Damon Anthony Gregson v Essential Energy

Case •

[2024] FWC 1053

•

22 APRIL 2024
[2024] FWC 1053

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Damon Anthony Gregson
v

Essential Energy

(U2024/2540)

COMMISSIONER CRAWFORD

SYDNEY, 22 APRIL 2024

Unfair dismissal application filed out of time – two incorrect applications filed within 21-day period - exceptional circumstances – extension of time granted

Background

  1. Damon Gregson (Mr Gregson) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he was unfairly dismissed by Essential Energy.

  1. Essential Energy builds, operates and maintains a large electricity distribution network in New South Wales and southern Queensland. Essential Energy is owned by the New South Wales Government. Although Mr Gregson initially filed an application in the New South Wales Industrial Relations Commission and then filed an unlawful termination application in the Commission, there is ultimately no dispute between the parties that Essential Energy is a constitutional corporation and national system employer.[1] 

  1. Mr Gregson commenced permanent employment with Essential Energy in 2009. Mr Gregson’s latest contract of employment identifies his position as Vegetation Officer.[2] The Essential Energy Enterprise Agreement 2021 covered and applied to Mr Gregson’s employment with Essential Energy. 

  1. Mr Gregson was dismissed on 17 January 2024 for an alleged deliberate and serious breach of Essential Energy’s Code of Conduct. It is alleged Mr Gregson deliberately disconnected the satellite antennas on five Essential Energy vehicles parked at the Waters Edge Motel in Port Macquarie on 5 December 2022. Although Essential Energy formed the view Mr Gregson’s conduct justified instant dismissal, Essential Energy made a payment of four weeks of pay in lieu of notice of termination to Mr Gregson because of his long period of service.  

  1. Mr Gregson’s Form F2 unfair dismissal application was signed on 29 February 2024 and sent by post to the Commission. The Commission’s records indicate the application was received on 6 March 2024. Where an application is lodged by post, the application (if properly addressed and postage prepaid) is made at the time that it would be received by the Commission in the ordinary course of post, unless it is proven to have been received by the Commission at a different time.[3] As a result, I find that Mr Gregson’s application was filed on 6 March 2024. 

  1. Mr Gregson’s application identified a dismissal date of 17 January 2024 and indicated the application was not filed within 21 days of the dismissal taking effect.

  1. On 22 March 2024, Essential Energy filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mr Gregson’s application was not filed within 21 days of the dismissal taking effect on 17 January 2024 and argued that an extension of time should not be granted.

  1. I issued directions for the filing of material regarding whether an extension of time should be granted and listed that issue for determinative conference/hearing via video on 16 April 2024. The directions included a direction for the filing of submissions in support of any request for permission to be represented and in opposition to any request. Essential Energy filed submissions in support of its request for permission to be represented on 28 March 2024. Mr Gregson did not file any submissions in opposition to the request. On 12 April 2024, the parties were advised I had granted permission for Essential Energy to be represented at the determinative conference/hearing because I was satisfied this would enable the matter to be dealt with more efficiently, having taken account of the complexity of the matter. 

  1. Mr Gregson represented himself at the determinative conference/hearing on 16 April 2024. Essential Energy was represented by Ashleigh Mills from Holding Redlich.

  1. At the outset of the proceeding, I indicated my provisional view was that I should conduct the proceeding as a determinative conference rather than a hearing because Mr Gregson was representing himself. This was not opposed by the parties. I decided to conduct a determinative conference.

Material filed

Mr Gregson

  1. Mr Gregson relied on the following material in support of an extension of time being granted:

·   A Form F2 application form and the following attachments: the first page of Mr Gregson’s termination letter dated 17 January 2024, and a letter to Mr Gregson from the Commission dated 19 February 2024 concerning his unlawful termination application. I marked the application and its attachments Exhibit A1.

·   An email from Mr Gregson to the Commission dated 13 March 2024 which provides further evidence regarding the late filing of his application. A further copy of the Commission’s letter to Mr Gregson dated 19 February 2024 was attached. I marked the documents Exhibit A2.

  1. Mr Gregson was cross-examined by Ms Mills, and he answered some questions from me under an affirmation during the determinative conference.

  1. Mr Gregson made oral closing submissions during the determinative conference.

Essential Energy

  1. In addition to its Form F3 employer response form, Essential Energy relied on the following evidence in support of its opposition to the granting of an extension of time:

·   A witness statement from Andrew Parrish (Human Resources Business Partner, Essential Energy) dated 5 April 2024. The statement referred to a tender bundle of documents that was filed in conjunction with the statement. The tender bundle included the following documents:

-Tab 1: Contract of employment dated 12 July 2016.

-Tab 2: Investigation notice dated 17 February 2023.

-Tab 3: Formal warning dated 20 February 2023. 

-Tab 4: Certificate of Capacity dated 9 March 2023.

-Tab 5: Certificate of Capacity dated 10 October 2023.

-Tab 6: Certificate of Capacity dated 7 November 2023.

-Tab 7: Show cause letter dated 27 November 2023.

-Tab 8: Termination letter dated 17 January 2024.

-Tab 9:  NSW Industrial Relations Commission unfair dismissal application form filed by Mr Gregson on 29 January 2024.

-Tab 10: Email from Mr Gregson to the Commission dated 5 February 2024 to file a Form F9 unlawful termination application.

-Tab 11: Form F9A employer response form filed by Essential Energy on 12 February 2024.

-Tab 12: Email from the Commission to Mr Gregson on 27 February 2024 giving final notice that he needs to respond to an earlier letter dated 19 February 2024 which suggested Essential Energy was a national-system employer and that he may have filed the wrong application.

-Tab 13: Email from the Commission dated 28 February 2024 confirming Mr Gregson had discontinued the Form F9 unlawful termination application via telephone.

-Tab 14:  Email exchange between Mr Gregson and the Commission regarding an extension of time for his unfair dismissal application.

-Tab 15: Emails between Holding Redlich and the Commission regarding the discontinuance of Mr Gregson’s unlawful termination application. An email from the Commission to Mr Gregson providing information about national system employers is also attached.

-Tab 16: Emails from Holding Redlich to Mr Gregson regarding whether Mr Gregson will be filing additional material in support of his request for an extension of time.

-Tab 17: Extracts from the Commission’s website regarding the application process for various applications relating to a dismissal.   

I marked Mr Parrish’s statement, and the tender bundle of documents, Exhibit R1.

  1. Essential Energy relied on written submissions dated 5 April 2024. Ms Mills also made oral closing submissions at the end of the determinative conference.

Extension of time

  1. Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

  1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[4]

  1. There is no dispute that Mr Gregson’s employment was terminated by Essential Energy effective 17 January 2024. Given the dismissal date of 17 January 2024, the 21-day filing period ended on 7 February 2024. Mr Gregson’s application was filed 28 days late on 6 March 2024. As a result, Mr Gregson needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

  1. Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and

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

(c)   any action taken by Mr Gregson 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 Mr Gregson and other persons in a similar position.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[5]

Consideration

Reason for the delay

  1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 7 February 2024. The delay is the period commencing immediately after that time until 6 March 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[6]

  1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[7]

  1. Mr Gregson does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Gregson has not provided any reason for any part of the delay.[8]

  1. The reasons relied upon by Mr Gregson for the delay are:

1.Mr Gregson initially filed an unfair dismissal application in the NSW Industrial Relations Commission on 29 January 2024. Mr Gregson was subsequently advised by the NSW Industrial Relations Commission that he had filed an application in the wrong tribunal.  

2.Mr Gregson filed an unlawful termination application with the Commission on 5 February 2024. Mr Gregson was advised by the Commission via email on 19 February 2024 that Essential Energy may be a national system employer and that if they were, an unlawful termination application cannot be pursued.

3.Mr Gregson says he was travelling with his daughter around 19 February 2024 and did not see the Commission’s email and letter dated 19 February 2024.

4.On 27 February 2024, the Commission sent a further email to Mr Gregson because he had not responded to the earlier email. Mr Gregson says he saw this email and subsequently completed an unfair dismissal application on 29 February 2024. Mr Gregson says he had technical difficulties which prevented him filing the application electronically. As a result, Mr Gregson located a postal address for the Commission and sent his application by post on 29 February 2024.  

  1. I accept Mr Gregson has a satisfactory explanation for the delay until 19 February 2024. I consider it is understandable that Mr Gregson initially filed an application in the NSW Industrial Relations Commission, particularly given Essential Energy is a state-owned corporation. I also consider it is understandable that Mr Gregson did not initially realise he could not make an unlawful termination application because Essential Energy is a national-system employer. I reject Essential Energy’s submission that Mr Gregson consciously sought to pursue a different type of application when he filed the unlawful termination application. Having observed Mr Gregson’s evidence, I am satisfied he was focused upon challenging his dismissal and that he did not grasp the technical elements of the various jurisdictions. 

  1. I consider the situation from 19 February 2024 to 6 March 2024 to be less clear. Mr Gregson did not file any evidence regarding travel with his daughter around this time which apparently resulted in him not seeing the Commission’s email and letter dated 19 February 2024. Mr Gregson also did not file any evidence to establish the technical difficulties he experienced around 29 February 2024 which apparently led to him posting the application form to the Commission, resulting in a further delay until 6 March 2024. The oral evidence Mr Gregson gave about these issues during the determinative conference was not entirely consistent. In the circumstances, I am not satisfied on the evidence that Mr Gregson has a satisfactory explanation for the delay from 19 February 2024 to 6 March 2024. However, I am conscious the lack of evidence may have been contributed to by the fact that Mr Gregson is representing himself and is not familiar with the Commission’s processes.  

  1. Given I am satisfied Mr Gregson has a satisfactory explanation for the delay until 19 February 2024, but not from that date until 6 March 2024, I have decided to treat this as a neutral factor.

Did Mr Gregson first become aware of the dismissal after it had taken effect?

  1. There is no dispute that Mr Gregson first became aware of his dismissal on the date it took effect, 17 January 2024. I consider this to be a neutral factor.

What action was taken by Mr Gregson to dispute the dismissal?

  1. Mr Gregson took action to dispute the dismissal by filing an unfair dismissal application in the NSW Industrial Relations Commission on 29 January 2024 and then an unlawful termination application in the Commission on 5 February 2024. Both applications were filed within 21 days of Mr Gregson’s dismissal taking effect.

  1. The filing of two different, albeit incorrect, applications within the 21-day period constitutes significant action taken by Mr Gregson to dispute his dismissal. I consider this factor weighs strongly in favour of a finding of exceptional circumstances and the granting of an extension of time.

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. In relation to prejudice it has suffered, Essential Energy referred to the time and expense of previously having to respond to Mr Gregson’s unlawful termination application. There is some merit to that point, although I note it would have been open for Essential Energy to alert Mr Gregson to the jurisdictional issue within the 21-day period, rather than preparing a response form. In any event, Essential Energy is an extremely large business with substantial internal resources, and it has engaged external lawyers to assist it in handling Mr Gregson’s applications. Essential Energy has clearly been on notice that Mr Gregson intended to contest his dismissal since 29 January 2024. I consider any prejudice to Essential Energy is extremely minor. I consider this factor to be neutral. 

What are the merits of the application?

  1. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[9]

  1. I am far from convinced that it was appropriate or sensible for Mr Gregson to not respond to the show cause letter dated 27 November 2023. Mr Gregson gave evidence that he considered Essential Energy was required to arrange mediation to resolve issues between Mr Gregson and a superior before he could be required to respond to the allegations in the show cause letter. I consider that position conflates two separate issues, and it has led to Essential Energy deciding to dismiss Mr Gregson because he had not even denied the serious allegations against him.

  1. However, where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[10] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[11]

  1. Mr Gregson gave evidence under affirmation during the determinative conference that he strongly denies the allegation of deliberately disconnecting satellite antennas on five Essential Energy vehicles on 5 December 2022. As a result, if an extension of time is granted and the application proceeds to be determined by the Commission, Mr Gregson will be provided with an opportunity to establish that he did not engage in the alleged misconduct. If Mr Gregson establishes that he did not deliberately disconnect the antennas, he is likely to succeed in arguing that his dismissal was unfair. 

  1. Given the substantial factual contest between the parties about what occurred on 5 December 2022, I consider the merits of the application to be a neutral factor. Although I reiterate that it was not helpful or appropriate for Essential Energy to be first advised of the extent of the factual dispute during the determinative conference on 16 April 2024.     

Fairness as between Mr Gregson and other persons in a similar position

  1. Although Essential Energy referred to a previous case where an extension of time was not granted simply because an incorrect application was filed,[12] there are numerous other cases where an extension of time has been granted because the applicant initially filed an application in the unfair dismissal or general protections jurisdiction, and then pivoted to the other jurisdiction after they became more familiar with both jurisdictions.[13] This case is more unusual in that Mr Gregson pivoted from an unfair dismissal application (in the NSW Commission), to an unlawful termination application in the Commission, and then an unfair dismissal application in the Commission. However, as identified above, I think the primary reason for the various applications was confusion, rather than strategy. I consider this factor weighs marginally in favour of a finding of exceptional circumstances and the granting of an extension of time.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

  1. Briefly, 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.[14] Exceptional circumstances may 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 can be considered exceptional.[15] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[16]

  1. Having regard to all of the matters listed at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.

  1. I am satisfied Mr Gregson’s actions in filing two separate applications contesting his dismissal within the 21-day filing period is an exceptional circumstance that justifies granting an extension of time. I have found that any prejudice to Essential Energy is extremely minor and I have found no other factors weigh against the granting of an extension of time.  

  1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

  1. Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[17] I am satisfied that it is appropriate to extend the period for the application to be made to 6 March 2024.

  1. The application will proceed to be dealt with in accordance with the Commission’s normal processes.

COMMISSIONER

Appearances:

Mr D Gregson representing himself.

Ms A Mills from Holding Redlich for Essential Energy.

Determinative Conference via video:

16 April 2024.


[1] As defined in s.14 of the FW Act.

[2] Exhibit R1, Tab 1.

[3] Acts Interpretation Act 1901 (Cth) s 29(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[4] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[6] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[10] Edwards v Justice Giudice [1999] FCA 1836, [7].

[11] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[12] McGuire v St John of God Hospital [2022] FWC 26 at [16].

[13] For example, see Gael Souroop v State of Victoria (Department of Justice and Regulation) [2018] FWC 1759 and Mrs Joanne Calcagnor v DRD Accountants Pty Ltd [2022] FWC 1313.

[14] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[16] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[17] Fair Work Act 2009 (Cth) s 577.

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