David Wood v Hunt Formwork and Scaffolding Pty Ltd

[2019] FWC 7829

[2019] FWC 7829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Wood
v
Hunt Formwork and Scaffolding Pty Ltd
(U2019/9749)

DEPUTY PRESIDENT BEAUMONT PERTH, 6 DECEMBER 2019

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – application dismissed.

[1] Mr Wood applied for an unfair dismissal remedy having been made redundant and thereafter dismissed from Hunt Formwork and Scaffolding Pty Ltd (Hunt), effective 8 August 2019. He filed his application for an unfair dismissal remedy on 30 August 2019 – one day late. Hunt objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.

[2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[3] It is not contested that Mr Wood’s application was made out of time. However, in order for Mr Wood’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) 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. 1

[4] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.

[5] Mr Wood advanced several reasons why I should find that there were exceptional circumstances. In short, however, I am unpersuaded that such circumstances are exceptional, and I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed. My reasons follow.

BACKGROUND

[6] Mr Wood commenced his position as a Business Development Manager with Hunt on 12 September 2018.

[7] Mr Anand, Director, gave evidence that on 8 August 2019, Mr Wood was informed that his position had been made redundant. 2 A termination letter was handed to Mr Wood on that day.3 The letter set out that ‘[A]s a result of downturn in the market and lower sales, the position of Business Development Manager (Industrial, Mining and Resources) is no longer needed. Regrettably this means your employment will terminate’.4

[8] Mr Wood was purportedly given the opportunity to respond to, and discuss, the termination of his employment, which he did. 5 He expressed to the representatives of Hunt who were present at the meeting that he was ‘not happy, very disappointed’, Mr Wood continued that he would need to consider his next course of action.6

[9] In the evening of 8 August 2019, Mr Wood emailed Mr Anand setting out, among other matters, his discontent regarding the termination of employment and relating such action (namely, the termination) to having disclosed both family and medical circumstances. 7 Further, Mr Wood asserted that the business had key tasks and positions available, and that he had consistently requested authorisation to take on additional duties.8 Mr Wood informed Mr Anand that he considered that the action taken was in breach of the ‘Fair Works [sic] Act hidden behind redundancy’.9 Mr Wood concluded his email to Mr Anand stating, ‘I will consider my pending actions over [sic] week-end however a call to discuss maybe beneficial as I battle to understand as I do have an alternate solution that may assist us both’.10

[10] By email dated 12 August 2019, Mr Wood provided a proposal to Mr Anand regarding an alternative engagement arrangement. The arrangement was referred to as an ‘internal consultant invoiceable arrangement’, and consisted of a charge out fee, no superannuation, no payroll tax, no holidays, no sick leave, no phone, fuel costs or car allowance. 11 Mr Wood expressed that he would appreciate a response as soon as possible, and a release of wages and commissions in a timely manner.12

[11] Included in Mr Wood’s evidence was a letter from a Dr Diarmaid Brennan, Psychiatry Registrar, Joondalup Health Campus, of 19 August 2019. The letter stated that Mr Wood was unable to attend at the Family Court on 19 August 2019 as he needed to remain in Joondalup Health Campus as an impatient for medical reasons. 13

[12] Mr Wood sent another email to Mr Anand on 22 August 2019, asking that Hunt pay his invoices on a priority basis. Further, in the email he stated, ‘As I apply for positions and use LinkedIn there is a new manager and position been created at the same time as I was made redundant.’ 14

EXTENSION OF THE 21-DAY PERIOD

[13] Consideration turns to whether to extend the 21-day period within which Mr Wood’s unfair dismissal application was to be brought. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 15

[14] In decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time. 16 Whilst it considered the general protection provisions of the Act, the reasoning in Nulty is applicable to s 394(3). 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.

[15] 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. 17 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.18

[16] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters the Full Bench provided clarification regarding the assessment of exceptional circumstances. 19 While the Full Bench considered s 366(1), the observation remains relevant here:

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. 20

[17] 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.

The reason for the delay

[18] The Commission takes into account whether Mr Wood has provided a credible reason for the whole of the period that his application was delayed. 21 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.22 It does not include the period from the date of the dismissal to the end of the 21-day period. However, importantly the circumstances from the time of the dismissal 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.23

[19] In Pottenger v Department of Caffeine T/A Two Feet First, 24 the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,25 or a reasonable explanation.26 It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable or for that matter credible explanation.27

[20] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 28 Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight.29

[21] Mr Wood’s dismissal was effective as of 8 August 2019. To comply with the statutory timeframe in s 394(2), his application for unfair dismissal would have to be filed by 29 August 2019.

[22] Mr Wood gave evidence that he was hospitalised on or around 18 August 2019 for a period of two days. Following his hospitalisation, Mr Wood stated that he was discharged and required two days in which to recover. Hunt pointed out that the documentary evidence did not support there being a two-day hospitalisation and two days of recovery. However, I am not persuaded that Mr Wood sought to mislead the Commission in this respect and note that the letter of 19 August 2019 from Dr Diarmaid Brennan of Joondalup Health Campus, supports there having been a period of hospitalisation as an impatient.

[23] Notwithstanding the difficulties Mr Wood stated he faced in the period following his dismissal, most notably stress arising from the loss of his job, the evidence shows that in the period between 8 August 2019 to 22 August 2019, Mr Wood made an enquiry of Mr Anand about an alternative engagement arrangement and was applying for positions using LinkedIn. 30

[24] On 8 August 2019, Mr Wood emailed Mr Anand responding to the decision to terminate his employment by way of redundancy. Mr Wood alerted Mr Anand that he would considering his pending actions over the weekend. Mr Wood gave evidence that he wanted to resolve the matter amicably. On 12 August 2019, Mr Wood put forward a proposal to Mr Anand about an alternative engagement arrangement. Mr Anand responded on that same day reiterating that the position had been made redundant and noting that there were not any positions in which to place Mr Wood. 31 Mr Wood advanced that his application had been delayed in part because of the communications about an alternative engagement arrangement. I do not consider that this circumstance contributed to the delay in filing the application. Hunt was unequivocal in its communication to Mr Wood both on 8 August 2019 and 12 August 2019, regarding Mr Wood’s dismissal by way of redundancy.

[25] Furthermore, it was evident that any health incapacity Mr Wood may have been afflicted by, at this time, did not preclude him from liaising with Hunt about alternative engagement arrangements.

[26] On 22 August 2019, post his hospitalisation, Mr Wood emailed Mr Anand highlighting that he had seen on LinkedIn that there was a new manager position created within Hunt. In the course of that email Mr Wood stated ‘[A]s I apply for positions and use LinkedIn…’. It is evident from the email that Mr Wood was not so incapacitated that it had thwarted his attempts to apply for other positions.

[27] The evidence in this case concerning Mr Wood’s level of incapacity during his hospitalisation at the Joondalup Health Campus and following his dismissal is insufficient, in my view, whether considered alone or in combination with the other reasons relied on by him, to give rise to a finding that his difficulties were out of the ordinary course, unusual, special or uncommon. Clearly, Mr Wood was able to communicate about alternative engagement arrangements with his former employer. In addition, he was able to search LinkedIn and thereafter apply for new positions. An application for an unfair dismissal remedy is not a burdensome process. If one can apply for jobs within the 21-day period following dismissal, then it is open to conclude that one can make the requisite application for the remedy sought within the statutory timeframe.

[28] I have considered the delay as the period beyond the 21-day period, but have, in addition, considered the reasons for that delay by reference to the circumstances from the date the dismissal took effect.

[29] I am not satisfied that Mr Wood has made out an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

Whether Mr Wood became aware of the dismissal after it took effect

[30] At all material times from 8 August 2019 until the date the unfair dismissal application was made, Mr Wood knew that he had been dismissed.

Action taken to dispute the dismissal

[31] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 32 In his email of 8 August 2019, Mr Wood broached that there was a breach of the Act hidden by a redundancy. He further stated that he would consider his ‘pending actions over the week-end,’ and referred to an alternative solution. Rather than disputing his dismissal he approached Mr Anand with an alternative engagement arrangement. He took no action to dispute his termination during the statutory timeframe albeit there was a tacit reference in his email to Mr Anand, dated 22 August 2019, to a ‘new manager and position’ having been created at the same time he ‘was made redundant’.

[32] In summary, while Mr Wood referenced considering his actions, he took no steps to dispute his dismissal, but instead proffered another way by which to provide his services. I do not consider that this weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer

[33] I cannot identify any particular prejudice that Hunt would accrue if an extension of time were to be granted, and Hunt did not refer to one in hearing. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[34] 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) 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.

[35] In Kornicki v Telstra-Network Technology Group, 33 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. 34

[36] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. 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 the applicant to lodge his application. 35

[37] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time was granted and the matter proceeded. However, I am unable to assess the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

Fairness between the person and other persons in a similar position

[38] In Morphett v Pearcedale Egg Farm, 36 considered this criterion and said:

cases 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. 37

[39] My attention has not been drawn to other persons in a position similar to that of Mr Wood. I am satisfied that the issue of fairness as between him and other persons in a similar position is not a relevant consideration in this matter, and is therefore a neutral factor in
determining whether to grant an extension of time.

Conclusion

[40] Having considered the matters referred to in paragraphs [21] – [39] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Wood’s application to be made.

[41] This is particularly the case when there is no satisfactory explanation for the delay in making the application. In this respect, the totality of the evidence is insufficient to ground a finding that Mr Wood’s circumstances were out of the ordinary course, unusual, special or uncommon. I have not concluded that it is fair and equitable that an extension should be granted.

[42] The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order will be issued with this decision. 38

DEPUTY PRESIDENT

Appearances:

D Wood, Applicant

A Anand for the Respondent

Hearing details:

2019.

Perth (by phone),

December 2.

Printed by authority of the Commonwealth Government Printer

<PR714335>

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

 2   Witness Statement of Aruj Anand [6] – [8].

 3   Witness Statement of David Andrew Wood– Annexure B.

 4   Ibid – Annexure B.

 5   Ibid [4] – [9].

 6 Ibid [9].

 7   Ibid – Annexure C.

 8   Ibid – Annexure C.

 9   Ibid – Annexure C.

 10   Ibid – Annexure C.

 11   Applicant’s Bundle of Documents – Document 7.

 12   Ibid – Document 7.

 13   Witness Statement of David Andrew Wood – Annexure D.

 14   Applicant’s Bundle of Documents – Document 7.

 15   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 16   [2011] FWAFB 975 [15].

 17 Ibid [13].

 18   Ibid.

 19   [2018] FWFB 901.

 20   Ibid.

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

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

 23   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].

 24   [2018] FWC 3403.

 25   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9].

 26   Roberts v Greystanes Disability Services; Community Living [2018] FWC [16].

 27   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWFB 901.

 28 Ibid [39].

 29   Ibid.

 30   Witness Statement of David Andrew Wood – Annexure C and E.

 31   Witness Statement of Aruj Anand – Annexure One.

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

 33   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay.

 34   Ibid.

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

 36   [2015] FWC 8885.

 37 Ibid [29].

 38   PR714843.