Earle Warren Henry v Coles Group Supply Chain Pty Ltd
[2023] FWC 284
•16 FEBRUARY 2023
| [2023] FWC 284 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Earle Warren Henry
v
Coles Group Supply Chain Pty Ltd
(U2023/395)
| COMMISSIONER PLATT | ADELAIDE, 16 FEBRUARY 2023 |
Application for an unfair dismissal remedy – request for an extension of time – application dismissed.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Mr Earle Henry a further period for his unfair dismissal application (Application) to be made against Coles Group Supply Chain Pty Ltd (Coles or the Respondent).
Background
Mr Henry has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Coles which his form F2 unfair dismissal application advised took effect on 8 December 2022.
The application was lodged on 13 January 2023 and is therefore 15 days out of time.
On 19 January 2023, Coles lodged a form F3 Employer Response which confirmed that the dismissal occurred on 8 December 2022 and pressed the jurisdictional objection that the dismissal was lodged out of time.
On 19 January 2023, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 16 February 2023. 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.
Hearing
A hearing was conducted by way of telephone conference on 16 February 2023. A sound file record of the telephone conference was kept.
Mr Henry did not attend the extension of time hearing. My Associate attempted to dial him into the hearing using the mobile number on his form F2 application on three occasions, and received no answer. An email was sent to Mr Henry noting that if he did not attend the hearing by 10.10am (SA time); 9.40am (QLD time), the hearing would commence in his absence. Mr Henry did not attend the hearing by 9.40am, and therefore the hearing proceeded without him. Coles was represented at the hearing by Mr Jason Goyal (Legal Counsel – People and Culture).
A digital court book was compiled from the material that was filed by both parties, and was distributed to the parties prior to the hearing. The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
Mr Henry’s position was summarised in a short statement he sent by email, and attachments to his form F2 Application. His position is summarised as follows:
· The Applicant was verbally dismissed on 8 December 2022.
· Mr Henry had a consultation with a law firm. The law firm provided Mr Henry with a document titled “Employment Law Advice” dated 19 December 2022. This document was filed by Mr Henry as an attachment to his form F2 application. This document provided Mr Henry with advice about his options in relation to his dismissal with Coles. The document gave Mr Henry advice in relation to unfair dismissal and general protections, as well as possible applications in the Queensland Human Rights Commission. I infer that Mr Henry received the advice on or about 19 December 2022.
· In relation to Mr Henry’s unfair dismissal application, the written advice contained the following:
“You must lodge an unfair dismissal application in the Fair Work Commission (FWC) within 21 days of the date of your dismissal taking effect. You told us you were dismissed on 8 December 2022. We advise that 28 December 2022 is the last day for you to lodge an unfair dismissal claim. We note that this is the Christmas period and as such you may wish to lodge your application earlier.” (emphasis in original)
· On 27 December 2022, Mr Henry sent an email to the Commission Registry. The subject of the email was “Unfair dismissal Earle, Henry/Coles group”. The body of the email merely states:
“Regards
Earle Warren, Henry”
· There was no form F2 unfair dismissal application attached to Mr Henry’s email on 27 December 2022.
· Mr Henry received an automated response from the Commission’s Registry. Amongst other things, the Commission’s email stated:
“Thank you for your email to the Fair Work Commission.
If you have lodged an application we will contact you within 3 business days with your case number.
If you have a question we will get back to you as soon as we can.
If you have been dismissed and you think it’s unfair or discriminatory, you may be able to start a case at the Commission. There is a 21-day time limit to make those applications. Please don’t wait for us to respond if it means your application will be late.”
· Mr Henry contends that the reason that he did not lodge his application in time was that he was unable to access a computer to print the form F2.
· On 11 January 2023, Mr Henry received further advice by telephone from the same law firm. The law firm sent a follow up email after the phone consultation, attaching a form F2 and outlining the steps that Mr Henry had to complete to lodge his application.
· Mr Henry lodged his unfair dismissal application, by email, at 5.33pm on 13 January 2023.
Coles did not file any witness evidence and relied on their written submissions. Coles’ position is summarised as follows:
· Coles contends that Mr Henry has failed to provide any credible reason for the delay. Mr Henry was aware of the 21-day time limit as a result of advice from the law firm and the email from the Commission.
· Mr Henry’s failure to organise himself around the Christmas and New Year period should not be considered an exceptional circumstance.
· Coles also contends that the merits of Mr Henry’s application are low, and that this factor weighs against the granting of an extension of time.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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.”
The test of “exceptional circumstances” establishes a high hurdle for an applicant.[3]
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 Ltd[4] which 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).
…
[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
Paragraph 394(3)(a) - reason for the delay
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] A dismissal can be communicated orally.[6]
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[7] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[8] the Full Bench explained the correct approach by reference to the following example:
“[31] 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.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[9]
“[38] 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.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
The main reason put forward by Mr Henry for the delay in lodging his application is that he did not access to a computer to print the form F2. In my view this is not a credible reason for the delay. It is not necessary to print the form F2 to lodge an application, applicants can be filed online or verbally by contacting the Registry. In any case, Mr Henry could have accessed a computer and/or printer through a public library.
Mr Henry also suggested that the Christmas and New Year period should be taken into consideration. There is nothing exceptional about the Christmas and New Year period. It is completely predictable. In fact, in the advice provided to Mr Henry by the law firm on 19 December 2022, the fact that the Christmas and New Year period was approaching was raised with Mr Henry, and he was advised to lodge his application prior to this period for that very reason.
In my view, Mr Henry has failed to provide a credible reason for the delay in filing his application. This factor weighs against the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Mr Henry was aware of the dismissal on the date it occurred.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[10]
By seeking advice from the law firm on 19 December 2022, Mr Henry took action to dispute the dismissal outside of lodging his unfair dismissal application. The communication made to the Commission on 27 December 2022 does not contain sufficient information such that it could be regarded as contesting the dismissal. This factor weighs in favour of a finding that there are exceptional circumstances.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[11] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[12]
There is no submission that the granting of an extension of time represents prejudice to Coles. This is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[13] 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 or matters previously decided by the Commission.”
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
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
An Order[14] reflecting this decision will be issued.
COMMISSIONER
Appearances:
No appearance for the Applicant.
J Goyal for the Respondent.
Hearing details:
2023.
Adelaide (by teleconference):
16 February.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
[6] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605
[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[8] [2016] FWCFB 349
[9] [2018] FWCFB 3288 at [35]-[45]
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[11] Ibid
[12] Ibid
[13] [2016] FWCFB 6963
[14] PR750355.
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