Tyson Roberts v Westim Pty Ltd T/A WA Timber Sales
[2018] FWC 4448
•30 JULY 2018
| [2018] FWC 4448 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tyson Roberts
v
Westim Pty Ltd T/A WA Timber Sales
(U2018/2094)
COMMISSIONER CRIBB | MELBOURNE, 30 JULY 2018 |
Application for an unfair dismissal remedy - jurisdiction - extension of time.
[1] Mr Tyson Roberts (the Applicant) has made an application for an unfair dismissal remedy in relation to his dismissal by Westim Pty Ltd T/A WA Timber Sales (the Respondent, the company) on 31 January 2018. The application was made under section 394 of the Fair Work Act 2009 (the Act). Mr Roberts filed his application on 28 February 2018.
[2] The Respondent made a jurisdictional objection on 27 March 2018 on the grounds that the application was lodged outside of the prescribed 21 day period.
[3] A determinative conference was held on Friday, 27 April 2018, with Mr Roberts appearing via video conference from Perth and the company appearing by telephone. Mr Roberts represented himself and Mr Domenic Biagioni and Mr Lesley Bidgood attended on behalf of the company.
[4] At the conclusion of the determinative conference, it was agreed that Mr Roberts would try again to make contact with Ms Nguyen and get from Ms Nguyen proof that she had emailed Mr Roberts’ application to the Fair Work Commission (FWC, Commission) on 20 February 2018. Mr Roberts was given until 11 May 2018 to obtain this further information. The Commission undertook to contact the Commission’s IT Department to try and track down the email’s whereabouts in the event that Mr Roberts was able to provide a copy of the email that Ms Nguyen had sent to the FWC.
[5] When nothing further was received regarding when Ms Nguyen had emailed Mr Roberts’ application, the Commission independently requested the IT Department to investigate. The IT Department was asked to ascertain whether an email had been received by Perth Registry, on either 20 February 2018 or 21 February 2018, from anyone called Tiffaniee or Nguyen with anything relating to Tyson Roberts. IT reported that there was no record found that met any of these parameters.
[6] Therefore, in accordance with usual Commission practice, the Commission can only make a decision based on the material currently before it.
Legislative framework
[7] Section 394 of the Act sets out the requirements for making an application and also the basis on which an extension of time may be granted. Section 394(3) is as follows:
“(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.”
[8] I will deal with each of the factors in turn.
Section 394(3)(a) - reason for the delay
[9] It was Mr Roberts’ evidence that:
• After he was dismissed, he was speaking to his friend, Ms Nguyen about it. Ms Nguyen offered to help him quickly put together an application as the 21 day time limit was approaching.
• Ms Nguyen helped him complete the form which was ready by 16 February 2018. 1 Mr Roberts described it as a rushed application.2
• On 20 February 2018, Ms Nguyen emailed him, attaching the application, and told him he needed to sign the application “or else its not eligible….”. 3 He signed the Form on 20 February 2018 and took a photo of his signature and sent it back to Ms Nguyen for her to send in.4
• He contacted the FWC on 27 February 2018 and asked about his application as he hadn’t heard anything back from the Commission. He was advised that his application had not been received. 5
• He emailed Ms Nguyen on 27 February 2018 telling Ms Nguyen that he had been told that they (FWC) have said that they didn’t receive his application. He also said that he “did sign it”. 6
• A friend’s mother helped him re-do the application as the first one was a bit rushed. 7 The application before the Commission is the revised application.8
• He spoke to Ms Nguyen who said that she had mailed it and emailed it and that it mustn’t have got through. 9
• Making an application was left too late because the company did not have a meeting with him and he didn’t want to make an application. This was because he knew it would be difficult as he was young and didn’t really know what he was doing. 10
[10] The evidence shows the following chronology:
• A friend of Mr Roberts, Ms Nguyen, helped Mr Roberts prepare an unfair dismissal application. The application was rushed.
• The application was finalised on 16 February 2018.
• On 20 February 2018, Ms Nguyen contacted Mr Roberts and told him that he needed to sign the application “or else its not eligible”.
• Mr Roberts signed the application and photographed his signature and sent it to Ms Nguyen so she could add it to the application.
• It was Mr Roberts’ understanding that, on 21 February 2018, Ms Nguyen emailed the application to the Commission and to Mr Roberts’ personal email.
• On 27 February 2018, Mr Roberts telephoned the FWC about his application as he had not received a response following his application.
• Mr Roberts contacted Ms Nguyen the same day and Ms Nguyen told him that she had posted the application and also emailed it to the FWC on 21 February 2018.
• With the help of a friend’s mother, Mr Roberts filed a further application in the FWC on 28 February 2018. The application was also dated 16 February 2018 (the date of the original application) but was a more thorough and less rushed document.
[11] It was clear during the determinative conference that Mr Roberts felt very let down by Ms Nguyen because he had been unable to make subsequent contact with her to get proof that she had sent his application in via email.
Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[12] It was Mr Roberts’ evidence that he knew he was dismissed on 31 January 2018 but he did not know the reason for his dismissal.
[13] It was common ground that Mr Roberts was dismissed on 31 January 2018 and that Mr Roberts knew at that time that he was dismissed. Therefore, I find that Mr Roberts was aware of his dismissal at the time it took effect. This factor weighs against the granting of an extension of time.
Section 394(3)(c) - any action taken to dispute the dismissal
[14] On the evidence before me, the action taken by Mr Roberts to dispute his dismissal was to lodge an unfair dismissal application. This factor weighs slightly against the granting of an extension of time.
Section 394(3)(d) - prejudice to the employer
[15] From the discussion that occurred between the parties during the determinative conference, it appears unlikely that the employer has been prejudiced by the delay. Those present on behalf of the company were clear in their recollections about what had occurred during Mr Roberts’ employment and his dismissal.
[16] As the delay was for a short period of time and there did not seem to have been a loss of relevant corporate memory during that time, I have not been persuaded that there was prejudice to the employer by the late lodgement of the application. This factor weighs in favour of granting an extension of time.
Section 394(3)(e) - merits of the application
[17] The Applicant filed an outline of argument in relation to the extension of time application. The employer did not file any written submissions. There was a great deal of discussion about what had happened during Mr Roberts’ employment and at the time of his dismissal. It was apparent that the parties had very different views about the same set of events.
[18] As the determinative conference was in relation to the extension of time application and is not to be a mini arbitration, the Commission is unable to find other than that the parties had conflicting views in relation to the merits of the application. Therefore, this is a neutral factor in considering whether or not to grant an extension of time.
Section 394(3)(f) - fairness as between the person and other persons in a similar position
[19] On the material before me, this factor is not relevant in this matter. This is because there were no other employees in a similar position at the time of Mr Roberts’ dismissal.
Section 394(3) - are there exceptional circumstances?
[20] Under section 394(3) of the Act, the FWC can extend the 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 the matters set out in section 394(3)(a) - (f). Only if the Commission is satisfied that there are exceptional circumstances can the Commission then exercise its discretion to decide to grant an extension of time.
[21] The Full Bench in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis) 11 made the observation that the test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.12
[22] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 13(Nulty) 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.” 14
[23] This meaning was confirmed by the Full Bench in Stogiannidis, who also stated that, in assessing ‘exceptional circumstances’, the approach is as follows:
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.” 15
[24] I respectfully adopt the approach by the Full Bench in Nulty, as confirmed in Stogiannidis, in relation to the meaning of exceptional circumstances and the observations of the Full Bench in Stogiannidis regarding the approach to the assessment of whether exceptional circumstances exist.
[25] Having considered all of the matters in section 394(3)(a) - (f) of the Act, I am not satisfied, on balance, that there are exceptional circumstances as described in Nulty. In the balancing up of all of the factors, those in favour of the granting an extension of time (no prejudice to the employer) were outweighed by the factors against the granting of an extension of time. These were the reason for the delay, that Mr Roberts was aware of his dismissal at the time it occurred and the action Mr Roberts took to dispute his dismissal (weighed slightly against). It is noted that, due to a conflict between the parties about the facts of the matter, the merits of the application was a neutral factor.
[26] I therefore decline to exercise my discretion to grant an extension of time. Accordingly, Mr Roberts’s unfair dismissal application is dismissed. An order 16 to this effect will be issued separately.
Appearances:
T Roberts on his own behalf
D Biagioni and L Bidgood from the Respondent
Hearing details:
2018.
Melbourne and Perth (determinative conference via video and telephone):
April 27.
Printed by authority of the Commonwealth Government Printer
<PR609507>
1 Transcript PN 121
2 Ibid PN 113 and 129
3 Documents provided by the Applicant to Perth Registry on 27 April 2018
4 Ibid and Transcript PN 121 - 127
5 Ibid PN 113 and 154 and 281
6 Documents provided by the Applicant to Perth Registry on 27 April 2018
7 Transcript PN 129 - 132, 154 and 281
8 Ibid PN 147 - 148
9 Ibid PN 138 and 274 - 276
10 Ibid PN 156 and 179
11 [2018] FWCFB 901
12 Ibid at [14]
13 [2011] FWAFB 975
14 Ibid at [13]
15 [2018] FWCFB 901 at [38]
16 PR609508
0
1
0