Cornelius Coetzer v Shamrock Civil Engineering Pty Ltd T/A Shamrock Civil Engineering

[2021] FWC 2513

[2021] FWC 2513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Cornelius Coetzer
v
Shamrock Civil Engineering Pty Ltd T/A Shamrock Civil Engineering
(U2021/3019)

COMMISSIONER HAMPTON ADELAIDE, 11 MAY 2021

Application for an unfair dismissal remedy – extension of time required – not satisfied that exceptional circumstances exist – extension not granted – unfair dismissal application dismissed.

1. What this decision is about

[1] This decision concerns an application by Mr Cornelius Coetzer (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). Mr Coetzer is seeking compensation.

[2] The termination of Mr Coetzer’s employment with Shamrock Civil Engineering Pty Ltd T/A Shamrock Civil Engineering (Respondent or Shamrock) was communicated by letter on 18 March 2021.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). Adopting 18 March 2021 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 8 April 2021. 1 The application was therefore filed 1 day after the 21-day limit. The Applicant requests the Commission to grant a further period for the application to be made under s.394(3) and the Respondent opposes this request. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are exceptional circumstances.2

[4] The Commission has conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. The Respondent sought permission to be represented by a Lawyer having regard to s.596 of the Act, largely on the basis of the complexity of the matter. This request was not opposed by the Applicant 3 and permission was granted in this instance principally on the basis as sought.

[5] As Mr Coetzer was not represented, I assisted with the conduct of the hearing, gave latitude as to the form of his evidence and submissions, facilitated submissions on the relevant statutory considerations, and enabled the presentation of the cases in a strictly non-partisan manner consistent with the statutory charter of the Commission. 4

[6] Mr Coetzer provided a witness statement 5 and gave sworn evidence on his own behalf. A statement of Mr Paddy O’Boyle, Construction Manager employed by the Respondent, and comprehensive written submission on behalf of Shamrock, were also provided to the Commission. However, Mr O’Boyle did not give evidence at the hearing and ultimately his evidence was not relied upon. As a result, I have not taken that statement into account.

[7] As will become clear, having assessed all of the circumstances of this matter and the relevant statutory considerations I have determined that in the absence of exceptional circumstances an extension of time is not to be granted for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.

2. The immediate sequence of events and the timing of the dismissal

[8] Mr Coetzer was employed by Shamrock in the position of Safety Inspector from February 2020 until March 2021. Although the direct evidence about this is limited, I infer from the Applicant’s statement, his submissions, and the letter of dismissal, that he holds a work visa where his employment status is relevant to him remaining in Australia. This forms part of Mr Coetzer’s explanation for the delay in lodging the application and I will return to this shortly.

[9] On 16 March 2021, Mr Coetzer slept through his alarm and did not attend work at the scheduled time. During a phone call that day with Mr O’Boyle, he was informed that he was not to come to work and that he was to return the company’s vehicle, laptop and phone by 12.00 noon that day. There is a dispute about whether Mr O’Boyle expressly dismissed Mr Coetzer at that time and the only evidence before the Commission indicates that this was not the Applicant’s understanding.

[10] On 18 March 2021, Shamrock advised Mr Coetzer of the termination of his employment in the following terms

“… …

RE: TERMINATION OF EMPLOYMENT

I refer to the multiple incidents that have occurred over the past 6 months. Where you have failed to report for work without sufficient substantiation. Despite receiving a final written warning on 02 March 2021 and being advised that further transgressions may lead to the termination of your employment you failed to present for work on Tuesday 16 March 2021.

This letter is to confirm our discussion yesterday that Shamrock Civil Engineering has made the decision to terminate your employment on the basis of misconduct, for repeatedly breaching the Attendance and Absenteeism Policy.

You will be entitled to the following termination pay in accordance with your Employment Agreement and the National Employment Standards (NES):

•  4 weeks’ notice

•  All accrued annual leave entitlements

We also wish to advise you that as you are currently on a business sponsored visa Shamrock has a legal requirement to advise the Department of Home Affairs of the termination of your employment and withdraw our sponsorship of your visa. We recommend you seek advice as to if/how this will affect your immigration status.

We wish you the very best for your future endeavours.

… …”. 6:

[11] By, at the latest, 26 March 2021, Mr Coetzer had accessed the Commission’s website and was aware of the requirement to lodge an unfair dismissal application within 21 days after the dismissal took effect.

[12] On 29 March 2021, Mr Coetzer sought confirmation from Shamrock that the payment of his 4 weeks notice had been made. Shamrock confirmed that it should be in his account by 5.00 pm that day. 7

[13] An employment separation certificate was completed by Shamrock on 8 April 2021 and this stated that the date the employment “ceased” was 16 March 2021.

[14] On 9 April 2021, Mr Coetzer lodged the Form F2 unfair dismissal application with the Commission. The application stated 8 that he was notified of the dismissal, and that the dismissal took effect, on 18 March 2021.

[15] It is clear on the evidence that the dismissal of Mr Coetzer was expressly communicated, 9 and took effect, no later than 18 March 2021 and I adopt that as the date for the purposes of s.394(2) of the Act. As a result, an extension of time of 1 day is required in this matter.

3. Should an extension of time be granted?

[16] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 10 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.11

[17] The requirement that there be exceptional circumstances before time can be extended under s.394(3) is a high hurdle 12 and contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[18] Section 394(3) requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[19] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. 13 I now consider these matters in the context of the application.

Reason for the delay

[20] The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant’s favour; however all of the circumstances must be considered on their own merits. 14

[21] Mr Coetzer principally relies upon the following propositions as reasons for the delay:

•  He was under the impression that his termination only took effect on the day his payment in lieu of notice was made, “as referenced in s.117 of the Act”; and

•  He had certain time pressures to find alternative employment given his visa status.

[22] Mr Coetzer also indicated that he was confused about the process as the separation certificate referenced 16 March; however, the termination letter refers to 18 March 2021 and at one point (incorrectly) to “our discussion yesterday”.

[23] For reasons that follow, I do not consider that Mr Coetzer has provided a credible or satisfactory explanation for the delay in making the unfair dismissal application.

[24] Section 117 of the Act does not operate as contended by the Applicant. That is, a termination does not take effect only when the payment in lieu of notice is provided. 15 However, I accept that Mr Coetzer may have misunderstood the effect of that provision. The more fundamental difficulty with the explanation now provided is that Mr Coetzer knew that he was dismissed on 18 March 2021, nominated that date in the F2 application as the date that it took effect, and could not satisfactorily explain the tension between that understanding and the contention now advanced. He could also not satisfactorily explain why the application was not lodged within time. In that regard, I also accept that he would have been very keen to find alternative employment but there was no satisfactory explanation as to why this prevented or delayed the filing of the unfair dismissal application, soon after 26 March when he understood there was a time limit and had accessed the Fair Work Commission’s website for information.

[25] The date nominated on the separation certificate, and the reference in the termination letter to the earlier discussion occurring “yesterday”, does not provide an explanation as this should have meant that the Applicant would, if anything, have considered whether the unfair dismissal application was to be filed earlier than was actually required.

[26] Although the delay is very short, my conclusion about the purported explanation for the delay tells against a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[27] I have found that Mr Coetzer was aware of his dismissal at the latest on 18 March 2021 when he received the letter of termination. This consideration does not support a finding of exceptional circumstances.

Action taken to dispute the dismissal

[28] Mr Coetzer did not challenge his dismissal with the Respondent directly as he had concerns about approaching Mr O’Boyle and he was aware that Shamrock had already notified the Department of Home Affairs to advise of his termination and had withdrawn sponsorship of his Visa. I accept that element on face value and that Mr Coetzer initially took steps to ascertain his rights. However, he did not otherwise actively pursue any manner of disputing his dismissal beyond eventually making this present application. This consideration marginally tells against a finding of exceptional circumstances.

Prejudice to the employer

[29] Shamrock did not cite any particular prejudice associated with the delay in the application, which is very short. The mere absence of prejudice is not, by itself, a sufficient basis to grant of an extension of time. However, to the extent that the absence of prejudice might support an extension, I attribute it little weight in the consideration of whether there are exceptional circumstances. 16

Merits of the application

[30] The merits of an application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration. 17

[31] Mr Coetzer has an arguable case that his dismissal was unfair, particularly on procedural fairness grounds, 18 and he contends he has justification for the earlier absences. The Respondent contests the application on a number of grounds including the matters set out in the termination letter. There is insufficient evidence before the Commission to make a detailed assessment of this consideration, beyond the observation that it cannot be said that the application is without merit.

[32] I consider that the merits factor weighs mutually between the parties as a consideration of exceptional circumstances.

Fairness as between the person and other persons in a similar position

[33] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant factor. 19 I therefore consider that this weighs mutually between the parties as a consideration of exceptional circumstances.

4. Conclusions

[34] Having considered all of the circumstances of this matter and the considerations provided by s.394(3) of the Act, I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.

[35] As the unfair dismissal application was lodged beyond the initial period provided by s.394(2(a), and an extension of time has not been granted, there is not a valid application before the Commission.

[36] On that basis it is appropriate to dismiss the application and an Order 20 to that end is being issued in conjunction with this Decision.

COMMISSIONER

Appearances:

C Coetzer, the Applicant on his own behalf.

J Evans, of Minter Ellison with permission, with N O’Loughlan and L Zeeman on behalf of the Respondent.

Hearing details:

2021
May 5
Video Hearing.

Final written submissions:

Applicant: 5 May 2021.

Printed by authority of the Commonwealth Government Printer

<PR729234>

 1   The 21 day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).

 2   Section 394(3) of the Act.

 3   Mr Coetzer indicated that having the Respondent represented would be appropriate.

 4   See also the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.

 5   Exhibit A1.

 6   Attached to the Applicant’s Form F2 Application.

 7   Attached to exhibit A1.

 8   At questions 1.2 and 1.3 of the Form F2.

 9   Ayub v NSW Trains[2016] FWCFB 5500.

 10   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 11   Ibid.

 12   Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].

 13   Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].

 14   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 15   Metropolitan Fire and Emergency Services Board v Garth Duggan[2017] FWCFB 4878 at [21] to [34].

 16   See the approach in Brodie- Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299 to 300.

 17   Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.

 18   Section 387(b), (c) and (d) of the Act.

 19   See Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 for a discussion of this consideration.

 20   PR729600.