Christopher Rundle v Eskleigh Foundation Incorporated
[2024] FWC 1881
•18 JULY 2024
| [2024] FWC 1881 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Christopher Rundle
v
Eskleigh Foundation Incorporated
(C2024/2766)
| COMMISSIONER WILSON | MELBOURNE, 18 JULY 2024 |
Application for general protections involving dismissal – extension of time – no exceptional circumstances – application dismissed
This matter concerns an application made by Christopher Rundle (the Applicant) for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Rundle’s employment with the Respondent, the Eskleigh Foundation Incorporated (Eskleigh or the Respondent), came to an end on 1 April 2024. Mr Rundle’s application was received by the Commission on 29 April 2024.
Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. From the dates referred to above, Mr Rundle’s application was made 7 days out of time.
Consistent with the Commission’s usual practice on these matters, the application was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Rundle’s application.
In considering an application for an extension of time for the making of a dismissal application, the Act requires satisfaction that there are exceptional circumstances to warrant the extension, taking into account the criteria which are specified within s.366(2). The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[1] A decision as to whether to extend the time period under s.366(2) involves the exercise of a discretion.[2]
In this decision, I have considered whether an extension of time should be granted to Mr Rundle for the making of his application and, for the reasons set out below, I am not satisfied that there are exceptional circumstances such that a further period for filing should be allowed.
PRELIMINARIES
A hearing of Mr Rundle’s application for an extension of time for his application was held on 8 July 2024, at which Mr Rundle appeared for himself. Mr James Catchpole, solicitor of Edge Legal, sought and was granted permission for the Respondent to be represented by a lawyer. At the hearing, Mr Rundle gave evidence on his own behalf and Ms Amanda Bailey, Eskleigh’s Chief Operating Officer gave evidence on behalf of the Respondent.
BACKGROUND
Mr Rundle commenced employment with Eskleigh on 22 January 2019, initially as a support worker. More recently, from 18 January 2023 he commenced working as a Team Leader which continued until 18 January 2024.[3] The Respondent puts forward that there were two fixed term appointments as Team Leader and that at no time was Mr Rundle substantively employed in a Team Leader position. Mr Rundle believes that he was permanently appointed as a Team Leader and that he was demoted to a support worker position in January 2024.
On 30 January 2024, Mr Rundle was issued a written warning by Eskleigh relating to an email sent by him on 17 January 2024 to selected team leaders. The warning dealt with what Eskleigh saw as a breach of its Code of Conduct and Values because of the language used within the email and the inappropriate use of internal email addresses.
On 7 February 2024, Ms Bailey, the Eskleigh Chief Operating Officer, met with employees working in its disability care facilities and advised them of an impending restructure that may lead to redundancies. After the meeting, Ms Bailey sent a letter to employees, including Mr Rundle, confirming the matters she had discussed in the meeting. The letter informed Mr Rundle and others that approximately 83 employees may be affected through a “partial redundancy (reduction in hours of work)”.[4] The same correspondence invited expressions of interest from any employee wishing to take voluntary redundancy as well as stating that if there were insufficient voluntary redundancies then involuntary redundancies may take place.
On 20 February 2024, Mr Rundle expressed interest in receiving a voluntary redundancy from Eskleigh, although he says to the Commission that his expression of interest was because he felt he was left with no choice but to do so as a result of having been demoted in January.
Having expressed interest in receiving a voluntary redundancy, Ms Bailey and Tony Crothers, Mr Rundle’s direct manager, met with Mr Rundle on 29 February 2024 with Ms Bailey giving evidence that Mr Rundle asked a number of questions about the voluntary redundancy process and ultimately agreed that he wanted to proceed with his expression of interest for a voluntary redundancy.[5]
After this meeting on 1 March 2024, an Eskleigh People and Culture Officer sent Mr Rundle written confirmation that his expression of interest for voluntary redundancy had been accepted. The correspondence stated that the redundancy would take effect on 1 April 2024 and that until then he was expected to work his contracted shifts.
On 6 and 15 March 2024, Mr Rundle was provided with calculations of the benefits he would receive upon termination for reason of redundancy. Unfortunately, the first iteration of this information was substantially incorrect as it showed him receiving a period of four weeks payment in lieu of notice when he was actually required to work his period of notice. This error was corrected in the second version of the material provided to Mr Rundle on 15 March 2024.
Later, on 25 March 2024, Mr Rundle emailed Ms Bailey enquiring about certain aspects of the redundancy, including wanting confirmation about his notice period, whether he was finishing on 31 March, when the redundancy payments would be paid, and whether his uniforms were required to be returned before payment.[6] Ms Bailey responded the following day on 26 March 2024 confirming that Mr Rundle’s employment would cease on 1 April 2024.[7]
Mr Rundle’s application to the Commission states that his termination of employment took effect on 31 March 2024, whereas the Respondent’s material states that it took effect on 1 April 2024. I accept from the material before me that the date of effect of Mr Rundle’s termination of employment was 1 April 2024.[8]
After his employment with Eskleigh ended, Mr Rundle commenced his general protections application in the Commission on 29 April 2024, 7 days outside of the statutory time limit for the making of such applications, which expired on Monday, 22 April 2024.
In his evidence to the Commission about these matters, Mr Rundle explained that he came to make the application the same day that he spoke with the Fair Work Ombudsman about his situation. In his submissions to the Commission about the late lodgement, Mr Rundle puts forward a number of matters as explaining his late application:
He was suffering an “impairment of cognitive capacity” to make the application in the time period, which continued for some time after leaving his employment at Eskleigh.
He was subjected to bullying from his team leader and supervisors, including an occasion when he needed to leave during the course of a shift because of the death of a close family member. He was later unable to attend that person’s funeral.
He feels that the same people who bullied him then subjected him to frivolous warnings for the actions of other staff and feels targeted as a result.
Eskleigh’s Employee Assistance Program (EAP) was unable to help him as the counsellor involved felt that his issues were outside of the scope of their practice.
He was also grieving as a result of not being able to see the residents and clients he had looked after for over five years, as he was no longer allowed to visit them after being dismissed.
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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.”
CONSIDERATION
Extension of time – the criteria within s.366(2)
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application:
“[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”.[9]
In considering whether an extension of time should be granted to Mr Rundle, I am required to consider all of the criteria in s.366(2), which I now do.
The reason for the delay
It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[10] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[11] An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay. It could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[12] While the “reason for the delay” is a factor that must be taken into account, this does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[13]
The “delay” to be considered in this case is the period it took after the prescribed period for Mr Rundle to lodge his application. With Mr Rundle’s employment ending on 1 April 2024, for an application to be within time it would need to have been made before midnight on 22 April 2024. As a result, the delay to be considered is the period after 22 April 2024 until the actual lodgement, dated 29 April 2024.
Mr Rundle sets out the five matters detailed above as bearing upon his explanation as to why his general protections application was filed 7 days out of time– impairment of cognitive capacity, bullying from team leaders and supervisors, being subjected to unjustified warnings, the EAP that was unable to help, and grief arising from no longer being able to see residents and clients.
Mr Rundle also says that at some time after his redundancy took effect, he had sought the advice of a psychologist and doctor about what he describes as an “impairment of cognitive capacity” to make the application within time. He also submitted that his condition can be substantiated by his doctor. Mr Rundle’s evidence is also that he came to lodge his general protections application the same day as he spoke with the Fair Work Ombudsman.
Mr Rundle’s claims of bullying and unjustified warnings plainly relate to a period of time before he left his employment and as a result do not explain why his general protections application was lodged out of time. It is unclear from the material before me as to whether the matter referred to by Mr Rundle in respect of Eskleigh’s EAP was before after his employment finished. On that subject, he says only that “during the time off I sought help from Eskleigh’s free counselling services” who in turn suggested that he speak with his doctor and seek urgent help. If this relates to a period of time prior to termination, the matter does not explain a late lodgement. If it relates to period of time after termination, then it is not supported with evidence as to its timing or why then in turn it caused a delay to the application being lodged.
The matter Mr Rundle puts forward about cognitive impairments is also unsupported by evidence as to why and how that caused a delay of seven days beyond the statutory time limit for the making of a general protections application. In the absence of medical evidence which provides some insight into the extent to which Mr Rundle was incapacitated after expiry of the statutory time limit, I do not accept that the delay was caused by his health.[14] The Commission has said repeatedly that requests for an extension of time involving the proposition that a medical illness explains a filing delay requires compelling medical evidence to that effect. In order to accept evidence of this type, the Commission expects to have an insight into the extent of the person’s incapacity during the whole of the period following termination of employment. Cogent medical evidence of these things will likely need to be provided.[15]
As a consequence of these considerations, I do not find that any of the reasons advanced by Mr Rundle either individually or collectively are an acceptable explanation for the late lodgement of his application. The factors relied upon by Mr Rundle do not give me an insight as to why the application was made when it was and not earlier, or why those factors explain why it could not have been made at an earlier time.
As a result, I do not find that Mr Rundle has put forward an acceptable explanation for the delay in making his application. Therefore, my consideration of this criterion does not resolve in his favour in deciding whether an extension of time for filing should be granted.
Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[16]
There is no material before me to suggest that Mr Rundle has taken other steps to dispute his dismissal. This is therefore a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 7 days. The Respondent does not claim that the delay in lodging the application caused it prejudice.
While there has been some prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.[17]
In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter also is a neutral factor in my consideration.
The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.
In relation to the Commission’s consideration of the merits of an application, when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such a case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[18]
In general protections matters, s.361(1) presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases, an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question.[19]
Mr Rundle’s case, if it were to proceed, appears to be an argument to the effect that he was forced into taking voluntary redundancy from Eskleigh after being bullied out of the organisation when his engagement as a Team Leader ended. He also puts forward that there was no time limitation to his Team Leader appointment and that his change in status was in effect a demotion on the part of Eskleigh. For its part, the Respondent relies upon Mr Rundle having left its employment as a result of expressing interest in a voluntary redundancy. It argues that as a consequence, the Applicant’s claim has no merit because the sole and operative reason for his dismissal was his own decision to take a voluntary redundancy.
While noting these aspects of the parties’ respective cases, there is insufficient material before the Commission to form any view about the likely merits of Mr Rundle’s case, were it to proceed to a Court or to be the subject of a consent arbitration before the Commission.
Accordingly, consideration of this criterion is a neutral factor in my overall consideration of whether there are exceptional circumstances that would warrant the extension of time.
Fairness as between the person and other persons in a like position
In considering whether I should grant an extension of time, I need to have regard to whether any matters of fairness arise either to Mr Rundle or to other general protections applicants whose applications are either currently before the Commission or have been decided in the past.[20]
No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances.
CONCLUSION
Consideration of the statutory criteria in relation to exceptional circumstances shows that none of the criteria resolve in favour of Mr Rundle and in particular there is not an acceptable explanation for the delay in making his application. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are not exceptional circumstances that would allow a further period for a general protections application to be made by Mr Rundle.
For these reasons, I decline to grant an extension of time pursuant to s.366 of the Act and will issue an Order dismissing Mr Rundle’s application at the same time as this decision.[21]
COMMISSIONER
Appearances:
Christopher Rundle, Applicant
Ros Macfarlane, for the Respondent
Amanda Bailey, for the Respondent
James Catchpole, solicitor for the Respondent
Hearing details:
2024.Melbourne (via Microsoft Teams).
8 July.
[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[3] Applicant’s Documents; Digital Hearing Book, p.38.
[4] Exhibit R1, Witness Statement of Amanda Bailey, Attachment AB – 1; Digital Hearing Book, p.111.
[5] Exhibit R1, [16]; Digital Hearing Book, p.109.
[6] Exhibit R1, Attachment AB – 6; Digital Hearing Book, p.125.
[7] Exhibit R1, Attachment AB – 6; Digital Hearing Book, p.125.
[8] See Exhibit R1, Attachment AB – 5, DB, p.119; Attachment AB – 8, Digital Hearing Book, p.125.
[9] Nulty v Blue Star Group, [2011] FWAFB 975 (2011), 203 IR 1, [13].
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
[12] Ibid, [40].
[13] Ibid, [41].
[14] See GHD Pty Ltd v Kevin Alan Black[2023] FWCFB 38, [79].
[15] See Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu Duo (Lynda) - [2018] FWCFB 1643, [38], [67]
[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[17] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].
[18] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[19] Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 [50], (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445.
[20] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[21] PR77127.
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