Emma Louise Smith v Rodger Constructions Pty Ltd
[2020] FWC 3120
•15 JUNE 2020
| [2020] FWC 3120 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Emma Louise Smith
v
Rodger Constructions Pty Ltd
(U2020/7329)
COMMISSIONER PLATT | ADELAIDE, 15 JUNE 2020 |
Application for an unfair dismissal remedy – application to extend time – application granted.
Introduction
[1] 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
[2] This decision concerns whether I should exercise my discretion to allow Ms Emma Smith a further period for her unfair dismissal application (Application) to be made against Rodger Constructions Pty Ltd (Rodger Constructions).
Background
[3] Ms Smith has lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with Rodger Constructions which her form F2 Unfair Dismissal Application advised took effect on 26 February 2020.
[4] The application was lodged on 27 May 2020.
[5] The application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“1. On or about 18 March 2020 a General Protections application was filed with the Fair Work Commission and served on the Respondent.
2. On or about 19 May 2020 the Respondent filed a response.
3. On or about 26 May 2020 the Respondent objected to the matter proceeding at the conciliation conference.
4. On or about 27 May 2020 the Applicant filed a notice of discontinuance to discontinue the General Protections application to proceed with an application for Unfair Dismissal.
5. The Respondent will not be prejudiced by the Commission granting an extension of time for the following reasons:
a. The grounds of unfair dismissal were pleaded in the Statement of Claim filed with the General Protections application.
b. The same facts and circumstances are in issue.
c. There is no inordinate delay on the part of the Applicant.
d. The General Protections application was filed within 21 days.
e. The merits of the Unfair Dismissal application outweigh any prejudice to the Respondent.
f. There is a reasonable explanation of the delay.
g. The Respondent has contributed to the delay by not responding to the General Protections application within the required time of 7 days and by allowing 62 days to lapse before filing a response.
h. The need or fairness to the Applicant outweighs any prejudice to the Respondent.”
[6] On 10 June 2020, Rodger Constructions lodged a form F4 objecting to the Application on the grounds that it was made out of time.
[7] On 12 June 2020, Rodger Constructions lodged a form F3 Employer Response which indicated that the dismissal took effect on 2 March 2020 and again raised a jurisdictional objection on the basis that the application was lodged out of time.
[8] On 3 June 2020, the parties were advised that the extension of time issue would be considered at a telephone conference. 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.
[9] Ms Smith provided a lengthy affidavit and supporting material.
[10] Rodger Constructions provided written submissions.
Determinative Conference
[11] A Determinative Conference was conducted by way of telephone on 12 June 2020. A sound file record of the telephone conference was kept. Mr Bacchetti (of counsel) represented Ms Smith and Ms Blackburn (of counsel) represented Rodger Constructions. Permission was granted pursuant to s.596(2)(a) of the Act.
[12] Ms Smith’s position at the Determinative Conference (which differed from her submissions in some respects) is summarised as follows:
• Ms Smith received a dismissal letter dated 26 February 2020 - the letter refers to a date of dismissal of 20 February 2020.
• Ms Smith was not aware of her dismissal until she received an email on 2 March 2020 containing the letter dated 26 February 2020.
• Ms Smith instructed a lawyer on 5 March 2020 and was advised to lodge a General Protections claim.
• On 18 March 2020, a General Protections claim C2020/1660 was lodged.
• A conciliation conference for the General Protections claim was listed for 27 May 2020.
• On 19 May 2020, Rodger Constructions filed a response to the General Protections claim which asserted that the claim was without prospects of success.
• On 26 May 2020, Rodger Constructions corresponded with Ms Smith reiterating their view about the prospects of success, advising that they would not be making an offer of settlement at the conciliation and sought that the claim be withdrawn.
• On 27 May 2020, Mr Bacchetti advised Ms Smith that she should withdraw her General Protections claim and lodge an Unfair Dismissal claim. Ms Smith agreed to take that course.
• The Unfair Dismissal claim was lodged within minutes of the General Protections claim being withdrawn.
• Exceptional circumstances exist owing to the:
• relationship between the parties;
• delay in Ms Smith becoming aware of Rodger Constructions position in respect of the General Protections claim;
• fact that Ms Smith relied on the advice of her representative to file and pursue the General Protections claim until advised otherwise on 27 May 2020; and
• fact that the Unfair Dismissal claim was lodged immediately after the General Protections claim was withdrawn.
• The merits were a neutral consideration owing to the contested facts.
• There was no prejudice to the Respondent.
• Fairness between the parties was a neutral consideration.
[13] Rodger Constructions principally relied on their submissions which are summarised as follows:
• Ms Smith’s circumstances were not exceptional.
• The correspondence between the parties in the period was not in dispute.
• Ms Smith knew that the reasons for her dismissal were as stated in the termination letter and did not present a foundation for the General Protections claim.
• Ms Smith had sufficient time to plan and prepare and make the election as to General Protections or Unfair Dismissal. Ms Smith made an informed decision through her legal representative.
• The written notice of termination was provided on 2 March 2020.
• Rodger Constructions has been prejudiced through having to defend two applications.
• The merits weigh against the Application.
• Fairness between the Applicant and others is a neutral consideration.
[14] Ms Blackburn emphasised that Ms Smith could have reconsidered her position in the period between the lodgement of the General Protections claim and 19 May 2020 when Rodger Constructions advised its position on that claim.
[15] Ms Blackburn submitted from the (virtual) bar table that Ms Smith was experienced in General Protections matters and that her mother also had some expertise. Mr Bacchetti noted that there was no direct evidence as to these matters.
Applicable Law
[16] 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.”
[17] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 3
[18] 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 Ltd4 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).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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
[19] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 5
[20] Rodger Constructions contended that the dismissal was communicated on 2 March 2020. Ms Smith accepts this position.
[21] This unfair dismissal application by Ms Smith was made 65 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[22] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
Paragraph 394(3)(a) - reason for the delay
[23] 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. 6 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,7 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.”
[24] 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: 8
“[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.”
[25] As to acceptable explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 9
[26] Ms Smith sought advice from her lawyer, Mr Bacchetti, on the third day after she was advised she was dismissed. She was advised to lodge a General Protections claim and instructed her lawyer to do so. It was not until 27 May 2020 that her lawyer advised her to discontinue and lodge an Unfair Dismissal claim.
[27] Despite being advised on 19 May 2020 as to the Respondent’s view of the claim, Mr Bacchetti did not advise Ms Smith to change course in order to try and resolve the matter in the scheduled conciliation. In so far as this course was wrong, it represents error by Mr Bacchetti.
[28] The delay could have been reduced had Rodger Constructions filed its response to the General Protections claim in the timeframe required by the Fair Work Commission Rules 2013.
[29] In so far as it is said that the General Protections claim should not have been made in the first place or discontinued earlier, this leads to a finding of error on the part of Ms Smith’s representative.
[30] The bar table assertion about Ms Smith’s knowledge of the law or the level of support from her mother is not supported by evidence.
[31] It appears that all roads lead to representative error. I find that the entirety of the delay has been caused by representative error.
[32] Given that Ms Smith has provided a credible reason for the delay in filing her Application, this factor weighs in favour of granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[33] The dismissal letter dated 26 February 2020 refers to a dismissal date of 20 February 2020. I accept that Ms Smith became aware of the dismissal on 2 March 2020 which, despite the dismissal letter, now appears to be the effective date of dismissal.
[34] Had the dismissal occurred before 2 March 2020, this factor would have weighed in favour of the granting of an extension of time, however, in the circumstances I have regarded this as a neutral factor.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
[35] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 10
[36] The action taken in lodging the General Protections claim is action taken to contest the dismissal. In the circumstances this is a factor which weighs in favour of the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
[37] 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
[38] A long delay gives rise “to a general presumption of prejudice”. 13
[39] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 14
[40] I accept that Rodger Constructions has suffered prejudice in having to defend two applications concerning the dismissal.
[41] This is a factor which weighs against the granting of an extension of time.
Paragraph 394(3)(e) - merits of the application
[42] In terms of the merits of the application, there is contest and 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
[43] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 15 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.”
[44] 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
[45] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am 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. The request for an extension of time is granted. The parties did not agree to participate in conciliation and thus this matter will be transferred to a Member for Hearing.
[46] An Order16 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr S Bacchetti of counsel on behalf of the Applicant.
Ms J Blackburn of counselon behalf of the Respondent.
Hearing (Conference) details:
2020.
Adelaide:
June 12.
Printed by authority of the Commonwealth Government Printer
<PR720202>
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 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]
7 [2016] FWCFB 349
8 [2018] FWCFB 3288 at [35]-[45]
9 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
10 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
11 Ibid
12 Ibid
13 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
14 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
15 [2016] FWCFB 6963
16 PR720203
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