Christopher Chown v Astelec Pty. Ltd
[2019] FWC 6820
•3 OCTOBER 2019
| [2019] FWC 6820 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Chown
v
Astelec Pty. Ltd.
(U2019/8242)
| COMMISSIONER PLATT | ADELAIDE, 3 OCTOBER 2019 |
Application for relief from unfair dismissal – extension of time – representative error – application granted.
Summary
Mr Christopher Chown has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Astelec Pty Ltd (Astelec) which his form F2 Unfair Dismissal Application advised took effect on 2 July 2019.
The Applicant filed his unfair dismissal application in the Fair Work Commission (the Commission) on 24 July 2019. Mr Chown’s application did not identify that it was made beyond 21 days from the date of dismissal but anticipated that Astelec may allege that the application was made out of time and provided the following explanation:
“Although the respondent may allege that the termination occurred on 2 July 2019, for more than a fortnight the applicant was seeking clarification from the respondent. He only received a definitive response from his manager Mr Sherman on 17 July 2019 (more than 2 weeks after initial discussions regarding his termination).
Upon receipt of written confirmation from Mr Sherman, the applicant immediately prepared a draft unfair dismissal application and sought legal advice. He engaged in a teleconference with his representative at Duncan Basheer Hannon on 18 July 2019.
His representative asked the applicant to forward a copy of the termination correspondence and draft F2 for perusal, and the applicant did this at 10:39pm on 18 July 2019. The applicant's representative was not in the office (and on leave on 19 July 2019).
Unfortunately, the applicant's email to his representative went into a Spam folder. Upon immediate retrieval of the email from Spam, the applicant's representative contacted the applicant to finalise the application.
So even if technically the 21 day deadline has lapsed (which is denied due to ambiguities that followed during the fortnight following 2 July 2019), the delay is no fault of the applicant. He has been proactive in pursuing this claim, and good (even exceptional) reasons exist to extend the time for filing the application if it is indeed determined that the 21 day limit was slightly exceeded.
Any delay in filing the F2 is no more than one or perhaps two days, and there can be no prejudice to the respondent, considering that the respondent continued liaising with the applicant about the termination up until at least 17 July 2019.”
On 12 August 2019, Astelec lodged a form F3 Employer Response which indicated that no dismissal occurred and that the application was filed out of time. This decision only deals with the extension of time issue.
The matter did not resolve at Conciliation and was allocated to my Chambers.
On 12 September 2019, my Associate corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 2 October 2019. 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. Mr Chown was directed to provide a statement concerning the extension of time and any documents to be relied upon by 19 September 2019. Astelec was invited to file any material in reply by 26 September 2019.
No submissions were received by the due date. It appears that Mr Chown’s representative was responsible for the failure to provide submissions in response to the Directions.
Mr Chown’s legal representative, Mr Irvine, provided a late submission and a supporting statement from himself on 1 October 2019. I have determined to receive this material.
A hearing was conducted by way of telephone conference on 2 October 2019. A sound file record of the telephone conference was kept. Mr Chown was represented by Mr M.Irvine of counsel. Astelec was represented by Ms E.George of counsel. Permission was granted pursuant to s.596(2)(a) of the Act.
Mr Chown gave evidence at the hearing, his position is summarised as follows:
· Mr Chown advised he did not become definitively aware of his dismissal until he received a communication from his Manager on 17 July 2019.
· On 17 July 2019, he received a communication from Astelec and immediately prepared a Draft form F2 Unfair Dismissal Application.
· On 18 July 2019, he sought legal advice from Duncan Basheer Hannon (DBH) by telephone. Mr Chown was asked to provide a copy of his termination correspondence and the draft form F2 Unfair Dismissal Application. An email was sent to his representative at 10.39pm that night.
· Mr Chown’s email went into a ‘spam’ folder at DBH and was not discovered until 24 July 2019.
· The application was completed and lodged by DBH on 24 July 2019.
· Mr Chown contends the delay is explained by uncertainty over the termination and representative error.
Astelec submitted that:
· Mr Chown had been subject to performance management.
· On 2 July 2019, a discussion was held with Mr Chown about his performance and Astelec contends Mr Chown resigned effective that day.
· Astelec allowed Mr Chown to use the company vehicle until 8 July 2019.
· Mr Chown’s entitlements were paid to him on 17 July 2019.
· The Applicant had failed to adequately explain the delay.
· The Applicant’s circumstances were not exceptional.
· No prejudice was claimed.
· Merit was a neutral consideration.
Applicable Law
Section 394 of the Act relevantly states:
“394 Application for unfair dismissal remedy
....
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
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[1] 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
Based on the material before me I find that Mr Chown’s employment ceased on 2 July 2019.
This unfair dismissal application by Mr Chown was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
Mr Chown explains the period of delay between 2 July and 17 July 2019 as a result of being engaged in correspondence with Astelec. Copies of some of the emails were provided to the Commission during, and shortly after, the hearing.
The period in between 18 July and 24 July 2019 is explained by representative error as a result of DBH’s failure to action the email instructions sent. Mr Chown appropriately followed up his representative. I accept Mr Chown’s explanation of this portion of the delay and find that ‘representative error’ has occurred.
The Applicant has provided a credible reason for the period of the delay from 18 July to 24 July 2019 - this factor weighs in favour of granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
I find that Mr Chown became aware of the dismissal on 2 July 2019. This factor (s 394(3)(b)) weighs against the extension of time.
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.[2]
Mr Chown prepared a Form F2 Unfair Dismissal Application on 17 July 2019 in anticipation of lodging the same after receiving legal advice, this represented conduct taken to dispute the dismissal and is a factor which weighs in favour of the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[3] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[4] A long delay gives rise “to a general presumption of prejudice”.[5]
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.[6]
There is no submission that the granting of an extension of time represents prejudice to the Respondent.
The 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.
Fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[7] considered this criterion and said (at [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 and accordingly it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having considered and weighed each of the factors under s.394 of the Act, I am satisfied that Mr Chown’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will be listed for arbitration. An Order[8] reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr M Irvine (of counsel) on behalf of the Applicant.
Ms E George (of counsel) on behalf of the Respondent.
Hearing (Conference) details:
2019.
Adelaide:
October 2.
<PR712972>
[1] [2011] FWAFB 975
[2] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
[6] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
[7] [2016] FWCFB 6963
[8] PR712973
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