Adrian William Marshall v West Daly Regional Council
[2022] FWC 2687
•6 OCTOBER 2022
| [2022] FWC 2687 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Adrian William Marshall
v
West Daly Regional Council
(C2022/4128)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 6 OCTOBER 2022 |
Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed
This decision concerns an application by Mr Adrian William Marshall (Applicant) under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
It is uncontested that Mr Marshall’s employment with West Daly Regional Council (Respondent) ended on 2 June 2022. The GP Application was lodged on 15 July 2022. The period of 21 days ended at midnight on 23 June 2022 and the GP Application was therefore lodged 22 days out of time. Mr Marshall seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent opposes the grant of an extension of time.
Mr Marshall’s application was the subject of a determinative conference before me on 6 October 2022.
Mr Marshall appeared on his own behalf. Mr Marshall filed witness material for Ms Sonya Crane. The Respondent did not require Ms Crane for cross-examination and accordingly Ms Crane did not attend the determinative conference. Mr Andrew Everingham, Chief Operations Officer of the Respondent, appeared on behalf of the Respondent and gave evidence on his own behalf.
Background
Mr Marshall commenced employment with the Respondent in January 2022 in the role of Homelands Manager. Mr Marshall and his wife reside in Wadeye, a remote community 400 kilometres south west of Darwin. Mrs Marshall is employed in Wadeye at the local Catholic College (College). Whilst employed by the Respondent, the Respondent provided Mr Marshall with accommodation in which he and his wife resided (Accommodation). The Respondent terminated Mr Marshall’s employment during his probationary period on 2 June 2022. Upon the termination of his employment Mr Marshall had 14 days to vacate the Accommodation.
Consideration
The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[1]
The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[2] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.[3]
Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
Reason for delay
The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[6] the Full Bench noted that the absence of an 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 the circumstances must be considered.[7] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[8]
The Applicant submits that the reasons for the delay are manifold. Firstly, he submits that he resides in a remote community and due to his wife requiring use of their vehicle each day for work he was unable to travel to Darwin. At the determinative conference Mr Marshall said that this precluded him lodging the Application on time as he believed he had to lodge it in person in Darwin. Secondly, he says that as a result of having to vacate the Accommodation his entire focus following his dismissal was on finding alternative accommodation to enable his wife to continue her employment with the College. Thirdly, he says that he was seeking alternative employment. Fourthly, he says that in late January 2022 he was diagnosed with prostate cancer and was in discussions with specialists in Darwin and Adelaide as to treatment options available. Fifthly, he says that he consulted Maleys Barristers and Solicitors following his dismissal and at no time during those discussions was he informed of the 21 day statutory time limit for making the GP Application. He says further that he was not otherwise aware of the time limit for GP Applications.[9]
Turning first to Mr Marshall’s assertion that his residence in Wadeye precluded him from lodging the Application in time, readily accessible information on the Commission’s website makes clear that an application may be lodged in a variety of ways including by email, by post or by telephone. It is simply not the case that Mr Marshall was required to lodge the GP Application in person and his mistaken belief that he had to do so cannot provide a reasonable or acceptable explanation for the delay in lodgement. It is well established that ignorance of one’s rights does not provide an acceptable explanation for late lodgement.[10] Further, at the determinative conference Mr Marshall said that he had internet access and mobile telephone coverage in Wadeye and, indeed, he has corresponded with the Commission via email and attended the determinative conference via Microsoft Teams. Accordingly, neither Mr Marshall’s residence in Wadeye, nor his mistaken belief that he was required to lodge the GP Application in person, provides an acceptable or reasonable explanation for the delay in lodgement.
As to Mr Marshall being required to vacate the Accommodation, his own evidence is that he had found new accommodation by 14 June 2022. This is some 9 days before the GP Application was required to be filed. As set out above, the period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired, being 23 June 2022 and ending on the day on which the application is ultimately made, being 15 July 2022. This, therefore, cannot provide an explanation for the delay. At the determinative conference Mr Marshall’s further evidence was that following his dismissal his wife obtained a new role with the College which provided accommodation and that he and his wife moved into this new accommodation on 6 July 2022. I accept that moving house is, as submitted, a “distraction”[11] and also accept that the further move following his wife obtaining a new role would be disruptive. However, it is not out of the ordinary, uncommon, unusual or special. The need to find new accommodation does not provide an acceptable or reasonable explanation for the delay.
Thirdly, as to Mr Marshall’s submission regarding the need to seek new employment, I reject that this provides a reasonable or acceptable explanation for the delay in lodgement. There is nothing out of the ordinary, unusual, special or uncommon in the need to seek new employment when one’s prior employment has ended. Most employees have financial commitments which, of necessity, require them to seek new employment. This does not provide a reasonable or acceptable explanation for the delay in lodgement.
Fourthly, I accept Mr Marshall’s evidence that he had a diagnosis of prostate cancer in late January 2022 (Diagnosis) and was involved in ongoing discussions regarding treatment options. However, there is no probative evidence before the Commission that the Diagnosis in any way incapacitated Mr Marshall or precluded him from attending to the lodgement of the GP Application on time. Further, notwithstanding the Diagnosis Mr Marshall had capacity to perform work for the Respondent, obtain and commencement new employment on 19 July 2022, move house and, as set out below, contact the Local Government Authority of the Northern Territory (LGA) for advice regarding the process for lodging an application with the Commission. If Mr Marshall had capacity to do these things, it is difficult to see how he also did not have capacity to lodge the GP Application in time. Additionally, Mr Marshall was not undergoing any treatment for the Diagnosis, which may have impacted on his capacity to lodge the GP Application in time. At the determinative conference Mr Marshall said that in “the period”, which he originally said was the 21 days following dismissal, but subsequently said was the period 1 June 2022 to 30 June 2022, he was receiving text messages and telephone calls regarding the Diagnosis and treatment options. When asked by the Bench of the frequency of these calls and messages he said that he was receiving about “3 or 4” such calls and messages a week. However, he could not recall the precise dates of these nor did he file any probative evidence of them. I found his evidence on this matter to be somewhat uncompelling. He said that treatment for the Diagnosis has now been scheduled to commence on 24 October 2022. I accept that the Diagnosis and discussion of treatment options would be a cause of worry and concern for Mr Marshall. However, the Diagnosis occurred many months before Mr Marshall was dismissed and cannot provide an explanation for the delay in lodgement. Further, even if the texts and calls occurred as asserted, and in the number asserted, I am unable to see how 3 or 4 texts or telephone calls a week to arrange future treatment precluded Mr Marshall from lodging the Application in time. However, even if the texts and telephone messages could provide an explanation for the delay (which I do not consider they do), they can only do so until the end of June and cannot explain the failure to lodge the GP Application until 15 July 2022. Further, I note that Mr Marshall’s treatment has not yet commenced and was arranged for some 4 months following the asserted text messages and calls. Mr Marshall’s health issues do not provide a reasonable or acceptable explanation for the delay.
Fifthly, at the determinative conference Mr Marshall said that on about 9 or 10 June 2022 he contacted the LGA by telephone regarding the process for lodging an application with the Commission and consulted with them on 28 June 2022. He also said that he consulted Mr Chua of Maleys Barristers & Solicitors (Maleys) on 28 June 2022 regarding his dismissal and engaged them to act on his behalf on 6 July 2022. He says that at no point was he advised of the 21 day statutory time limit for lodgement of the GP Application. I do not consider that any of these matters provides a reasonable or acceptable explanation for the delay in lodgement. Firstly, there is no probative evidence that Mr Marshall contacted the LGA as asserted on 9 or 10 June 2022. Secondly, and more significantly, there is no evidence before the Commission as to precisely what advice was sought from the LGA, what advice was provided by it and from whom. Indeed, it is entirely unclear to me that the LGA is able to, or would, provide advice to an individual applicant regarding an employee claim following dismissal. Secondly, both of the consultations on 28 June 2022 occurred after the 21 statutory time frame had already passed by a number of days. Thirdly, there is also no evidence of the specific advice sought from, or given by, either the LGA or Mr Chua on 28 June 2022, which in any event post dated the 21 day statutory time frame. Fourthly, the evidence is that following their engagement Maleys did not file a general protections application on Mr Marshall’s behalf; rather on 7 July 2022 Maleys wrote to the Respondent seeking mediation or a review of the circumstances surrounding Mr Marshall’s dismissal.[12] I do not consider this to be consistent with Mr Marshall’s evidence. Accordingly, I do not consider any of these matters provide a reasonable or acceptable explanation for the delay in lodgement.
Finally, as to Mr Marshall being unaware of the 21 day statutory time limit for the lodgement of the GP Application, as already set out, it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement.[13]
I do not consider that either alone or collectively, the reasons for the delay in lodgement advanced by Mr Marshall provide a reasonable or acceptable explanation for the delay. This weighs against the grant of an extension of time.
Action taken by the person to dispute the dismissal
There is no evidence that Mr Marshall took any action to dispute his dismissal. This weighs against the grant of an extension of time.
Prejudice to the employer
The Respondent submits that it is prejudiced because Mr Marshall did not file an outline of argument in the Commission’s standard form provided to him on 12 August 2022. It submits that it cannot therefore provide accurate responses to Mr Marshall’s claims. Further, it submits that it has incurred the time and expense of responding to the application for an extension of time.[14]
I reject that the Respondent has been prejudiced by Mr Marshall not filing an outline of argument in the standard form. Mr Marshall filed a witness statement, from which I consider his case for an extension of time is able to be adequately discerned. Further, the Respondent, notwithstanding its submissions to the contrary, has responded in a fulsome way to the extension of time application and I am satisfied it has had a full opportunity to put forward its case, both by way of written submission and an opportunity to make further oral submissions at the hearing.
I accept that the Respondent incurred time and expenses in responding to the extension of time application however I reject that by so doing it has suffered any particular prejudice. Further, more generally, I cannot identify any particular prejudice that would accrue to the Respondent were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
It is uncontested that the Respondent dismissed Mr Marshall. Accordingly, adverse action in the form of dismissal was taken against Mr Marshall. At issue is whether the adverse action was taken for a prohibited reason pursuant to Part 3-1 of the Act.
The Respondent denies that it took any unlawful adverse action against Mr Marshall. It submits that Mr Marshall’s employment was terminated for poor performance during his probationary period, following numerous discussions regarding his performance, and the identification of performance deficiencies in his 3 month written performance review (Review Document).
Mr Marshall disputes that there were any discussions regarding his performance prior to his dismissal and says that the Review Document was not provided to him until after his dismissal and is fraudulent. He says the Review Document is not consistent with the discussion that occurred in his 3 month performance review, is not signed and contains errors regarding his period of employment. He says that his dismissal was not procedurally fair, did not follow best practice and that he was not issued with any warnings regarding poor performance. In the GP Application Mr Marshall relies upon section 340 of the Act but at the determinative conference was unable to identify any workplace right upon which he says the adverse action was taken. Rather, he said that in regard to his dismissal the “process wasn’t followed properly” and he was concerned about how the “whole process…was handled”.
Given the interlocutory nature of these proceedings, it is not possible to form any firm or concluded view as to the merits of the GP Application. The evidence of both parties would need to be fully tested under oath. Further, it is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[15] However, although the merits have not been fully tested, on the material currently before the Commission I incline to the view that GP Application has very low prospects of success. It appears that Mr Marshall’s claim is, in reality, an unfair dismissal claim, which he is precluded from bringing due to not having met the required minimum employment period.[16] Such claims are not interchangeable with a general protections dispute involving dismissal relying upon section 340 of the Act. Notwithstanding that, for present purposes, I am prepared to consider this a neutral factor.
Fairness as between the person and another person in a like position
Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[17] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[18] Neither party drew my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Marshall and other persons in a similar position. I consider this to be a neutral factor in the present matter.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Marshall’s application.
Accordingly, I decline to grant an extension of time under section 366(2).
Disposition
Mr Marshall’s application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
Adrian William Marshall for the Applicant.
Andrew Everingham for the Respondent.
Hearing details:
5 October 2022
Melbourne by Microsoft Teams
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
[2] [2011] FWAFB 975
[3] Ibid at [13]
[4] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[5] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[6] [2018] FWCFB 901
[7] Ibid at [39]
[8] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
[9] Witness statement of Adrian Marshall
[10] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1
[11] Ibid
[12] Witness statement of Andrew Everingham, Annexure A
[13] Ibid
[14] Respondent’s Outline of Argument, q.1g
[15] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [36]
[16] See s. 383 Fair Work Act 2009
[17] Wilson v Woolworths [2010] WA 2480 at [24-29]
[18] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
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