Edan Collard v Eastern Guruma Pty Ltd, Tania Stevens

Case •

[2024] FWC 1909

•

19 JULY 2024
[2024] FWC 1909

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.365—General protections

Edan Collard
v

Eastern Guruma Pty Ltd, Tania Stevens

(C2024/2987)

COMMISSIONER SCHNEIDER

PERTH, 19 JULY 2024

Application to deal with contraventions involving dismissal

  1. Mr Eden Collard (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that he has been dismissed from his employment with Eastern Guruma Pty Ltd (the Respondent) and Ms Tania Stevens (the Second Respondent) in contravention of Part 3-1 of the Act.

  1. It appears that the application may have been filed outside of the statutory time period prescribed. Before dealing with the dispute, I must be satisfied that the application was not made out of time.

Dismissal date

  1. Section 366(1) of the Act provides that such an application must be made:

within 21 days after the dismissal took effect; or

within such further period as the Commission allows.

  1. As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”1

  1. The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”2

  1. The parties do not dispute that the Applicant’s dismissal took effect on 26 March 2024.

  1. It is a matter of record that the application was made on 8 May 2024.

  1. The final day of the 21-day period was therefore 16 April 2024 and ended at midnight on that day. The application was made on 8 May 2024.

  1. The application was made 22 days late.

  1. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Extension of time

  1. Section 366(2) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made.

  1. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised, taking into account:

the reason for the delay; and

any action taken by the Applicant to dispute the dismissal; and

prejudice to the employer (including prejudice caused by the delay); and

the merits of the application; and

fairness as between the Applicant and other persons in a similar position.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.3

  1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.4

  1. Exceptional circumstances may 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.5

  1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.6

  1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.7

  1. The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.8

  1. I set out my consideration of each matter below.

Consideration of Criteria

What are reasons for the delay?

  1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 16 April 2024. The delay is the period commencing immediately after that time until 8 May 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[1]

  1. The Applicant provided testimony at the Hearing on 16 July 2024 and provided the following reasons as contributing to the delay:

·   The Applicant being homeless at the time of his dismissal and living in a shelter on Wellington Street (Perth) and then subsequently returning to Melbourne.

·   The Applicant having study commitments following his dismissal.

·   The Applicant being advised by the Fair Work Commission that he may not qualify for an Unfair Dismissal claim as he did not meet the minimum employment period.

·   The Applicant having a lack of familiarity with the Commission and the procedures in question. The Applicant submits that he was in contact with Mr Greg McIntyre (Mr McIntyre) to receive legal advice on pursuing his application and that this contributed to a delay.

·   The Applicant raised a complaint over alleged conduct of two Rio Tinto employees before his employment was terminated. The Applicant sought information about his complaint's status directly with the Respondent and their client Rio Tinto through the Chief Executive Officer of Rio Tinto. The Applicant did not receive a response from the Respondent or Rio Tinto about his concerns.

  1. The Respondent submits the following regarding the reasons for delay:

·   The Respondent, through Ms Terrille Andre (Ms Andre), Human Resources Business Partner, confirmed in writing to the Applicant that his complaint about the conduct of two Rio Tinto employees would be forwarded to Rio Tinto. However, the Applicant was informed, the Respondent would not be involved in any investigation involving Rio Tinto employees. Accordingly, the Respondent could not guarantee a response or similar. The Respondent provided written evidence that this had been communicated to the Applicant prior to his termination taking effect.

·   The Applicant’s decision to email the CEO of Rio Tinto and wait for a response before filing this application does not support a finding of exceptional circumstances. The Applicant was not employed by Rio Tinto and therefore there was no response that organisation could provide which could alter the status of the Applicant’s employment with the Respondent.

·   The Respondent notes, and the Applicant confirms under cross examination, that Mr McIntyre was not engaged by the Applicant to provide legal advice or support in filing this application. Therefore, any delay from the Applicant in waiting for a response from Mr McIntyre does not support a finding of exceptional circumstances.

·   The Applicant has not provided any cogent evidence in relation to the duration of his homelessness and how it affected the whole period of delay.

·   Any delays caused by study or other work commitments are not supportive of a finding of exceptional circumstances.

·   The Respondent also notes that the Applicant’s ignorance of the 21-day filing period, is not grounds for a finding of exceptional circumstances. 

  1. Having regard to the above, the Applicant’s most reasonable excuses for the delay in this matter are his homelessness and initial filing of an Unfair Dismissal application. It is understandable that such circumstances would reasonably contribute to some form of delay and could support a finding of exceptional circumstances.

What action was taken by the Applicant to dispute the dismissal?

  1. The Applicant filed an Unfair Dismissal application with the Commission on 30 April 2024.

  1. The Commission contacted the Applicant, on 3 May 2024, and informed him that it appeared he did not reach the perquisite minimum employment period to make an Unfair Dismissal application. The Commission noted the General Protections dismissal application as an option and highlighted the 21-day filing period.

  1. The Applicant then lodged this General Protections application on 8 May 2024.

  1. The Applicant discontinued his Unfair Dismissal application, on 13 May 2024, after being contacted by the Commission about the issue posed of having both applications on foot.

  1. I accept that the Applicant filed an Unfair Dismissal application with the Commission as a means of disputing his dismissal prior to filing this application. However, and most notably, the Unfair Dismissal application was filed 14 days late.

  1. The Applicant also sought to question the status of his complaint against two Rio Tinto employees with the Respondent and directly with their client Rio Tinto.

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. The Respondent submits that the not insignificant delay of over three weeks gives rise to prejudice against the Respondent. 

  1. The Respondent did not provide any details submissions in relation to this point.

  1. In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.

What are the merits of the application?

  1. The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

  1. Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[2]

  1. It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

  1. In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

Fairness as between the Applicant and other persons in a similar position

  1. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, considering my findings regarding each of the matters referred to above.

  1. While I accept that the Applicant was truthful in his evidence before the Commission, the Applicant was unable to provide any notable documentary evidence in support of his submissions and the assertion that there are exceptional circumstances leading to him being unable to file his applications within time.

  1. I am sympathetic to the circumstances and the challenges faced by the Applicant prior to and following the termination of his employment by the Respondent. The period of homelessness experience by the Applicant would have been challenging and impacted on the Applicant’s ability to lodge his applications within the required 21-day period.

  1. However, I agree with the submissions of the Respondent, that the Applicant has not been able to provide clear evidence to support many of his submissions or a timeline to assist in analysing his reasons and their effect on the delays.

  1. As highlighted earlier in this decision, the Applicant filed an Unfair Dismissal application on 30 April 2024. This application was filed 14 days out of time.

  1. However, following advice from the Commission’s registry staff, the Applicant was advised that it appeared he may not meet the minimum employment period for an Unfair Dismissal application on 3 May 2024. Subsequently, some 5 days later, the Applicant filed this application.

  1. The Applicant was made aware of the 21-day filing period for a General Protections matter and the minimum employment period issue on 3 May 2024 by the Commission yet delayed lodging this General Protections application for a further 5 days. I am not satisfied that this further 5-day delay has been adequately addressed.

  1. There are circumstances in which an applicant makes an incorrect or unsuitable application and, becoming aware of their mistake, then promptly remedies the error by lodging the subsequent application that could give rise to the possibility of an extension. In the circumstances of this matter, I am not satisfied the Applicant was prompt in lodging this application after first becoming aware of the issues with his Unfair Dismissal application.

  1. I accept that the Applicant may have been unaware of the 21-day filing period initially. However, ignorance of the time frame for lodgment is not a reasonable excuse for delay.

  1. The Applicant is aggrieved that he was not given any feedback about the complaints he raised about the alleged conduct of two employees of the Respondent’s client Rio Tinto. It was clearly articulated to the Applicant by the Respondent that they were not in control of any investigation that may or may not have been conducted by Rio Tinto and therefore any feedback would be limited. This was articulated to the Applicant at the time of his dismissal.

  1. Therefore, I do not consider any delay in a response to the Applicant seeking an update concerning any investigation into the alleged misconduct of two Rio Tinto employees as a reasonable one. Further, as the Respondent has highlighted, no response from Rio Tinto would have an effect on the status of the Applicant’s employment (terminated).

  1. The Applicant sought to seek informal support and advice from Mr McIntyre in relation to his application. The Applicant confirmed that he had not engaged or employed the services of Mr McIntyre. Rather, the Applicant had reached out for informal guidance and support. I am not satisfied that this is a situation that gives rise to representative error nor is it a reasonable excuse for delay that supports a finding of exceptional circumstances.

  1. Had the Applicant been represented by Mr McIntyre, it would still be questionable as to whether an argument of representative error could succeed as the Applicant’s conduct clearly contributed to this reason for delay and the Applicant filed this application himself therefore was not relying upon any instruction to the potential representative to do so on his behalf. I do not consider the delayed response to the Applicant from Mr McIntyre was reasonable excuse for delay nor does this support a finding of exceptional circumstances.

  1. Had the Applicant submitted any supporting evidence regarding his personal circumstances that could establish its effect on the 14-day delay in filing the Unfair Dismissal application and then the further the 5-day delay in lodging this General Protections application, after being notified of the minimum employment period issue, the Commission may have been more inclined to conclude there are exceptional circumstances.

  1. The lack of supporting evidence, alongside the several other reasons relied upon by the Applicant which are not reasonable excuses for delay, does not strongly enough support a finding of exceptional circumstances and leaves open the inference that the Applicant’s personal struggles may not excuse the period of delay. 

  1. Having regard to all of the matters listed at section 366(2) of the Act, I am not satisfied that there are exceptional circumstances.

Conclusion

  1. Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order to that effect has been issued.[3]

COMMISSIONER

Appearances:

E Collard, Applicant.
D Hartfield of Jackson McDonald on behalf of the Respondent.

Hearing details:

2024.
Perth (by video):
July 16.


[1] [2015] FWCFB 287, [12].

[2] [2011] FWAFB 975, [36].

[3] [PR777205].

Printed by authority of the Commonwealth Government Printer

<PR777204>

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