Charles Gibbons v Queensland Trade Services Group
[2022] FWC 1605
•23 JUNE 2022
| [2022] FWC 1605 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Charles Gibbons
v
Queensland Trade Services Group
(U2022/5851)
| COMMISSIONER PLATT | ADELAIDE, 23 JUNE 2022 |
Application for an unfair dismissal remedy – request for an extension of time – application granted.
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 issue in question is whether I should exercise my discretion to allow Mr Charles Gibbons a further period for his unfair dismissal application (Application) to be made against Queensland Trade Services Group (QTSG). At the conclusion of the Hearing held on 22 June 2022, I granted an extension of time for Mr Gibbons’ application. The reasons for this Decision are set out below.
Background
Mr Gibbons lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with QTSG. In his form F2 Unfair Dismissal Application, Mr Gibbons stated that he was notified of his dismissal on 6 May 2022, and that his dismissal took effect on 9 May 2022. After speaking with the Commission over the telephone about the correct dismissal date, Mr Gibbons confirmed by email on 31 May 2022 that his dismissal took effect on 6 May 2022.
The application was lodged by the Applicant on 30 May 2022, and as such, was three days out of time.
The Respondent lodged a form F3 Employer Response on 9 June 2022. Whilst the Respondent indicated in its form F3 Employer Response that the dismissal occurred on 5 May 2022, at the Hearing they confirmed that the dismissal took effect on 6 May 2022.
On 6 June 2022, I issued directions and advised that the extension of time issue would be considered at a Hearing, by teleconference, on 22 June 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. The Applicant provided written statements from both Mr Gibbons[3] and his partner Ms Nadine Hofman[4]. The Respondent did not file any written statements or submissions.
Hearing
A Hearing was conducted by way of teleconference on 23 June 2022. A sound file record of the teleconference was kept. Mr Gibbons represented himself and the Respondent was represented by Mr Brian Roberts.
At the Hearing, the Respondent indicated that Mr Gibbons and Ms Hofman were not required for cross-examination. The Applicant’s position as outlined in the witness statements is summarised below:
· On 27 April 2022, the Applicant’s prospective father-in-law passed away.
· On 4 May 2022, the Applicant’s partner and two young children flew to Brisbane to be around family. The Applicant stayed at home so that he could attend work.
· On 6 May 2022, the Applicant was dismissed.
· On 8 May 2022, the Applicant flew to Brisbane to be with his family.
· On 11 May 2022, the Applicant and his family drove to Grafton for a memorial service for the Applicant’s prospective father-in-law which took place on 13 May 2022.
· On 15 May 202, the Applicant and his family flew home.
· Upon returning home, the Applicant’s two young children contracted Hand Foot and Mouth Disease. The Applicant spent his time providing care to his sick children, whilst supporting Ms Hofman in her grief. Ms Hofman was also on maternity leave at the time.
· The combined circumstances of the death of his prospective father-in-law, caring for his sick children and the distress caused by the loss of his employment caused the delay in the filing of the Applicant’s unfair dismissal application. The Application was lodged three days out of time on 30 May 2022.
The Respondent did not file any written submissions or witness statements, but Mr Roberts, Director of the Respondent, gave evidence at the Hearing. The Respondent’s position is as follows:
· The Applicant owes money to the Respondent, and the Respondent is currently in the process of taking a civil action against the Applicant in respect of the alleged debt.
· The unfair dismissal application was only made once the Applicant became aware that the Respondent was taking civil action against him.
· The Applicant and the Respondent had the following communications in the period between 6-30 May 2022:
· One or two telephone conversations of approximately one minute in length in relation to the alleged debt owed by the Applicant; and
· The return of office equipment to the QTSG after the Applicant’s dismissal. The Applicant indicated that the return of office equipment occurred hours after he was dismissed on 6 May 2022.
· The Respondent contended that the communications above show that the Applicant was not prevented from communicating to an extent that he was unable to lodge an unfair dismissal application.
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.[5]
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[6] 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
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.”
It is not in dispute that the Application was filed three days out of time. The Applicant contends that the combination of the passing of his prospective father-in-law, the associated support he had to provide to his partner and family, caring duties for his two young children and the stress associated with the termination of his employment where the causes of the delay in filing his application.
Whilst it is well understood that by itself, the distress resultant from a dismissal is not a credible reason for the delay, I accept that the combination of the effects of his prospective father-in-law’s passing and the caring duties required for his two children placed a significant burden on the Applicant during the period of the delay.
I do not accept the proposition put forward by the Respondent that the limited communications the Applicant had with the Respondent in the period after his dismissal should be considered evidence that the Applicant was in a position to lodge his unfair dismissal application during that period.
I am not in a position to determine the motivations of the Applicant in lodging this application. In this circumstance, the motivations of an Applicant (whatever they are) do not appear to relate to a factor that is relevant to my consideration of whether exceptional circumstances exist.
In my view the Applicant has provided a credible reason for the delay in filing the Application. This factor weighs in favour of granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Mr Gibbons was aware of the dismissal on the date it occurred.
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.[10]
Mr Gibbons did not take any action to contest the dismissal outside the lodging of his unfair dismissal application. This factor weighs against a finding that there are exceptional circumstances.
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.[11] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[12]
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.[13]
The delay in this matter is relatively short and there is no submission that the granting of an extension of time represents prejudice to QTSG.
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 regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[14] considered this criterion and said:
“[41] 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.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, 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. An extension of time was granted at the conclusion of the Hearing at which point the parties were offered the opportunity to conciliate the matter. The Respondent denied this opportunity, and as such, the matter will now be re-allocated to another Member of the Commission for determination of the merits of the application.
COMMISSIONER
Appearances:
C Gibbons, the Applicant
B Roberts for the Respondent
Hearing details:
2022.
Adelaide:
June 22.
[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] Exhibit A1
[4] Exhibit A2
[5] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[6] [2011] FWAFB 975
[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] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[11] Ibid
[12] Ibid
[13] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
[14] [2016] FWCFB 6963
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