William Radosevich v Ipstar Australia Pty Ltd T/A Ipstar

[2015] FWC 5441

[2015] FWC 5441

FAIR WORK COMMISSION

DECISION

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

William Radosevich
v
IPSTAR Australia Pty Ltd T/A IPSTAR
(U2015/8213)

COMMISSIONER WILSON MELBOURNE, 17 AUGUST 2015

Application for Unfair Dismissal Remedy; extension of time for the making of application; application refused.

[1] This matter concerns an application made by William Radosevich alleging unfair dismissal against his former employer, IPSTAR Australia Pty Ltd. Mr Radosevich’s application to the Fair Work Commission was first received in the Fair Work Commission on 4 June 2015, initially without the application form itself.

[2] While a complete application was provided by Mr Radosevich on 5 June, I take the date of application for the purposes of this decision to be 4 June 2015. The application discloses that date upon which Mr Radosevich’s dismissal took effect is 17 April 2015, although he claims that the date on which he was notified of the dismissal was later, on 22 April 2015.

[3] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 27 days out of time.

[4] In this decision, I have considered whether an extension of time should be granted to Mr Radosevich for the making of his application, and for the reasons set out below, I am not satisfied that a further period should be thus allowed.

[5] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[6] The Respondent, IPSTAR, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[7] Those circumstances include that Mr Radosevich was dismissed following allegations of misconduct at IPSTAR’s Kalgoorlie premises on the night of Thursday 16 April and early hours of Friday, 17 April 2015. Mr Radosevich was employed from April 2011 to work at IPSTAR’s Kalgoorlie premises as a Field Support Engineer.

[8] The allegations that led to his dismissal are that at some time on the dates referred to, Mr Radosevich entered the premises, apparently between about 11:47 PM and 2:35 AM, local time. This was despite him being on a period of sick leave at the time. The allegation is that he then accessed a fuel reserve for a Telstra generator and filled his personal car with the fuel, spilling a significant amount on the ground.

[9] Later in the morning of 17 April 2015 a fuel leakage in the generator for which the fuel was being stored was noticed and reported to IPSTAR. The leakage was investigated and the fact that there was missing fuel was confirmed, including through the viewing of security camera footage.

[10] In the afternoon of 17 April there were two telephone calls between relevant managers of IPSTAR and Mr Radosevich.

[11] The first of these was at about 3:35 PM, Australian Eastern Time. According to IPSTAR, Mr Radosevich acknowledged that he had been on site at the time to pick up a trailer but did not admit to having removed the fuel. The company representatives ended the call and considered what had been said by Mr Radosevich and called him again later at about 6:38 PM Australian Eastern Time. Before the conversation went very far, Mr Radosevich ended the call.

[12] A text message was sent to Mr Radosevich a short time by the company’s HR Manager, Ms Promsit, which informed him that his employment was terminated. Mr Radosevich responded soon after receiving the text message, and in offensive terms.

[13] The company confirmed to Mr Radosevich its termination of his employment through a letter dated 17 April 2015 and which he apparently received on 22 April 2015.

[14] At the time of the particular events, Mr Radosevich was on personal leave, having a medical certificate which certified him unfit for duty for a period including 17 April 2015, which was the last day of the period. Evidence given to the Commission by Mr Radosevich confirms that he concedes he was on the premises at the time of the alleged misconduct. He says, however, that he was subject to medication which left him with little or no recollection of what occurred at the time. His evidence in this regard is consistent with documentary evidence provided by Mr Radosevich in the hearing.

[15] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Radosevich, the Applicant. No witnesses were called to present evidence on behalf of the Respondent.

[16] For the purposes of s.396 of the Fair Work Act 2009, Mr Radosevich is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances.

EXTENSION OF TIME

[17] The Act requires that, in deciding whether to grant an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account six criteria set out in s.394. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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.” 3

[18] In considering whether an extension of time should be granted to Mr Radosevich, I am required to consider all of the criteria in s.394, which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[19] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 4 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.6

[20] In relation to Mr Radosevich, the evidence indicates that he received the text message from Ms Promsit on 17 April 2015, as well as the phone call that preceded. His explanation for hanging up on Ms Promsit was that he was busy in a veterinary surgery with his dog.

[21] Certainly by 22 April 2015, however, when he received the letter of termination from IPSTAR, he knew that his employment had ended.

[22] Not long after having been dismissed, Mr Radosevich went to Perth to see his family. While in Perth he had severe car troubles which meant that he was unable to return to Kalgoorlie until about 14 May 2015. His evidence is that he had limited access to the internet while in Perth and so was not able to pursue any potential means of redress. However his evidence is also that while in Perth he read up on his rights and discussed with his sister how he might action them.

[23] After returning to Kalgoorlie, at some time after 14 May 2015, he contacted his union, the Communications Workers’ Union, who advised him generally about his rights including through an email on or about 28 May 2015, in which he was told that if he wanted to pursue his rights he needed to make further contact with the union.

[24] His evidence is also that because of his medical condition he had been on certain medication, which he had decided to come off almost in a “cold turkey” manner. His evidence in respect of the events on 16 and 17 April 2015 include that he had taken some very strong sleeping medication and as a consequence he was in a “dreamlike” state and that he does not remember much of what occurred.

[25] In order for Mr Radosevich's application to have been made in time, it would need to have been lodged in the Fair Work Commission no later than 8 May 2015.

[26] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Mr Radosevich to lodge his application. In all, that period was a total of 27 days.

[27] I find that Mr Radosevich’s explanation about being in Perth as a result of motor vehicle troubles, together with the impact of his medical condition, as being his explanation for the delay in making an application to the Commission.

[28] In the circumstances, I do not consider that an absence from home or the medical condition disclosed by Mr Radosevich to suffice as an acceptable reason to warrant a delay in making an application. The evidence he gave on both is very general and imprecise, both about the severity of the impact and the time period over which it occurred. In relation to his medical condition, the evidence is that the condition was not so serious as to require hospitalisation and that, to a degree, the Applicant was making decisions about self-medication both before and during the relevant period. That condition did not preclude him discussing his rights both with his sister and with his union. I draw from those discussions both that the Applicant wished to do something about his dismissal and that he knew he had some level of rights that could be exercised.

[29] As a result of these circumstances, and I do not consider an acceptable reason has been put forward for the delay by Mr Radosevich in making an unfair dismissal application. Accordingly, this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.

2. Whether the person first became aware of the dismissal after it had taken effect

[30] On the basis of the evidence before me, I am satisfied that Mr Radosevich first became aware of the termination of his employment on 17 April 2015.

[31] However, in making this finding, I note that the Applicant puts forward that because of his condition at the time and the fact that there was a letter of termination sent to him which he did not receive until 22 April 2015, he was terminated on that date, with the letter being an attempt by the Respondent to backdate the date of termination.

[32] After considering the evidence I do not agree that such is the case. The evidence discloses that Mr Radosevich was informed of his dismissal through a text message sent to him shortly after he terminated the aforementioned telephone call. Mr Radosevich’s evidence about the call is that at the time he was at a veterinary surgery and it was not convenient for him to take the call. This is quite a different scenario from one in which it might be said that the Applicant was unable, because of his medical condition, to receive the call. Such is not argued by Mr Radosevich.

[33] As a result I take him to have been both capable of receiving the call at the time and of receiving and understanding the text message sent shortly after the telephone call.

[34] This is therefore not a circumstance where Mr Radosevich only became aware of his termination at some point after the time that it took effect. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[35] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 7

[36] Mr Radosevich’s evidence about actions taken by him to dispute his dismissal are firstly that he spoke with his sister about the matter when he was in Perth and secondly he spoke with his union once he returned to Kalgoorlie. Other than these actions, I am satisfied that Mr Radosevich took no substantive action to dispute his dismissal until the making of his application to the Fair Work Commission on 4 June 2015.

4. Prejudice to the employer (including prejudice caused by the delay)

[37] The delay in the filing of the application is 27 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[38] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 8

[39] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[40] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[41] The allegation made by the Respondent is that Mr Radosevich stole fuel from its premises late at night, with the contention about the scale of the fuel loss being between about 60 litres (referred to in the initial incident report) and 500 litres (which is an amount referred to in a W.A. police report). Mr Radosevich denies that such was the case, although he concedes that he was at the premises at the time. His best evidence in this regard appears to be that he simply has no knowledge, because of his medical condition, as to whether he did fill up the vehicle with the fuel or not. The Respondent’s case against Mr Radosevich consists largely of the circumstantial evidence of the loss of the fuel, together with the known entry to the site of Mr Radosevich, corroborated by security camera footage that it says shows Mr Radosevich at the site between the relevant times. The video evidence has not been presented to the Commission so far.

[42] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 9

[43] On balance, I consider that the evidence is likely to resolve in favour of the Respondent and that upon a full hearing, a valid reason for termination is more likely to be found than not. Accordingly this criterion resolves in favour of the Respondent.

6. Fairness as between the person and other persons in a similar position

[44] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 10

[45] In applying Mr Radosevich’s facts to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that there had been some process of diligent inquiry or dispute by him not long after the dismissal. However, this was not the situation in his case.

[46] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in Mr Radosevich making his unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of his case but also to the criteria set out within s.394(3) of the Act.

[47] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Fair Work Act and will issue an order dismissing Mr Radosevich’s application as being out of time.

COMMISSIONER

Appearances:

Mr W Radosevich and Mr D Smithwick for the Applicant

Mr D Wilkinson (paid agent), Ms R Promsit and Mr P Boonyubol for the Respondent

Hearing details:

2015:

Melbourne

27 July (by telephone)

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]

 3   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 [16].

 9   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 10   Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP, 15 April 2010) [24]‒[29] (in passing).

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