Brock Wassell v Woolworths Group Limited
[2022] FWC 1416
•7 JUNE 2022
| [2022] FWC 1416 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 – Unfair dismissal
Brock Wassell
v
Woolworths Group Limited
(U2022/5337)
| COMMISSIONER PLATT | ADELAIDE, 7 JUNE 2022 |
Application for an unfair dismissal remedy – request for an extension of time – application refused.
Introduction
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]
This decision concerns whether I should exercise my discretion to allow Mr Brock Wassell a further period for his unfair dismissal application (Application) to be made against Woolworths Group Limited (Woolworths)
Background
On 12 May 2022, Mr Wassell lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Woolworths, which his form F2 Unfair Dismissal Application advised took effect on 17 April 2022.
On 31 May 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal took effect on 17 April 2022 and raised a jurisdictional objection on the basis that the application was lodged out of time.
The application was lodged three days out of time.
On 20 May 2022, the Applicant sent an email to the Commission outlining reasons why his application was lodged out of time.
On 24 May 2022, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 7 June 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter was provided to the parties. Mr Wassell was invited to provide any further material in respect of the extension of time issue by no later than 31 May 2022. The Applicant did not file any further material and relied on his email sent to the Commission on 20 May 2022 and the information provided in his Form F2 Application.
Hearing
A hearing was conducted by way of telephone conference on 7 June 2022. A sound file record of the telephone conference was kept. Mr Wassell represented himself at the hearing, whilst Woolworths was represented by Ms Kate Staude.
Mr Wassell gave evidence at the hearing and confirmed the material that he had previously provided. His position is summarised as follows:
· Mr Wassell was advised by the Respondent on 10 April 2022 that if he did not comply with the Respondent’s vaccination requirements, he would be dismissed on 17 April 2022. Mr Wassell was advised of his dismissal by telephone, in a Zoom conference and by email.
· Mr Wassell was unaware of his ability to lodge an unfair dismissal application until he was advised by an ex-workmate on 12 May 2022.
· Upon being informed of the unfair dismissal process, Mr Wassell lodged his application on 12 May 2022.
· No other action to contest the dismissal was taken.
Woolworths relied on the information provided in its Form F3 Response. The Respondent submitted that Mr Wassell’s circumstances did not amount to exceptional circumstances such to allow the Commission to grant an extension of time.
Applicable Law
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.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
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 Ltd[4] 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
Paragraph 394(3)(a) - reason for the delay
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]
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 vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[8] the 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.”
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.”
Mr Wassell has given evidence that the sole reason that his application was late was that he was unaware of the unfair dismissal process, and therefore of the timeframe for lodging unfair dismissal applications, until he was informed of the process by an ex-workmate on 12 May 2022. It is a well-established principle that ignorance of the lodgement timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time.[10]
Mr Wassell also gave evidence that he was waiting to receive a termination letter before lodging his unfair dismissal application. A dismissal can be communicated orally[11] and there is no requirement for the dismissal to be confirmed in writing (although such a course is prudent). There is no dispute that Mr Wassell was aware that he was dismissed with effect from 17 April 2022.
I find that Mr Wassell has not provided an acceptable reason for the delay in lodging his unfair dismissal application. This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Mr Wassell was aware (prior to the dismissal) that he would be dismissed on 17 April 2022 if certain actions did not occur. He was also advised of the dismissal by phone, Zoom conference and email.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[12]
Mr Wassell advised that he had not taken any action to contest the dismissal outside of lodging his unfair dismissal application. This factor weighs against the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[13] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[14]
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.[15]
The Respondent contended that the granting of an extension of time would cause prejudice to it. I am not satisfied that there would be any greater prejudice to Woolworths caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Prejudice to the employer is a neutral factor in this matter.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have considered the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
Neither party made any submissions in respect of this topic, and I have regarded it as a neutral factor.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded 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. The application is dismissed.
COMMISSIONER
Appearances (by telephone):
Mr B Wassell, the Applicant
Ms K Staude on behalf of the Respondent
Hearing details:
2022.
Adelaide:
June 7.
[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] Rose v BMD Constructions Pty Ltd [2011] FWA 673.
[11] Above, n6.
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[13] Ibid
[14] Ibid
[15] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
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