Mundell v Avon [2013] FWC 1368

s.394 - Application for unfair dismissal remedy

[1] On 28 November 2012 Mr D Mundell (the applicant) lodged, pursuant to section 394 of the Fair Work Act 2009 (the Act), an application for a remedy in respect of the alleged termination of his employment by Avon Products Pty Ltd (the respondent).

[2] On 19 December 2012 the respondent lodged a response and notice of objection to the claim. The respondent alleges that the applicant resigned his employment on 9 November 2012 and consequently there was no dismissal. The respondent also alleges that the application was not made within 14 days as then required by section 394(2) of the Act.

[3] Directions were issued for both parties to provide an outline of submissions, witness statements and documentary material in relation to each of the grounds of objection. Material was provided by both parties and the matter was listed to be heard by me as part of the jurisdictional roster at 9am on 22 February 2013.

[4] On 22 February 2013 my Associate received an email from the applicant which had been transmitted at 7.18pm on 21 February 2013. In the email the applicant stated that he was unable to attend the hearing as he had obtained work. He also stated that he did not believe that he would be provided with a fair hearing. Several attempts were made to contact the applicant before the commencement of the hearing but with no success.

[5] The respondent and its representative, Ms Haynes from Australian Business Lawyers & Advisers Pty Limited, attended the hearing. In view of the applicant's absence I decided that the fairest and best way to proceed was to deal with the extension of time issue first and to do so on the basis of the parties' written material.

[6] On 22 February 2013 I wrote to the applicant to inform him of the proposed process and requested that he provide any additional comments or submissions about the extension of time issue by 5pm on 28 February 2013. As at the date of this decision I have received nothing further from the applicant. Consequently this decision is based on the applicant's submissions as set out in his email of 21 January 2013 which in essence repeats the material in his email of 19 December 2012, as well as the respondent's submissions of 1 February 2013.

[7] It should be noted that the applicant also provided written submissions dated 13 February 2013, however, these addressed the question of whether there was a dismissal, not the extension of time issue.

[8] The applicant commenced employment with the respondent on 21 June 2010. On 9 November 2012 the applicant provided the respondent with a letter in which he stated that he was terminating his contract effective immediately. The application for relief notes 9 November 2012 as both the date of the dismissal and also the date on which it took effect.

[9] The applicant lodged his claim for relief on 28 November 2011. This is five days after the expiration of the 14 day time limit which applied at the relevant time.

[10] The applicant submits that he was not aware of Fair Work Australia (FWA) or its existence and therefore he was not aware of his rights. The applicant notes that he was only five days late in bringing his claim.

[11] The applicant submits that he had been attempting to obtain his logbooks and an Employment Separation Certificate from the respondent and was more concerned at the time about that. He says that neither he nor Centrelink have received any such Certificate.

[12] The applicant also submits that the delay was due to the fact that the respondent had not made him, and other employees, aware of their legal rights concerning bullying. He states that the respondent had not mentioned any government departments including FWA and Workcover.

[13] The applicant submits that he had no choice but to resign. He had exhausted all avenues to resolve problems relating to his unfair treatment by other staff and managers. The applicant submits that he would still be working for the respondent if his problems had been resolved in a fair and equal manner. He also submits that he was informed that he would be given counselling or would be dismissed if he made another complaint.

[14] The respondent submits that the applicant has failed to discharge his burden of proof to establish that there are exceptional circumstances such that an extension of time should be granted.

[15] The respondent submits that the applicant's ignorance of the law does not amount to a valid explanation for the delay: Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 @ [14] (Nulty).

[16] The respondent submits that the length of delay is significant and furthermore, that the length is not in itself a reason for the delay. The respondent submits that the issue of the applicant obtaining logbooks and an Employment Separation Certificate is not a proper explanation for the delay. The respondent says that, in any event, it provided the Certificate prior to the lodgement of this claim.

[17] The respondent submits that the applicant took no action to contest what he alleges is his dismissal prior to making this claim. It submits that it will be prejudiced if time is extended as it will have to expend significant monies to defend the matter.

[18] The respondent submits that there was no dismissal and the applicant was not forced to resign as a result of conduct or a course of conduct of the respondent. The company handled the applicant's grievances in a reasonable manner.

[19] The applicant contends that his employment was terminated by the respondent on 9 November 2012. Pursuant to clause 10 of Schedule 3 to the Act, this application was required to be made within 14 days after the alleged dismissal took effect or within such further period as FWA, now the Fair Work Commission (FWC) allows. Section 394(3) deals with this issue and is in the following terms:

"FWC may allow a further period for the application to be made by a person under subsection (1) if FWC is satisfied that there are exceptional circumstances, taking into account:

(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

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

[20] The Full Bench in Nulty reviewed the authorities on "exceptional circumstances" and provided a very useful summary at paragraphs 13 to 15 of its decision. I adopt and follow the approach of the Full Bench in this regard and turn to consider the question of whether there are exceptional circumstances in this matter and, to that end, the factors in section 394(3).

[21] The first reason for the delay advanced by the applicant is that he was not aware of the existence of this Tribunal and his rights. Ignorance of your legal rights and, by inference, the existence of any institution in which you may be able to pursue those rights, does not give rise to an exceptional circumstance. Neither does the fact that the respondent apparently did not inform the applicant and other employees about various tribunals and statutory authorities.

[22] The second reason for the delay is that the applicant was attempting to obtain logbooks and an Employment Separation Certificate. Leaving aside the question of whether such a Certificate was provided, it is not uncommon for employees to endeavour to obtain various documents from their former employer when an employment relationship comes to an end. It does not give rise to an exceptional circumstance.

[23] The applicant clearly became aware of the end of the employment relationship, whether it amounted to a dismissal or not, on 9 November 2012. There is nothing to suggest that he took any other action to dispute the alleged dismissal. Attempting to obtain logbooks and an Employment Separation Certificate does not necessarily indicate dissatisfaction with the end of an employment relationship or put the former employer on notice that the situation is being contested.

[24] The respondent has indicated that it will be financially prejudiced if it has to defend the applicant's claim. In the absence of anything to the contrary I accept that it will suffer some prejudice.

[25] So far as the merits of the substantive matter are concerned I note that there is no dispute that the applicant resigned his employment. He claims that he had no choice because of the actions of the respondent. In the absence of evidence I am unable to reach any concluded view on this point. In the circumstances it is neutral in my decision making process.

[26] The matter of fairness between the applicant and others in a similar position is of little relevance in this case and is also a neutral consideration.

[27] I have taken account of each of the factors set out in paragraphs (a) to (f) of section 394(3). I am not satisfied that there are exceptional circumstances in this matter such that I should allow further time for the lodging of the application.

S. Haynes from Australian Business Lawyers & Advisers Pty Limited on behalf of Avon Products Pty Ltd

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