David Small v Griffith University
[2023] FWC 3163
•30 NOVEMBER 2023
| [2023] FWC 3163 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Small
v
Griffith University
(U2023/9785)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 NOVEMBER 2023 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – minimum employment period – extension not granted – minimum employment period not met – application dismissed.
Mr David Small (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Griffith University (the Respondent).
The Applicant lodged his application on 8 October 2023. The Applicant states that he commenced employment with the Respondent on 18 September 2018, and was dismissed on 8 September 2023. The Applicant was employed as casual exam proctor, responsible for providing supervision of university exams in a support capacity. The Respondent stated the employment relationship ended on 19 October 2019 or around 8 June 2023.
The Respondent raised a jurisdictional objection that the Applicant was out of time and the Applicant did not meet the minimum employment period prescribed by s.383 of the Act.
The Applicant asserts that the application was lodged 9 days outside the statutory time limit prescribed by s.394(2) of the Act. The Respondent asserts that the application was lodged at least three months and four weeks out of time, and at most three years and 11 months out of time.
The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.
Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was held before me on 21 November 2023.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:
“(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 test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:
“[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.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s application to proceed, I must be satisfied that there are “exceptional circumstances” for the Applicant to obtain an extension of time under s.394(3) of the Act.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]
It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6] In Giles v Coal Train Australia Pty Ltd, Vice President Asbury stated that the Applicant is required to provide evidence to establish the nature and the impact of any exceptional circumstances.[7]
The Applicant submitted the following regarding his extension of time request.
“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, these exceptional circumstances taking into account for me:
a) the reason(s) for ANY said delay here were because of the University’s internal review which I had to follow-up with on no less than three occasions, September 7, August 14 and August 10 from Tom Slack, Head of HR Business Partnering Human Resources Corporate Services, July 31 Amanda Woods Senior HR Business Partner HR Business Partnering and my email to Amanda Woods Senior HR Business Partner HR Business Partnering on July 11, all responses indicative of delay.
(b) my formal awareness of dismissal was September 8 after the completion of the University’s internal review with the Office of the Vice-Chancellor and President responding with my right to seek recourse to Fair Work.
(c) my action to dispute the dismissal was as well relying on parties abovenamed for the University making relevant enquiries. One would think the University would have a strong set of processes around consultation and transparency, the decision for my matter replaced by expediency.
(d) any evidence for prejudice for the delay can be attributed to the timeframe required by the employer, please see a). Evidence is clear in my email delivery that I demonstrated my willingness to resolve this matter after the University’s failure to consult. I reiterate, having a staff account like I did constitutes employment and employment readiness and being invited to events and functions as I was, constitutes acknowledgement of employment entitlement.
Tom acknowledges in his email below of September 7 “Moving forward, Amanda has agreed that they will send correspondence to casuals regarding their engagement ending and advising them of the application process if they would like be re-engaged.” it has been over two months since and I have as yet received nothing so I find this statement insincere. Reinstatement should have been a ‘fait accompli’ !!
(e) the merits of my application rely on the disregard of the University to adhere to ‘best practice’ relevant to its ‘Vision and values’. You just don’t discard staff in the manner I was. there was no fairness or right of remedy applied to me to the extent that this matter over the period of June 8 to September 8 uncovered deficiency on the part of the University to conduct an effective consultation process. Why would an ad be placed for examination personnel in the jobs section prior to my ‘lock-out’ on June 8 without consultation of already existing staff?”
The Applicant also submitted that the reason for the delay was his financial hardship, which prevented him from being able to pay the filing fee associated with the unfair dismissal application. He stated that due to cost-of-living pressures, he was unable to afford the filing fee until after the 21-day timeframe expired. The Applicant argued that he did not become aware of the fee waiver available on the basis of financial hardship until after he lodged his application.
The Respondent submitted that “general cost of living pressures and the requirement to manage bills” are not themselves out of the ordinary and do not amount to exceptional circumstances. The Respondent referred to the fact that the Commission’s website provides information about fees, costs and the availability of fee waivers. Further, the Respondent argued that the Applicant’s submission that he only discovered the availability of a fee waiver after he submitted his application is unsatisfactory, as an email sent by the Applicant to the Respondent’s Vice-Chancellor indicated that he had discussed his circumstances with the Commission. The email relevantly stated:
“I have had conversation with Fair Work and the opinion is as well disappointing. I advised them I would appeal to you Vice Chancellor before taking further action.”
In Boyes v Amart Furniture Pty Ltd,[8] Deputy President Masson found that while “financial circumstances may prevent a party from seeking legal advice or representation, it does not preclude an application form being made and an application fee waiver being sought”. It has been established that ignorance of the timeframe is not an acceptable reason for delay.[9] Similarly, I consider that ignorance of the existence of a fee waiver is also not an acceptable reason for delay. Information about the waiver is accessible on the Commission’s website or by contacting the Commission. The Commission’s website also makes clear, by reference to Bonnar v Rail Industry Safety & Standards Board[2018] FWC 2151, at [36], that s.395 of the Act “does not require that the fee be paid at precisely the same time as the application”.
Accordingly, I find that not being informed about the fee waiver is an acceptable reason for the delay. This consideration does not weigh in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant stated he became aware of the dismissal on the day he says it took effect, being 8 September 2023.
The Respondent submitted that the Applicant was aware that the employment relationship had ended before 8 September 2023. The Respondent detailed the following dates, amongst others, on which it submits the Applicant should have been aware that his employment had ceased:
· On 8 June 2023, when the Applicant became aware that his access to the Respondent’s IT systems had been disabled.
· On 31 July 2023, when the Applicant emailed the Vice Chancellor, expressing dissatisfaction with the process employed by the Respondent in removing his IT access, describing it as “an effective ‘termination’ without consultation”.
· On 13 August 2023, when the Applicant advised the Respondent that he had contacted the Commission, who suggested that he “apply for a case review given the circumstances of termination”.
Regardless of the precise date on which the employment relationship ended, the Applicant had become aware of the cessation of the relationship on 8 September 2023, being the date on which the Applicant claimed the dismissal took effect. Therefore, the Application would still be out of time even accepting the Applicant’s alleged dismissal date.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute the dismissal (s.394(3)(c))
Upon becoming aware that his IT access had been revoked on 8 June 2023, the Applicant took steps to dispute the revocation between 14 June and 14 August 2023, by sending several emails to various members of the Respondent. After this process, the Applicant lodged his unfair dismissal application. The Applicant demonstrated that he did dispute the alleged dismissal.
This consideration weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer (s.394(3)(d))
The Respondent submitted that it would suffer a degree of prejudice in defending the application, given its contention that the application has been filed 3 years and 11 months out of time after the Applicant’s last casual engagement on 19 October 2019.
The Respondent stated that it would require relevant witnesses to recall details of events that occurred approximately four years ago.
The Applicant submitted that there is no prejudice to the employer, and that the Respondent has itself contributed to delays in refusing to consult with the Applicant regarding to revocation of his IT access.
I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[10] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission 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.”
Without a hearing on the merits, it is difficult to make substantial findings as to the Applicant’s application. Despite this, the Respondent submitted that the application has no reasonable prospect of success as the Applicant was a casual employee whose hours were irregular and non-systematic. The Respondent therefore argued that the Applicant would not meet the minimum employment period by virtue of s.384 of the Act, which states that service as a casual employee does not count towards the period of employment unless the employment was regular and systematic.
The Respondent submitted that the Applicant worked across only five pay fortnights from September 2018 until September 2023. As the volume of university exams in the relevant examination periods was variable, the Respondent argued that the demand for employees such as the Applicant fluctuated, such that his employment could not be considered systematic.
Based on the Respondent’s submissions, and without making a conclusive finding as to the merits of the Applicant, I consider that the Respondent’s jurisdictional argument in relation to the minimum employment period, on its face, has merit.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[11]
Neither party brought to my attention any similar matter for the purposes of this consideration, and I am not aware of any relevant matters.
I consider this factor to be neutral.
Should an extension of time be granted?
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter for an extension of time to be granted.
Does the Applicant meet the minimum employment period?
Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.
Section 383 of the Act defines the “minimum employment period” as follows:
383 Meaning of minimum employment period
The minimum employment period is:
(a)if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i)the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or
(b)if the employer is a small business employer—one year ending at that time.
In relation to casual employees, s.384 of the Act relevantly provides:
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a)a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was as a regular casual employee”.
Section 12 of the Act provides that an employee is a regular casual employee at a particular time if, at that time, the employee is a casual employee, and the employee has been employed on a regular and systematic basis.
The term 'regular' implies a repetitive pattern and does not mean frequent, often, uniform or constant. The term 'systematic' requires that the engagement be 'something that could fairly be called a system, method or plan'.[12]
Where there is no clear pattern or roster, evidence of regular and systematic employment can be established where the employer offered suitable work when it was available at times that the employee had generally made themselves available, and work was offered and accepted regularly enough that it could no longer be regarded as occasional or irregular.[13]
The Applicant had worked the following days with the Respondent:
a)8 days in October 2018.
b)1 day in March 2019.
c)2 days in May 2019.
d)7 days in June 2019.
e)9 days in October 2019.
The absence of casual engagements past October 2019 until when the Applicant considers himself to be dismissed on 8 September 2023 indicates that he was not at any point during this time period to be a regular and systematic employee of the Respondent.
Having regard to the circumstances of this matter, I am satisfied that the Applicant has not completed the required minimum employment period under the Act.
Conclusion
I am not satisfied that exceptional circumstances exist in this matter for the Applicant to be granted an extension of time to lodge his application given that he did not establish a sufficient reason for delay. Furthermore, the Applicant would not meet the minimum employment period even if an extension were to be granted. As a result, I Order that the application be dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
D. Small for the Applicant.
A. Welch and A. Addie for the Respondent.
Hearing details:
21 November 2023.
Hearing via Microsoft Teams.
Brisbane.
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901, [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Giles v Coal Train Australia Pty Ltd [2020] FWC 2274 at [38].
[8] [2023] FWC 2359, [28].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14].
[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[11] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].
[12] Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 (30 March 2006) 65, [(2006) 149 IR 399], cited in Ponce v DJT Staff Management Services Pty Ltd T/A Daly's Traffic[2010] FWA 2078, 70 (Roe C).
[13] Ibid.
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