Andrew Peter Plaumann v Pridham Viticulture
[2021] FWC 6288
•9 NOVEMBER 2021
| [2021] FWC 6288 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Peter Plaumann
v
Pridham Viticulture
(U2021/9554)
COMMISSIONER PLATT | ADELAIDE, 9 NOVEMBER 2021 |
Application for an unfair dismissal remedy – request for an extension of time – extension of time not granted.
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. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2
[2] This decision concerns whether I should exercise my discretion to allow Mr Andrew Plaumann (the Applicant) a further period for his unfair dismissal application (Application) to be made against Pridham Viticulture (Pridham or the Respondent).
Background
[3] Mr Plaumann lodged an application pursuant to s.394 of the Act in relation to the alleged termination of his employment with Pridham which his form F2 Unfair Dismissal Application advised took effect on 30 July 2021.
[4] The application was lodged by the Applicant on 24 October 2021.
[5] The application recognised that it was made beyond 21 days from the date of dismissal.
[6] On 28 October 2021, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 9 November 2021. 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 Plaumann was directed to provide a statement concerning the extension of time and any documents to be relied upon by 4 November 2021 (and serve the same on Pridham).
[7] On 1 November 2021, the Respondent lodged a form F3 Employer Response which raised a jurisdictional objection on the basis that the application was lodged out of time and that the Applicant was not dismissed. This decision only deals with the question of whether or not the Applicant was dismissed to the extent that it is relevant in determining the extension of time issue.
[8] On 3 November 2021, Mr Plaumann filed a witness statement and submissions in relation to the extension of time issue.
Hearing
[9] A Hearing was conducted by way of telephone conference on 8 November 2021. A sound file record of the telephone conference was kept. Mr Plaumann represented himself, and Ms Louise Pridham, a director of Pridham, represented the Respondent. The material received by the parties was compiled into a Digital Court Book and distributed to the parties.
[10] Mr Plaumann gave evidence at the Hearing. His position is summarised as follows:
• Mr Plaumann received a warning letter on 30 July 2021 from Mr Ben Pridham for breaking company rules and was asked to take time off to consider the letter and respond. Mr Plaumann asked Mr Pridham whether he had been sacked, to which Mr Pridham responded that he had not, but to wait for his call. Mr Plaumann was advised he would not be required to work for a week due to weather conditions.
• On 9 August 2021, Mr Plaumann and Mr Pridham had a further phone conversation, and Mr Plaumann requested another week off to deal with family issues.
• On 31 August 2021, Mr Plaumann and Mr Pridham had a further conversation, in which Mr Pridham “seemed keen to have me (Mr Plaumann) back when planting started”.
• On 23 September 2021, Mr Plaumann was informed by Mr Pridham that there was currently no work available. Mr Plaumann responded noting that he had company property (a tablet and tools) which he wanted to return. It appears that at this time Mr Plaumann had turned his mind to the prospect he was not longer going to be provided work.
• On 28 September 2021, Mr Plaumann went onto the worksite and spoke to Mr Pridham, who indicated that the company had enough workers at that point in time.
• On 29 September 2021, Mr Plaumann started conducting research on dismissals and long service leave entitlements. By this stage, Mr Plaumann understood that his employment had ceased.
• On 30 September 2021, Mr Plaumann spoke to Mr Pridham by phone regarding his long service leave entitlements.
• On 5 October 2021, Mr Plaumann phoned Mr Pridham and asked him whether he had been sacked. Mr Pridham told Mr Plaumann that he had not been sacked and blamed the lack of work on the trade situation with China.
• On 9 October 2021, Mr Plaumann received a text message from Mr Pridham telling him that he had not qualified for long service leave.
• On 13 October 2021, Mr Plaumann phoned Mr Pridham to tell him that he was considering taking the dispute further. Mr Pridham suggested to him that he should begin looking for work elsewhere.
• Between 29 September 2021 and 24 October 2021, Mr Plaumann conducted his own research, as well as calling government agencies and receiving community legal advice.
[11] Mr Ben Pridham (a director of the Respondent) gave evidence on behalf the Respondent. The Respondent relied on the submissions contained in its F3 Employer Response and further contended:
• After the original warning letter on 30 July 2021, the Applicant did not make himself available to work until 31 August 2021.
• On 31 August 2021, the Applicant was informed by Mr Pridham that the Respondent did not currently have any work available for him, as Treasury Wines Estates (TWE) would not have the Applicant on their site, as he had been caught smoking in the vineyards on multiple occasions.
• The Respondent has had to reduce the number of casual staff and independent contractors that it engages due to a decrease available work.
• The Applicant is engaged on a casual basis, despite being offered a part-time role on multiple occasions, and the hours that he works each week is depended on demand, seasonal tasks and weather.
Applicable Law
[12] 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.”
[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3
[14] 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 Ltd4 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
When did the dismissal take effect?
[15] The Applicant submits that the dismissal took effect on 30 July 2021 because that was ultimately the last day that the Applicant performed work for the Respondent.
[16] The Respondent submits that the Applicant was not dismissed.
[17] The last day that the Applicant worked for the Respondent was 30 July 2021. It appears that the Respondent had determined not to offer Mr Plaumann any additional shifts post 30 July 2021. Whilst it may be true that the Applicant was engaged on a casual basis, which necessarily meant that there were periods in which the Applicant would not work, both parties provided evidence at Hearing there had never previously been a break between engagements of greater than 2-3 weeks.
[18] From the information before me, I find that the Applicant’s employment relationship with the Respondent ceased on or around the day that the Applicant last worked for the Respondent, being 30 July 2021.
[19] This unfair dismissal application was made 64 days outside of the 21 day time limit and therefore, can only be pursued if the time limit is extended.
Paragraph 394(3)(a) - reason for the delay
[20] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5 A dismissal can be communicated orally.6
[21] 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. 7 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,8the 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.”
[22] 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: 9
“[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.”
[23] Mr Plaumann submitted that the reasons for the delay were:
• The Respondent did not provide him with a clear date of dismissal, which left him unaware or unsure as to whether he had been dismissed for an extended period of time; and
• It took significant time for Mr Plaumann to research his entitlements and options, as he had no knowledge of employment law.
[24] I have found that the employment relationship came to an end on 30 July 2021. I accept that Mr Plaumann may not have been aware that the employment relationship had come to an end at that point in time.
[25] Mr Plaumann gave evidence that he was told by Mr Pridham on 23 September 2021 that there was currently no work for him, and that after receiving this message, Mr Plaumann responded by saying that he had a company tablet and other tools that he was going to return to the Respondent. Whilst Mr Plaumann claimed that he wanted to return the Respondent’s property so that he could speak to Mr Pridham about his employment, there is no reason why he had to offer to return property to do so. Mr Plaumann could not provide a satisfactory explanation as to why he would feel the need to return the Respondent’s property if he did not at that point understand that his employment relationship with the Respondent had come to an end. This seems to suggest that Mr Plaumann was aware that his employment relationship with the Respondent had ceased on or about 23 September 2021.
[26] The Applicant also gave evidence that on 28 September 2021, Mr Pridham informed him that he was not required to work because they had enough workers already, and that the next day, on 29 September 2021, Mr Plaumann started conducted research online about dismissals. The Applicant’s decision to begin research on dismissals in consistent with him holding a belief that he had been dismissed. If Mr Plaumann was not aware that his employment relationship had ceased on 23 September 2021, I find that by 29 September 2021 he was definitely aware that the employment relationship had ended.
[27] Mr Plaumann lodged his application on 24 October 2021, a period of 24 days after he was clearly aware of the cessation of his employment. Mr Plaumann explained that in this period he was conducting research on dismissals, and seeking advice from SafeWork SA, the Fair Work Ombudsman, and community legal services.
[28] I accept that Mr Plaumann may not have been aware that his employment relationship had ceased until 29 September 2021 (putting his case at its best) and that this lack of knowledge explained that portion of the delay. The Applicant was not able to provide any satisfactory reason for the delay after he became aware that his employment had ended. I do not accept that Mr Plaumann’s research into dismissals and other enquiries was an adequate reason to explain the approximately 24 days between the time he became aware of his dismissal and the time of lodgment. This factor weighs against an extension of time being granted.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[29] Mr Plaumann was not aware of his dismissal on the day that it occurred. As discussed above, Mr Plaumann’s employment relationship with the Respondent ceased on 30 July 2021, but he did not become aware of this until approximately 23-29 September 2021.
[30] This factor weighs in favour of 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. 10
[32] Mr Plaumann enquired with Mr Pridham on multiple occasions in relation to the status of his employment with the Respondent. In addition, Mr Plaumann has given evidence that between 29 September 2021 and 24 October 2021, he spent significant time calling various government agencies and seeking community legal advice concerning his entitlements. Whilst seeking information about his employment status could be considered as action taking to dispute the dismissal, the action taken in respect of querying his long service leave entitlement (which appears to have been the main focus of Mr Plaumann’s communications post 29 September 2021) is not action taken to contest the dismissal. This factor weights slightly in favour of the granting of an extension of time.
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. 11 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.12
[34] A long delay gives rise “to a general presumption of prejudice”. 13
[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. 14
[36] I am satisfied that there would be no greater prejudice to Pridham 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 is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
[37] In terms of the merits of the application, there is insufficient evidence before me to make an assessment 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
[38] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 15 considered this criterion and said:
“[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.”
[39] I am not satisfied that the issue of fairness as between 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
[40] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
[41] An Order16 reflecting this decision will be issued concurrently with this Decision.
COMMISSIONER
Appearances:
A Plaumann, the Applicant
L Pridham for the Respondent.
Hearing details:
2021.
Adelaide:
November 8.
Printed by authority of the Commonwealth Government Printer
<PR735575>
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 Section 394(3) of the Act
3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
4 [2011] FWAFB 975
5 Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
6 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
7 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]
8 [2016] FWCFB 349
9 [2018] FWCFB 3288 at [35]-[45]
10 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
11 Ibid
12 Ibid
13 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
14 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
15 [2016] FWCFB 6963
16 PR735577
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