Garry Stokes v Boss Constructions (NSW) Pty Ltd

[2019] FWC 3684

[2019] FWC 3684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Garry Stokes
v
Boss Constructions (NSW) Pty Ltd
(U2019/444)

DEPUTY PRESIDENT DEAN SYDNEY, 28 MAY 2019

Application for an unfair dismissal remedy – effective date of dismissal – extension of time.

[1] On 11 January 2019 Mr Garry Stokes made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of his dismissal by Boss Constructions (NSW) Pty Ltd (the Respondent).

[2] This decision deals with the jurisdictional objection raised by the Respondent that Mr Stokes’ application was not made within the 21 day time period prescribed by the Act. The Respondent stated that the dismissal took effect on 14 December 2018 and as a result Mr Stokes’ unfair dismissal application was made 7 days out of time. Mr Stokes said that he was not aware of his dismissal until he received the termination letter on 21 December 2018 and that his application was made within the requisite time frame.

[3] The matter was listed for hearing by telephone on 21 May 2019 to determine whether the application was lodged within the statutory time limit and, if not, whether an extension of time should be granted pursuant to s.394(3) of the Act. After hearing Mr Stokes’ evidence, the hearing was adjourned until 22 May as the Respondent’s witnesses were unavailable on 21 May.

[4] Mr Stokes was represented with permission by Mr T Rizzuto of Unfair Dismissals Direct. Ms I Eriksson of the Respondent appeared on 21 May and Mr N Bobos of the Respondent appeared on 22 May 2019.

Effective date of dismissal

[5] In order to determine whether Mr Stokes’ application has been made within time, I need to determine the date his dismissal took effect.

[6] A dismissal takes effect when it is communicated to the employee who is being dismissed 1, and can be communicated orally2. In Ayub v NSW Trains3, the Full Bench said: “… in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.”4

[7] The Respondent submitted that Mr Stokes was terminated due to a decline in financial performance of the business. Mr Stokes was advised of his dismissal during a telephone discussion on 14 December 2018, Mr Stokes was advised that a letter of termination would be posted to him on the same day.

[8] Mr Bobos, the owner of the Respondent, gave evidence that Mr Stokes was advised of his dismissal during a telephone discussion on 14 December 2018, following Mr Stokes’ refusal to attend the office for a meeting. Mr Bobos also gave evidence that he instructed Ms Eriksson to send a termination letter to Mr Stokes.

[9] Mr Josh Cowdrey, Financial Controller and Administration Manager of the Respondent, gave evidence as to a conversation he had with Mr Stokes on Monday, 17 December 2019, in relation to Mr Stokes’ pay and leave entitlements. Mr Cowdrey said it was clear that Mr Stokes knew he was terminated because he was upset on the phone, and said words to the effect of “other people should have been dismissed before me” and “I’m going to take this further”. Mr Cowdrey also said Mr Stokes made reference to having contacted “Fair Work”. There was no doubt in Mr Cowdrey’s mind that Mr Stokes knew his employment had ended.

[10] Mr Stokes gave evidence that he was not aware of the dismissal until he received the letter of termination on 21 December 2018, and was not dismissed by phone on 14 December 2019. Further, he gave evidence that he did not recall a telephone discussion with Mr Cowdrey on 17 December 2019.

[11] To the extent there is any inconsistency between the evidence of Mr Stokes and Mr Cowdrey, I prefer the evidence of Mr Cowdrey. Mr Cowdrey had a clear recollection as to the discussion he had with Mr Stokes on 17 December 2019. By comparison, Mr Stokes did not recall the discussion with Mr Cowdrey on this date. Additionally, Mr Cowdrey’s evidence of this discussion on 17 December was not challenged in cross examination.

[12] Having considered the evidence and submissions of the parties, in particular the conversation between Mr Cowdrey and Mr Stokes on 17 December 2019, I am satisfied and find that Mr Stokes was advised of his dismissal during his telephone discussion with the Respondent on 14 December 2018.

[13] It follows and I find that the effective date of dismissal is 14 December 2018. Mr Stokes’ application filed on 11 January 2019 was made 7 days outside the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether Mr Stokes should be granted an extension of time.

Extension of time

[14] Section 394(3) of the Act provides:

(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 similar position.

[15] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the applicant.

[16] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 5 where the Full Bench said:

“[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.”

[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as to be reasonably regarded as exceptional.⁶

[18] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[19] Mr Stokes maintains that he was not aware of his dismissal until he received the termination letter on 21 December 201 and therefore his application was made within time.

[20] There was no other reason for the delay proffered by Mr Stokes, and so I find this weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[21] Given my finding above that Mr Stokes was advised of his dismissal on 14 December 2018, this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

[22] There is no evidence of any action taken by Mr Stokes to dispute his dismissal other than lodging this application. I find that this weighs against a conclusion that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[23] I am not persuaded that granting an extension of time would result in a prejudice to the Respondent. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.

The merits of the application

[24] For the purpose of determining whether to grant an extension of time for Mr Stokes to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’⁷

[25] On the limited material before me, I am unable to make a final determination of the merits in this matter.

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

[26] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 8 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.’9

[27] I do not consider that there are other relevant persons in a similar position to Mr Stokes. I therefore find this to be a neutral consideration.

Conclusion

[28] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor needs to 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.

[29] In Stogiannidis and Victorian Frozen Foods 10, the Full Bench said:

[39] “….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”.

[30] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances as to warrant my granting an exception to the statutory time limit for the lodgement of this application. Consequently, I dismiss this application.

[31] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

T Rizzuto for Garry Stokes.

N Bobos for Boss Constructions (NSW) Pty Ltd.

Hearing details:

2019.

Sydney and Broken Hill (by telephone):

May 21 and 22.

Printed by authority of the Commonwealth Government Printer

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 1   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.

 2   Plaksa v Rail Corporation NSW[2007] AIRC 333.

 3   [2016] FWCFB 5500.

 4 Ibid at [48].

 5   [2011] FWAFB 975.

6 Also see Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26]; Hasim v Attorney-General of the Commonwealth [2013] FCA 1433 at [65].

7 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 8   [2015] FWC 8885.

 9 Ibid at [29].

 10   [2018] FWCFB 901.