Adam Bouveng v Newcastle Taxis Pty Ltd
[2020] FWC 6578
•7 DECEMBER 2020
| [2020] FWC 6578 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adam Bouveng
v
Newcastle Taxis Pty Ltd
(U2020/14635)
DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 7 DECEMBER 2020 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.
Introduction
[1] This decision concerns an application by Mr Adam Bouveng (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
[2] The termination of the Applicant’s engagement with Newcastle Taxis Pty Ltd T/A 13cabs (Respondent) took effect on 18 September 2020. The unfair dismissal application was lodged on 10 November 2020.
[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 9 October 2020. The application was therefore filed 32 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2
[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reasons for the delay
[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4
[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5
[10] The Applicant relies on the following reasons for the delay in filing his unfair dismissal application:
• The Applicant says that the termination of his relationship with the Respondent threw him into depression, retriggering his post traumatic stress disorder, with the result that he was not eating, slept consistently throughout the day and night and hardly left his room for a few weeks. The Applicant says he was able to “get back up after a few weeks” and he then began to attempt the internal 13cabs appeal process under the 13cabs code of conduct. In his oral evidence, the Applicant explained that it took about 2.5 weeks from the 18th of September 2020 before he was in a state where he wanted to investigate what was going on. The Applicant made contact with a wide range of people internal and external to the Respondent, seeking redress from what he perceives to be the unfairness of the termination of his relationship with the Respondent.
• After his mental health improved, the Applicant obtained work with a food delivery service and has been busy “doing this job day and night” to keep him going from a financial perspective. 6 The Applicant says that this is an important reason why his application was delayed.
• The Applicant says it took a long time to provide relevant information to Centrelink and obtain benefits from them, particularly given that Centrelink requires information concerning why the Applicant is no longer working and the Respondent has not sent the Applicant a “formal letter” or other correspondence to explain the reasons for its decision.
• The Applicant spent time contacting his regular clients and notifying them of the situation.
• The Applicant took time to communicate with the taxi operators from whom the Applicant leased taxis, to attempt to get some answers from them, gain support from them, and have them ask the Respondent what is going on.
• The Applicant suffers from a range of medical conditions, including hypothyroidism, depression, anxiety, and a high emotional state at times. The Applicant says that these conditions “may be a factor to why it has taken me a while to respond to this matter and try to resolve it with a third party”. 7
• The deaths of three people who were close to the Applicant. Those deaths occurred in July and mid to late August 2020.
• The Applicant took time to obtain legal advice, but the service/person providing the advice was somewhat unsure about the process for making an application to the Fair Work Commission.
• The Applicant also relies on unspecified “on-going family matters” as part of the reason for the delay in making his unfair dismissal application.
• The Applicant has been taking time to try to prepare his tax return for the 2019/20 financial year and rectify his business.
[11] I consider that the Applicant has a reasonable explanation for not lodging his unfair dismissal application in the first two and a half weeks after 18 September 2020 (i.e. until about 7 October 2020). During that time, I accept that the Applicant’s mental health was such that he was not in a position where he could prepare an unfair dismissal application or make decisions concerning the commencement of legal proceedings. However, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the period from about 8 October 2020 until the filing of the application on 10 November 2020. During that time, the Applicant was able to communicate with a range of people about what he perceives to be the unfairness of the termination of his relationship with the Respondent and seek redress from them. The Applicant was not prevented from engaging in those communications by reason of the other matters he relies on, including undertaking alternative work, recovering from the grief associated with the passing away in July and August 2020 of people close to the Applicant, preparing his tax return, dealing with family matters, dealing with Centrelink, dealing with clients, and obtaining legal advice.
[12] The absence of an acceptable or reasonable explanation for the delay from end of the 21 day period after 18 September 2020 (i.e. 9 October 2020) until the lodgment of the application on 10 November 2020 weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[13] The Applicant says his dismissal took effect on 18 September 2020 and he was aware of it at that time. The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
[14] I consider the Applicant took action to dispute his dismissal by making contact with, and seeking redress from, a range of people in relation to what the Applicant says was the unfairness of the termination of his relationship with the Respondent. The identity of those persons and the nature of the Applicant’s communication with them is set out in detail in the Applicant’s submission in support of his application for an extension of time. 8 This factor weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[15] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[16] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.
[17] The Applicant has repeatedly stated in his unfair dismissal application and his submissions in support of his application for an extension of time that he is, and was during his engagement with the Respondent, a sole trader. The Applicant says that he leased taxis from taxi operators. Further, the Applicant’s submissions in support of his application for an extension of time state that he spoke with a “legal rep service, after hearing my case they advised that they don’t believe FAIRWORK would be able to assist me because I am a sole trader”.
[18] The Respondent submits that it does not employ taxi drivers. Partner drivers who are with the 13cabs network are either sole traders or, in some instances, taxi owners who are 13cabs partners and who sometimes employ or engage drivers themselves. The Respondent says that on or about 7 September 2019 the Applicant became a partner driver with 13cabs as a sole trader, based in Newcastle.
[19] Accordingly, there is no dispute between the parties that the Applicant was a sole trader when he was driving taxis with the 13cabs network. This is not surprising, given the long line of authority to the effect that taxi drivers are ordinarily engaged as bailees rather than employees. 9
[20] In all the circumstances, the Applicant has a weak claim that he was employed by the Respondent. On that basis, I consider the merits of the Applicant’s claim to weigh against his application for an extension of time.
Fairness as between the person and other persons in a similar position
[21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
[22] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
[23] Although I have sympathy for the Applicant, having regard to the matters I am required to take into account under s 394(3) and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr A Bouveng on behalf of himself
Mr R Marshall, solicitor, on behalf of the Respondent
Hearing details:
2020.
Newcastle (by telephone):
4 December.
Printed by authority of the Commonwealth Government Printer
<PR725220>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
2 Ibid
3 Long v Keolis Downer[2018] FWCFB 4109 at [40]
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
6 Ex A2
7 Ex A2
8 Ex A2
9 See, for example, Voros v Dick[2013] FWCFB 9339 at [11]-[24]
0
6
0