David Morris v QBE Insurance (Australia) T/A QBE Insurance (Australia)

[2016] FWC 7721

[2016] FWC 7721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Morris
v
QBE Insurance (Australia) T/A QBE Insurance (Australia)
(U2016/9749)

COMMISSIONER CIRKOVIC MELBOURNE, 25 OCTOBER 2016

Application for relief from unfair dismissal – whether to extend time for lodging the application

[1] On 25 July 2016 Mr David Morris (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 QBE Insurance (Australia) T/A QBE Insurance (Australia) (Respondent).

[2] The Applicant commenced employment with the Respondent on 2 June 1998. 1 He was an Application Consultant at the time of the termination of his employment.2 He says that he was notified of his dismissal 15 February 2016 and that the dismissal took effect 24 June 2016.3

[3] The application therefore was lodged 10 days out of time.

[4] For the reasons set out below I have concluded that I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application will be dismissed.

Respondent’s Submissions

[5] The Respondent submits that the Applicant has failed to establish there are any exceptional circumstances warranting the granting of a further period for the making of an application. Further the Respondent submits that the Applicant was not an employee, that he was an independent contractor and had been provided in excess of four months’ notice that the contract of his company was ending. The Respondent further submits that the Applicant’s annualised earnings exceeded the high income threshold.

Legislative scheme

[6] Subsection 394(2) of the Act provides that an application under s.394 must be
made within 21 days after the dismissal took effect:

(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).

[7] Subsection 394(3) of the Act provides that the Fair Work Commission (Commission) may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding 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.

[8] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 4where 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]

[9] As can be seen above, an unfair dismissal application “must be made” within 21 days or 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

[10] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 5

[11] 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[2016] FWCFB 349 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[2015] FWCFB 287 (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

[12] On 26 July 2016, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.394(3) of the Act. The matter was listed for hearing on Friday, 26 August 2016.

[13] The Applicant was self-represented. The Respondent was self-represented.

Matters to be taken into account pursuant to s.394(3)

[14] 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

[15] The Applicant submits that his preference was to resolve the issues in dispute with the Respondent via internal redress. In furtherance of this approach, on 29 June 2016, he wrote to the Respondent by email to request a meeting to discuss the issues. On 4 July 2016, the Applicant had a phone conference with the Respondent.

[16] On 14 July 2016, the Respondent wrote to the Applicant detailing the review of the claims put by the Applicant in support of his claim for employee rather than contractor status and the Applicant’s claim for employee status of permanent employment.

[17] On 18 July 2016, the Applicant wrote to the Respondent by email outlining some corrections to the Respondent’s correspondence dated 14 July 2016. On 21 July 2016, the Respondent wrote to the Applicant advising the Applicant that there “remains no conclusive evidence of the establishment of a formal employment arrangement” 6 between the Applicant and the Respondent.

[18] The Respondent’s submissions, although lengthily expressed, involved the following propositions:

• The Applicant has failed to establish that there are exceptional circumstances for lodging his application out of time;



• The Applicant had ample time to lodge the application by 15 July 2016, having been provided with notice on 15 February 2016 that his contract was ending on 24 June 2016, and the Applicant had the awareness and resources to do so;



• “It would be unfair to allow an extension of time given the Applicant has not been able to demonstrate any exceptional circumstances as to the delay especially given the Applicant stated on 20 June 2016 the matter was being lodged for mediation with Fair Work”. 7

[19] The Respondent submits various other jurisdictional objections to the Applicant’s application. It is not relevant to consider these jurisdictional objections for the present application.

[20] For this consideration there must be an acceptable reason for the delay 8 and this must be for the whole period that the application was delayed.9 Having perused the transcript, it is readily apparent that the Applicant has misconceived the nature of the application before me. Several attempts were made during the course of the hearing to illicit reasons for the delay. When asked to provide reasons for the delay the following exchanges occurred:

“THE COMMISSIONER: Now, you're aware of the time limits on lodging these applications?

MR MORRIS: Yes, I have now been made completely aware of that being the case.

THE COMMISSIONER: What took place between, you know, at the very latest, 9 May for example, and 24 June 2016?

MR MORRIS: In fact, between 20 April when I got the email stating that they would pay me annual leave, between that date and my end date, 24 June, I continued to try to talk to QBE about the other entitlements such as the redundancy. I had an email from - and I think I have attached these - is it attachments G and H? No, it's not those ones, Sally, it's prior to that. You find the attachment while I go through, please. I asked QBE about those entitlements. I did receive an email from QBE stating that they would not discuss that matter any further, that they had agreed to pay the annual leave but they would not discuss the matter of other entitlements any further. So yes, that is actually attachment E as well. I then at that stage contacted Fair Work to ask what should I do. 10

…
So why did you not lodge your claim some time after that, or at least after your dismissal took effect on 24 June? ---I spoke to Fair Work and verbally, talking to them over the phone, they said are you submitting an unfair dismissal, and I said, well, no because I understand that my role has been made redundant, I'm not unfairly being dismissed in that sense. So in my view I didn't want to - there was no cause to actually lodge an unfair dismissal. It wasn't until much later that I learnt that a part of lodging an unfair dismissal also includes the entitlements that go along with it. So my view was that I was not unfairly dismissed. I understood that the role was no longer required; it wasn't due to poor performance or any other issues as to the reason that the role was made redundant.

But you have lodged an unfair dismissal application?---I have now, yes, and that's why that was late, because I didn't realise way back on 20 April that an unfair dismissal, even though I felt that I was fairly dismissed, that it actually also includes the ability to have the entitlements that go along with it. I wasn't disputing whether I was unfairly sent away from the organisation; that wasn't the case at all. 11

…

In terms of dealing with this type of application, in terms of dealing with an extension of time application in particular, there need to be exceptional circumstances for there to be an extension of time, so the onus is on you to tell me what is exceptional about your particular circumstance?---Yes. And so I guess I am trying to say that the reason for the delay is absolutely the question that I'm responding to, which is why is it out of time: because during that email of 20 April right up until the time of the submission I was able to renegotiate, at least to have discussions with QBE via sending an email to Stephen Daley - oh, it was actually directly to Sally Kincaid - it's attachment F in what I have provided to you, and the reason it went to Sally Kincaid was because she was the head of HR. So after being advised that I should try to openly get the communication channels with QBE going once again, that was why I then sent that email to Sally Kincaid, which is attachment F, then that was then handed over to Stephen Daley, because Sally Kincaid was going away on annual leave. So then communications have started once again in relation to this with Stephen Daley, and also having Claire involved, so Stephen got Claire involved because of her background in this matter. So then there were numerous other emails going back and forward, as well as some telephone conversations in regards to this. That process took a very long time just to - my first conversation with Stephen Daley was 4 July, so even though I had asked to continue the discussions my very first conversation with Stephen Daley was after I left QBE. 12

…

The difficulty I have is that you're not giving me a submission on what is exceptional about the circumstances such that there should be an extension to the time limit. You were able to ring either the Fair Work Ombudsman or the Fair Work Commission, you were able to access to website you say?---Yes.

You were able to make these inquiries, in which case it would be loud and clear to you then that there was a 21 day time limit on these applications because that's plastered all over the information that's available?---Yes. I totally agree with that comment, except at that stage I didn't feel that I needed to have an unfair dismissal application, because I believed that I was fairly dismissed and that how do I go about getting my entitlements; I'm led to believe that that is now a part of the unfair dismissal or procedure.

Mr Morris, I would just stop you there. It's very difficult, and I just need to caution you here because you're on the record. You've lodged an unfair dismissal application. I'd have to caution you against making a submission that you were fairly dismissed. The two don't go together?---Understood. My terms were it was not that I was under a performance review and therefore I was marched out of the office. That's sort of in my ignorant terms, you know, being unfairly dismissed perhaps, so that was why I was saying that I felt - I understood why the role was no longer needed, I understood that; QBE told me the reason why. 13

…

Is there a particular aspect to that issue which you wish to draw my attention to in terms of the extension of time application? Is there something you wish to - - -? ---Certainly, in the sense of that during the time that I was unwell, that certainly impeded my ability to follow through on this 21 days - on the 21 day cut off.

But you were able to do all the other things, you say, to liaise with the respondent over your entitlements? Is there anything particular you can point me to? You say that you've had this condition for 20 years, you know how to manage it?---Yes.

It doesn't debilitate you completely, you say. On your own evidence you were able to liaise with both the respondent, the Fair Work Ombudsman/the Fair Work Commission over this period. What can you point me to in particular for the reason for the delay in that period of the 21 day time limit?---Because the times of that incapacity, that can be two or three days in which that I am on pain medication, that I am in fact just lying in bed, so during those particular periods of time I am not following up with QBE. Because there were a week that would go by between me sending an email, for example, and having a response; it was not a fast turnaround.

How did that prevent you from making an unfair dismissal application on time? ---Because during that particular time I wasn't continuing to do that research by reading the Fair Work website and the like; because of being on that medication, because of being in bed, because of not eating, because of only drinking fluids during those particular times. Now, that did not last for 21 days.

That's really my question?---That lasted for two or three days every - I haven't got it with me to be able to present it to you, but - - -

But your evidence is that it didn't last for the entire period?---It did not last for the entire 21 days but it certainly impeded on my ability to be able to do things in a quick fashion.

How regularly do you see your doctor and/or specialist?---Every 12 months. I was seeing him every - for example, I was having colonoscopies every three months and then every six months and then every 12 months, so over the period of time I've been stretching it out. Now I only see my specialist every 12 months and I take a list of what's occurred, what's happened, and I present that to him. So I don't go and see a GP with every one of these incidents. Why not? Because I've been taught by my specialist what to do and it's simply to stop eating, drink lots of fluids, go to bed, and have the pain medication because it is such an acute pain. Those episodes only last maybe three days, that sort of area - three or four days. Did I have numerous of those during this 21 day period? I think the answer to that is no, and I say I think because I haven't got the records in front of me, but I would suggest the answer is, no, it didn't take up the entire 21 days.” 14

[21] 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

[22] The Applicant was notified of his dismissal on 15 February 2016 15 and was aware his dismissal took effect on 24 June 2016. 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

[23] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 16

[24] The Applicant took the following action to dispute the dismissal. He submits that he attempted to resolve the issues in dispute with the Respondent from 22 February 2016 to 21 July 2016 and has provided a “Chronology of Events” and the documentation referred therein 17. The documentation submitted by the Applicant disclosed a chain of correspondence between the Applicant and the Respondent, which in essence contained the following issues:

• The Applicant applied for a permanent role in 2004 and was given this permanent role, however it was decided that the Applicant stay as a “contractor”;



• Entitlements outstanding by the Respondent to the Applicant;



• The Applicant provided reasons as to why his employment relationship with the Respondent should be considered as employer/employee and not as an independent contractor;



• The Respondent, whilst acknowledging a long standing working relationship with the Applicant, advised the Applicant the working relationship was on the basis of a contractor for services, thus making the Applicant an independent contractor.

[25] It is apparent that the Applicant discussed the cessation of his employment with the Respondent. Therefore, the action taken by the Applicant weighs in favour of granting him a further period to make his application.

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

[26] Prejudice to the employer will go against the granting of an extension of time. 18 The Respondent submitted that they would be prejudiced by “incurring unnecessary costs to defend the Application when it lacks any merit in substantive terms”.19

[27] While I note the Respondent’s submission, 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

[28] 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.” 20

[29] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 21 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.22 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

[30] 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. 23 The Respondent sought to rely on “many FWC Decisions” where “even one day” outside the provisions of the Act was not found to be satisfactory reason for an extension of time. Further, they submitted that the Applicant was “presumably” aware of the time limit and yet was 10 days late.

[31] I have considered the Respondent’s submissions and I find this criterion to be neutral.

Conclusion

[32] In establishing whether exceptional circumstances exist the Commission must take into account the factors 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 as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[33] 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 including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 24

[34] Having considered all of the factors set out in s.394(3), on balance, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

[35] An order 25 to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

David Morris, Applicant.

Stephen Daley, for the Respondent.

Hearing details:

2016

Melbourne

26 August.

 1   Unfair Dismissal Application, lodged 25 July 2016, p.2

 2   Ibid, p.5

 3   Ibid, p.2

 4   [2011] FWAFB 975

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

 6   Applicant’s Submissions filed 5 August 2016, Attachment L

 7   Respondent’s Submissions, filed 17 August 2016, p.3

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

 9   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409

 10   Transcripts PNs 138-141

 11   Transcripts PNs 194-195

 12   Transcripts PN 200

 13   Transcripts PNs 204-206

 14   Transcripts PNs 215-221

 15   Applicant’s Unfair Dismissal Application, lodged 25 July 2016, p.2, answer to question 1.2

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

 17   Applicant’s Submissions filed 5 August 2016

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

 19   Respondent’s Submissions, filed 17 August 2016 p.7

 20   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]

 21   Haining v Deputy President Drake (1998) 87 FCR 248, 250

 22   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]

 23   Wilson v Woolworths [2010] FWA 2480, [24]-[29]

 24   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

 25   PR586855

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