David Greenwood v KBB Digital Pty Ltd
[2017] FWC 6091
•18 DECEMBER 2017
| [2017] FWC 6091 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
David Greenwood
v
KBB Digital Pty Ltd
(U2017/9087)
| COMMISSIONER CIRKOVIC | MELBOURNE, 18 DECEMBER 2017 |
Application for an unfair dismissal remedy.
On 21 August 2017,[1] Mr David Greenwood (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to the application is KBB Digital Pty Ltd (Respondent).
The Applicant commenced employment with the Respondent on 20 September 2016, although the Respondent puts this date at 26 September 2016.[2] He was employed as a Marketing Executive.
Whilst there was some discrepancy between the parties’ originating documents as to the date the dismissal took effect, the Applicant, during the hearing in this matter, conceded that he was aware that he was notified of his dismissal on 15 June 2017 and that this was the date his dismissal took effect.[3]
Section 394(2) of the Act provides that an unfair dismissal application must be made within 21 days of the dismissal taking effect, or within such further period as the Commission allows under s.394(3). From the dates outlined above, it is apparent that Mr Greenwood’s application was lodged some 46 days out of time.
In this decision, I have considered whether an extension of time should be afforded to Mr Greenwood for the lodgement of his application and, for the reasons set out below, I have concluded that I am not satisfied that there are exceptional circumstances warranting such an extension.
Legislative scheme
Subsection 394(2) of the Act provides the following in relation to the lodgement of an unfair dismissal application:
(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).
Subsection 394(3) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances for the delay. The Commission, in considering whether exceptional circumstances exist, must take into account the following factors:
(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 like position.
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[4] where the Full Bench said:
“[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.” [Endnotes not reproduced]
As can be seen above, an unfair dismissal application “must be made” within 21 days of the date of termination taking effect, or within a further period allowed by the Commission. The words must be made are not defined in the Act, but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:
13 General requirements for lodging documents
...
(2) A document must be lodged with the Commission by:(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or
(b) sending the document by post to an office of the Commission; or
(c) emailing the document in accordance with rule 14; or
(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or
(e) faxing the document in accordance with rule 16.
Approach of the Commission
The onus of establishing exceptional circumstances rests with the Applicant, who needs to provide a credible reason for the whole of the period that the application was delayed.[5]
This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[6] which contained the following statement:
“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[7] (Shaw and ANZ), at paragraph [12] the majority decision states:
‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’
[30] This extract must be read in its entirety. The decision goes on to state:
‘[12] … The circumstances from the time of the dismissal must be 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.’
[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”
Background
On 8 September 2017, the parties were notified by the Commission that the application, not having been made within 21 days of the dismissal taking effect, had been listed for a conference or hearing to determine the extension of time issue and the preliminary jurisdictional matter of whether the Applicant had served the minimum employment period. Directions were issued for the filing of witness statements and submissions in preparation for the listing on 13 October 2017.
The Applicant was self-represented at the 10 October hearing and provided oral evidence. The Respondent was self-represented by Mr Chaffey, the Managing Director and part owner of the business.
Matters to be taken into account pursuant to s.394(3)
In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.
(a) The reason for the delay
The Applicant broadly submits, in his written material, that he originally attempted to contact the Respondent following his termination without success, and that he then resolved to let the matter rest to preserve his reputation in his community. However, following the discovery of subsequent deductions linked to his personal bank account, which he maintains were fraudulent and at the behest of the Respondent, he was driven to lodge his application for unfair dismissal remedy.[8] Mr Greenwood elaborated during the hearing as follows:
“…why it's come in late is based on I guess two reasons. One, more factual based and one more, I guess community town is that, you know, Geelong's a very small area in the greater scheme of things and with David Koch from Sunrise the part owner, I didn't think it would look upon myself personally to go against the - I guess the advocate of small business against a Fair Work claim. So in the short term I decided to not proceed with anything for the sheer fact of I didn't want it to I guess (indistinct) trying to apply for a new job. The second factor of that is why I initially - put the application in late was there was a number of credit card charges made on my personal credit card for the four separate charges which was exhibit A2, the NAB statements, and I reached out to David Koch in his - which is his part owner with Mr Chaffy, to reconcile that and was greeted very rudely both on the phone from his secretary and secondly against - from personal communication, which is an extract I put in on the exhibit A. There was an extract of communication there from David himself - David Koch, sorry. Sorry, to me David. And that's what made me get really upset about the whole situation, that I was treated with such disrespect when I was simply just
I'll just interrupt you, Mr Greenwood. What is Mr Koch's relevance to this? What is his position?‑‑‑Mr David Koch is a half owner with Mr Chaffy in the business.
…
Go on?‑‑‑No, sorry about that. With the communication that I received from both Mr David Koch and his team I was, you know, really upset about how I was treated. I simply just was trying to get some money back that had been billed off my personal credit card, and I didn't want to take it any further at that stage and that's why I personally reached out to them to try and get reimbursement of that funds. And it was because I was treated with such disrespect over the whole situation that I decided to take it to the next step.
All right, is there anything else you need to take into - - -?‑‑‑Yes I - not to justify the 21 days late. So the over the 21 days.
…I think since the application was filed it has been a little bit upsetting, some of the treatment myself and my partner have received since putting an application in. But whilst it doesn't affect it, you know, I just wanted to remark - set out what some of the communication we received, not only locally along the streets of Geelong but some of the communication I've received from people that are connected throughout the same workplace and so on.
…
…In my belief I believe any organisation that's I guess fraudulently using a credit card that doesn't - it's not owned to them, for (indistinct) expenses is an exceptional case and that's why I looked at that - the clause. Whether it was - I'm not a hundred per cent it fits in with that but whether - that's what I thought was an exceptional circumstance.
…
So I need you to really focus on what it is that you say is exceptional about your matter such that the time should be extended, given that it's 46 days late?‑‑‑Yes, so within that particular period of time between, you know, the dismissal to the - to August when the application went in there was a number of emails back and forth between Justine and myself within that time in regards to - it was, just to provide a back story, in regards to the payout and how I felt that the minimum requirements hadn't been met especially when I hadn't been paid for the last day of employment or let alone all the four weeks and the - you know, the - anyway and that's - so there was communication happening between - up until the 21st of August. And it wasn't like I wasn't trying to resolve the issue and come to any sort of close. It was just it come to that point in the - on the 21st where I got - you know, when I was notified by the bank that there was these payments been made, and that's what I saw as an exceptional case and that was the sort of the ground that I used to put the application in.
So you're saying on 21 August you noticed some payments being made in your account. Is that what you - - -?‑‑‑Yes, I noticed on the 20th and within two days of consultation with their - with David Koch and then that's from the 20th or the 21st was when it all sort of unfounded. The application - but the application went in on the 21st when I had a response from David Koch.
But the point remains that you knew on 15 June 2017?‑‑‑Yes, that's correct.
That you'd been terminated?‑‑‑Yes, that's correct.
All right, and originally you said you were not going to proceed?‑‑‑That's correct.
And so that something happened on 21 August that changed your mind is really how you're putting your case?‑‑‑Yes. Yes, that's correct.
All right. Thank you, is there anything else you need to put to me, Mr Greenwood?‑‑‑Not in relation to the extension of time.”[9]
Conversely, the Respondent’s material provides that Mr Greenwood did not take any steps to dispute the dismissal. Further, the Respondent denies the fraudulent use of Mr Greenwood’s credit card, submitting that the Applicant adduced no evidence linking the transaction to KBB Digital, and that Mr Greenwood had not responded to email and postal communications initiated by the Respondent “to help rectify this matter.”[10]
In response to the Applicant’s submissions made during the course of the hearing, the Respondent submitted that “the delay is based on an allegation of fraud that was detected and there isn’t any evidence of that.”[11] The Respondent further submitted that Mr Greenwood’s account was a “concocted story or it’s been turned into a story.”[12] The Respondent submits that the reason for the delay is not exceptional.[13]
For consideration of this criterion there must be an acceptable reason for the delay,[14] and this must be for the whole period that the application was delayed.[15] I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.
(b) Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of his dismissal on the day it took effect on 15 June 2017.[16] He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.
(c) Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an unfair dismissal application, may favour the granting of an extension of time.[17]
The Applicant suggested that there was action taken by him after his dismissal on 15 June 2017. The Applicant submits that:
· he “originally contacted the NAB Bank to cancel his credit cards and reported the fraudulent credit card deductions linked to my personal bank account”;[18]
· “[a]fter seeking clarification from the software company that the account was link [sic] to a KBB email address, I contacted David Koch (CEO Of KBB Digital)”;[19] and
· “I reached out to David Koch, and was extremely surprised to been told that I had changed passwords etc” to the Respondent’s accounts.[20]
Mr Greenwood says he was advised by Mr Koch, in response to an approach made by him seeking clarification on the bank transactions, that “he had changed passwords, set up in competition etc” to the Respondent.[21] The Applicant provided screen shots of his communication with his statement of evidence, which provided the following, dated 21 August 2017:
“Hi David,
I apologise for messaging you on linked in. I’m not actually sure your personally checking this.
I just wanted to raise a small issue in regards to 4 fraudulent uses of my credit card by KBB Digital as a previous employee.
I have attempted to contact KBB over the pass [sic] few weeks to no avail and most recently on the 18th my credit card has been charged again for a KBB digital business expense. Today I have cancelled the associated credit card and wanted to give yourself and dave the opportunity to rectify the situation for the outstanding transactions and bad will as NAB advised me to report a fraud case. I don’t want to tarnish your reputation at all in any way due to some of the poor and unethical business practices occurring down in geelong.
Did you want to send me your email address and I can send some further information. If I don’t get a reply by this method I will attempt to contact the pinstripe office or sort out other ways,
Thankyou for reading this message and look forward to hearing back
David Greenwood”
“Hi David,
Spoke to Dave Chaffey today who explained the background of your departure from KBB, how you changed passwords etc. Doesn’t really need my involvement. He will follow up with you.
David”[22]
The Applicant submitted that after a text message from Mr Koch and delay in response from the Respondent, the Applicant “approached FWC and applied for consideration.”[23]
In response to the Applicant’s submissions, the Respondent submits that the Applicant did not “actually ever contest the dismissal. He just contested that there was fraudulent use of his credit card.”[24] While the Applicant asserts that he unsuccessfully attempted contacting KBB Digital following his dismissal, that assertion is not supported on the material before the Commission. Save for the direct approach to Mr Koch, albeit on the matter of the bank transactions, I am satisfied that Mr Greenwood took no substantive action to dispute his dismissal. On the basis of the above, I consider this factor to be a neutral consideration.
(d) Prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will go against the granting of an extension of time.[25] The Respondent submits that a number of hours have been spent responding to the claim and, as a small business, such has caused them difficulty.[26]
While it is acknowledged that having to respond to an unfair dismissal application in and of itself creates some inconvenience to the former employer, the Commission’s consideration of this criterion, however, looks to prejudice beyond the ordinary requirement of responding to an application. Where a respondent asserts that there will be prejudice arising from an extension of time being granted, the respondent must produce evidence to demonstrate that prejudice.[27]
While I note the Respondent’s submission on this point, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.
(e) Merits of the application
The Commission notes that, for the purpose of determining whether to grant an extension of time to the Applicant to file his application, it “should not embark on a detailed consideration of the substantive case.”[28]
At the hearing, it was noted that there was a dispute between the parties as to the nature of the dismissal. The Respondent submits that the dismissal was for serious misconduct for the reason that the Applicant set up a company in competition with the Respondent. The Applicant denies these allegations.[29]
A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient.[30] However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.[31] I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.
(f) Fairness as between the person and other persons in a like position
This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past.[32]
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[33] considered this criterion and said:
“[41]…Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission on matters previously decided by the Commission.”
The Applicant and Respondent did not provide any submissions on this point.
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is 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
In establishing whether exceptional circumstances exist the Commission must take into account the criteria listed in s.394(3) of the Act. The expression “exceptional circumstances,” while not specifically defined in the Act, has been accepted in this Commission to encompass circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.[34]
A conclusion that there are exceptional circumstances, taking into account the statutory considerations, is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances, and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.[35]
Having considered all of the factors set out in s.394(3), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of Mr Greenwood’s unfair dismissal application under s.394(2)(b). Because an extension of time has not been granted, it is unnecessary for me to consider whether Mr Greenwood’s employment with KBB Digital Pty Ltd has met the minimum period of employment. Accordingly, the application is dismissed.
An order[36] to that effect will be published separately to this decision.
COMMISSIONER
COMMISSIONER
Appearances:
David Greenwood, Applicant
David Chaffey and Justine Kelly, for the Respondent.
Hearing details:
2017.
Melbourne (by telephone):
13 October.
[1] Transcript PN74.
[2] Ibid PN75; Respondent’s Outline of argument: objections, 3 October 2017, item 2a.
[3] Transcript PN89, PN104-105.
[4] [2011] FWAFB 975.
[5] Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] 197 IR 403.
[6] [2016] FWCFB 349.
[7] [2015] FWCFB 287.
[8] Applicant’s Outline of argument, 28 September 2017, 2.
[9] Transcript PN93-108, Applicant’s Outline of argument: Statement of Evidence, 28 September 2017, 2.
[10] Respondent’s Outline of argument: objections, 3-4.
[11] Transcript PN121.
[12] Ibid PN123.
[13] Ibid PN124-125.
[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[15] Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409.
[16] Transcript PN89.
[17] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[18] Applicant’s Outline of argument: Statement of Evidence 28 September 2017, item 2.iii.
[19] Ibid., item 2.iv.
[20] Ibid., item 2.v.
[21] Ibid., item 2.v; attachment 2.1.
[22] Ibid., attachment 2.1
[23] Ibid., item 2.v – vi.
[24] Transcript PN131.
[25] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[26] Respondent’s Outline of argument: objections, item 1.g.
[27] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].
[28] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
[29] Transcript PN161.
[30] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[31] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].
[32] Wilson v Woolworths [2010] FWA 2480 [24]-[29].
[33] [2016] FWC 6963 [41].
[34] [2011] FWAFB 975 [13].
[35] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [15].
[36] PR598793.
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