Glenn William Briggs v Raw Gto Pty Ltd
[2023] FWC 3211
•6 DECEMBER 2023
| [2023] FWC 3211 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Glenn William Briggs
v
Raw Gto Pty Ltd
(U2023/10230)
| COMMISSIONER TRAN | MELBOURNE, 6 DECEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.
Glenn William Briggs applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act2009 (the Act) in relation to the termination of his employment by Raw GTO Pty Ltd (the Employer). Mr Briggs applied on 18 October 2023.
Mr Briggs was employed as an Apprentice for more than a year.
Before deciding whether the dismissal was unfair, the Commission must be satisfied that an application was made within time or allow a further period of time under s 394.
For the reasons I set out below, I find that Mr Briggs’ dismissal took effect on 26 September 2023, and he learned of his dismissal on the same day.
Using the date the dismissal took effect, the statutory period of 21 days ended at midnight on 17 October 2023. Mr Briggs applied on 18 October 2023, one day after the end of the statutory period.
Having considered the evidence and arguments of the parties, and the factors in s 394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. Therefore, the application is dismissed. My detailed reasons follow.
Materials and Evidence
On 25 October 2023, I issued the following directions:
-Mr Briggs to file materials in support of an extension of time by 7 November 2023
-The Employer to file any materials in reply by 14 November 2023
-A case management conference (mention) was listed for 15 November 2023
-The hearing of the extension of time matter was listed for 22 November 2023
An in-person hearing was held on 22 November 2023. No materials were filed prior to the hearing.
At the hearing, both parties gave sworn oral evidence, and I accepted into evidence the material that was filed with the application and response.
At the conclusion of the hearing, I issued further directions for the filing of specific material, namely evidence of telephone conversations to ascertain the date when Mr Briggs was notified of his dismissal, and evidence relating to some of the reasons for the delay. Both parties provided the material requested on 30 November 2023.
Application to dismiss under s 399A
At the case management conference held on 15 November 2023, the Employer made an oral application that I dismiss Mr Briggs’ application for non-compliance in accordance with s 399A. During the hearing on Wednesday 22 November 2023, I indicated that I would not dismiss the application and that I would provide detailed reasons.
My directions above and the notices of listing for the case management conference and hearing were emailed to both parties on 25 October 2023.
Mr Briggs did not comply with my directions as he did not file his materials by 7 November 2023. My chambers emailed Mr Briggs on 8 November 2023 at 11:16am to inform him that he had failed to file materials as required and to provide him with a short extension of time until the end of that day to file his materials. Mr Briggs did not file any materials by the end of that day or at any other time.
The Employer did not file any reply material. It did not have any material to reply to.
Mr Vitacca of the Employer attended the case management conference on 15 November 2023 at 10:00am online via Microsoft Teams. Mr Briggs did not.
My associate called Mr Briggs 4 times prior to and at the time of the case management conference. There was no answer.
During the case management conference, Mr Vitacca made an oral application that Mr Briggs’ application be dismissed under s 399A due to Mr Briggs’ failure to attend the mention and failure to comply with the directions to file materials. I exercised my powers under s 586 of the Act and waived compliance with the formal requirements for making such an application.
After the case management conference concluded, my chambers emailed Mr Briggs to inform him that:
-the case management conference had proceeded;
-as he had not attended and had not complied with directions, the Employer had applied to the Commission to dismiss Mr Briggs’ application for non-compliance; and
-the hearing scheduled for 22 November 2023 would go ahead and would also deal with the Employer’s application.
Mr Briggs attended the hearing of 22 November 2023. Mr Briggs confirmed that the email and phone number he had provided to the Commission in his application was correct.
In sworn oral evidence before the Commission, Mr Briggs gave reasons for his non-compliance. Mr Briggs said that he had not been aware of the case management conference nor directions until around the time of the case management conference itself. He had not been able to access his emails or phone messages regularly since early July 2023, when he stopped working. His mobile phone was not working consistently. Mr Briggs demonstrated to me that his phone was being held together with tape. Also, as he did not have an income, he could not fix his mobile phone or keep credit on it. Mr Briggs said that he accessed emails and voice mail messages, whenever he could add credit or use Wi-Fi at friend’s homes and publicly available free Wi-Fi.[1]
For the same reasons, Mr Briggs had not made any contact with the Commission about his non-compliance.
Mr Briggs also gave the reason that he had not answered the Commission’s calls on 15 November 2023 as he was in the Magistrates Court. He did not provide any documentary evidence of this.
Mr Briggs also said that the reasons for the non-compliance was that he was caring for his mother, who was in and out of hospital. After the hearing, Mr Briggs supplied a medical certificate covering this period.
Although Mr Briggs was unable to recall precise dates, he was otherwise sincere in his responses and appeared to do his best to recollect events and could place them as they related to other events, such as when he was unable to answer calls from the Commission as he was appearing in the Magistrates Court.
After hearing from Mr Briggs, the Employer did not make any further submissions about its application to dismiss Mr Briggs’ unfair dismissal application due to non-compliance with my directions.
The Full Bench in Lockyear v Cox[2] said that the Commission should be cautious about exercising its power to dismiss an application. Dismissing an application means that a person loses their rights entirely to prosecute their claim.
Mr Briggs has now appeared and has provided reasons for his non-compliance. Those reasons are reasonable in the circumstances, and I therefore did not dismiss Mr Briggs application.
I now turn to whether Mr Briggs should be provided with further time to submit his application.
Extension of time under the Act
Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
Section 394(3) of the Act provides that:
[t]he 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.
The legislation is clear that the power to extend time is discretionary but may only be exercised if first satisfied that there are exceptional circumstances.
Exceptional circumstances are not defined in the Act, but the case law[3] establishes the following:
-the Commission must consider all of the circumstances;
-the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
-but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
-a single event can be exceptional;
-a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon;
The matters in s 394(3) are factors to be taken into account in ascertaining whether there are exceptional circumstances. The factors themselves do not have to be exceptional.
The conclusion about whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[4]
Factors to take into account
394(3)(a) – the reason for the delay
Mr Briggs’s evidence and submission is that the reason for the delay in lodging his application was the same as the reasons for his non-compliance, namely:
-he was taking care of his mother, who was in and out of hospital; and
-he did not have an income and was unable to regularly access his emails and voicemail messages.
Mr Briggs also said that he was shocked and depressed, and unfamiliar with what his rights were.[5]
Mr Briggs gave evidence that in the days after his dismissal, he sought information from the employer and his apprenticeship mentor about his entitlements and rights.
On the date that he made his application, he also spoke with a regulator, which may have been the Fair Work Ombudsman or the Australian Taxation Office or another body (he was unsure which) and was encouraged to put in an unfair dismissal application, even if it was out of time.
While I accept that Mr Briggs was being truthful about the entirety of the circumstances following the time that he stopped working (early July), it was unclear when events took place. It was difficult to find out from Mr Briggs whether events occurred before or after his employment ended, or before or after he made his application. According to how Mr Briggs presented the information, the events seemed to occur within a span of days, when in reality it was more like weeks and months.
I gave Mr Briggs an opportunity to provide me with documentary evidence about his mother’s health. The evidence provided was a medical certificate indicating that a person was admitted to hospital on 14 and 15 November 2023. The evidence does not assist Mr Briggs.
I find that all these reasons combined are reasons that explain Mr Briggs delay. It was clear that Mr Briggs can and does seek assistance, but that timeliness was difficult for him. I consider that this factor weighs moderately in favour of extending time.
394(3)(b) – whether the person first became aware of the dismissal after it had taken effect
Mr Briggs was unable to provide a date when he became aware of the dismissal, but he did become aware of it. Mr Briggs was aggrieved that the Employer had not attempted to speak with him about dismissing him, but he did receive email correspondence from the Employer (although not necessarily on the date that it was sent for all the reasons detailed above).
I believe Mr Briggs, who was clearly doing his best to recollect information. However, dates did not seem important to him. By matching his evidence with the documentary evidence, I find that Mr Briggs learned of his dismissal on the same day it took effect, which was 26 September 2023.
The Employer provided clear evidence, supported by documentary evidence, that Mr Briggs has been stood down from work following a non-negative result from drug and alcohol test that Mr Briggs took on 14 July 2023. After this time, Mr Vitacca gave evidence that the Employer spoke with Mr Briggs on numerous occasions. Mr Vitacca referred to ‘numerous conversations the whole time’[6] and that Mr Briggs had spoken to and messaged his apprenticeship mentor, who is also employed by the Employer.[7]
The documentary evidence included the following letters, which had been sent by email:
-A letter dated 14 September 2023 asking for contact and written confirmation that Mr Briggs was working with medical professionals to provide a non-negative drug and alcohol test result;
-A letter dated 21 September 2023 seeking evidence that Mr Briggs is engaging with a medical practitioner. This letter also said that if the Employer did not hear from Mr Briggs, his employment would be terminated by close of business tomorrow (being Friday 22 September 2023); and
-A letter dated 26 September 2023, which formally ended Mr Briggs’ employment.
Mr Briggs could not tell me the date that he became aware of his dismissal, but he could relate it to other events. The key information that he repeated was that he saw an email that said his employment would end if he did not contact the Employer. He then did at once try to make contact. He could not get in contact with Mr Vitacca, so he called Rachael Scholz, another employee of the Employer’s and in Mr Briggs’ words, a co-worker of Mr Vitacca’s.[8] He spoke with Ms Scholz out of hours, and she told him to call Mr Vitacca ‘tomorrow’. When he went to call Mr Vitacca the following day, he found another email that said that he had been ‘terminated already’.[9] Mr Briggs did not then call Mr Vitacca as he was annoyed and now no longer wanted to talk to him.
Based on the information that Mr Briggs repeated, I conclude that he found out about his dismissal on the same day that it occurred, which was 26 September 2023, being the date of the letter put into evidence. Mr Vitacca repeated and was clear about this date in his sworn oral evidence.[10]
I consider that this factor does not weigh in favour of extending time.
394(3)(c) – any action taken by the person to dispute the dismissal
I questioned Mr Briggs about what action he took to challenge the dismissal. He said he was terrified about what was going on with his job[11] and upset that no one had spoken with him about it. He did contact the employer after the dismissal, but this was about payments. It did not appear that he complained about the dismissal itself. The first time that he took any advice was on the same day that he made his application.[12]
I consider that this factor does not weigh in favour of extending time.
394(3)(d) – prejudice to the employer (including prejudice caused by the delay)
The Employer rightfully said that the delay would not cause them any prejudice.[13]
I consider this factor neutral in my determination of this matter.
394(3)(e) – the merits of the application
My assessment of the merits of this matter is primarily whether Mr Briggs has an arguable case.
Mr Briggs’ key grievance is that his dismissal occurred via email. He says his employer did not provide him with a fair opportunity to not be dismissed because they never spoke with him about it. However, Mr Briggs was clear that he had stopped working as he had given a non-negative drug and alcohol test result in mid-July. He remained employed and was not formally terminated until the end of September. He also conceded that emails and letters are communication, and that he had received them even if he did not receive them on the same day that they were sent.[14]
The Employer’s evidence is that they had numerous conversations with Mr Briggs and that they also wrote to him on at least 3 separate occasions before terminating his employment.
As I informed the parties at the hearing, the issue of the merits relates to what steps the Employer took, and whether those steps were enough. That will ultimately be a matter of evidence and I do not have enough before me to reach a conclusion on the merits.
I consider this factor neutral in my determination of this matter.
394(3)(f) – fairness as between the person and other persons in a similar position
I was not made aware of any relevant matters.
I consider this factor neutral in my determination of this matter.
I do not grant an extension of time
I have formed the view that there were not exceptional circumstances such as to allow me to exercise a discretion to extend time. The whole of the circumstances for Mr Briggs was unfortunate but not necessarily exceptional. Mr Briggs contacted his employer during the statutory time limit but made no attempt to challenge his dismissal, despite being aware of his dismissal at the time that it occurred. Also, Mr Briggs was aware prior to the dismissal that his employment was at risk. He had not attended work and was informed in person of the reasons why he was prevented from attending work around mid-July 2023. The fact that he was unaware of his rights is not exceptional. While he had difficulty accessing his phone and emails, he did succeed in doing so. His difficulties, taken together with caring for his mother who was in hospital, could have made the whole of his circumstances exceptional. Despite the further opportunity, the only evidence provided of hospital attendance was for the time of the case management conference, not for the time around the statutory limit.
I therefore dismiss Mr Briggs’ application for an unfair dismissal remedy.
COMMISSIONER
Appearances:
Mr Glenn William Briggs, for the Applicant.
Mr Rocky Vitacca, for the Respondent.
Hearing details:
In person at the Fair Work Commission in Melbourne.
Final written submissions:
Provided via email on Thursday, 30 November 2023.
[1] Transcript of Proceedings, PN33, 39, 41, 42.
[2] [2021] FWCFB 875 at [30] and [58], also citing Cole v Roy Hill Station[2019] FWCFB 2925.
[3] Summarised in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39].
[5] Transcript of Proceedings, PN55.
[6] Ibid, PN352.
[7] Ibid, PN321.
[8] Ibid, PN153.
[9] Ibid, PN204.
[10] Ibid, PN364.
[11] Ibid, PN162.
[12] Ibid, PN233-234.
[13] Ibid, PN364.
[14] Ibid, PN377.
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