Anthony Talbot v Active Contracting Pty Ltd ATF Active Contracting Unit T/A Active Tree Services
[2024] FWC 335
•18 MARCH 2024
| [2024] FWC 335 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Anthony Talbot
v
Active Contracting Pty Ltd ATF Active Contracting Unit T/A Active Tree Services
(U2024/328)
| COMMISSIONER THORNTON | ADELAIDE, 18 MARCH 2024 |
Application for an unfair dismissal remedy– extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – no exceptional circumstances exist – matter dismissed.
This decision concerns an application by Mr Anthony Talbot (Mr Talbot or the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).
The Applicant’s employment with Active Contracting Pty Ltd ATF Active Contracting Unit T/A Active Tree Services (the Respondent) is alleged to have concluded on account of the Applicant’s dismissal on 18 December 2023. The Applicant says he was notified of his dismissal on 18 December 2023 by phone call from his employer. The Respondent agrees that this is when a conversation took place, in which Mr Talbot was advised there was no longer work for him to perform, but do not agree he was dismissed.
Section 394(2) the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as allowed by the Commission considering the factors in s.394(3) of the Act. In this instance, the period of 21 days concluded on 8 January 2024. The application was not filed until 22 days from the date of dismissal, making the application one day out of time. It is therefore necessary that the Applicant be granted an extension of time for his application to proceed.
In its Form F3 Response, the Respondent indicated it objected to jurisdiction because the application was filed out of time and the Applicant was not dismissed. The Respondent contends that the Applicant was a casual employee who was informed he was no longer required to perform work for the employer, following a downturn in work available. The Respondent says the employment contract offered to the Applicant made clear that no firm advance commitment to continuing and indefinite work was made and as such, his employment cannot be said to have been terminated when no further work was offered.
The issue of whether the time limit for the application to be made ought to be extended is a threshold issue to be determined by the Commission and is the subject of this decision.
I have determined, for the reasons set out below, that no exceptional circumstances exist to warrant granting an extension of time.
The evidence
The Commission conducted a Hearing by video via MS Teams to facilitate the determination of the extension of time application.
The Applicant was self-represented and participated in the hearing, giving evidence. The Applicant’s wife, Ms Katie Talbot also gave evidence on his behalf.
Ms Taylor, Human Resource Business Partner for the Respondent, appeared on behalf of the Respondent and also gave evidence regarding relevant matters within her knowledge.
All witnesses appeared to give evidence to the best of their recollection and I have no cause to doubt the truthfulness of the evidence given by any witness.
Mr Talbot gave evidence that he received a call from his supervisor Mr Adrian Miller on 18 December 2023. He did not recall the exact words used by Mr Miller in the telephone conversation but understood that he had been “fired” because, as Mr Miller told him, there had been a downturn in work and there was no more work available for him to do.
Mr Talbot confirmed that he did not accept that the reason given by his employer to bring his employment to an end was a valid reason. That is, he did not accept that there was a downturn in work and told the Commission that crews he had worked in leading up to the end of his employment had been understaffed.
The Applicant also gave evidence that he had an expectation of ongoing employment following what he understood to be a short period in which he had agreed to convert from a full-time permanent employee to a casual employee. Mr Talbot explained that after he had lost his driver’s licence for a three-month period, his employer presented him with a new contract which converted his full-time permanent employment to casual employment. He understood from his employer that he was not able to undertake his full-time role because he could no longer drive machinery. Mr Talbot accepted this change to his employment contract.
However, Mr Talbot was clear in his application and evidence that he had understood from words said to him by his manager, Mr Miller, that he would return to his full-time job when he got his licence back.
Mr Talbot then gave evidence that, following the conversation with Mr Miller on 18 December 2023, he spent the next three or four days trying to get over his employment being terminated and dealing with the stresses of losing his job. He mentioned on a number of occasions during his evidence, his concern and distress at being unable to provide financially for his wife and three daughters after he lost his income.
Mr Talbot reported that in the period following his dismissal he was not eating well, not sleeping properly and felt angry at himself for losing his employment.
He confirmed that he did not take any steps directly with the Respondent to dispute his dismissal.
Mr Talbot’s evidence was that after an initial short period, he sat with his wife at the computer when she did an internet search about options available to him to dispute his dismissal. He confirms that during the internet search he became aware that he could lodge an unfair dismissal claim and that there was a time limit in which the application had to be filed. Mr Talbot confirmed that he understood that his unfair dismissal application had to be filed within 21 days, but he “did not calculate the days exactly” and relied on his wife to determine when the application had to be filed.
Mr Talbot also gave evidence that he did not file his application at the time he undertook the initial internet search with his wife, and that with all the “stress and fuss” of leaving his job, he “just ran out of time” to file his application.
When Mr Talbot was asked about what he was doing in the time following his dismissal before he filed his application, he said that he was looking for other jobs and writing his unfair dismissal application.
Ms Talbot gave evidence that in the days following Christmas, she assisted her husband to lodge his unfair dismissal claim. She confirmed that she undertook research on the internet about Mr Talbot’s options to challenge his dismissal but was not sure if he was eligible to lodge an unfair dismissal claim as a casual employee. She confirmed that during the internet search she became aware that the claim had to be filed within 21 days of the date of dismissal.
Ms Talbot said that she used an internet-based calculator to calculate the 21 days from the date of the termination and that the calculator indicated that 21 days from the date of dismissal was 9 January 2024. Ms Talbot gave evidence that she assisted Mr Talbot with contacting the employer about his entitlements on termination, undertaking internet research about whether he could file an unfair dismissal claim, and helping him to prepare the unfair dismissal claim.
Neither Ms Talbot or the Applicant filed the unfair dismissal claim at the time they undertook the internet search. Ms Talbot’s evidence was that they delayed in lodging the claim because they were more concerned with ensuring the Respondent paid entitlements which they believe Mr Talbot was owed. Ms Talbot told the Commission in her evidence that Mr Talbot communicated with the Respondent by text message requesting payment for a notice period and outstanding allowances. She gave evidence that: “if they had gone ahead and paid out the annual leave, termination of employment payment and everything else, I probably would have gone “just leave it”.” She then explained that as the entitlements had either not been resolved, or were resolved just prior to the 21 day time limit, Mr Talbot was then motivated to file the unfair dismissal claim.
Ms Talbot gave evidence that she told herself that she would have to file the unfair dismissal claim by 9 January 2024 but now understands that she had calculated the date incorrectly. I understood that evidence to be that she committed to memory that she would have to file the unfair dismissal claim on 9 January 2024, in particular if her husband had not been paid the claimed outstanding entitlements.
Ms Talbot told the Commission that filing the unfair dismissal on 9 January 2024 was a “simple mistake” made by her that she has spent much time since worrying about its impact on her husband’s claim.
Ms Talbot gave evidence that in the period following his dismissal, both her and Mr Talbot were under significant stress, they were fighting more and Mr Talbot was not eating properly, not sleeping well and smoking more cigarettes. She recounts that the period of time following the dismissal put significant strain on their marriage.
Ms Taylor, a Human Resource Business Partner within the Respondent’s business, gave evidence that she was not consulted in advance about the decision to conclude Mr Talbot’s employment and was only involved after the Applicant was advised that there was no work for him. She advised that she was not aware of the cause of the downturn in work asserted by the Respondent as the reason for advising the Applicant he would not be offered further work, was not aware if any other employees had also been advised that there was no more work available, and was not asked by the business to oversee a redundancy process that applied to Mr Talbot or any other employee.
With respect to the conversion of Mr Talbot from full-time to casual employment, Ms Taylor confirmed in evidence that she was not involved in the making of that decision but it was her understanding that the Applicant could not complete all the aspects of his full-time role because he was unable to move the Respondent’s equipment without a licence.
Ms Taylor gave evidence that she had reviewed Mr Talbot’s payslips for the periods in which he was engaged as a casual employee and the payslips indicated that he worked varied hours in that time. She also gave evidence that to the best of her knowledge, Mr Talbot had refused work for a period of “two weeks or so” in recent times.
Mr Talbot agreed that he had refused work because he could not drive to the regional location to undertake the work offered.
Submissions
Both parties provided short written submissions which I have considered and taken into account in making my decision.
The Applicant declined to make oral submissions following the evidence, however the Respondent gave a short oral submission to the effect that no exceptional circumstances exist in this matter to warrant the granting of an extension of time. The submission of the Respondent was also that the Applicant had not provided evidence that he was incapacitated such that he was unable to file his application in the relevant period.
Consideration
Section 394(3) of the Act allows the Commission to extend the time for an unfair dismissal application to be made, where exceptional circumstances exist. In determining whether exceptional circumstances exist, the Act requires the Commission to take into account the following factors:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
Reason for the delay
The reason for the delay in itself is not required to be exceptional. Rather, the reason for the delay is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[1] Exceptional circumstances may include a single exceptional factor, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[2]
The delay required to be considered under section 394(3)(a) is the period after the prescribed 21 day period for the lodgement of an application. This period does not include the time from the date the dismissal took effect 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 an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[3]
The absence of any 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 an applicant’s favour; however, all of the circumstances must be considered on their own merits.[4]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[5]
In this matter the delay is one day. Therefore, it is appropriate to take into account the events and reasons given for the delay from the time of the dismissal, when assessing whether there is an acceptable reason for the delay.
On the Applicant’s own evidence, the reasons for the delay were:
(a)With the stress and fuss he experienced after the end of his employment, the Applicant ran out of time to file the application;
(b) the Applicant did not calculate the period of the 21 days exactly;
(c) the Applicant was spending the days following his dismissal looking for other jobs and writing his unfair dismissal application; and(d) the Applicant was experiencing symptoms of stress that affected his appetite, sleep and moods.
On the evidence of Ms Talbot, the reasons for the delay were:
(a)the internet calculator used to calculate the 21-day time period led to a mistake in identifying the correct day the application ought to be filed to comply with the statutory time limit;
(b)the Applicant was considering whether or not to file his unfair dismissal claim awaiting a response from his employer with respect to outstanding entitlements, and should they have been paid the Applicant may not have filed his claim; and
(c)the Applicant and Ms Talbot were both stressed and sleep deprived.
None of the reasons or circumstances, or any combination of the reasons or circumstances advanced by the Applicant constitute exceptional circumstances.
Mr and Ms Talbot confirm they were aware that there was a statutory time limit and respectively did not calculate the time limit exactly or incorrectly calculated the time limit.
Both witnesses for the Applicant confirmed they delayed in filing the claim following the date they became aware of the statutory time limit. On the Applicant’s own witness evidence, the delay in filing is attributable to either stress that caused him to have insufficient time to meet the deadline, or alternatively, an intentional decision to delay filing, coupled with a mistake as to the correct date.
Either way, the Applicant was aware of the 21-day time limit well before the deadline expired and delayed in filing the application until what he understood to be the last day it was able to be filed within the time limit. The mistake as to the date, which I accept in Ms Talbot’s words to be a simple one, nevertheless does not provide an acceptable reason for the late filing such that it leads to a finding of exceptional circumstances.
Mr Talbot, as the Applicant, did not make his own calculation of the date and relied on Ms Talbot’s calculation. Mr Talbot’s ignorance of the exact date, when he had not calculated the date himself, cannot be relied on as an acceptable reason for the delay. Mr Talbot himself did not take steps to file his claim before the date Ms Talbot had told him was the last day within the time limit.
Experiencing the stress and distress described by Mr and Ms Talbot after losing employment would not be an uncommon reaction. Mr and Mrs Talbot’s evidence of the symptoms of stress experienced by Mr Talbot, whilst very real and upsetting for both of them, are not unusual or extraordinary in and of themselves. [6]
No evidence was given that the stress experienced by the Applicant caused him to be so incapacitated that he could not file his claim. To the contrary, Mr Talbot gave evidence that in the weeks following the end of his employment, he applied for other jobs and drafted his unfair dismissal application.
With respect to the length of the delay being one day, the Commission found in Ozoy vMonstamac Industries Pty Ltd [7]:
“The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whilst the length of delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional.”[8]
The reasons advanced by the Applicant in this case for filing his application one day out of time do not provide an acceptable explanation for the delay and are not out of the ordinary course, unusual or exceptional. The absence of a valid reason for the delay does not support a finding of exceptional circumstances.
When the applicant first became aware of the dismissal
The Applicant does not dispute that he became aware that he would not be offered further work on 18 December 2023.
There remains a dispute between the parties as to whether there was in fact a dismissal. Whether there was a dismissal or not, the Applicant concedes he was made aware on 18 December 2023 that he would not be offered further work, and he had the balance of the 21 days to file his application for unfair dismissal.
This consideration does not support a finding of exceptional circumstances.
Any action taken by the applicant to dispute the dismissal
The Applicant has stated that he took no steps to dispute his dismissal as he stated in his written submission that ‘there wasn’t any point’. When asked in evidence about whether he took any action to dispute the dismissal, including making further enquiries about whether there really was a downturn in work, or the cause of the purported downturn, he confirmed he did not and had no reason to offer for why he did not take any action to dispute the dismissal.
This consideration does not support a finding of exceptional circumstances.
Prejudice to the employer, including prejudice caused by the delay
The Respondent made submissions that it would be prejudiced by an extension of time being granted to the Applicant because it has been compromised in spending a considerable amount of time notifying and preparing its jurisdictional objections.
The submission made by the Respondent addresses the inconvenience they say the application has caused them but, other than the complaint about the time spent, did not specify other particular difficulties or unfairness that arose for them because the application was filed out of time.
In Brodie-Hanns v MTV Publishing,[9] the Court found that the Respondent “should not be lightly put to the cost and inconvenience of defending an application lodged out of time unless the interests of justice so dictate.”
Whilst I accept the Respondent has spent time in defending the application made out of time, I have also taken into account the short delay in the filing of the application and find this is a neutral factor in my decision.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[10] Further, the primary consideration is whether the Applicant has an arguable case.[11] The consideration below is made without the benefit of tested evidence, which would be necessary for findings to be made.
The Respondent asserts that the Applicant was a casual employee and was not offered ongoing work when there was insufficient work available. The Respondent submitted there was no dismissal and has identified this as a further jurisdictional objection that the Commission would have had to determine in advance of dealing with the merits of the application, if the time to make the application had been extended.
The Applicant says that he had an expectation of ongoing employment because he was formerly a full-time employee from his commencement with the Respondent on 9 August 2021 until 15 September 2023 when he agreed to convert his employment to casual. The Applicant gave evidence that when he advised the Respondent that his driver’s licence had been suspended, the Respondent confirmed that he could not perform the requirements of his full-time role and produced a new employment contract that offered Mr Talbot casual employment. The Applicant accepted the offer but gave evidence that his supervisor Mr Miller advised him that he would have his job back, which he understood to be a return to full-time employment, at the conclusion of the period of his licence suspension. The Applicant was emphatic in his evidence that he intended to return to full-time work and had an expectation that would occur.
I am sympathetic to the confusion the change to his employment status appears to have caused the Applicant with respect to his expectations of ongoing employment. However, it is not disputed that he accepted a change in his employment status to casual employment and signed a new contract confirming his engagement as a casual employee. The Applicant also agrees that he had the ability to reject work offered and did so for a period of approximately two weeks in the period leading up to the end of his employment relationship because he was unable to travel to perform the work.
The contract signed by Mr Talbot on 15 September 2023 says at clause 3, Hours of Work: “The ongoing employment and hours of work for a casual employee are not guaranteed and Active Tree Services makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of hours.” This clause appears, on its face, to operate to place
Mr Talbot within the definition of a casual employee in section 15A of the Act.
Despite the evidence from Mr Talbot that he was promised a return to his full-time, permanent employment status, the words in the employment contract, and his refusal to perform work when he was unable to do it, make it unlikely that Mr Talbot will be able to establish that he was an employee to whom the Respondent had an obligation to provide ongoing work. Further, Mr Talbot is unlikely to be able to persuade the Commission that in refusing to offer him ongoing work, the Respondent terminated his employment.
Assuming Mr Talbot survives the second jurisdictional objection, the issue of the merits of the decision will arise. The Respondent asserts that there was a downturn in work, and the Applicant, in general terms, rejects that position. There was insufficient evidence before me to form any preliminary view regarding whether there was a reduction in work available such that there was insufficient work for the Applicant to perform, and that this was a valid reason for bringing the Applicant’s employment to an end.
Given the difficulties Mr Talbot will likely face in establishing his employment was in fact terminated, or if it was there was no valid reason, the prospects of Mr Talbot’s case are not strong. The merits of the application is not a consideration that supports the granting of an extension of time.
Fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[12] considered this criterion and said:
“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.”[13]
The Respondent asserts that to grant the application for an extension of time would create unfairness for other casual employees employed by the Respondent “as they do not have access to this application.” It seems that this submission may be focussed on the second of the Respondent’s jurisdictional objections, but nevertheless arguably apply to the application to extend time. To extend the time for the application to be filed in this matter would likely cause unfairness to both applicants who make efforts to comply with the time limit and those that have been refused when filing a day late when no exceptional circumstances have been found to exist.
The Commission must consider the same factors whether an application is filed a day late or there is a longer period of delay. In Ambrose v Target[14] (Ambrose), the Commission noted:
“Ms Ambrose’s application was lodged only one day outside the 21 day time period. It could be argued this fact alone provides justification to exercise the discretion to grant additional time to her in which to make application. However, previous decisions of this Tribunal have emphasised that the requirement to comply with prescribed time limits is not a mere technical problem, but involves a failure to comply with substantive legislative provisions. The legislation also makes clear that it is only in “exceptional circumstances” that the Commission should exercise the discretion available to it to extend the time for making application.[15]
The matter of Ambrose is akin to the matter of Mr Talbot. Ms Ambrose filed her application a day after the time limit because she incorrectly believed it would be delivered on the date it was due to be filed and explained the delay in filing to the last day as being occasioned by a medical condition brought about by the stress of her dismissal.
In the case of Ambrose, the Commission declined to extend the time in which Ms Ambrose could bring her application because the combination of factors were not exceptional. Ms Ambrose spent time before filing her application focussed on making a workers compensation claim and the Commission was not satisfied that her medical condition rendered her so incapacitated that she was unable to make the application within the statutory time frame.
Fairness as between Mr Talbot and other applicants in similar circumstances is a consideration that also does not support a finding of exceptional circumstances warranting an extension of time. Mr Talbot also filed his application late because of a misconception, was perhaps focused on recovering entitlements rather than filing his claim and there is no evidence that he was so incapacitated by his stress that he could not make an unfair dismissal application.
Conclusion
As all bar one of the considerations I must turn my mind to in deciding whether exceptional circumstances exist in this matter do not support a finding of exceptional circumstances (with one consideration being neutral), I find that there are no exceptional circumstances in Mr Talbot’s case that warrant the exercise of discretion to extend the time for a further period for the application to be made.
I decline to extend the time for filing of the Applicant’s claim for a remedy arising from an unfair dismissal, and the claim is therefore dismissed.
COMMISSIONER
Appearances:
A Talbot and K Talbot, on behalf of the Applicant.
B Taylor for Active Contracting Pty Ltd ATF Active Contracting Unit.
Hearing details:
Adelaide (Video via MS Teams)
2024
7 February.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39].
[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
[3] 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].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39].
[5] Ibid.
[6] See Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287.
[7] [2014] FWC 479.
[8] As above at paragraph 21.
[9] (1995) 67 IR 298.
[10] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph [14].
[11] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[12] [2016] FWCFB 6963.
[13] Ibid at paragraph [14]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] 750.
[14] [2015] FWC 314.
[15] Ibid at paragraph [61].
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