Gordon Hunt v Sheriff Taylor

[2019] FWC 6329

[2019] FWC 6329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gordon Hunt
v
Sheriff Taylor
(U2019/9956)

DEPUTY PRESIDENT DEAN SYDNEY, 11 SEPTEMBER 2019

Application for an unfair dismissal remedy – extension of time granted.

[1] This decision concerns an application made pursuant to s.394 of the Fair Work Act 2009 by Mr Gordon Hunt with respect to his alleged unfair dismissal by Mr Sheriff Taylor.

[2] This application was lodged by Mr Hunt on 5 September 2019 and was not made within the 21 day period prescribed by the Act.

[3] Prior to the lodgement of this application, Mr Hunt filed an application for a remedy for unfair dismissal naming Sydney Glass Warehouse Pty Ltd (SGW) as the respondent (the first application). The first application was made within the statutory timeframe.

[4] Mr Sheriff Taylor was a Director of SGW.

[5] SGW was deregistered on 26 May 2019.

[6] The Commission has the discretion to allow a further period for an application to be made under s.394(3) of the Act. The matter is listed for a hearing before me on 11 September 2019 to hear Mr Hunt’s application for an extension of time.

[7] Mr Taylor was informed of the application and was asked to attend a hearing on 11 September to address any objection to the granting of the extension. Mr Taylor did not attend the hearing and provided no explanation for his failure to attend. I note that Mr Taylor has regularly failed to comply with directions of the Commission, and has not attended on any occasion when the first application was listed.

[8] 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.

[9] 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 Mr Hunt.

[10] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd  1 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.”

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

Reason for the delay

[12] As outlined above, Mr Hunt made the first application against SGW within the statutory timeframe. Mr Taylor, a director of SGW, initially objected to the application on the basis that Mr Hunt had not met the minimum employment period. In a decision on 13 June 2019, the Commission found that Mr Hunt had met the minimum employment period, and the first application could proceed.

[13] On 26 May 2019, SGW was deregistered by Mr Taylor.

[14] Mr Hunt said that he has not received a payslip since 23 April 2018, and from 24 July 2018 until 27 February 2019 his wages have been deposited to his bank account primarily by Mr Taylor. In support of this, Mr Hunt produced a summary of the entity or person who had paid his wages for each pay period.

[15] I am satisfied and find that Mr Taylor paid Mr Hunt directly for the majority of the work he performed over this period.

[16] In the circumstances, it is appropriate that Mr Taylor be able to pursue his application for an unfair dismissal remedy against Mr Taylor.

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

[17] There is no dispute that Mr Hunt was advised of his dismissal on 5 March 2019. While this would normally weigh against a conclusion that there are exceptional circumstances, in this case it is a neutral factor for the reasons set out earlier.

Any action taken by the person to dispute the dismissal

[18] Mr Hunt made an application within time, against one of the entities who paid his wages during his employment. I find that this weighs in favour of a conclusion that there are exceptional circumstances.

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

[19] I am not persuaded that granting an extension of time would result in a prejudice to Mr Taylor. He has been on notice of a claim by Mr Hunt in respect of his employment since the first application was made. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[20] For the purpose of determining whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case.’²

[21] Mr Hunt maintains that he was unfairly dismissed because he was not given any warning by his employer verbally or in writing as to his alleged unsatisfactory performance, and was dismissed via text message.

[22] According to Mr Hunt, he received a text message from Mr Taylor on 28 February 2019 that there was no work and he would contact him later that evening. He did not hear anything further from Mr Talor and on 5 March 2019 he attended the workplace to find that the lock on the gate had been changed. He tried to contact Mr Taylor but he did not answer any of his calls.

[23] While there is limited evidence before me, the application on its face has merit. I therefore find the merits to be in favour of granting an extension of time.

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

[24] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 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.’4

[25] I do not consider that there are other relevant persons in a similar position to Mr Hunt, and I therefore find it to be a neutral consideration.

Conclusion

[26] Having considered all of the matters to which my attention is directed by the Act, I am satisfied that there are exceptional circumstances which warrant granting an exception to the statutory time limit. The circumstances of Mr Hunt are out of the ordinary course, unusual, special or uncommon. The application will now be programmed for hearing.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2011] FWAFB 975.

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

 3   [2015] FWC 8885.

 4 Ibid at [29].