Adrian Mauriks v Cement Australia Pty Ltd T/A Cement Australia

[2019] FWC 887

[2019] FWC 887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Mauriks
v
Cement Australia Pty Ltd T/A Cement Australia
(U2018/11828)

COMMISSIONER JOHNS SYDNEY, 12 FEBRUARY 2019

Application for relief from unfair dismissal - whether to extend time for lodging the application. Application for an unfair dismissal remedy.

Introduction

[1] The Fair Work Act 2009 (Cth) (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to s 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Adrian Mauriks (Applicant) a further period for lodgement of his application for an unfair dismissal remedy.

[3] The relevant circumstances (about which I make findings of fact) are as follows:

a) Mr Mauriks commenced employment with Cement Australia Pty Ltd (Respondent) on 15 May 2017. He was employed as a Tanker Operator earning $120,519.10 per annum.
b) Mr Mauriks’s employment with the Respondent ended on 25 October 2018 with immediate effect. The Respondent contends that the Applicant resigned. The Applicant asserts that he was constructively dismissed.
c) If the Applicant was dismissed then he should have filed his unfair dismissal application on 15 November 2018.
d) Mr Mauriks’ union, the Transport Workers’ Union of Australia (TWU), lodged a F2 application on 16 November 2018.
e) Therefore, the application was filed:

i. 22 days after the employment was terminated.
ii. 1 day after the 21 day time limit provided for in the FW Act.

[4] In his F2 application the Applicant acknowledged that his application was filed late. The TWU explained the delay as follows:

“Member had only advised the union today what had occurred in his workplace. He was under immense stress and needed advice. He was worried and had no idea what kind of legal advice he could seek. He was not sure that the way his employment ended could be lodged as a constructive dismissal.”

The jurisdictional objection

[5] On 4 December 2018 the Respondent objected to the Commission exercising jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect. The Respondent noted that,

“Subsequent to the applicant’s resignation date (25 October 2018) he had corresponded with Cement Australia on November 2, fifth, sixth, 13th, 15th and 16th regarding his final payment Cement Australia is not in a position to dispute whether the applicant was stressed however we do not believe this is an exceptional circumstances injuring his ability to lodge an unfair dismissal claim given his demonstrated ability to construct coherent correspondence to Cement Australia.

The Applicant was an employee of Cement Australia where the TWU presence is well known and understood amongst the workforce. Advice was readily available from the TWU delegates who work at Cement Australia New South Wales transport sites.”

[6] On 14 December 2018 the Commission (constituted by Deputy President Dean) wrote to the Applicant seeking an explanation for the delay.

[7] The Applicant replied on 21 December 2018. The TWU wrote,

“Section 394(a) – reason for delay

15. The reason for the delay in filing the application was a combination of ignorance as to the requirements of the Act on the part of the Applicant and the fact that the Applicant was suffering with the effects of an injury/illness.

16. On 16 November 2018, the Applicant contacted the TWU and discussed his dismissal with his TWU representative, Mr Luke Ikladios. The Applicant instructed Mr Ikladios to file an unfair dismissal application on his behalf. Mr Ikladios agreed that he would do so proceeded to lodge an unfair dismissal application with the FWC.

17. The Applicant was under immense stress at such time that he submitted his resignation on 25 October 2018. The Applicant suffered high levels of stress and anxiety in the period prior to his dismissal is exacerbated by the actions of the Respondent towards mismanaging his workplace injury as evidenced by the F2. As a result, the Applicant was in any event unable to think clearly about his unfair dismissal application nor to focus his attention fully on the same during the period 25 October 2018 of the date the application was ultimately lodged.

18. Applicant was incredibly distressed about the events leading up to submitting his resignation in which he was left with no other choice than to resign or be terminated.

19. The FWC has previously held that psychological pressures upon an applicant may provide a satisfactory explanation for delay filing an application for relief with respect to an unfair dismissal..

20. As already noted, exceptional circumstances for the purposes of s.394(3) can include a single exceptional matter (that is, a matter which is out of the ordinary course, unusual, special or uncommon which is not regularly, routinely or normally encountered but is not necessarily unique, unprecedented or very rare), a combination of exceptional factors or is or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.

21. The Applicant was unaware there was a 21 day time limit with respect to lodge an unfair dismissal application as a result of a constructive dismissal.

22. As noted, when the error was identified application was promptly prepared lodged with the FWC.

23. In the present matter, the Applicant explained Lewis, reason for the delay should be a factor in favour of a finding exceptional circumstances extending the time for filing.”

[8] The matter was then allocated to me. On 10 January 2019 (later amended on 18 January 2019) I issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection and programmed the matter for hearing on 25 January 2019 (later amended to 1 February 2019).

[9] In compliance with the Directions the Applicant filed the following:

a) Submissions (Exhibit 1),
b) Statement of Luke Ikladios, Member Service Centre, TWU (Exhibit 2),
c) Statement of Lee Lawler, Organiser TWU (Exhibit 3),
d) Statement of Adrian Mauriks, Applicant (Exhibit 4), and
e) Jetstar receipts (Exhibit 6).

[10] In compliance with the Directions the Respondent filed the following:

a) Submissions (Exhibit 5).

[11] On 1 February 2019 the matter was listed for an extension of time hearing. The Applicant attended and was represented by Lucas Moctezuma – Industrial Officer, Transport Workers Union. The Respondent was represented by Trevor Greenway (HR Business Partner), who attended with Phil Young – NSW Logistics Manager.

Legislative scheme

[12] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[13] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench 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.  4

Consideration of s.394 criteria

Paragraph 394(3)(a) - The reason for the delay

[14] It is not contested that there were 22 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission. It was 1 day late.

[15] In his written submissions the Applicant says the reason for the delay was a:

“13 …combination of the stressful circumstances leading up to and after his resignation, it is as to the requirements of the Act of part of the Applicant and the fact that the Applicant was suffering the effects of an injury/illness.

“14. The Applicant suffered a debilitating back injury at his workplace was by an uncomfortable seat in Truck 853, this was highly mismanaged by the respondent…

…

22. Despite travelling overseas, the Applicant’s stressor worsened. The Applicant realised that he had not been paid accrued annual leave is wages for the past fortnight. Logging onto the Respondent’s payroll system, he discovered that his final pay was listed as $0.00. The Applicant came to the belief that the Respondent had stolen entitlements which then became the complete focus of time and effort for the remainder of the 21 day timeframe.

23. The Applicant spent most of his time emailing Trevor Greenaway to find out what had happened to the rest of his money….

24. It is clear that the Applicant did not simply travel overseas and ignore the problems with his employer. Despite the Applicant’s physical and emotional stress, he went to painstaking weeks, whilst he was overseas, to receive is outstanding entitlements from the Respondent which became his primary concern. It is not unreasonable for the Applicant, considering his major injuries, to focus on receiving his final pay as opposed to pursue his final pay and receiving advice regarding unfair dismissal claim at the same time.

25. The Applicant consulted the TWU on 16 November 2018, where he was then informed by the TWU Official, Lee Lawler that he may have a case of an application to seek an unfair dismissal remedy. The application was lodged later that day.

26. Whilst the circumstances regarding unpaid entitlements are not unique, they are certainly exceptional and weigh heavily in favour of an extension of time being granted.

27. In any case, when the Applicant resigned on 25 October 2018 he did not believe he could make an unfair dismissal application because he had tendered his own resignation. He was not aware that there was still an avenue or a “forced resignation” under s.386(1)(b) of the Act. The Applicant was also unaware there was a 21 day time limit with respect to lodge an unfair dismissal application as a result of the constructive dismissal.

[16] I explored these reasons with the Applicant during the hearing. It was entirely appropriate for me to do so. Before me, it became apparent that the day after the cessation of his employment the Applicant purchased an airline ticket to fly from Sydney to Phuket on 27 October 2018. The Applicant told me that he flew economy class and that the flight was about nine hours in duration.

[17] Addressing each of the reasons for delay advanced by the Applicant I am not satisfied that any of them are exceptional (either alone or considered in combination) for the following reasons:

a) Debilitating back condition - Whilst I accept that the Applicant had a back condition, I am not satisfied that it was so debilitating that it prevented him from filing an unfair dismissal application in the 21 days after the cessation of his employment on 25 October 2018. As noted above, the applicant was able to endure a 9 hour economy class flight 2 days after the cessation of his employment. He had the capacity to book the flight the day after the cessation of his employment. Noting that his back condition was not so debilitating as he was able to book a flight and then undertake the flight. I reject the submission that his back condition was so debilitating that it prevented him from lodging an unfair dismissal application within time.

b) Stress and anxiety following cessation of employment – Former employees routinely experience stress and anxiety after their employment ceases. This is not an exceptional circumstance. I also note that the Applicant was able to correspond with the Respondent (about entitlements) after the cessation of his employment.

c) Unpaid entitlements - I also note that in the period following the cessation of his employment, the Applicant pursued the issue of unpaid entitlements with his former employer. Understandably, that matter was of some priority for him. However, it is something that he could have pursued at the same time as making an unfair dismissal application within time. The fact that he preferred to pursue the issue of unpaid entitlements above making an application for an unfair dismissal remedy is a matter for him. It is regularly encountered that ex-may have a number of claims against their former employer after the end of an employment relationship. There is nothing out of the ordinary, or unusual, or special about the fact that the Applicant had multiple claims.

d) Ignorance of the Act - Ignorance of the timeframe for lodgement is not an exceptional circumstance. 5 As to the Applicant not being aware of the operation of s.386(1) of the FW Act, that lack of awareness is not uncommon. Rather, it is normally encountered. The present matter can be distinguished from the decision in Nohra v Target Australia Pty Ltd6because in that matter the Commissioner was satisfied that the psychological and practical pressures on the Applicant provided a satisfactory explanation for the delay in filing her substantive application for relief. In the present matter, I am not satisfied that the Applicant was overwhelmingly functionally disempowered or that the psychological and/or practical pressures on him at the time meant that he could not file an unfair dismissal application or seek advice about it, noting that, at the time, he prioritised going on holiday to Thailand. Noting that the Applicant’s evidence was that he has “generally good IT knowledge” he could have filed his application online whilst overseas.

[18] I am not satisfied that any of the reasons for the delay advanced by the Applicant are exceptional.

[19] Therefore, this factor weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[20] It is uncontested that the Applicant first became aware of the cessation of his employment on 25 October 2018.

[21] Therefore, this factor weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[22] The Applicant sought advice from the TWU. Further he filed the present application. However, both of those actions were after the 21 day time period. He took no other steps to dispute the dismissal.

[23] The lack of action taken by the Applicant to dispute the dismissal weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[24] The Respondent points to the application being out of time. I take this to mean that the Respondent does not assert any exceptional prejudice other than the usual prejudice associated with delay.

[25] The prejudice asserted by the Respondent weighs as a neutral factor in relation to granting the Applicant a further period to make his application.

Paragraph 394(3)(e) - The merits of the application

[26] In the matter of Kornicki v Telstra-Network Technology Group 7the 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 lodgment. 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.” 8

[27] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[28] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings, I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[29] The substantive factual contest between the Applicant and the Respondent is whether the factual circumstances give rise to a constructive dismissal. This is not a dispute that can be resolved at a jurisdictional hearing.

[30] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[31] If the Applicant can establish to the satisfaction of the Commission that the Respondent mishandled his back injury then he may well be able to establish that he had no choice but to resign (i.e. he was constructively dismissed) and that, further, the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of s 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[32] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[33] I was not directed to a person employed by the Respondent in a similar position. Consequently, I am not satisfied that this is a relevant factor.

Conclusion

[34] When the s 394(3) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Rather, the circumstances are regularly, or routinely, or normally encountered. Consequently, they are not exceptional circumstances.

[35] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

[36] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr L Moctezuma – Industrial Officer, Transport Workers Union, for the Applicant.

Mr T Greenway - HR Business Partner, for the Respondent.

Hearing details:

1 February 2019.

Sydney - Video Conferencing to Melbourne.

Printed by authority of the Commonwealth Government Printer

<PR704841>

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s 36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3 [2011] 203 IR 1.

 4 Ibid [13].

 5   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (Lawler VP, Sams DP, Williams DP, 16 February 2011) at para. 14, [(2011) 203 IR 1].

 6   [2010] FWA 6857.

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

 8   Ibid.