Damian Andrew Koedam v QLD Truckers Pty Ltd
[2023] FWC 609
•21 MARCH 2023
| [2023] FWC 609 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Damian Andrew Koedam
v
QLD Truckers Pty Ltd
(C2023/378)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 21 MARCH 2023 |
Application to deal with contraventions involving dismissal – no exceptional circumstances – application dismissed.
Introduction
On 25 January 2023, Mr Damian Andrew Koedam (Applicant) filed a general protections involving dismissal application (under s.365 of the Fair Work Act 2009 (Act)) with the Fair Work Commission (Commission). The Applicant alleges that he was dismissed by QLD Truckers Pty Ltd Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.
Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Commission may allow (subject to satisfaction as to the existence of “exceptional circumstances”, as required by s.366(2) of the Act).
It is not in dispute between the parties that the Applicant was dismissed by the Respondent on 19 December 2022.
Given the Applicant’s date of dismissal was 19 December 2022, he should have filed his Application on or before 9 January 2023. Noting that the Applicant filed his Application on 25 January 2023, it has been filed 16 days past the 21-day statutory time limit. The Applicant now requests an extension of time to file his Application.
The Respondent opposes any extension of time being granted.
At the hearing on 13 March 2023, Mr Hugh Arjonilla, Solicitor, University of Newcastle Legal Centre, appeared with permission on behalf of the Applicant, and Ms Megan Adams, Solicitor, Progressive Legal, appeared with permission on behalf of the Respondent.
Legal principles
Section 366(2) of the Act reads:
“366 Time for application
…
(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.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, has stated:
“[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.
[14]Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”[1]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”[2]
(emphasis added)
In Mohammed Ayub v NSW Trains[3], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[4]:
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
..
[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
…
[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.”[5]
Reason for delay[6]
On the issue of reason for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group[7] (Bianco Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[9]
The Applicant’s reasons for delay are set out in his Application and his written submissions filed on 24 February 2023 (which were essentially repeated orally at the hearing). In summary, the Applicant submits that he was unable to file his Application within the 21-day statutory time period because many businesses close or shutdown during the Christmas/New Year period, he was unable (during the asserted shutdown period) to obtain free legal advice (despite genuine, sensible and persistent attempts to do so), and was looking for work or working multiple jobs to earn an income.[10]
In his evidence, the Applicant refers to having dyslexia (causing him to take more time to read documents), conducting google searches to identify contacts for free legal advice in the Newcastle area, and making various inquiries to obtain free legal advice (prior to and after Christmas 2022) with the Aboriginal Legal Service, Legal Aid, the Hunter Community Legal Centre, and the University of Newcastle Legal Centre (UNLC). The Applicant says that despite calling UNLC before Christmas and leaving a message, his call was not returned until 16 January 2023, but he missed the call because he was at work. When the Applicant finally called UNLC back he was advised to attend a free public legal advice day at the UNLC on 23 January 2023. After attending the free legal advice day, he instructed the UNLC to file his Application on 25 January 2023.[11]
In response, the Respondent submitted that none of the reasons relied upon by the Applicant (for his delay) are out of the ordinary course, unusual, special, or uncommon (in the Nulty sense). The Respondent further drew attention to the fact that the Commission has stated that the 21-day time period is not stayed for holidays or weekends, and that needing to look for work or working is not an extraordinary circumstance.[12]
Whether a person decides to avail themselves of legal advice or representation (free or otherwise) is a matter for them. It is not a matter that explains a delay in filing an application. The Commission’s website (running 24/7) has a wealth of information going to the filing of applications absent the ‘need’ for legal advice or representation. There is nothing in the Act that provides for an exception to the 21-day time period on the basis that an employee is unable (for whatever reason) to obtain legal advice or representation.
In the facts and circumstances of this case, I am unable to accept that the reasons advanced by the Applicant, for the 16-day delay in filing his Application, are credible or reasonable. There is simply no evidence that the Applicant was in any way incapacitated or otherwise unable to file his Application within 21-days of his dismissal. Indeed, the Applicant’s own evidence is that post his dismissal he was either looking for work, or actually working and earning an income, and that the only real impediment to him filing his Application (within 21-days of his dismissal) was essentially his inability to obtain free legal advice during the Christmas/New Year period. There is absolutely nothing out of the ordinary course, unusual, special or uncommon arising from these circumstances to explain the Applicant’s delay.
All in all, I find that the Applicant’s reasons for delay weigh against any finding as to the existence of exceptional circumstances.
Action taken by the Applicant to dispute his dismissal[13]
I do not consider that any conduct by the Applicant to dispute his dismissal prior to filing his Application is such that it weighs in favour of a finding as to the existence of exceptional circumstances.[14] I therefore treat this criterion as a neutral consideration.
Prejudice[15]
There is no suggestion of any prejudice to the Respondent being occasioned by the 16-day delay. The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[16] I therefore treat this criterion as a neutral consideration.
Merits[17]
The principles stated Kyvelos v Champion Socks Pty Ltd[18] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[19]
In Kornicki v Telstra-Network Technology Group,[20] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to extensions of time under s.170CE(8) of the (repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:
“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.”[21]
In his Application, the Applicant makes allegations as to contravention by the Respondent of ss. 340 and 344 of the Act. For its part, the Respondent denies that any contravention has taken place.
The merits of the Applicant’s case, by reference to his allegations, and the Respondent’s counter assertions, were not fully tested before me (i.e. it is not the role of the Commission to “embark [upon] a detailed consideration of the substantive case” for the purpose of determining whether to grant an extension of time to an applicant to lodge his or her application).[22] Given the very limited evidence before me, and the disputed issues between the parties which were not resolved at the extension of time hearing, I consider that the merits of the Application in these proceedings are a neutral consideration. I weigh the merits neither for nor against any finding as to the existence of exceptional circumstances in this case.
Fairness as between the Applicant and other persons in a similar position[23]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[24] Given that neither party made any substantive submissions on this issue, and I am not aware of any cases where there have been the same, or similar, characteristics and/or circumstances, I treat this criterion as a neutral consideration.
Other issues
Further submissions were advanced by the Applicant at the hearing, relying in part upon the case of Randy Hammond v Australia and New Zealand Banking Group Limited[25] (Hammond) to the effect that in determining whether I can be satisfied as to the existence of exceptional circumstances, I should:
a) apply the principle of a “fair go all round” to both the employer and employee (s.381(2) of the Act); and
b) take into account equity, good conscience and the merits of the matter (s.578(b) of the Act).[26]
In Hammond, Commissioner Roe considered the purely procedural question of whether or not he had the discretion to reopen a general protections involving dismissal application that had been discontinued by the Applicant. It was in this context that reference was made to s.578 of the Act, and obliquely to s.381(2).[27] To the extent that the Applicant submits that s.381(2) of the Act is to be applied to a determination as to whether the Commission can be satisfied as to the existence of exceptional circumstances under s.366(2) of the Act (by reference to the case of Hammond or otherwise), I reject the submission. Section 381(2) applies to Part 3-2 of the Act, not Part 3-1 of the Act.[28]
Under s.578(b) of the Act, in performing its functions and exercising its powers, the Commission ‘must’ take into account equity, good conscience and the merits of a matter. But s.578(b) is a servant, not a master. It cannot be used in a general way to alter or water down the interpretation or application of a specific statutory provision. Section 366(2) of the Act requires the Commission to be ‘satisfied’ as to the existence of exceptional circumstances. Reaching a relevant state of satisfaction in this regard is a question of jurisdictional fact, whereby the Commission’s discretion to extend time is only enlivened to be exercised if that fact exists. In other words, unless and until such time that the Commission is satisfied that the jurisdictional fact of exceptional circumstances exists, it has no power (discretion) to exercise. Whilst the Applicant’s submissions in relation to s,578(b) of the Act are not irrelevant, they are very much misplaced.
Conclusion
I have taken into account the criteria set out under s.366(2)(a)-(e) of the Act. In this regard:
(a) one of the requisite criteria, considered individually, points against the existence of exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no basis for me to find that exceptional circumstances exist (i.e. one criterion weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[29]
On the basis of the reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances in this case.[30] In view of this finding, there is no basis at law for me to grant an extension of time. I therefore reject the Applicant’s request for an extension of time. The Application filed by the Applicant in these proceedings is dismissed. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Hugh Arjonilla, Solicitor, University of Newcastle Legal Centre appeared on behalf of the Applicant
Ms Megan Adams, Solicitor, Progressive Legal appeared on behalf of the Respondent.
[1] [2011] FWAFB 975.
[2] Ibid.
[3] [2016] FWCFB 5500.
[4] [2018] FWCFB 901.
[5] Ibid, at [17], [19], [38]-[39].
[6] Section 366(2)(a), Fair Work Act 2009.
[7] [2021] FWC 3903.
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[9] Ibid, at [40].
[10] Form F8 Application, at Item 1.4 (at [1]); Applicant’s Submissions on Jurisdiction, filed 24 February, at [21].
[11] Applicant’s Statement, 23 March 2023, at [21]-[30].
[12] Respondent’s Submissions on Jurisdiction, filed 3 March 2023, at [46]-[51].
[13] Section 366(2)(b), Fair Work Act 2009.
[14] The Applicant has provided no evidence of him disputing his dismissal with the Respondent prior to filing his Application. However, see Respondent’s Submissions on Jurisdiction, filed 3 March 2023, at [52]-[55].
[15] Section 366(2)(c), Fair Work Act 2009.
[16] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[17] Section 366(2)(d), Fair Work Act 2009.
[18] (1995) 67 IR 298.
[19] Ibid, at 299 to 300.
[20] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[21] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[22] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[23] Section 366(2)(e), Fair Work Act 2009.
[24] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP, at 151-152, [37].
[25] [2011] FWA 1650.
[26] Transcript, PN109-PN121.
[27] Hammond, [13], [17].
[28] Note s.578(a) of the Act.
[29] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[30] Again noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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