Wesley Younger v SRCM Pty Ltd

[2016] FWC 3677

[2016] FWC 3677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wesley Younger
v
SRCM Pty Ltd
(U2016/6871)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr Wesley Younger alleged that the termination of his employment by SRCM Pty Ltd was unfair.

[2] Given his dismissal took effect 1 March 2016 his unfair dismissal application lodged on 12 May 2016 was not made within 21 days of the date of the dismissal.

[3] 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.

[4] 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]

(a) the reason for the delay;

[5] Mr Younger contacted the Commission on 1 March 2016 and was sent an unfair dismissal application form. On 4 March 2016, he spoke to Ms Jessica Arkles from Employee Assist.

[6] Ms Arkles send Mr Younger an email which advised that by providing responses to the questions in the email he was deemed to have accepted Employee Assist’s terms and conditions. On 4 March 2016, Mr Younger answered the questions and forwarded them to Ms Arkles. Ms Arkles replied to Mr Younger and advised him that she would “make [his] application to the Fair Work Commission.” She told him that she would be in touch once they had a hearing date which would be in approximately four weeks. He was told there was nothing he needed to do until she contacted them. Having not heard from Ms Arkles, Mr Younger contacted her on 5 April 2016 and he was told that the application had been lodged. This was confirmed in an email sent by Ms Arkles.

[7] As he still had not heard anything, he contacted the Fair Work Commission to see if his application had been lodged and he was told it had not been lodged. He contacted Ms Arkles again and she told him it had been lodged. Mr Younger’s telephone records show that he repeatedly rang Employee Assist and left messages for them. It was his evidence that Ms Arkles did not return his call.

[8] On 9 May 2016 Mr Younger advised Ms Arkles that he had again inquired about his application and found out it had not been lodged. He again asked Ms Arkles to tell him what was happening. Mr Younger then lodged his application on 12 May 2016.

[9] It was submitted on Mr Younger’s behalf that he had “perfect trust” in Employee Assist and the reason for the delay was because they did not file the application. It was submitted that Mr Younger is not familiar with the internet and that was why he did not lodge the application himself. Even after the Commission told him on the first occasion that his application had not been lodged, he still believed Ms Arkles when she told him that she had lodged it.

[10] During this time Mr Younger had some health issues but there was no evidence that these prevented him from lodging his application.

[11] If you Google ‘unfair dismissal’, the first advertisement is for Employee Assist. Its website advises that:

“If you’re looking for professional help with the technical complexities of an unfair dismissal claim, the first thing to know is that you’ve found the right place. We are one of the best and we’re here to help you.
With Employee Assist by your side it’s no win, no fee… no catches or small print!”

[12] I accept that Mr Younger was entitled to rely upon his representative to lodge his application. Further he did not sit on his hands but actively followed up with his advisors and the Commission to find out what was happening with his claim. It is unfortunate that when advised by the Commission that it was not lodged he again placed his trust in his representative.

[13] It was submitted that Mr Younger could not be expected to know that Employee Assist had been identified in a number of Commission decisions as not acting in its clients’ interests. He was not to know that he should not rely upon them.

[14] I am satisfied that Mr Younger had a reasonable explanation for the delay in lodging his application. Employee Assist not only failed to lodge the application within 21 days, it misled Mr Younger when it assured him it had been lodged. This weighs in favour of a finding that there are exceptional circumstances.

(b) whether the person first became aware of the dismissal after it had taken effect;

[15] Mr Younger was aware of this dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) any action taken by the person to dispute the dismissal;

[16] Mr Younger did not take any steps to dispute the dismissal other than asking why he had been dismissed. This weighs against a finding that there are exceptional circumstances.

(d) prejudice to the employer (including prejudice caused by the delay);

[17] There was no evidence or any submissions that there would be any prejudice to SRCM. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[18] In the matter of Kornicki v Telstra-Network Technology Group 2 the 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 lodgement. 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."  3

[19] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 4 

[20] Mr Younger gave evidence that he was dismissed without notice and without warning. SRCM said he was dismissed for inappropriate behavior and that Mr Younger had been warned on previous occasions about the way he spoke to people.

[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. However it cannot be said that Mr Younger’s claim is without merit. This weighs in favour of a finding that there are exceptional circumstances.

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

[22] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 5  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 persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.6”

[23] There were no submissions that there were any persons in a similar position. I consider this criterion to be a neutral consideration.

Conclusion

[24] I am satisfied that there are exceptional circumstances as I have found that Mr Younger had a reasonable explanation for the delay in lodging his application and Mr Younger’s claim is not unanswerable. Having found that there are exceptional circumstances, I will exercise my discretion and extend the time for Mr Younger’s claim to be lodged until 12 May 2016. The application will now be referred to conciliation.

DEPUTY PRESIDENT

Appearances:

W. Younger on his own behalf.

R. Williams for the Respondent.

Hearing details:

2016.

Melbourne and Perth, by telephone link:

2 June.

 1   [2011] FWAFB 975.

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

 3   Ibid.

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

 5   [2015] FWC 8885.

 6 Ibid at [29].

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