Darryn Norman v Gorilla Payroll T/A Gorilla Payroll

[2019] FWC 6579

[2019] FWC 6579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darryn Norman
v
Gorilla Payroll T/A Gorilla Payroll
(U2019/8438)

COMMISSIONER PLATT ADELAIDE, 20 SEPTEMBER 2019

Application for an unfair dismissal remedy – extension of time – application dismissed.

[1] Mr Darryn Norman has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Gorilla Payroll T/A Gorilla Payroll (Gorilla or the Respondent), which his form F2 Unfair Dismissal Application advised took effect on 30 July 2019.

[2] Mr Norman filed his unfair dismissal application in the Commission on 31 July 2019 and did not identify that it was made beyond 21 days from the date of dismissal.

[3] On 13 September 2019, Gorilla lodged a form F3 Employer Response which indicated that the employment commenced on 18 February 2019 and that the dismissal occurred on 23 April 2019. Gorilla raised a jurisdictional objection on the basis that the application was lodged out of time and that the applicable Minimum Employment Period had not been completed. This decision only deals with the extension of time issue.

[4] On 6 September 2019, my Associate corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 20 September 2019. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Mr Norman was directed to provide a statement concerning the extension of time and any documents to be relied upon by 13 September 2019. Gorilla was invited to file any material in reply by 18 September 2019.

[5] Mr Norman filed a submission; Gorilla relied on the material contained in their Form F3 Employer Response.

[6] A hearing was conducted by way of telephone conference on 20 September 2019. An audio record of the telephone conference was kept. Mr Norman represented himself and Mr Andrew Clare (of counsel) represented Gorilla, with Mr Max Underhill of the Respondent present. Permission was granted pursuant to s.596(2)(a) of the Act.

[7] Mr Norman gave evidence at the hearing, his position is summarised as follows:

•  He was told by Mr Max Underhill by telephone that he had been dismissed on 23 April 2019, and received a letter to that effect shortly thereafter, possibly by email.

•  When talking to Mr Underhill on 23 April 2019, Mr Norman protested that the reasons for his dismissal were not accurate and that he was injured and on WorkCover.

•  Mr Norman received a Speration Certificate ion 2 May 2019 having requested one that day.

•  Mr Norman asserts that after not receiving income for a period of about two weeks, he received funds from Gorilla on or about 9 May 2019 until 19 July 2019.

•  Mr Norman contends he thought as a result of these payments he thought was ‘still on the books/working for Gorilla’

[8] Gorilla submitted that;

•  The employment commenced on 18 February and ceased on 23 April 2019, Gorilla submitted a copy of a contract of employment to that effect signed by Mr Norman on 18 February 2019. Although the relationship is described as a contractor, Gorilla do not submit it was other than an employment relationship.

•  On 23 April 2019, Gorilla emailed a termination notice. The notice contains the following paragraph ‘As an incident of gross misconduct has occurred, please be advised that your employment is now terminated with immediate effect.’

•  On 30 April 2019, Mr Norman emailed Mr Underhill and asked who was supposed to be paying him as he had not been paid for 2 weeks. Mr Underhill responded that day advising that Gorilla had only been authorised to pay for medical expenses.

•  At 10.28am on 2 May 2019, Mr Norman emailed Mr Underhill requesting a Separation Certificate.

•  At 12.33pm on 2 May 2019, Gorilla emailed Mr Norman a Separation Certificate which recorded the date employment ceased as 23 April 2019. Mr Norman replied to this email at 12.45pm stating ‘Thank you mate’.

•  Gorilla made workers compensation payments to Mr Norman as instructed by the insurer between 9 May and 18 July 2019.

•  Gorilla contended that Mr Norman was aware that he had been dismissed, and had not completed the Minimum Employment period of 6 months.

•  Mr Norman had not explained the delay and his circumstances were not exceptional.

Applicable Law

[9] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[10] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly(Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

Consideration

[11] I find that Mr Norman was dismissed on 23 April 2019.

[12] This unfair dismissal application by Mr Norman was made 78 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[13] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[14] Mr Norman contends that whilst he was initially aware that he had been dismissed, having been told verbally on 23 April 2019, being escorted off site, subsequently receiving a dismissal letter via email, and then requesting (and being provided with) a Separation Certificate on 2 May 2019, that the subsequent receipt of payments from Gorilla resulted in him thinking that he had not been dismissed.

[15] I accept that he received payments that were made in respect of his workers compensation claim between 9 May and 18 July 2019.

[16] Mr Norman contends that having received advice of his dismissal on 3 separate occasions, he then believed his employment had somehow been restored as a result of receiving workers compensation payments.

[17] I am not persuaded that Mr Norman could have reasonably held the belief that his employment relationship had been restored.

[18] Mr Norman has not satisfactory explained any of the delay. This factor weighs against the granting an extension of time.

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

[19] On the evidence Mr Norman was aware of the dismissal on the date it occurred and certainly not later than 2 May 2019.

Any action taken by the person to dispute the dismissal

[20] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 2

[21] Other than protesting during a phone call on the day of the dismissal Mr Norman took no other action to contest the dismissal.

[22] This factor weighs against a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[23] Prejudice to the employer will weigh against granting an extension of time. 3 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.4 A long delay gives rise “to a general presumption of prejudice”.5

[24] There is no submission that the granting of an extension of time represents prejudice to the Respondent.

The merits of the application

[25] The perceived merits of the application are a relevant consideration, 6 as explained in the joint judgment of the Federal Court in Haining v Deputy President Drake (1998) 87 FCR 248:

“If a case seems highly meritorious, [it] might legitimately persuade the decision maker to accept the adequacy of an explanation (for the delay) that would not pass muster in a case of little apparent merit.” However, the Commission ‘should not embark on a detailed consideration of the substantive case’, nor is it open to make any findings on contested matters of fact. The task at hand is to take the Applicant’s case at face value, and assess the appearance of the merits of their claim. “It would be sufficient for the applicant to establish that the substantive application was not without merit.” 7 (References omitted).

[26] Gorilla contended that Mr Norman was employed from 18 February 2019 to 23 April 2019 – this does not appear to be in dispute.

[27] On face value, it appears to me that Mr Norman has not met the Minimum Employment Period and this would prevent him from pursuing this claim.

[28] I have assessed the merits as a factor which weighs against the granting of an extension of time.

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

[29] The issue of fairness as between Mr Norman and other persons in a similar position is not a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[30] Having considered and weighed each of the factors under s 394 of the Act, I am not satisfied that Mr Norman’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order⁸ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr D. Norman on behalf of himself.

Mr A Clare (of Counsel) on behalf of the Respondent.

Hearing (Conference) details:

2019.

Adelaide:

September 20.

Printed by authority of the Commonwealth Government Printer

<PR712637>

1 [2011] FWAFB 975.

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

 3   Ibid.

 4   Ibid.

 5 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

 6   Above n 2, 299-300.

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

8 PR712647.