelan C referred to Mann v Minister for Immigration and Citizenship [2009] FCAFC 150.

 7   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 8   Construction, Forestry, Mining and Energy Union v John Holland Group Pty Ltd and Others [2012] FWA 7711; Ms Jessie Mitchell v HWE Mining Pty Ltd [2012] FWA 2721.

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