Brenton Cooke v Hired Labour Pty Ltd
[2024] FWC 624
•8 MARCH 2024
| [2024] FWC 624 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brenton Cooke
v
Hired Labour Pty Ltd
(U2024/656)
| COMMISSIONER CRAWFORD | SYDNEY, 8 MARCH 2024 |
Unfair dismissal application filed out of time – exceptional circumstances – extension of time granted
Background
Brenton Cooke (Mr Cooke) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he was unfairly dismissed by Hired Labour Pty Ltd (Hired Labour).
Hired Labour is a labour hire business which relevantly provides labour to Blenners Transport Qld Pty Ltd. Mr Cooke commenced casual employment with Hired Labour on 25 March 2022 as a truck driver. Mr Cooke’s employment was terminated effective 22 December 2023. Mr Cooke was notified of his dismissal during a phone call on 22 December 2023. Mr Cooke was subsequently provided with a termination letter dated 27 December 2023. The termination letter refers to the termination being communicated during a phone call on 22 December 2023 and does not identify a reason for dismissal.
Mr Cooke’s Form F2 unfair dismissal application was filed on 19 January 2024.
On 25 January 2024, Hired Labour filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mr Cooke’s application was not filed within 21 days of the dismissal taking effect on 22 December 2023 and argued that an extension of time should not be granted.
I issued directions for the filing of material and listed a determinative conference/hearing regarding whether an extension of time should be granted for Mr Cooke’s application on 6 March 2024.
Mr Cooke represented himself at the determinative conference/hearing on 6 March 2024. Daryl Phillips (People and Culture Manager) represented Hired Labour.
At the start of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference rather than a hearing because a more informal process was likely to assist Mr Cooke, given he was unrepresented and not familiar with the processes. The parties agreed to this course of action. I decided to conduct a determinative conference.
Material filed
Mr Cooke
Mr Cooke relied on the following material in support of an extension of time being granted:
· A Form F2 application. I decided to mark the application as an exhibit because it contains evidence from Mr Cooke about his dismissal and in relation to why he missed the filing deadline. I marked the Form F2 application Exhibit A1.
· A copy of Mr Cooke's termination letter dated 27 December 2023. I marked this Exhibit A2.
· An email from Mr Cooke to the Commission dated 25 January 2024. The email contains evidence from Mr Cooke regarding why he missed the filing deadline. The email refers to Mr Cooke thinking he had 28 days to file the application and indicates his lawyer was on leave over the Christmas period. The email also refers to Mr Cooke being in dispute with Hired Labour regarding a range of matters including underpayments and a bullying complaint and states that the same law firm had been assisting him with those issues. I marked the email Exhibit A3.
· An email from Candace Prince, who is a principal for Prince Legal, dated 1 February 2024. The email states Mr Cooke is a client of Prince Legal and relevantly states:
“We were contacted by Mr Cooke as we are his legal representation for other matters.
Unfortunately, our office has been on leave and have came back into a large 2 week trial as well as attending a funeral.
It is not the fault of our client that the Application is late.
We are of the view that our client’s application has genuine merit given the circumstances of his dismissal.”
I marked this email Exhibit A4.
Mr Cooke also provided additional oral evidence under an affirmation in response to questions from me during the determinative conference. Mr Cooke was cross-examined by Mr Phillips.
Mr Cooke made oral closing submissions at the end of the determinative conference.
Hired Labour
Hired Labour relied on its Form F3 employer response form which had the following documents attached:
· An email from Mr Phillips to Mr Cooke dated 27 December 2023 which had the termination letter attached.
· A copy of the termination letter dated 27 December 2023.
· A copy of Mr Cooke’s casual employment contract dated 24 March 2022.
· An email from Amanda Jensen (NQ People & Culture Administration for Blenners Transport) to Mr Cooke dated 6 June 2023. The email offers Mr Cooke conversion to full-time employment and requests a response by 26 June 2023.
I marked the Form F3 employer response and its attachments Exhibit R1. Mr Phillips was not required for cross-examination on any of this evidence.
Mr Phillips provided oral closing submissions at the end of the determinative conference.
Extension of time
Section 394(2) of the FW Act provides that an unfair dismissal application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
Given the dismissal date of 22 December 2023, the 21-day filing period ended on 12 January 2024. Mr Cooke’s application was filed seven days late on 19 January 2024. As a result, Mr Cooke needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.
Was the application made within such further period as the Commission allows?
Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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) whether Mr Cooke first became aware of the dismissal after it had taken effect; and
(c) any action taken by Mr Cooke 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 Mr Cooke and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
Consideration
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 12 January 2024. The delay is the period commencing immediately after that time until 19 January 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
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.[4]
Mr Cooke 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 Mr Cooke has not provided any reason for any part of the delay.[5]
Mr Cooke provided the following evidence during the determinative conference:
· Mr Cooke has been involved in litigation in the Federal Circuit and Family Court of Australia (Family Court) for the last few years. The filing period for material in the Family Court is generally 28 days. Mr Cooke assumed that same filing period would apply for his unfair dismissal application.
· Mr Cooke did not take any steps to check the filing deadline for an unfair dismissal application, such as accessing the Commission’s website.
· Ms Prince has been assisting Mr Cooke in relation to the Family Court matter and other legal matters in recent years. Mr Cooke knew from communications in the Family Court matter that Ms Prince was on leave already when he was notified of his dismissal on 22 December 2023 and would not be returning to work until mid-January 2024.
· In mid-January 2024, Mr Cooke commenced trying to contact Ms Prince about contesting his dismissal. Mr Cooke made around three calls. Mr Cooke was not able to speak with Ms Prince until 19 January 2024. During a phone call on 19 January 2024, Ms Prince advised Mr Cooke to urgently prepare and file an unfair dismissal application. Mr Cooke commenced work on an application and filed the application at 6:36pm on 19 January 2024.
Therefore, the reasons for delay identified by Mr Cooke can be broadly described as:
· Representative error. The basis for this appears to be that Mr Cooke was attempting to contact Ms Prince in mid-January 2024, which is around when the 21-day period ended on 12 January 2024. Ms Prince did not return Mr Cooke’s phone calls until they spoke on 19 January 2024. If Ms Prince had promptly returned Mr Cooke’s phone calls, Mr Cooke may have been able to file the application within 21 days.
· Mr Cooke assuming that the filing deadline was 28 days, as opposed to 21 days, because of his experience with 28-day filing periods in the Family Court.
In relation to representative error, it is well established[6] that:
· Representative error can constitute an exceptional circumstance.
· Whether or not the applicant is blameless is a key factor in assessing whether the representative error constitutes an exceptional circumstance.
· Even if representative error is established as the reason for the delay, that is only one of the factors the Commission must consider when determining whether to grant an extension of time.
I do not consider Mr Cooke has provided sufficient evidence to establish that the delay was caused by representative error. Although Ms Prince did provide an email where she accepted blame for the delay, the basis for her accepting blame is not clear from the email. Ms Prince did not attend the determinative conference to represent Mr Cooke or to provide further information about the delay. Further, the application filed by Mr Cooke on 19 January 2024 states he did not have a representative. It is unclear why Prince Legal did not prepare the application if Mr Cooke is their client. It is also unclear why Mr Cooke did not identify Prince Legal as his representative in the application. Mr Cooke and Ms Prince did not provide any phone records to establish that Mr Cooke was attempting to contact Mr Prince prior to 19 January 2024. Given the significant gaps in the evidence provided by Mr Cooke and Ms Prince, I do not accept that representative error provides a satisfactory explanation for the delay.
I also do not consider Mr Cooke is blameless in terms of the delay, even if there was a degree of representative error. There is no way that Ms Prince could have arranged for an application to be filed within the 21-day period because she did not become aware that Mr Cooke had been dismissed until 19 January 2024. Although Ms Prince’s period of leave is relevant, I consider Mr Cooke could clearly have done more to try and contact Ms Prince within the 21-day period. For example, Mr Cooke accepted during the determinative conference that he could have sent a text message to Ms Prince alerting her to his dismissal. That would likely have triggered a more urgent reaction from Ms Prince.
In terms of Mr Cooke’s assumption that the filing period was 28 days based on his experience in the Family Court, it is well established that ignorance or miscalculation of the timeframe does not of itself establish a credible reason for the delay.[7] I consider it is relevant that Mr Cooke eventually succeeded in making contact with Ms Prince on 19 January 2024, which was 28 days after the dismissal took effect. That is potentially consistent with Mr Cooke taking extra steps to contact Ms Prince on 19 January 2024 because he thought it was the due date for the application. In any event, I again find that Mr Cooke and Ms Prince have not provided sufficient evidence to establish that Mr Cooke’s misunderstanding is a satisfactory explanation for the delay.
I am not satisfied that the reason for the delay should weigh in favour of an extension of time being granted. However, I have mainly arrived at this finding based on a lack of evidence, and in circumstances where Mr Cooke was not represented and where I consider his explanation for the entire period of the delay to be plausible. As a result, I will treat this factor as neutral, as opposed to weighing against the granting of an extension of time.
Did Mr Cooke first become aware of the dismissal after it had taken effect?
Mr Cooke accepted he became aware of the dismissal on the day it took effect, 22 December 2023. I consider this to be a neutral factor.
What action was taken by Mr Cooke to dispute the dismissal?
Mr Cooke accepted he did not take any action to dispute the dismissal besides trying to contact Ms Prince and ultimately filing an unfair dismissal application. I consider this to be a neutral factor.
What is the prejudice to the employer (including prejudice caused by the delay)?
Hired Labour argued it suffered prejudice because Mr Cooke did not comply with the Commission’s directions to file material in support of his request for an extension of time. I reject that submission. Mr Cooke provided the evidence referred to above and was entitled to rely on that evidence without filing any additional material. I also consider this submission is directed at prejudice suffered in relation to the extension of time proceeding, as opposed to prejudice caused to Hired Labour from the late filing. I 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)”, or in this case, s.394(3)(e).[8]
Mr Phillips conceded during the determinative conference that he has a suspicion about the reason for Mr Cooke’s dismissal but does not know for sure, and that Mr Cooke could not possibly know the reason. Mr Phillips indicated a phone call was received from a director of Blenners Transport Qld Pty Ltd who indicated they no longer wanted Mr Cooke to perform work for their business. A phone call was then made to Mr Cooke on 22 December 2023 where he was advised of the dismissal but not provided with a reason. A reason for dismissal is also not identified in Mr Cooke’s termination letter dated 27 December 2023.
An obvious consequence of this position is that Mr Cooke was not provided with any semblance of procedural fairness in relation to his dismissal.
Further, in the absence of any evidence about the actual reason for dismissal, at this early stage, I am prepared to assume there may be a link to the underpayment and bullying issues that Mr Cooke had been agitating. If that link is established by Mr Cooke, it may justify a conclusion that there was no valid reason for dismissal.
Mr Phillips provided evidence that Mr Cooke had rejected an offer of conversion to full-time employment in June 2023 and submitted that as a casual employee, Mr Cooke had no legal entitlement to ongoing work. That may be the case, but it is not a very satisfactory explanation of the reason for dismissal. If Hired Labour’s position is that Mr Cooke was dismissed because he was a casual employee and had no entitlement to ongoing work, in circumstances where Mr Cooke provides evidence of ongoing pay and bullying disputes, I consider it is likely that the Commission may find there was not a valid reason for dismissal.
I consider, based on the limited material before me, that Mr Cooke’s unfair dismissal application has good prospects off success. I find the merits of Mr Cooke’s application to weigh strongly in favour of granting an extension of time based on exceptional circumstances.
Fairness as between Mr Cooke and other persons in a similar position
Neither party made any submissions directed at this factor. I consider this factor is neutral.
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 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] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[11]
Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.
I consider Mr Cooke’s application may have significant merit, given he has still not been informed of the actual reason for his dismissal. A director of a related entity making a phone call to Hired Labour to state they do not want a casual employee to work for their business anymore without explanation does not present as being likely to constitute a valid reason for dismissal. It is also clear that Mr Cooke was not notified of the reason for dismissal and was not provided with an opportunity to respond to the reason. The remaining factors are neutral. I find there are exceptional circumstances.
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,[12] I am satisfied that it is appropriate to extend the period for the application to be made to 19 January 2024.
The application will proceed to be dealt with in accordance with the Commission’s normal processes.
COMMISSIONER
Appearances:
Mr Cooke representing himself.
Mr Phillips for Hired Labour.
Determinative conference details:
6 March.
Microsoft Teams.
2024.
[1] 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.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] For example, M N Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 at [24] and [25].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975; (2011) 203 IR 1 at [14].
[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] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[12] Fair Work Act 2009 (Cth) s 577.
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