Andrew Stewart v Gippsland Civil Concrete T/A Gippsland Civil Concrete

[2015] FWC 4161

[2015] FWC 4161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Stewart
v
Gippsland Civil Concrete T/A Gippsland Civil Concrete
(U2015/3040)

COMMISSIONER GREGORY MELBOURNE, 26 JUNE 2015

Application for extension of time.

Introduction

[1] Mr Andrew Stewart worked with Gippsland Civil Concreting (“Gippsland Concrete”) until 13 January this year when his employment was terminated in the course of a telephone conversation with the owner of the business, Mr Stephen Collison. Mr Stewart then proceeded to make an unfair dismissal application, but it was not lodged with the Commission until 12 February, 9 days after the 21 day “standard time limit” provided for in the Fair Work Act 2009 (Cth) (“the Act”).

[2] This decision accordingly deals with whether Mr Stewart should be allowed additional time in which to make his application. It is also noted Gippsland Concrete submits Mr Stewart was engaged as an independent contractor, rather than as an employee.

[3] The parties appeared in the hearing by telephone. Ms Angela Stewart appeared on behalf of her husband. Ms Wendy Cox was granted leave to appear on behalf of Gippsland Concrete under s.596(2)(b) on the basis it would enable it to be represented effectively.

The issue to be decided

[4] Section 394 of the Actprovides the “standard time limit” for making an unfair dismissal application is 21 days after the dismissal took effect. However, it also allows applications to be made within such further period as the FWC allows under sub section s.394(3).

[5] Section 394(3) indicates the Commission may allow a further period to make application if is satisfied 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;

(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 like position.” 1

[6] Therefore, are there “exceptional circumstances” in this matter, having regard to each of the considerations in s.394(3), to warrant an exercise of the discretion to allow Mr Stewart additional time in which to make application?

The evidence and submissions

[7] Mr Stewart did not provide written submissions in support of his application, but various oral submissions were made on his behalf. Mr Stewart submits he was unaware of the time limit for making application, and was “uneducated about what goes on with dismissals.” 2 He also submits he had a significant injury at the time, and his principal concern was to pursue a WorkCover claim in regard to that injury.

[8] He submits it was only after his wife had a conversation with her father that she was alerted to the possibility of Mr Stewart making an unfair dismissal claim. She then made contact with the Fair Work Commission, but by this time the 21 day period had already elapsed. However, she was apparently told that an application could still be lodged “but I would have to see if it was approved or not.” 3

[9] In response to a question from the Commission it was also indicated Mr Stewart was on strong medication at the time, including morphine to assist with pain relief. He apparently also suffers from a mild learning disability, and has difficulty communicating with other people in the way he wants. Ms Stewart therefore took on much of the responsibility for a range of matters including, in this case, the preparation and lodgement of Mr Stewart’s unfair dismissal application. She was already dealing with a range of additional family matters and the immediate priority as well was Mr Stewart’s WorkCover claim.

[10] The Commission also asked a question about the assertion Mr Stewart was engaged as a contractor rather than an employee. It was indicated in response he had an ABN number, however, he worked solely with Gippsland Concrete, received a set rate of pay per hour for that work, and did not provide his own tools in the conduct of his employment.

[11] Gippsland Concrete provided a written statement from Mr Stephen Collison, the Owner/Director of the business. It indicated he engaged Mr Stewart as a contractor on 24 January 2014, although he had previously provided services to the business. He said Mr Stewart last worked in the business on 22 December 2014, and he was advised by telephone on 13 January in a discussion with Mr Collison that his services were no longer required.

[12] Mr Collison also said it was only after Mr Stewart was told he was no longer required that he informed Mr Collison he had experienced a work-related injury in November and intended to pursue a WorkCover claim. Mr Collison said he was not previously aware of the injury, and Mr Stewart had recently seemed to carry out his work without injury or restriction, despite being involved in strenuous physical activity.
[13] Mr Collison’s statement also made reference to a series of WorkCover related appointments he understood Mr Stewart was required to attend in pursuit of his WorkCover claim. He said it appeared from information provided to him by a WorkCover agent that these took place either before Mr Stewart was dismissed, or after the 21 day period following his dismissal.

[14] Mr Collison also stated he did not believe the various family and other obligations relied upon by Mr Stewart as the reason for the delay in lodging his unfair dismissal application constituted “exceptional circumstances.”

[15] He also said Mr Stewart was engaged as an independent contractor and not an employee, and highlighted the following matters in this context. Firstly, Mr Stewart chose the hours and times he worked, and negotiated chargeable rates for these services. He invoiced the business for the work performed and was responsible for his taxation payments. Thirdly, he did not receive any of the leave entitlements normally associated with an employment relationship, and was previously engaged as a contractor by the business in January 2012, but left to take on other work. He was engaged again in January 2014 after contacting Gippsland Concrete seeking further contracting work. Finally, his WorkCover and unfair dismissal claims both made reference to him being either a sub contractor or contractor.

[16] Mr Collison also said that regardless of whether Mr Stewart was an independent contractor or employee he was not dismissed for submitting a WorkCover claim. Instead, his services were no longer required because of the quality of the work performed, and his attitude. He also indicated the business had been supportive of Mr Stewart in the past and had lent money to him at one point to assist with some personal matters he was dealing with.

[17] Gippsland Concrete also submits Mr Stewart had previously demonstrated an ability to run a business, negotiate rates of pay for the provision of his services, as well as being able to deal with a range of other matters. It accordingly submits nothing prevented him from making an unfair dismissal claim during the 21 day period, and there were no “exceptional circumstances” that acted to stop him from doing so.

Consideration

[18] The submissions provided on behalf of Mr Stewart indicate he was clearly unhappy about being terminated by Gippsland Concrete. They also indicate he was dealing with a painful shoulder injury at the time, although Gippsland Concrete submits it had no knowledge of the injury until a WorkCover claim was received in January this year.

[19] As indicated, s.394(3) of the Act sets out the various requirements the Commission is required to take into consideration in dealing with this application. The question of what constitutes “exceptional circumstances” has also been considered in previous decisions of this Tribunal. For example, in the decision in Nulty v Blue Star Group 4(“Nulty”) the Full Benchcame to the following conclusion:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 5

[20] In summary, the decision makes clear that to establish the existence of “exceptional circumstances” requires something out of the ordinary or unusual, and such circumstances might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the circumstances of this matter, and the submissions of the parties, by reference to these considerations and the matters in s.394(3) I must take account of.

[21] Mr Stewart relies on a variety of circumstances in support of the reason for the delay in making application. He submits he was not aware of the option of bringing an unfair dismissal claim until his wife was alerted to the possibility by her father. By this time the 21 day period had expired. Mr Stewart also submits his priority at the time was dealing with a painful work-related injury, which was the subject of a WorkCover claim. However, Gippsland Concrete submits the injury was apparently sustained more than 3 months earlier, and Mr Stewart’s treatment records do not point to any appointments or examinations he was required to attend in the 21 day period following his termination.

[22] It was also indicated that Mrs Stewart was required to take on the responsibility for drafting and lodging Mr Stewart’s unfair dismissal application because of the impact of his injury, and a learning disability which inhibited his ability to prepare the application himself. However, Ms Stewart was already occupied in dealing with a range of other family related responsibilities and obligations.

[23] I am satisfied these factors, both individually and when taken together, provide an explanation about why Mr Stewart did not lodge an unfair dismissal application within the required time period. However, I am not satisfied they provide evidence of “exceptional circumstances” to warrant an exercise of the discretion to extend time to make application. This view is supported by previous decisions of the Commission, including the decision in Nulty, which makes clear that ignorance of the statutory time limits is not an “exceptional circumstance.” It also makes clear that in establishing a timeframe to make application the Parliament can be presumed to expect an employee who has been dismissed to seek out information “on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 6

[24] I also note the decision of a Full Bench of Fair Work Australia in Dr Bing Du v University of Ballarat 7 when it concluded:

“[31] In respect of Doctor Du’s reason for the delay in making his unfair dismissal remedy application, we consider that it is not out of the ordinary course, unusual, special or uncommon for employees whose employment has ceased to not be aware of the law and to be unable to pay for advice or afford legal costs. Moreover, free advice is available from a number of sources, including the FWA website, about the grounds for an unfair dismissal remedy application and about making such applications to FWA by completing the appropriate form and paying the filing fee or obtaining a waiver of the filing fee.” 8

[25] In the present matter the delay appears to be due to the fact Mr Stewart did not act to obtain appropriate advice in a timely manner following his termination, and he was apparently not aware of the option of bringing an unfair dismissal claim. On one hand it seems unusual he was not aware of this option. The laws have now been in place for several decades and have been well publicised in that time. It is surprising Mr Stewart did not have some awareness of them in those circumstances. This apparent lack of awareness was compounded by the fact he did not act in a timely way to explore the options open to him following his termination.

[26] Several reasons are given for this failure. His first priority was indicated to be pursuit of a WorkCover claim about an earlier work-related injury. His wife was also required to assist in drafting and lodging his unfair dismissal application because of his injury and a learning disability which hindered his ability to act on his own behalf. However, Ms Stewart was also dealing with various other family related responsibilities and obligations at the time.

[27] All of these matters provide an explanation for Mr Stewart’s failure to lodge his application within the 21 day period. However, I am not satisfied they can be considered to be circumstances that are out of the ordinary course, unusual, special or uncommon, as the decision in Nulty makes clear is required. Many individuals and many families are dealing with a variety of issues and responsibilities at any one time in a similar manner to what appears to be the case in the present matter. It is also difficult to identify anything that actually prevented Mr Stewart from making application within the prescribed period, apart from his failure to act in the timely manner expected and anticipated by the Parliament.

(b) any action taken by the person to dispute the dismissal

[28] There is no doubt Mr Stewart is unhappy with the circumstances surrounding his termination from Gippsland Concrete. However, the principal action taken to dispute the dismissal appears to be the unfair dismissal application he has lodged.

(c) prejudice to the employer (including prejudice caused by the delay)

[29] There will always be some prejudice for an employer if additional time is provided to an Applicant to make application, given the employer will then be required to respond to the application. However, this consideration does not appear to be of particular significance in the present matter.

(d) the merits of the application

[30] Mr Stewart submits he was dismissed because he lodged a WorkCover claim in regard to an injury sustained while working for Gippsland Concrete. However, Gippsland Concrete denies any knowledge of the injury at the time it decided to terminate his services. It claims instead his services were dispensed with because of issues about his attitude and work performance.

[31] There is also a further significant jurisdictional issue to be determined if this matter proceeds further. Gippsland Concrete submits Mr Stewart was engaged as an independent contractor, and not as an employee. Clearly, if the nature of the relationship is found to be that of principal and independent contractor then Mr Stewart will be precluded from proceeding with his unfair dismissal application, given this avenue is only open to an employee. However, Mr Stewart submits he was engaged as an employee, and this jurisdictional objection would not be successful, if pressed.

[32] Both parties made submissions about this issue and they have been referred to at an earlier point in this decision. However, on the basis of the submissions and evidence now before the Commission I am unable to form a clear view about this jurisdictional objection, or about the reasons why the relationship came to an end. However, the relevance of the issue of “merit” when determining an application for an extension of time has been considered previously by a Full Bench of the former Australian Industrial Relations Commission in the matter of Kyvelos v Champion Socks Pty Ltd 9(“Kyvelos”) when dealing with similar legislative provisions to those in the Fair Work Act. The Full Bench stated:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE (7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 10

The Full Bench continued:

“It should be emphasised that in considering the merits the Commission not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE (8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 11

[33] As indicated, I have not formed a concluded view about the respective merits of the different aspects of the present application, based on the limited submissions and evidence now before the Commission. However, the decision in Kyvelos makes clear it is not necessary to do so at this point.

(f) fairness as between the person and other persons in a like position.

[34] Neither party made submissions about the relevance of this consideration and it does not appear to be of particular significance in determining this matter.

Conclusion

[35] In coming to a decision in this matter I have had regard to each of the matters in s.394(3) of the Act I am required to consider. I have also had regard to the principles established in decisions, such as Nulty, in terms of what is required to find “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which to make application.

[36] I have considered the reasons relied upon by Mr Stewart for the delay in making application. They have been referred to already and are not restated now. In summary, they concern his lack of knowledge and understanding about what remedies might be available to him, and his failure or inability to pursue those options in a timely manner. I am not satisfied, in conclusion, these circumstances constitute the “exceptional circumstances” that warrant an extension of time being granted to make application. They are instead circumstances that are unfortunately all too often encountered.

[37] This is not intended to be critical of Mr Stewart. He is obviously concerned about the decision to terminate his services. He took action to try and deal with those concerns, but failed to act in a timely way. However, for all the reasons indicated I do not consider these circumstances to be exceptional. The application is dismissed.

COMMISSIONER

Appearances:

Mrs Angela Stewart appeared on behalf of the Applicant.

Ms Wendy Cox of Wendy Cox Human Resource Consulting appeared on behalf of the Respondent.

Hearing details:

2015.

Melbourne (by telephone):

22 April.

 1 Fair Work Act 2009 (Cth) at s.394(3).

 2   Transcript at PN23.

 3   Ibid at PN25.

 4   [2011] FWAFB 975.

 5   Ibid at para 13 to 14.

 6   Ibid at para 14.

 7   [2011] FWAFB 5225.

 8   Ibid at para 31.

 9   Dec 1294/00 M Print T2421.

 10   Ibid at para 14.

 11   Ibid.

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