Christopher Hanssen v Chellingworth Motors (AHG Services WA Pty Ltd)
[2022] FWC 1043
•23 MAY 2022
| [2022] FWC 1043 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Christopher Hanssen
v
Chellingworth Motors (AHG Services WA Pty Ltd)
(C2022/487)
| DEPUTY PRESIDENT LAKE | BRISBANE, 23 MAY 2022 |
Application to deal with contravention involving dismissal – application made outside of statutory timeframe – extension of time.
On 12 January 2022, Mr Christopher Hanssen (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to his dismissal by Chellingworth Motors (AHG Services WA Pty Ltd) (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Perth. The Applicant’s employment commenced this role with the Respondent on 18 June 2020 – noting a previous employment period on 5 February 2020 – and his employment was terminated on 21 December 2021.
By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. To be within time, the Applicant should have lodged his application on or before 11 January 2022.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.
On 5 May 2022, I convened a hearing by telephone to determine whether to allow the Applicant an additional period within which to lodge his application.
Consideration of whether a further period should be granted
As noted above, s.366 of the Act requires that a general protections application under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.3662(2) of the Act.
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant.[1] The Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd extensively canvassed the meaning of ‘exceptional circumstances’, concluding:
“[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.”
The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.[2]
In order for the Applicant’s general protection application to proceed, it is necessary for him to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act. I now turn to address the particular matters to which regard must be had.
Consideration
Section 366(2)(a) – The reason for the delay
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:
“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 reliant matters and the assignment of appropriate weight to each.”
The Applicant’s application was made 22 days after his dismissal. The Applicant provided the following reasons for the delay in the filing of his application.
The Applicant contends that his dismissal was read and received on 22 December 2021, owing that the Respondent issued the dismissal letter at the end of the day. This would make 12 January 2022 the final day to lodge an application. In advancing his argument, the Applicant submitted the email with the attached dismissal letter from the Respondent dated 21 December 2021 at 3:43pm.
The Applicant asserts that he was unable to get legal advice until the new year. As a result, he lost ten days out of the twenty-one to file his application.
Finally, the Applicant argued that it is not fair or just to be expected to disregard family commitments during the Christmas-New Year period. As Christmas Day, Boxing Day, and New Year’s Day all fell between the Applicant’s dismissal and the final day to lodge an application, had the Applicant filed his application on one of these days, it would not have been received by the Commission. Thus, the Applicant attended to family commitments during this period instead.
In response, the Respondent submitted that there was nothing exceptional about these circumstances.
The Respondent maintains that the date the Applicant’s employment was terminated on 21 December 2021. 3:43pm is within the usual business hours for the company and is not the end of the day.
The Respondent claims that despite being unable to get legal advice, the Applicant still received legal advice in the new year within the time to lodge the application.
Finally, the Respondent submitted that based on the Applicant’s Statement, that he prioritised family events and disregarded the time limits set by the Act.
In considering the submissions from both parties, on balance, I do not consider any of these circumstances raised by the Applicant warrant me exercising my discretion to allow an extension of time.
It is clear, based on the evidence before me, that the Applicant’s employment was terminated on 21 December 2021 at 3:43pm. In Siagian v Sanel Pty Ltd,[6] Wilcox CJ relevantly said that:
“It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately.”
I do not consider how the argument that dismissal should be received when the Applicant read the letter, nor the argument that the letter was sent at the end of the day should warrant an extension of time. As submitted by the Respondent, 3:43pm is still considered within business hours of the company and the letter is considered received at the time it was sent.
Finally, I do not accept the Applicant’s assertions that he should be granted an extension of time due to the timing of his dismissal. I understand that law services are limited, and many have family commitments during the Christmas-New Year period. However, neither are exceptional circumstances as defined in Nulty.[7]
The absence of an acceptable or reasonable explanation for the delay in lodging a completed application weights strongly against the Applicant’s request for an extension of time.
Section 366(2)(b) - Action taken to dispute the dismissal
An action taken by an employee to content the dismissal, other than lodging an application, can be treated as favouring the granting of an extension of time.[8]
Accordingly, I do not accept that the Applicant took steps to contest his dismissal, and only took steps to negotiate a termination package. This consideration weighs against the Applicant’s request for an extension of time.
Section 366(2)(c) - Prejudice to the employer
In considering this factor, the employer must produce evidence to demonstrate prejudice. It is then a matter for the applicant to show the facts do not amount to prejudice.[9]
The parties made no submission in relation to this factor and presented no evidence of any prejudice.
The mere absence of prejudice to the Respondents is an insufficient basis to grant an extension of time.[10] I consider this factor to be neutral.
Section 366(2)(d) - Merits of the Application
In Kornicki v Telstra-Network Technology Group,[11] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
Without a proper assessment of all the evidence in this matter, this is a neutral determination.
Section 366(2)(e) - Fairness as between the Applicant and other persons in a like position
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[12]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
CONCLUSION
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist in this matter.
Pursuant to section 366(2) of the Act, the extension of time is denied, and the section 365 application is dismissed. I Order accordingly.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9]
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]
[5] [2018] FWCFB 901.
[6] [1994] IRCA 1; 122 ALR 333.
[7] [2011] FWAFV 975 at [13].
[8] Brodie-Hanns v. MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[9] Cowie v State Electricity Commission of Victoria [1964] VR 788
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300
[11] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[12] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].
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