Anthony Cotterill v Black Box Technologies Australia Pty Ltd
[2023] FWC 2663
•12 OCTOBER 2023
| [2023] FWC 2663 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Anthony Cotterill
v
Black Box Technologies Australia Pty Ltd
(C2023/4921)
| COMMISSIONER CRAWFORD | SYDNEY, 12 OCTOBER 2023 |
General protections dismissal dispute - application filed out of time – extension granted
BACKGROUND
Anthony Cotterill (Cotterill) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Cotterill’s allegations that he has been dismissed from his employment with Black Box Technologies Australia Pty Ltd (Black Box) in contravention of Part 3-1 of the FW Act.
Mr Cotterill commenced employment with Black Box in May 2018 and was employed in the role of Associate Vice President – Sales prior to being dismissed on the ground of redundancy on 20 July 2023.
Black Box has objected to the application on the ground that the application is out of time.
Before dealing with the dispute, I must be satisfied that the application was not made out of time.
I issued directions for the filing of material in relation to whether I should grant an extension of time on 11 September 2023 and listed the matter for hearing on 4 October 2023. The parties generally complied with the directions.
PERMISSION FOR REPRESENTATION
The directions I issued on 11 September 2023 included provision for the parties to file a brief submission in support of being granted permission for legal representation and for the other party to file a brief submission in opposition to permission being granted to the other party. The directions also indicated I would determine the issue of permission on the filed material and inform the parties prior to the hearing. Black Box filed a submission in support of being granted permission to be represented on 18 September 2023. Mr Cotterill did not file a submission opposing permission being granted to Black Box. On 29 September 2023 the parties were informed I had granted permission to Black Box to be legally represented pursuant to s.596 of the FW Act on the basis I was satisfied it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
Mr Cotterill represented himself at the hearing on 4 October 2023. Black Box was represented by Dominic Fleeton from K & L Gates.
MATERIAL FILED
Cotterill
Mr Cotterill relied on the following material in support of the granting of an extension of time for the filing of his application:
· A statement/submission dated 18 September 2023 regarding the reasons for his delay in filing the application. I marked this Exhibit A1.
· A Notice of Listing for an unfair dismissal application filed by Mr Cotterill against Black Box Technologies Australia Pty Ltd. The listing is for a staff conciliation conference on 21 September 2023. I marked this Exhibit A2.
· A chronology of issues Mr Cotterill encountered while working for Black Box. I marked this Exhibit A3.
· A medical certificate from Dr Salim Nachar dated 1 July 2023 which certified Mr Cotterill unfit for work from 28 June 2023 to 4 July 2023. I marked this Exhibit A4
· A medical certificate from Dr Salim Nachar dated 6 July 2023 which certified Mr Cotterill unfit for work from 6 July 2023 14 July 2023. I marked this Exhibit A5.
· A Black Box document headed “Quota Plan Document (QPD) FY 24”. I marked this Exhibit A6.
· A Black Box document headed “FY24 INCENTIVE PLAN – Australia and New Zealand”. I marked this Exhibit A7.
· A letter from Mahua Mukherjee to Mr Cotterill dated 6 July 2023 which provided notice that Mr Cotterill’s position would be made redundant. I marked this Exhibit A8.
· A letter from Mr Mukherjee to Mr Cotterill dated 19 July 2023 confirming Mr Cotterill’s employment would end by reason of redundancy effective 20 July 2023. I marked this Exhibit A9.
· An undated letter from Mr Cotterill to Mr Mukherjee raising concerns about being contacted while he was unwell and about being made redundant. I marked this Exhibit A10.
· A WorkCover NSW Certificate completed by Dr Saleh dated 13 July 2023 which indicates Mr Cotterill had no work capacity from 13 July 2023 to 10 August 2023. The certificate diagnoses Mr Cotterill as suffering from “severe anxiety and difficulty coping with stress”. I marked this Exhibit A11.
· A Commission Payment Receipt dated 4 August 2023 and addressed to Mr Cotterill in relation to his unfair dismissal application. I marked this Exhibit A12.
· Mr Cotterill’s unfair dismissal application against Black Box dated 4 August 2023. I marked this Exhibit A13. Mr Cotterill discontinued this application via an email to the Commission on 21 August 2023.
Mr Cotterill was cross-examined by Mr Fleeton.
Mr Cotterill also provided written submissions and oral closing submissions at the end of the hearing.
Black Box
Black Box relied on a statement from Aatef Khayat (Vice President and Business Head – Australia and New Zealand) dated 26 September 2023. The statement contained the following attachments:
· AK 1: Copies of calendar invites to Mr Cotterill.
· AK 2: Letter to Mr Cotterill dated 6 July 2023 providing notice of redundancy.
· AK 3: Emails between Mr Cotterill and Mr Khayat concerning his redundancy and attempts to arrange meetings.
I marked Mr Khayat’s statement Exhibit R1.
Mr Khayat attended the hearing remotely and was cross-examined by Mr Cotterill.
CONSIDERATION
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 15 August 2023.
When did the dismissal take effect?
It is not in dispute, and I find, that the dismissal took effect on 20 July 2023. Mr Cotterill identified the dismissal date as 21 July 2023 in his Form F8 application. However, his termination letter identifies an effective dismissal date of 20 July 2023 and Mr Cotterill has acknowledged he received the letter on 19 July 2023.[1]
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As I found above, the dismissal took effect on 20 July 2023. The final day of the 21-day period was therefore 10 August 2023 and ended at midnight on that day. The application was made on 15 August 2023. The application was made five days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by Mr Cotterill 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 Mr Cotterill and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 10 August 2023. The delay is the period commencing immediately after that time until 15 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
Mr Cotterill does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Mr Cotterill has not provided any reason for any part of the delay.[6]
Mr Cotterill’s evidence was that the delay arose because of:
“A verbal phone conversation with a lawyer that I engaged provided negligent advice to me and I lodged an s.394 for Unfair Dismissal, in the wrong jurisdiction within 21 days. Please see Attachment A – Unfair Dismissal Notice of Listing.
Another lawyer phoned me and mentioned that I should have lodged my claim under General Protections, not Unfair Dismissal, hence me asking that the application be accepted as I was given the wrong advice.”[7]
This is essentially an argument of representative error concerning the lawyer Mr Cotterill says he initially spoke with.
I have had some difficulty assessing Mr Cotterill’s reason. The explanation makes sense to me given it provides a logical explanation for why Mr Cotterill discontinued an unfair dismissal application filed within time to pursue a general protections application filed outside of the standard 21-day filing period.
However, Mr Cotterill provided no supporting evidence to establish that he was provided with negligent advice by a lawyer. Mr Cotterill was unable to provide clear details about the events during cross-examination and his evidence conflicted somewhat concerning whether any lawyer was formally engaged and whether he was provided with free advice or charged. Mr Cotterill did not provide a name for the relevant lawyer and identified the firm as Green Tree Lawyers. I was not able to locate this firm via an online search, but there are firms with similar names such as Greenleaf Legal, so I accept it’s possible Mr Cotterill stated the wrong name. When asked in cross-examination if he could show phone records for the relevant call, Mr Cotterill indicated he could not as he regularly deletes his call history because he gets so many calls.
Mr Cotterill repeatedly explained the lack of any supporting evidence by saying “I am not a lawyer” and indicating he did not know what was required. However, Mr Cotterill presented as an intelligent person during the hearing and held a reasonably high-level position with Black Box. Mr Cotterill also demonstrated he understands the importance of filing supporting evidence by filing a significant amount of other material in support of his case.
In all the circumstances, I find the lack of supporting evidence and some of Mr Cotterill’s explanations to be problematic. As a result, I find that Mr Cotterill does not have an adequate reason for the delay and this weighs against extending the time period for the filing of his application.
What action was taken by the Cotterill to dispute the dismissal?
It is clear Mr Cotterill filed an unfair dismissal application on 4 August 2023 which was within 21 days of being dismissed. Mr Cotterill discontinued this application on 21 August 2023 because he had decided to pursue a general protections application instead. This weighs significantly in favour of the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
Black Box accepted it did not suffer any significant prejudice from the delay. I agree and consider this to be a neutral factor.
What are the merits of the application?
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)”.[8]
I consider it is relevant that Mr Cotterill refers in part 1.4 of his Form F8 application to outstanding commissions. Mr Cotterill admitted during cross-examination that the primary reason he is bringing the application is to pursue unpaid commissions. There may be scope to bring this type of breach of contract argument as part of a general protections claim, but Mr Cotterill initially needs to allege a general protection has been contravened. He has attempted to do this, but his arguments concerning nepotism and legal claims allegedly filed by other employees against Black Box may not overly assist. In addition, Mr Khayat provided evidence during cross-examination that Black Box utilised an externally sourced competency and performance framework to select which account managers would be selected for redundancy and that Mr Cotterill had the lowest score.
However, Mr Khayat admitted during cross-examination that a large deal Mr Cotterill secured around the time of his dismissal was not factored into the metrics used for the competency and performance framework assessment. Mr Cotterill’s chronology of issues also indicates there were issues he was raising about his employment with Black Box in the months prior to his dismissal.
In all the circumstances, and particularly given the degree of factual dispute between the parties, I consider the merits to be a neutral factor.
Fairness as between the Cotterill and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[9] Exceptional circumstances may 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.[10]
Having regard to all of the matters listed at s.366(2) of the FW Act, I am very marginally satisfied that there are exceptional circumstances.
The main reasons I have reached this conclusion are because Mr Cotterill filed an unfair dismissal application within 21 days of being dismissed and because I am not satisfied his claim is without merit.
I am somewhat uneasy about this decision given I found Mr Cotterill’s explanation about receiving negligent legal advice to be problematic. However, there is medical evidence that Mr Cotterill was suffering from “severe anxiety, poor sleep, difficulty to manage stress and low mood due to work stress” and that he had no work capacity from 13 July 2023 to 10 August 2023. I think it is necessary to factor in these mental health issues when assessing how much weight to place on the problems with Mr Cotterill’s evidence about instructing lawyers. That is particularly the case given Mr Cotterill is an unrepresented litigant, with recent mental health issues, who did not have the benefit of engaging an experienced and competent lawyer like Mr Fleeton to assist him.
Conclusion
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.
Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[11] I am satisfied that it is appropriate to extend the period for the application to be made to 15 August 2023.
The dispute will proceed to be listed for conference.
COMMISSIONER
Appearances:
Anthony Cotterill representing himself.
Dominic Fleeton from K & L Gates for Black Box.
Hearing details:
2023.
Sydney.
4 October.
[1] Exhibit A1, page 4 of the Digital Court Book (DCB).
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Exhibit A1.
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Fair Work Act 2009 (Cth) s 577.
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