Aaron Cross v PFD Food Services Pty Ltd
[2020] FWC 2691
•26 MAY 2020
| [2020] FWC 2691 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aaron Cross
v
PFD Food Services Pty Ltd
(U2020/3200)
COMMISSIONER WILSON | MELBOURNE, 26 MAY 2020 |
Application for an unfair dismissal remedy – extension of time – exceptional circumstances – application dismissed.
[1] This matter concerns an application made by Aaron Cross alleging unfair dismissal against his former employer, PFD Food Service Pty Ltd (PFD). Mr Cross was dismissed on Monday, 3 February 2020 and his unfair dismissal application was received in the Fair Work Commission (the Commission) slightly more than 6 weeks later on Wednesday, 18 March 2020.
[2] 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 Mr Cross’s application was made outside of the statutory time limit, with it having been made 23 days after the expiry of the 21 day time period allowed for by the Act, which ended on 24 February 2020.
[3] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for the hearing and determination of whether an additional period of time should be allowed for the making of Mr Cross’s application. PFD objected to an extension of time being granted to Mr Cross arguing that there are not exceptional circumstances for the extension of time, including because he was represented by the United Workers’ Union throughout the dismissal process.
[4] 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 to warrant the extension 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
BACKGROUND
[5] The relevant background to the matter is that Mr Cross commenced his employment with PFD on 25 February 2015 in the position of Storeperson.
[6] Prior to his dismissal, Mr Cross alleged he experienced bullying and harassment in the workplace. The Respondent in their submissions set out a chronology of the processes it followed after Mr Cross made a written bullying and harassment complaint against his Branch Manager. Suffice to say that Mr Cross’s dismissal was against a deteriorating relationship between he and his employer which seemed to take a sharp turn for the worse from late January 2020. He had made bullying and harassment claims against his Branch Manager on 30 January 2020. At the time the complaint was filed Mr Cross had been stood down from his employment:
• Mr Cross filed a bullying and harassment complaint on 30 January 2020 alleging unreasonable behaviours from his Branch Manager;
• The Respondent asserts that the complaint filed contained insufficient information to warrant an investigation;
• The Respondent requested further information on the alleged behaviour through Mr Cross’s representative the United Workers’ Union;
• Further information was provided by the Applicant on 31 January 2020. The Respondent asserts this further information did not contain specifics of the allegations;
• The Respondent requested further information from the Applicant to substantiate his claims on 31 January 2020;
• Mr Cross responded on 3 February 2020. The Respondent again asserts Mr Cross did not provide the requested information;
• On 4 February 2020, the Respondent again requested further particulars of the allegations from Mr Cross;
• Mr Cross responded on 6 February 2020. The Respondent again asserts Mr Cross did not provide the requested information;
• On 6 February 2020, the Respondent again requested further particulars of the allegations from Mr Cross;
• The Respondent asserts that on 7 February 2020, Mr Cross made accusations of a biased investigation process;
• On 10 February 2020, the Respondent advised Mr Cross that the matter would be finalised as he failed to provide particulars of the alleged bullying and harassment. 3
[7] Mr Cross submitted to me that the reasons for the application being filed outside of the 21-day legislative timeframe was because he was advised by his union that the application is required to be filed by them, after which his contact with the union stopped working for the union. Mr Cross also submitted that after he left his employment a Workers’ Compensation claim was commenced and he needed to receive treatment for the associated workplace injury. Further, he lost time disputing his claims of bullying and harassment. 4 There is no corroborative evidence before me about the nature of advice given to Mr Cross by his union.
[8] PFD asserted there are no exceptional circumstances to warrant the grant of an extension of time for the filing of Mr Cross’s unfair dismissal application. It submitted to me that I should take into account as a factor counting against an extension of time that Mr Cross was represented by the United Workers’ Union throughout the dismissal process and termination meeting. It also put forward that the union contacted PFD after the dismissal meeting requesting a Statement of Service which was provided to Mr Cross and notes that he filed a Workers’ Compensation claim on 18 February 2020, of course being after Mr Cross’s termination of employment. 5
LEGISLATION
[9] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
[10] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”:
“[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”. 6
[11] 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 extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 7
[12] In considering whether an extension of time should be granted to Mr Cross, I am required to consider all of the criteria in s.394(3), which I now do.
The reason for the delay
[13] 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. 8 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.9 An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.10 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.11
[14] Mr Cross’s primary reason for his application for unfair dismissal being filed outside of the prescribed 21-day timeframe was that his representative the United Workers’ Union advised him that the application needed to be filed by them and that the organiser who was familiar with his matter ceased working for the union.
[15] He also asserted that he initiated a Workers’ Compensation claim which was filed on 18 February 2020 and that the process of making his unfair dismissal application was impacted by “time lost disputing bullying and harassment with HR” 12 and that he was “being treated for workplace injury – ongoing”.13 Mr Cross relied on representative error on the part of his union, complaining his contact had not been helpful and in effect told him things about their representations to PFD which he now believes were not correct. He argued he tried to motivate the union without success on three different occasions to commence an unfair dismissal action on his behalf. Despite the claimed representative error, no corroborative evidence has been put forward on the subject by Mr Cross. He conceded that at the time he lodged the unfair dismissal application the union official was still at the least his support person if not his representative. He also accepted that the person concerned attended the telephone conciliation in this matter on his behalf which took place on 20 April 2020.
[16] The Respondent disputed that there is a valid reason for the delay. They asserted that Mr Cross was represented by the United Workers’ Union throughout the dismissal process which is a large organisation with multiple resources and that “the applicant’s bullying complaint was finalised on 10th February 2020, so there was no further action required of the Applicant in this regard.” 14 PFD also contended that the union remained the Applicant’s representative both at the time of making the unfair dismissal application through to at least the date of the telephone conciliation held on 20 April 2020.
[17] I am not satisfied that Mr Cross has provided an acceptable explanation for the delay in making his unfair dismissal application. Mr Cross made an application for Workers’ Compensation on 18 February 2020 after his dismissal on 3 February 2020. The making of that application is within a 21-day period of his dismissal. There appears to be no cogent reason as to why Mr Cross could make a Workers’ Compensation application within 3 weeks of being dismissed, but not an unfair dismissal application. The Applicant’s continued relationship with his union through to at least 20 April 2020 is contradictory with his claim that there was representative error or mismanagement on its part leading to him being unable to lodge his unfair dismissal application within time. It follows that these explanations do not show exceptional circumstances and my assessment is that consideration of this criterion does not resolve in favour of Mr Cross and for the granting of an extension of time for the making of his application.
Whether the person first became aware of the dismissal after it had taken effect
[18] This is not a circumstance where the Applicant only became aware of his termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.
Any action taken by the person to dispute the dismissal
[19] 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. 15
[20] Mr Cross's evidence on the subject includes contentions that the combination of his Workers’ Compensation and Safe Work New South Wales complaints about his workplace bullying claims show that he disputed his dismissal. While I am satisfied there were complaints about his working conditions and his health to the Workers’ Compensation and Occupational Health & Safety authorities, I am not satisfied that these are actions taken by Mr Cross to dispute his dismissal, being the criterion to be considered by me under s.394(3)(c). As a result, my consideration of this criterion does not resolve in the Applicant’s favour.
Prejudice to the employer (including prejudice caused by the delay)
[21] PFD does not rely upon any prejudice to it if an extension of time were to be granted to Mr Cross. Accordingly, consideration of this criterion is also a neutral factor in my overall decision.
The merits of the application
[22] 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.
[23] 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. In Kyvelos v Champion Socks Pty Limited, decided under earlier legislation, the Full Bench articulated why such position is adopted:
“[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.” 16
[24] Instead of a detailed consideration of the merits of a matter, 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. A highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 17
[25] I am satisfied from the limited material before the Commission so far on the matter of merits that Mr Cross’s application has some, but not great, potential of success. For his application to be successful, Mr Cross would need to rely upon his claims that the dismissal arose out of his complaints of workplace bullying. The evidence on the subject to date consists largely of contentions on Mr Cross’s part and in any event is strongly contested by PFD. On balance though, the limited material which is before me does not show the application to be either highly meritorious or without any reasonable prospect of success.
Fairness as between the person and other persons in a similar position
[26] 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. 18
[27] The Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for the same underlying issue. 19 In relation to fairness to unfair dismissal applicants generally, I consider it would be unfair to those people to grant an extension of time to Mr Cross when those other people are required to either file their application in time or to show there are exceptional circumstances for the making of a late application.
CONCLUSION
[28] Having considered all relevant matters, I am not satisfied there are exceptional circumstances for allowing a further period beyond the statutory limit for the making of Mr Cross’s application. Accordingly, his application is dismissed.
COMMISSIONER
Appearances:
Mr A. Cross for himself
Mr W. Cruse for the Respondent
Hearing details:
2020.
Melbourne (via video);
22 May.
Printed by authority of the Commonwealth Government Printer
<PR719574>
1 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].
2 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].
3 Respondent Outline of Submissions, 8 May 2020, [6] – [17].
4 Form F2 Unfair Dismissal Application, 18 March 2020, item 1.5.
5 Respondent Outline of Submissions, 8 May 2020, [18] – [22].
6 Nulty v Blue Star Group, 2011, 203 IR 1, [13].
7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299] - [300].
9 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].
10 Ibid, [40].
11 Ibid, [41].
12 Form F2 Unfair Dismissal Application, 18 March 2020, item 1.5.
13 Ibid.
14 Respondent Outline of Submissions, 8 May 2020, [21]; [23].
15 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299] - [300].
16 (2000) Print T2421 [14].
17 Haining v Deputy President Drake (1998) 87 FCR 248, [250].
18 Wilson v Woolworths [2010] FWA 2480 [24] ‒ [29].
19 Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 [38].
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