Alphonso Devellerez v Eae Holdings Pty Ltd T/A Stanlee Hospitality Supplies
[2020] FWC 2887
•3 JUNE 2020
| [2020] FWC 2887 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alphonso Devellerez
v
EAE Holdings Pty Ltd T/A Stanlee Hospitality Supplies
(U2020/6436)
COMMISSIONER PLATT | ADELAIDE, 3 JUNE 2020 |
Unfair dismissal application – refusal of application to extend time – application dismissed
Introduction
[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect. However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances. 1
[2] This decision concerns whether I should exercise my discretion to allow Mr Alphonso Devellerez a further period for his unfair dismissal application to be made against EAE Holdings Pty Ltd T/A Stanlee Hospitality Supplies (Stanlee). By consent, I have corrected the name of the employer detailed on the application using my powers under s.586 of the Act.
Background
[3] Mr Devellerez has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Stanlee which his form F2 Unfair Dismissal Application advised took effect on 31 March 2020.
[4] The application was lodged on 11 May 2020.
[5] The application did not recognise that it was made beyond 21 days from the date of dismissal.
[6] On 19 May 2020, Stanlee lodged a form F3 Employer Response which indicated that the dismissal occurred on 25 March 2020 and raised a jurisdictional objection on the basis that the application was lodged out of time and that the employer was a small business and had complied with the Small Business Fair Dismissal Code. This decision only deals with the extension of time issue.
[7] On 27 May 2020, my Associate corresponded with Mr Devellerez and Stanlee and advised that the extension of time issue would be considered at a telephone conference on 2 June 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Devellerez was directed to provide a statement concerning the extension of time and any documents to be relied upon by 29 May 2020.
[8] Mr Devellerez provided a number of written submissions which are summarised as follows:
• His need to provide for his family and address mortgage repayments took precedence.
• He was impacted by the uncertainty and confusion arising from the COVID-19 Pandemic.
• Three public holidays fell between the date of his dismissal and the filing of his application.
• He devoted considerable time to registering with Centrelink and MyGov and accessing his Superannuation.
• He registered and/or contacted Employment Agencies.
• He was involved in making employment applications.
• He was involved in online job interviews.
• He was seeking a payment plan for his son’s college.
• He suffered from general stress and anxiety as a result of his dismissal and the COVID-19 Pandemic.
• Mr Devellerez sought to speak with me prior to the hearing, which did not occur.
[9] Stanlee provided a submission and a number of documents which is relevantly summarised as follows:
• Prior to the dismissal discussions were had between Mr Devellerez and Stanlee concerning performance issues.
• On 6 March 2020 Stanlee and Mr Devellerez discussed changing the employment contract. Agreement was not reached and on 11 March 2020 Stanlee advised Mr Devellerez of this position.
• On 23 March 2020 Mr Devellerez advised that he would not achieve the required KPIs and it is contended that the parties agreed that the employment would cease by way of dismissal.
• Stanlee advised that Mr Devellerez could leave immediately or work through until 31 March 2020. Mr Devellerez returned his company vehicle and mobile phone on 25 March 2020, which Stanlee originally contended was the date of dismissal.
• A text message sent by Mr Devellerez at 7.47am on 25 March 2020 indicates that he would hand back his car and phone later that day and that he was registering online with Centrelink and Employment Agencies. The text message exchange also indicates it was agreed that he would be paid until 31 March 2020.
• On 15 April 2020 Mr Devellerez sent a text message seeking to have the dismissal regarded as a stand down so as to assist him seek a reduction in college fees.
• On 23 April 2020 Mr Devellerez emailed Stanlee seeking the contact details for the ‘Leaders Group’.
• As at 25 March 2020 Mr Devellerez had commenced registering with Centrelink and Employment agencies in contemplation of his forthcoming dismissal.
• Stanlee contended that:
• The reasons for the delay were not exceptional circumstances;
• Mr Devellerez was aware that the dismissal occurred on 25 March 2020;
• There was no action taken to dispute the dismissal;
• The merits weigh against the granting of an extension of time; and
• The application should be dismissed.
Hearing
[10] A hearing was conducted by way of telephone conference on 2 June 2020. A sound file record of the telephone conference was kept. Mr Devellerez represented himself and Mr Justin Lilleyman of the Chamber of Commerce and Industry of Western Australia represented Stanlee. Given Mr Lilleyman is an employee of the Chamber of Commerce and Industry of Western Australia, he was not required to seek leave to appear under s.596 of the Act.
[11] Mr Devellerez relied upon his submissions and provided the following additional information at the hearing:
• He provided further information in relation to the status of the negotiations between himself and Stanlee over variations to his contract of employment prior to his dismissal, and his view that an agreement had been concluded.
• Whilst at the time of the dismissal his wife said to him he had been unfairly dismissed, he did not consider lodging an unfair dismissal claim until about 9 May 2020.
• On advice of a family friend he did not commence lodging a Centrelink application until 31 March 2020. This process took about three weeks.
• His focus was on securing employment.
[12] Stanlee relied on its submissions but prior to the hearing provided a copy of a dismissal letter which advised that the employment ceased on 31 March 2020. Stanlee accepted that this was the date of dismissal.
Applicable Law
[13] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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.”
[14] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 2
[15] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd3 which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.”
Consideration
[16] There is no dispute that Mr Devellerez was dismissed on 31 March 2020.
[17] This unfair dismissal application by Mr Devellerez was made 20 days beyond the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[18] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
Paragraph 394(3)(a) - reason for the delay
[19] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4 A dismissal can be communicated orally.5
[20] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 6 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,7 the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
[21] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 8
“[38]As we have mentioned, 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 enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45]What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
[22] As to acceptable explanations for a delay or part thereof, ignorance of unfair dismissal legislation and/or the 21 day timeframe is not, of itself, an exceptional circumstance. 9
[23] In addition, it is common for employees to suffer shock and trauma as a result of a dismissal. 10 This of itself is not an exceptional circumstance.
[24] Whilst I accept that the COVID-19 Pandemic initially resulted in overload for Centrelink (which requires the Applicant to have a MyGov account) and withdrawals from Superannuation, in my view, the Pandemic does not explain the lengthy delay in this matter.
[25] The presence of three public holidays (which are foreseeable) is not of itself an exceptional circumstance. The Acts Interpretation Act 1901 (Cth) provides for an extension where the last day for lodgement occurs on a public holiday. Whilst I accept that the Easter break occurred two days prior to the required lodgement date of 21 April 2020, the last of the holidays which purportedly resulted in delay (Anzac Day) occurred 2 weeks before the application was lodged.
[26] Mr Devellerez also advised that he was undertaking processes to seek employment and seeking to contact his son’s college. Other than the email of 14 April 2020 seeking to have the dismissal characterised as a stand down, I have no information on this process.
[27] It appears to me that Mr Devellerez had sufficient time to lodge this application within the timeframe allowed. Whilst I can understand Mr Devellerez’s focus on seeking alternative employment, I am not satisfied that the Centrelink process reasonably impeded the online lodgement of an unfair dismissal application. At the hearing Mr Devellerez was candid in advising that he did not consider making this application until 2 days prior to its lodgement.
[28] Mr Devellerez has not explained the period of delay which occurred after the application was required to be lodged - this factor weighs against the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[29] Mr Devellerez was aware of the looming dismissal on 25 March 2020.
[30] This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
[31] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 11
[32] There was no other action taken to contest the dismissal - this factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
[33] Prejudice to the employer will weigh against granting an extension of time. 12 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.13
[34] A long delay gives rise “to a general presumption of prejudice”. 14
[35] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 15
[36] Stanlee contends that the cost and time involved in defending the jurisdictional proceedings represents prejudice.
[37] I am satisfied that there would be no greater prejudice to the Respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
[38] Mr Devellerez provided information in relation to the status of the negotiations between himself and Stanlee over variations to his contract of employment and his view that an agreement had been concluded These facts are contested. The information is relevant to the merits of the application, however, there is insufficient evidence before me to make an assessment of the merits and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
[39] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 16 considered this criterion and said (at [41]):
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
[40] I am not satisfied that the issue of fairness as between Mr Devellerez the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[41] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting the granting of an extension of time, and accordingly I decline to exercise my discretion to so order. In reaching this conclusion, I am particularly (but not solely) influenced by the fact that, in my evaluative assessment, Mr Devellerez did not have an acceptable explanation for the delay and did not avert his mind to the filing of an application until 2 days prior.
[42] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.
[43] An Order17 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr A Devellerez on his own behalf.
Mr J Lilleyman of the Chamber of Commerce and Industry Western Australiaon behalf of the Respondent.
Hearing (Conference) details:
2020.
Adelaide:
June 2.
Printed by authority of the Commonwealth Government Printer
<PR719855>
1 Section 394(2)(a) of the 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 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
3 [2011] FWAFB 975
4 Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
5 Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605
6 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]
7 [2016] FWCFB 349
8 [2018] FWCFB 3288 at [35]-[45]
9 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
10 Rose v BMD Constructions Pty Ltd[2011] FWA 673
11 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
12 Ibid
13 Ibid
14 Ibid
15 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
16 [2016] FWCFB 6963
17 PR719856
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15
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