Daniel Spry v Beaver Tree Services Aust Pty Ltd T/A Beaver Tree Services

[2021] FWC 1309

[2021] FWC 1309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Spry
v
Beaver Tree Services Aust Pty Ltd T/A Beaver Tree Services
(U2021/415)

DEPUTY PRESIDENT BEAUMONT PERTH, 31 MARCH 2021

Application for an unfair dismissal remedy.

1. Introduction

[1] On 10 December 2020, Mr Daniel Spry’s (Mr Spry) employment with Beaver Tree Services Aust Pty Ltd T/A Beaver Tree Services (Respondent) came to an end. Some 36 days after having been dismissed, Mr Spry applied to the Fair Work Commission (Commission) for an unfair dismissal remedy (on 15 January 2021). Section 394(2) of the Fair Work Act2009 (Cth) (Act) prescribes a 21-day timeframe in which an unfair dismissal application must be filed. Mr Spry concedes that his application was filed late because his dismissal took effect on 10 December 2020 and therefore his application was made 15 days late. However, he contends there were exceptional circumstances that warrant him being granted an extension of time in which to make his application.

[2] For the reasons that follow, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Spry’s application to be made. Furthermore, I consider it would not be fair and equitable to grant an extension of time in which to make the unfair dismissal application. It follows that Mr Spry’s unfair dismissal application is dismissed.

2. Background

[3] Mr Spry filed a substantial amount of evidence in this matter. In contrast, the Respondent filed none. Leading up to the hearing, at a time when directions were to be complied with, the Respondent was represented by a Mr King. It was evident that Mr King possessed somewhat of an imperious approach to the matter, notwithstanding multiple attempts by Chambers to have him file material in accordance with the directions and explaining the importance of the same. Mr King’s flagrant irreverence for the processes associated with these types of matters was unhelpful.

[4] It was therefore understandable that the Respondent, a few days out from the hearing, decided to engage solicitors. However, whilst an extension of time was sought in which to file the Respondent’s materials, it was not approved. There was a notable period between the request having been made and the non-compliance with the directions. Further, the request was made in circumstances where Chambers had diligently attempted to elicit from Mr King the Respondent’s materials, to no avail.

[5] It is therefore the case that the evidence provided as way of background, comes from Mr Spry. However, both Mr Spry and the Respondent were represented at hearing given the complex factual matrix, the voluminous amount of material filed, and the issues that had arisen from my preliminary review of the materials. I had formed the view that the matter could be dealt with more efficiently if permission were granted. Further, given I had cause to question whether there was representative error, I considered that in the absence of legal representation, the parties were ill-equipped at addressing this somewhat complex issue.

2.1. Mr Spry’s employment history

[6] Mr Spry is a qualified arborist and had commenced work with the Respondent in 2004, when he was a mere 17 years of age. The Respondent carries on the business of providing tree services including tree pruning, trimming, and removal, in addition to providing vegetation management and the like. The managing director of the Respondent is Mr Harrison. Through the Respondent’s holding company, BTSA Holdings Pty Ltd (BTSA), he is said to own 80% of the company, whilst Mr Carriera, purportedly a long-time friend of Mr Harrison, owned a further 10% of the Respondent through BTSA. Mr Carriera was also the General Manager of the Respondent.

[7] Mr Spry gave evidence that he and his wife, Mrs Spry, owned the remaining 10% of the Respondent through BTSA. 1 Mr Spry noted that a shareholders agreement was entered into in July 2012 (Shareholders Agreement).

[8] The Respondent employs 70-90 workers and is said to use additional people under independent contractor arrangements. Within that employee cohort is the Human Resources and Payroll and Compliance Co-ordinator, Ms Mokomoko. Mr Spry occupied the position of Team Manager for the Respondent and reported to Mr Carriera.

[9] It was Mr Spry’s evidence that after having made the purchase of shares in July 2012, he observed a change in Mr Harrison’s behaviour towards him. Mr Spry said that Mr Harrison was both dismissive and aggressive towards him. 2 However, as Mr Harrison attended the workplace infrequently, Mr Spry said that he could handle Mr Harrison.3

[10] In 2013, Mr Spry signed an employment contract (2013 Employment Contract) that provided for a bonus of 5% of the profit of the Respondent once a target amount had been reached. Mr Spry also noted that he was encouraged by the Respondent to pay personal expenses, including fuel and vehicle expenses, using the Respondent’s credit card and credit facilities. 4 The agreement was, according to Mr Spry, that personal expenses would be deducted from his profit share and in circumstances where those expenses exceeded the profit share for that month, they would carry over.

[11] From 2015 to 2018, Mr Spry was promoted to Operations Manager, and then demoted back to Team Leader, having been informed that a Mr Gardner, a previous owner of shares in BTSA, had taken issue with him. During this time, Mr Harrison was said to have treated Mr Spry in an abusive and harassing way. 5

[12] Mr Spry provides an account of a workplace where he was persistently criticised by Mr Harrison and was subjected to bullying and harassment. However, because he had spent more than $500,000.00 purchasing shares in BTSA, Mr Spry said he felt trapped and could not resign from the Respondent, having purportedly mortgaged his house to make the purchase.

[13] Mr Spry gave evidence of a worsening employment situation. Mr Harrison had purportedly instructed staff to monitor CCTV footage to ascertain Mr Spry’s start and finish times, had instructed staff not to provide Mr Spry with any business information, and had levelled complaints about M Spry’s work on projects such as the Town of Victoria Park – an issue of ‘hard’ pruning in early April 2020; 6 and work at Champion Lakes concerning the repair of a fence.7

[14] During the April 2020 period, Mr Spry informed Mr Harrison and Mr Carriera that it appeared that they were focused on pushing him out of the business, and they should make him a decent offer to go. 8 Within hours of sending the email, Mr Spry received a response which he considered was a low offer.9 Mr Harrison was said to have sent a further email to Mr Spry on 16 April 2020 in which he spoke of obtaining a business valuation so as to ascertain the value of the shares. In that email, Mr Harrison reflected on the economic circumstances noting the value of the business would be much lower.10

[15] By 17 April 2020, Mr Spry had gone to the doctor with stress and anxiety. He was assessed as unfit for work until 1 May 2020. 11 Mr Spry gave evidence of experiencing difficulty obtaining the requisite workers’ compensation forms from Ms Mokomoko. He received the forms on 1 May 2020, which had not been completed by the Respondent. As of 30 June 2020, the Respondent stopped paying monthly dividends on the BTSA shares.12

2.2. Mr Spry’s dismissal and the subsequent period

[16] On 12 November 2020, Mrs Spry received an email from Ms Mokomoko attaching a letter from the Respondent, terminating the employment of Mr Spry (Termination Letter). 13 At this time, Mr Spry was on personal leave. The letter set out that Mr Spry’s employment was terminated in accordance with ‘section 8: Termination of Employment, sub section: 8.1 Under the Fair Work Act 2009 the employer may terminate your employment at any time by providing you with notice in writing… we are exercising our rights to terminate your employment with Beaver Tree Services Aust Pty Ltd’.14

[17] After having instructed his solicitors to respond to the Termination Letter by requesting a copy of the 2018 Employment Contract, Mr Spry encountered Mr King at his house. It appears that the Respondent had tasked Mr King with representing the Respondent concerning its dealings with Mr Spry. According to Mr Spry, Mr King had informed his wife that he was going to report Mr Spry to the police for stealing/fraud if he did not accept Mr Harrison’s last offer (presumedly for the shares). 15

[18] Mr Spry responded to Mr King’s visit by instructing his solicitors to send an email setting out the following:

a) we could not verify the validity of the termination without the 2018 Employment Contract;

b) the 2013 Employment Contract provided no provision for termination;

c) without the 2018 Employment Contract, we could not verify an obligation to return the keys requested by the Respondent;

d) requesting the immediate provision of the 2018 Employment Contract; and

e) should the Respondent fail to provide a copy of the 2018 Employment Contract, it would be inferred that such document did not exist. 16

[19] On 22 December 2020, Mr King was said to have again presented to Mr Spry’s home and only left when the police were called. 17 However, he dropped off a letter dated 21 December 2020, signed by Mr King, in the capacity of ‘Executive Management’ (Mr King’s Letter).

[20] Mr King’s Letter set out, amongst other matters, the confirmation of Mr Spry’s termination of employment on 10 December 2020, and references to several situations, which the author stated, ‘you must be made aware’. Mr King thereafter referred to a shareholders’ agreement which was purported to contain ‘many rules governing the ownership of the shares you held’, presumedly in the Respondent. According to Mr King, on the termination of Mr Spry’s employment, he had ‘automatically served on the Principal shareholder, a Transfer Notice of all of your shares back to the Principal Shareholder’. Mr King’s Letter thereafter traversed the process for valuing the shares.

[21] At the third paragraph of Mr King’s Letter, Mr King spoke of Mr Spry having fraudulently applied for credit with a third party and having made an unauthorised expenditure, followed by subsequent unauthorised expenditures, which were said to have been reported to the police. Mr King stated that the purpose of making the police report was for the intention of prosecuting Mr Spry for ‘Stealing as a Servant’.

[22] However, it was in the fifth paragraph of Mr King’s Letter that reference was made to a ‘claim for unfair dismissal’. The fifth paragraph of Mr King’s Letter relevantly set out:

[W]e may consider leniency in the matter should you accept the financial situation we now offer, and be willing to make recompense to the company for the above amounts, as well as returning to the company the Mobile Phone, keys and remote device for the premises, plus all of the PPE items in your possession, bearing in mind they are no longer of any use to you, and to give up all intentions of a claim for unfair dismissal…( Mr King’s emphasis). 18

[23] Mr Spry gave evidence that in response to Mr King’s Letter, he instructed Mr Kipping, his solicitor, to file a claim in the Industrial Relations Commission and Industrial Magistrates Court of WA on 4 January 2021, for unpaid contractual benefit concerning his profit share (IRC Claim). 19

[24] On 5 January 2020, a response was received in relation to the IRC Claim; included in that response was the 2013 Employment Contract and the 2018 Employment Contract.

[25] Between 8 and 14 January 2021, Mr Spry and his family went on a holiday.

[26] Mr Kipping returned from leave on 11 January 2021 and on 15 January 2021, Mr Kipping was said to have advised Mr Spry that after assessing the 2018 Employment Contract and the Termination Letter, the solicitors believed the dismissal was unfair. Mr Spry said that he then instructed his solicitors to proceed with an unfair dismissal claim, which was filed on 15 January 2021.

3. Mr Spry’s submissions

[27] Regarding the delay in filing the application, first, it is said that Mr Spry’s letter of termination of 12 November 2020 made reference to a ‘2018 Employment Contract’. Essentially, Mr Spry’s solicitors asserted that it appeared that the Respondent had relied upon clause 8.1 of the 2018 Employment Contract to terminate Mr Spry’s employment with provision of notice in writing. The notice period was four weeks. Counsel for Mr Spry argued that absent a copy of the 2018 Employment Contract, Mr Spry and his legal representatives could not determine the ‘validity’ or the ‘genuineness’ of the dismissal.

[28] Second, during the hearing, Mr Spry’s Counsel canvassed, for the first time, that without the 2018 Employment Contract, they were unable to determine Mr Spry’s income and whether his income would exceed the high income threshold. This therefore precluded the making of the application until that information had been garnered.

[29] Further, said Counsel, it was not until Mr Spry’s solicitors received a response to the IRC Claim, filed on behalf of Mr Spry, that a copy of the 2018 Employment Contract was received on 5 January 2021. However, while Mr Spry’s solicitors forwarded the 2018 Employment Contract to Mr Spry’s Counsel on that day, at the time, Counsel was on annual leave until 11 January 2021. Once Counsel had returned from leave, Mr Spry’s solicitors met with Counsel on the first opportunity on 15 January 2021.

[30] Counsel for Mr Spry therefore asserted that the delay in filing Mr Spry’s application was contributed to by the Respondent’s failure and/or refusal to provide him with a copy of the 2018 Employment Contract, despite his solicitor’s repeated requests and being on notice of his dismissal since 2020, and notwithstanding he had reserved his rights in relation to the termination of his employment.

[31] In response to Counsel’s submissions about the 2018 Employment Contract and the lack of information concerning Mr Spry’s income, I asked Counsel to review the Form F2 and asked whether the form required Mr Spry’s income to be included. Counsel observed that no section within the application required that information. I suggested that the Form F2 could have been filed without the need for Mr Spry to have ascertained whether his income fell foul of the high income threshold - if he was in fact unaware of his income, with a view to subsequently seeking the production of the 2018 Employment Contract. Following those observations, I asked Counsel whether she wished to address representative error and provided the opportunity for Mr Spry to file written submissions in reply on the same.

[32] Mr Spry’s reply submissions traversed the following:

a) the Commission’s jurisdiction to hear unfair dismissal applications is not enlivened unless the Mr Spry’s remuneration falls under the high income threshold;

b) the remuneration for the purpose of the high income threshold consisted more than just Mr Spry’s wages or salary;

c) Mr Spry knew that his annual wages or salary was $79,560.00 at the time of termination on his payslips;

d) Mr Spry also knew he had been provided with a motor vehicle;

e) Mr Spry could not recall signing the 2018 Employment Contract and could not recall whether he had agreed to treat the full monetary value for the Hilux as part of his remuneration, in which case the entire monetary value would have formed part of his remuneration bringing it up to $146,321.00 (being only $7,279.00 below the high income; and/or

f) whether he had agreed for any other amounts to be applied or dealt with in any way on his behalf or as directed by him.

[33] Whilst acknowledging that the Form F2 was both short and basic with a view to having been created to enable a self-represented applicant to complete it, Counsel noted that the person completing the Form F2 in these proceedings was not a self-represented applicant, but a legal practitioner possessed with the knowledge of the high income threshold. Counsel submitted that legal practitioners, as officers of the court, are held to a much higher standard than non-legal practitioners who are not regulated by the Legal Profession Act 2008 (WA) or by the Legal Profession Conduct Rules 2010 (WA).

[34] Having referred to the duties of legal practitioners, Counsel referred to the decision of Legal Profession Complaints Committee v Charlene Sheila Amsden 20 (Amsden). In Amsden, the Legal Profession Complaints Committee (Committee) alleged that Ms Amsden, a practitioner, engaged in professional misconduct by demanding payment of $2,022.00 from two respondents and by commencing and prosecuting a minor case claim in the Magistrates Court for that amount against them in circumstances where the two respondents had no existing liability to pay the amount the practitioner demanded from them and the practitioner herself conceded she had no cause of action.

[35] Counsel drew the Commissions attention to paragraph [48] of the Amsden decision where reference was made to the professional responsibility of practitioners in the following terms:

For a lawyer to institute civil proceedings lacking any legal foundation is an abuse of court processes because it squanders valuable court time and resources, and causes unnecessary discomfort, costs and inconvenience to the opposing party. (Citations omitted)

[36] With reference to Mr Spry’s application, Counsel submitted that the legal foundation for commencing proceedings for unfair dismissal in the Commission is founded on the jurisdiction of the Commission to be able to hear and determine such proceedings. Counsel pressed that whether the Commission had jurisdiction to hear and determine such proceedings is dependent on whether or not an applicant’s remuneration exceeds the high income threshold.

[37] On the point of the high income threshold, it was submitted that whilst the submissions and witness statements filed on Mr Spry’s behalf did not expressly state the reason why Mr Spry could not file his application without the 2018 Employment Contract, it was nevertheless the case that written submissions filed did traverse Mr Spry’s solicitor’s inability to determine the ‘validity’ of the dismissal. Counsel continued, that if Mr Spry’s remuneration fell above the high income threshold, then the position at common law is that the Respondent could have validly terminated Mr Spry’s employment as it sought to do, by giving four weeks’ notice. Counsel said that no reason would have been required for terminating Mr Spry’s employment. It was submitted that a reference to ‘validity’, in this context, was a reference to the high income threshold issue.

[38] An opportunity was taken by Mr Spry’s solicitors and Counsel to address the issue of representative error. It was submitted that if Mr Spry’s legal representatives had erred:

a) in determining that, as officers of the court, they need to be satisfied that Mr Spry’s remuneration fell below the high income threshold before filing the application; or alternatively

b) in failing to appreciate that the Commission permitted and considered it acceptable for a Form F2 to be filed despite the legal representatives not being satisfied that Mr Spry’s remuneration fell below the high income threshold at the time of its filing; and

c) in failing to obtain Counsel’s advice with respect to the 2018 Employment Contract insofar as it applied to Mr Spry’s application prior to 15 January 2021 but once the 2018 Employment Contract was obtained on 5 January 2021,

then Mr Spry was blameless. It was advance that Mr Spry acted immediately by providing instructions to file the unfair dismissal application when advised by his legal representatives on 15 January 2021 that he could do so. To support Mr Spry’s position, the decisions of Darryl Ashton v Qube Bulk Pty Ltd, 21 Jones v M.A. Services Group Pty Ltd T/A MA Security Group22and Ibrahim Abdallah v ISS Facility Services Australia Limited23 were cited.

[39] Insofar as Mr Spry took steps to advance his application, Counsel advanced that Mr Spry had engaged his solicitors to pursue this matter on his behalf. Counsel referred to there being evidence before the Commission that Mr Spry had asked his legal representatives to obtain a copy of the 2018 Employment Contract and to dispute the termination. 24

[40] It was advanced that Mr Spry’s application had merit. Whilst it was said that Mr Spry became aware of his dismissal at the time it took effect, the circumstances, whether 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 were exceptional.

[41] Insofar as fairness between Mr Spry and persons in a like position, Mr Spry drew upon two decisions to support his position. The first was that of Michelle Sposito v Maori Chief Hotel, 25 where it was determined that the applicant in those proceedings could not have been expected to file a claim for unfair dismissal prior to the time she was able to question the genuineness of the dismissal.26 Regarding the second, Albert Barkho v Aussie Traveller Pty Ltd,27 it was submitted on behalf of Mr Spry, that in this decision, the Commissioner considered that the applicant’s attempts to find information and provide instructions to his representative to file an unfair dismissal application provided a reasonable explanation for the delay and constituted exceptional circumstances.

4. Respondent’s submissions

[42] The Respondent disagrees with the proposition that Mr Spry should be granted an extension of time in which to make his unfair dismissal application. It summarised Mr Spry’s reasons for the delay in making his application as: (a) Mr Spry did not have a copy of the 2018 Employment Contract; (b) Mr Spry’s solicitors were on leave; and (c) Mr Spry did not want the Respondent to have a win. Concerning the last point, a submission had been made at hearing that the solicitors had not wanted to give the Respondent a win by filing an unfair dismissal application that may have given rise to a jurisdictional objection.

[43] Continuing on from this point, the Respondent noted that neither witness statement nor written submissions of Mr Spry had made mention of issues pertaining to the high income threshold. Further, as submitted by the Respondent, while Mr Spry seemed concerned about a jurisdictional objection on the basis of the high income threshold, he appeared undeterred by falling foul of a statutory timeframe.

[44] In respect of the reason for the delay arising in part because of Counsel being on leave, the Respondent submitted that a solicitor being on leave was not an exceptional circumstance or a valid reason for a delay. Further, the evidence was such that the solicitor for Mr Spry was responding to instructions from Mr Spry on 23 and 24 December 2020 notwithstanding having been on leave.

[45] The Respondent’s submission extended to the issue of representative error. The point was salient, given that the issue had been squarely raised with Mr Spry’s Counsel when I had noted issues with the contentions advanced concerning the ‘high income threshold argument’. On this point, the Respondent observed that Mr Spry had not pleaded the argument on the submissions, and there was no evidence to say what steps Mr Spry took to press his application.

[46] Insofar as the absence of the 2018 Employment Contract had contributed to the delay, the Respondent responded by observing that there is nothing unusual about parties not providing documents when in dispute. Further, and to the extent that the 2018 Employment Contract was relevant to the application, the Respondent advanced that there was nothing on the face of the submissions that Mr Spry could not understand in the absence of the contract. He was aware from 12 November 2020, that he was being dismissed and as far as the merits of the dismissal were concerned, they did not appear to be reliant on the 2018 Employment Contract.

[47] The Respondent conceded that there was no particular prejudice to it and in respect to the merits of the application, it noted that there had been a long standing and wide-ranging dispute about the relationship between the two. However, in an application concerning an out of time objection, it was not the opportunity to conduct a detailed consideration of the substantive case.

5. Consideration

[48] If Mr Spry’s application is to now proceed, it is necessary for him to show that there are exceptional circumstances that warrant the provision of an extension of time in which to make his unfair dismissal application.

[49] Turning to the point regarding exceptional circumstances, s 394(3) of the Act provides that the Commission may allow a further period for the application to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

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

(c) any action taken by the person 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 the person and other persons in a similar position. 28

[50] In addition to the circumstances being exceptional, the Commission also considers whether it is fair and equitable for an extension to be granted.

[51] An applicant has a considerable onus to convince the Commission to exercise the discretion. 29 In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty),30 the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.31 Whilst Nulty considered the general protection provisions in the Act, its reasoning is applicable to s 394(3) of the Act. The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[52] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 32 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, can be considered exceptional.33

[53] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 34 the Full Bench provided clarification on the assessment of exceptional circumstances. While the Full Bench considered s 366(1) of the Act, the observation remains relevant:

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. 35

[54] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’.

5.1. Reasons for the delay in making the application

[55] Consideration turns to whether Mr Spry has provided a credible reason for the whole of the period that his application was delayed. 36 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.37 It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.38

[56] From the materials filed, Mr Spry’s primary argument, and that of his solicitors, concerning the delay in filing his application, appeared to be the inability to ascertain the ‘validity’ or ‘genuineness’ of Mr Spry’s dismissal in the absence of the 2018 Employment Contract. In short, the argument is absent merit insofar as an unfair dismissal application is concerned in the circumstances of this case.

[57] First, on any objective level, the 2018 Employment Contract did not inform as to the ‘genuineness’ or ‘validity’ of the dismissal within the Act’s framework. The relevance of the ‘genuineness’ or ‘validity’ of the dismissal in this context is unclear. Part 3-2 of the Act provides the legislative scheme for ‘Unfair Dismissal’. Section 385 of that Part informs as to when a person has been ‘unfairly dismissed’, and s 386 of the Act expands upon the meaning of ‘dismissal’. Thereafter, s 387 of the Act lists those matters to be taken into account in determining whether a dismissal was harsh, unjust, or unreasonable. While s 389 of the Act speaks of ‘genuineness’, it is within the context of a redundancy; a circumstance far removed from the factual matrix presented. Further, while s 387 of the Act refers to the word ‘valid’, it only does so within paragraph (a) of that section. Section 387(a) of the Act requires the Commission to take into account whether there is a ‘valid reason’ for the dismissal, not whether the dismissal itself was valid.

[58] The absence of the 2018 Employment Contract from the date of dismissal up until 5 January 2021, was relied upon by Mr Spry and his solicitors to claim an inability to determine whether Mr Spry’s income surpassed that of the high income threshold. This was an argument that appeared to have surfaced during the hearing. When provided with the opportunity to provide written closing submissions in reply, the unusual assertion was made that if Mr Spry’s remuneration fell above the high income threshold, then the position at common law was that the Respondent could have validly terminated Mr Spry’s employment as it sought to do, by giving four weeks’ notice. Counsel said that no reason would have been required for terminating Mr Spry’s employment. It was submitted that a reference to ‘validity’, in this context, was a reference to the high income threshold issue.

[59] Submissions made by Counsel during the hearing and thereafter in written submissions were concerning. They demonstrated a marked unfamiliarity with the law in this jurisdiction. Counsel and solicitors for Mr Spry, were at best, misguided.

[60] Ascertaining whether a person is protected from unfair dismissal is an initial matter to be considered prior to the merits. It was submitted on behalf of Mr Spry that whether the Commission had jurisdiction to hear and determine his unfair dismissal application was dependent on whether or not his remuneration exceeded the high income threshold. However, the protection from unfair dismissal is not only afforded to those with an income below the requisite threshold, but also to those who are either award-covered in their employment, or those who had an enterprise agreement apply to them in their employment. No submissions were made in this respect on behalf of Mr Spry.

[61] Further, as pointed out to Counsel during the hearing, the Form F2 Unfair Dismissal Application, has been developed with the self-represented applicant in mind. It is not a complex document; it is not in the nature of a formal pleading; it is designed so that it may be completed by a layperson and may be lodged by a number of methods including online lodgement. Further, it does not require an applicant to enter her or his income. The absence of information concerning income does not preclude the filing of the application. While Counsel spoke of the duties of legal representatives and referred to the case of Amsden, the matter is dissimilar to that in Amsden.

[62] It is not the case that the unfair dismissal application would have been made lacking any legal foundation as was the case in Amsden. As noted, the income of the applicant is only one factor that is considered when determining whether that applicant is protected from unfair dismissal. However, in circumstances where Mr Spry and his solicitors held the view that they could not discern his income with specificity, it remained open to them to nevertheless file Mr Spry’s unfair dismissal application and thereafter seek the production of the 2018 Employment Contract. It is not an uncommon occurrence that there is dispute over the income of an applicant or, for that matter, the provision of documents. Concerning the latter, the Commission clearly contemplates that parties may apply for an order for production. Regarding the former, it is the Form F3 that asks for the applicant’s wage or salary – the onus is placed on the Respondent at the early stage of the proceedings to complete the information. Dispute is not uncommon when value is to be attributed to the non-monetary entitlements or benefits an applicant received, and consideration as to whether such amounts formed part of the applicant’s income.

[63] It follows that the assertion that both Counsel and solicitors would be acting converse to their duties to this Commission by filing the application without the purported fulsome knowledge of Mr Spry’s income does not, in my view, provide a plausible or reasoned justification for the whole delay in filing Mr Spry’s application, or even a part of this delay. Further, while reliance was placed on Amsden to support the proposition regarding a legal practitioner’s professional responsibility not to abuse court processes, to reiterate, that the fact scenario in Amsden is far removed from the one before me now, as is the jurisdiction in which the relevant proceedings were pursued in that case.

[64] As of 22 December 2020, the Respondent, via Mr King, had placed Mr Spry and his solicitors on notice of at least the possibility of him making an unfair dismissal ‘claim’ (see paragraph 5 of Mr King’s Letter). Yet no application was made at this time. As of 5 January 2020, Mr Spry and his solicitors had a copy of the 2018 Employment Contract. This was the very same document which had proved both elusive and the reason for the delay in filing Mr Spry’s unfair dismissal application. Yet no application was made.

[65] While Mr Kipping saw fit to forward the 2018 Employment Contract to Mr Spry on 5 January 2021 whilst on leave, it is not apparent from the evidence that he requested instructions to file an unfair dismissal application as a matter of urgency, or at all. Thereafter, Mr Kipping returned to work after a period of leave on 11 January 2021. Again, the evidence does not show that Mr Kipping sought instructions at this time to make an unfair dismissal application.

[66] Insofar as Mr Kipping was on annual leave during period of delay as was Counsel, I do not consider that the taking of annual leave constituted a plausible reason for part of the delay. There was no evidence that Mr Kipping was the only solicitor within the legal firm for which he worked, and as it was, he was responding to emails during his period of leave. An external event such as the taking of annual leave was not an unforeseen event. It is an event that evidently should be known by the solicitor taking the leave, that solicitor’s firm and the solicitor’s clients. It is therefore an entirely predictable event which is open to be reasonably be managed, and managed around, by all persons making applications. 39

[67] The Respondent submits that it was clear from oral argument that the contention concerning the high income threshold, as advanced by Mr Spry’s Counsel, was a recent invention as the argument was missing from the outline of submissions. Furthermore, it is evident from the evidence filed that from the time of dismissal up until 15 January 2021, there appeared to be no discussion between Mr Spry and his solicitors about the potential to lodge an unfair dismissal application. What appeared more pressing to both Mr Spry and his solicitors, was pursuing recourse for his loss of profit share – hence the IRC Claim. Furthermore, the correspondence between Mr Spry and his solicitors seemed centred around the issue of the profit share and obtaining a copy of the 2018 Employment Contract to ascertain whether the dismissal was ‘valid’ or ‘genuine’.

[68] While representative error was not pursued in Mr Spry’s written submissions or addressed in the evidence filed prior to the hearing, in light of the above reasoning, during the course of the hearing I provided the parties the opportunity to respond to the issue.

5.2. Representative error

[69] Where a representative error is a factor said to have contributed to the delay in making the application, it is accepted that the conduct of the applicant nevertheless is to be examined. 40 In Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service,41 a Full Bench decision that considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:

Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged. 42

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

[70] Further, in Long v Keolis Downer (t/as Yarra Trams), 43 a Full Bench of the Commission again emphasised the following passage as one of the propositions that should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged (our emphasis added)

[71] Having been dismissed, Mr Spry took immediate steps to obtain assistance from his solicitors. However, that assistance from his solicitors appeared to have taken the form of responding to correspondence from Mr King, where requests were made for the 2018 Employment Contract to enable the ‘validity’ of the termination to be assessed.

[72] As of 21 December 2020, Mr Spry had been placed on notice by Mr King that if he accepted the financial situation offered by the Respondent, then he must ‘give up’ his ‘intentions of a claim for unfair dismissal’. Had Mr Spry filed an application for unfair dismissal at this time, he would have filed the application within the statutory timeframe. However, notwithstanding this reference to a claim for unfair dismissal, there is no evidence to show that Mr Spry discussed this option with his solicitors. It is not apparent from the evidence that Mr Spry provided instruction to his solicitors to file an unfair dismissal application from the time of his dismissal until 31 December 2021, which was the time by which the application for unfair dismissal was required to be filed.

[73] Post-31 December 2021, Mr Spry provided instruction to lodge the IRC Claim (on 5 January 2021). Again, there is no evidence to suggest that Mr Spry similarly provided instruction regarding the filing of an unfair dismissal application at this time. Counsel for Mr Spry referred to there being, in effect, no barrier to the IRC Claim in respect of the assessment of wages in that jurisdiction. I note again the issue taken concerning the argument run on behalf of Mr Spry about his annual rate of earnings and the high income threshold.

[74] During the period between 8 and 14 January 2021, Mr Spry and his family went on a holiday. There was no evidence of agitation from Mr Spry during this period regarding the possibility of filing an application for unfair dismissal or providing instructions about the same.

[75] Importantly in this matter, there is uncontested evidence from Mr Spry corroborated by Mr Kipping, that at no time from the date of dismissal until 15 January 2021, did Mr Spry follow up Mr Kipping enquiring as to the making of such a claim. This is a case where Mr Spry simply left the matter in the hands of his legal representative/solicitor and took no further action to enquire or provide instruction about an unfair dismissal application. In other words, it is not clear to me on the evidence that Mr Spry was blameless in the late lodgement of his application and, accordingly, I am not satisfied that there is an acceptable reason given for the delay.

[76] It was not the case that Mr Spry could do nothing further except rely on and trust that his solicitors would assist him in respect of an unfair dismissal application. Mr Spry was not in a position where he could simply abrogate all responsibility for making the application because of his solicitor’s involvement. He had not instructed his solicitors to make an unfair dismissal application, notwithstanding Mr King’s Letter that referred to that very type of claim. An argument that Mr Spry lacked knowledge or was unaware of his legal rights is insufficient in and of itself to constitute an ‘exceptional circumstance’ within the meaning of the Act. 44

[77] Legal assistance or representation by solicitors is not required for an application for a remedy for unfair dismissal to be filed, and indeed, parties frequently represent themselves in such matters before the Commission. There was nothing to preclude Mr Spry from checking the statutory timeframe for the making of the application, or at the very least, agitating for information about such an application after having received Mr King’s Letter.

[78] Mr Spry gave evidence of experiencing great stress and anxiety during his period of employment and thereafter, between his dismissal and the lodgement of his unfair dismissal application. Inevitably, losing a job may cause distress and, in this case, Mr Spry appeared to have lost a sizeable investment in the Respondent and initially had to contend with Mr King whose purported conduct, on the face of it, appeared most confrontational. I appreciate that Mr Spry’s circumstances were difficult, yet they were not exceptional.

[79] I have considered the delay as the period beyond the 21-day period. However, regard has been given to the circumstances from the date the dismissal took effect. For the reasons given, I am not satisfied that Mr Spry has made out an acceptable or reasonable explanation for the whole period of the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances notwithstanding the long standing approach of the Commission that representative error may represent an acceptable reason for the delay. 45

5.3. Whether Mr Spry became aware of the dismissal after it took effect

[80] I have considered all of the evidence and submissions and I am satisfied that Mr Spry, for the reasons explained above, was notified of his dismissal on 12 November 2020, and that it came into effect on 10 December 2020. I am satisfied that this factor is therefore a neutral consideration.

5.4. Action taken to dispute the dismissal

[81] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 46 I have considered all submissions and the evidence in this respect. Mr Spry did appear to dispute whether the termination of his employment was ‘valid’ or ‘genuine’. Further, it can be seen that Mr Spry’s solicitors made multiple requests for the 2018 Employment Contract. Correspondence was also sent by Mr Spry’s solicitors to the Respondent regarding the dispute over the profit share. That dispute appears to have culminated in the lodging of the IRC Claim.

[82] However, when considered in context, it was evident that the focus of the Mr Spry’s attention, and that of his solicitors, was on whether there was a contractual right to terminate the employment contract, rather than the employment relationship – and the issue of the profit share. In all of the circumstances, I am unpersuaded that the action taken by Mr Spry was taken to dispute his ‘dismissal’, and as such, I consider this factor one that neither weighs for or against the grant of an extension of time.

5.5. Prejudice to the employer

[83] I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted and am unpersuaded that the Respondent would suffer prejudice. I consider this to be a neutral factor in the present case.

5.6. Merits of the application

[84] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) of the Act and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[85] In Kornicki v Telstra-Network Technology Group, 47 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench 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. 48

[86] Concerning the substantive application, the merits have not been fully tested. However, based on the information on hand, I consider that that there was an arguable case that Mr Spry had been denied procedural fairness insofar as his dismissal was concerned. Nevertheless, the merits of an unfair dismissal application are not so limited to procedural fairness, and as it is, circumstances can arise where the deficiencies in procedure may still not render the dismissal of an employee unfair. I note, in this respect, the assertions made in Mr King’s correspondence about Mr Spry allegedly stealing from the Respondent.

[87] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. 49

[88] While I consider it likely, based on the evidence before me, that Mr Spry was denied procedural fairness, the merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.

5.7. Fairness between the person and other persons in a similar position

[89] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, 50 where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 51

[90] Mr Spry drew upon two decisions to support his position regarding fairness (see paragraph [41] of this decision). The facts in both of those cases are significantly distinct from the factual matrix before me now, with the positions of the applicants markedly different to that of Mr Spry. In all of the circumstances, I consider this criterion neutral – its weight, neither against or for the granting of an extension of time.

6. Conclusion

[91] Having considered the matters referred to in paragraphs [49] – [91] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Spry’s application to be made.

[92] There is no satisfactory explanation for the whole period of the delay in making the application and the other factors are predominantly neutral. I note that if I am wrong in my finding that Mr Spry disputed his dismissal, it nevertheless remains the case that I would remain unmoved in declining to grant the extension of time. The totality of the evidence is, in my view, insufficient to ground a finding that Mr Spry’s circumstances were out of the ordinary course, unusual, special, or uncommon.

[93] While there was dispute over the Shareholders Agreement and the profit-sharing arrangement, such collateral agreements did not render the circumstances of this case exceptional. Such reasoning, however, should not be interpreted as detracting from the hardship arising from the sale of the Spry family home.

[94] Furthermore, whilst I appreciate that having to contend with Mr King was in and of itself challenging, at all relevant times Mr Spry had access to solicitors to assist him in navigating Mr King’s antics. Insofar as there was representative error, for the reasons given, I am of the view that Mr Spry was not ‘blameless’, as that term is understood in the context of this application.

[95] As I have concluded that I do not consider it fair and equitable to grant an extension of time in which to make the unfair dismissal application, Mr Spry’s application for unfair dismissal is dismissed. An Order 52 will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S Edwards for the Applicant

G Smith of Jackson McDonald for the Respondent

Hearing details:

2021;

Perth (by video);

March 11

Printed by authority of the Commonwealth Government Printer

<PR727669>

 1 Witness Statement of Daniel Spry [7].

 2 Ibid [22].

 3 Ibid [24].

 4 Ibid [32].

 5 Ibid [52].

 6 Ibid [96].

 7 Ibid [109].

 8 Ibid Spry [107].

 9   See ibid.

 10   Ibid [109(b)].

 11 Ibid [115].

 12 Ibid [124].

 13 Ibid [133].

 14   Ibid Annexure 21.

 15 Ibid [144].

 16 Ibid [151].

 17 Ibid [155].

 18   Ibid Annexure 24.

 19 Ibid [164].

 20   Legal Profession Complaints Committee v Charlene Sheila Amsden [2014] WASAT 57.

 21   Ashton v Qube Bulk Pty Ltd[2016] FWC 7668.

 22  Jones v M.A. Services Group Pty Ltd [2017] FWC 4122.

 23   Abdallah v ISS Facility Services Australia Limited[2016] FWC 113.

 24   Witness Statement of Daniel Spry [140], [141], [150], [151], [161].

 25   Sposito v Maori Chief Hotel[2020] FWC 6555.

 26 Ibid [17].

 27   Barkho v Aussie Traveller Pty Ltd[2020] FWC 3792.

 28   Fair Work Act 2009 (Cth) s 394(3).

 29   Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 30   Nulty v Blue Star Print Group Pty Ltd[2011] FWAFB 975 (‘Nulty’).

 31 Ibid [15].

 32 Ibid [13].

 33   Ibid.

 34   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.

 35 Ibid [38].

 36   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 37   Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 [10].

 38   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].

 39   Smith v KJM Contractors Pty Ltd [2010] FWA 5515.

 40   McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466.

 41   Ibid.

 42 Ibid [35].

 43   Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 [52].

 44   Nulty (n 31) [14].

 45   Clark v Ringwood Private Hospital (1997) 74 IR 413.

 46   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 47   Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 48   Ibid.

 49   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 50   [2015] FWC 8885.

 51 Ibid [29].

 52   PR728289.