Graeme Duncan v Survivors of Torture and Trauma Assistance and Rehabilitation Service T/A Sttars

[2019] FWC 5782

[2019] FWC 5782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graeme Duncan
v
Survivors of Torture and Trauma Assistance and Rehabilitation Service T/A STTARS
(U2019/6880)

COMMISSIONER PLATT ADELAIDE, 20 AUGUST 2019

Application for an unfair dismissal remedy – extension of time – application dismissed.

Summary

[1] Mr Graeme Duncan has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Survivors of Torture and Trauma Assistance and Rehabilitation Service T/A STTARS (STTARS) which his Form F2 Unfair Dismissal Application advised took effect on 22 March 2019.

[2] Mr Duncan filed his application in the Commission on 21 June 2019. The application did not identify that it was made beyond 21 days from the date of dismissal.

[3] On 5 July 2019, STTARS lodged a Form F3 Employer Response which indicated that the employment ceased on 22 March 2019 and raised a jurisdictional objection on the basis that the application was lodged out of time and that Mr Duncan was not dismissed. This decision only deals with the extension of time issue.

[4] A Directions Hearing was conducted on 5 August 2019. Directions were issued which advised that the extension of time issue would be considered at a telephone conference on 15 August 2019. 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. Mr Duncan was directed to provide a statement concerning the extension of time issue and any documents to be relied upon by 9 August 2019. STARRS was invited to file any material in reply by 13 August 2019.

[5] A Hearing was conducted by way of telephone conference on 15 August 2019. A sound file record of the telephone conference was kept. Mr Duncan represented him and Ms Kaye Smith (of Counsel) represented STTARS. Permission was granted pursuant to s.596(2)(a) of the Act.

[6] Mr Duncan submitted a number of documents and gave evidence at the Hearing, his position is relevantly summarised as follows:

•  He was employed as a full-time Finance Officer.

•  He was tertiary educated.

•  On Thursday 21 February 2019, Mr Duncan was required to attend a meeting concerning his work performance with Ms Robyn Smythe and Mr Daryl Eckermann. At the end of the meeting, Ms Smythe advised she would issue a formal warning.

•  Mr Duncan was concerned and spoke to “Fair Work” on the afternoon of Friday 22 February 2019. Mr Duncan advised Fair Work of his concerns about the process, that he felt he was being performance managed out of a job, and that he did not want a dismissal on his curriculum vitae. Mr Duncan states he was advised that if he felt he had no choice but to resign, it may constitute an unfair dismissal.

•  At about 4:50pm on Friday 22 February 2019, Ms Smythe gave him the warning letter. The warning letter provided an account of the meeting, included a finding that he had “underperformed” and failed to follow policy. The letter advised that “should there be continuing unsatisfactory performance or failure to follow policy, you may be subject to further disciplinary action, up to and including termination of employment.” The letter provided a list of “agreed” action items and advised his performance would be reviewed following Finance meetings over the next 6 months. The letter included an invitation for Mr Duncan to discuss the contents of the letter with Ms Smythe.

•  After looking up information on the Fair Work Commission’s website and discussing the situation with a number of people over the weekend, Mr Duncan came to the view that he was going to be dismissed probably no later than the following Friday. Mr Duncan felt he had to choose between being sacked and resigning. Mr Duncan was optimistic about his employment prospects. Mr Duncan decided to resign and prepared a resignation letter on Sunday 24 February 2019. The resignation letter was addressed to Mr Eckermann and stated “I am writing to advise of my resignation from STTARS. I have recently been reviewing my career options and have concluded that I miss the variety of project and policy work that I can’t get in my current role, Therefore I am going to pursue some contracting roles that will add breadth to my experience.” Mr Duncan gave four weeks’ notice and advised his last day would be on Friday 22 March 2019.

•  Mr Duncan gave Mr Eckermann the letter on 25 February 2019. Mr Duncan stated that Mr Eckermann asked if he could do some casual work after his final full-time day. Mr Duncan worked out his notice and ended his full-time employment on 22 March 2019.

•  After 22 March 2019, Mr Duncan assisted STARRS by providing some support to allow the completion of financial reports and feedback on budget figures. Mr Duncan described that work as casual in nature.

•  Mr Duncan had not yet had an exit interview or applied for an Employment Separation Certificate.

•  Mr Duncan considered that he was technically still a STARRS employee for unfair dismissal lodgement purposes and stated he got the impression from the “Fair Work” consultants that if he was doing casual work he may need to decide to lodge the application after the casual work finished.

•  Mr Duncan assumed that the casual work would finish if he lodged his application and he had not yet succeeded in obtaining work so he decided not to lodge his application whilst he was getting a reasonable amount of casual work.

•  On 26 April 2019, Mr Duncan rang Fair Work Commission and was sent the Form F2 application and was advised about the Workplace Advice Service (WAS) process to get an hour of free legal advice. The follow up email from the WAS contained a note that stated, “Please note dismissal applications must be filed within 21 days of the dismissal taking effect. It may be necessary to file an application before your consultation in order to comply with that timeframe”.Mr Duncan presumed that he was not out of time as Fair Work had sent him the Form F2.

•  On 3 May 2019, Mr Duncan emailed a completed consent form to access the Fair Work Commission’s WAS. The form sought pre-lodgement and/or pre-conciliation advice as well as advice regarding jurisdictional/threshold issues. Mr Duncan indicated on the application that he had not been terminated as he resigned, and had done some casual work as recently as 30 April 2019.

•  On 3 May 2019 he received a call from WK Lawyers (as a result of the WAS application) and met with them on 12 June 2019. At the meeting, the solicitor advised he may have not lodged the application in the time allowed.

•  Mr Duncan lodged his application on 21 June 2019. He did not lodge it earlier as he wanted to make sure it was accurate and complete.

•  Mr Duncan contends that the application is within time due to him performing casual work after 22 March 2019.

•  Mr Duncan contends his circumstances are such that he should be granted an extension of time to lodge his application.

•  Mr Duncan contends that STARRS failed to follow its internal policies.

•  Mr Duncan contends that the cessation of his employment was a constructive dismissal in line with the authority in O’Meara v Stanley Work Pty Ltd.

•  Mr Duncan does not contend he was unaware of the 21 day limit.

[7] STARRS submissions are relevantly summarised as follows:

•  The circumstances in which the warning letter was provided were not such to render the resignation as a constructive dismissal, in particular there was no threat of dismissal, Mr Duncan’s resignation was considered and not retracted during the 4 week notice period, as such, the merits weigh against the granting of the application.

•  The employment ceased on 22 March 2019 by way of a resignation.

•  A replacement employee was engaged on 25 March 2019 and commenced on 15 April 2019. In the circumstances, the granting of an extension of time would present prejudice to STARRS.

•  There was a need for Mr Duncan to provide assistance to the replacement employees and Mr Duncan was paid as a casual employee for 7 hours work post-cessation of employment, this did not have the effect of extending the relevant employment period.

•  If the Commission accepted that the employment ceased on 20 May 2019, the application was still filed late.

•  Mr Duncan’s circumstances were not exceptional.

Applicable Law

[8] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application 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).

(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] 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 Ltd¹which 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 every day 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

[10] Based on the material before me I find that Mr Duncan’s full-time employment ceased on 22 March 2019. In my view, the engagements which occurred post 22 March 2019 was a separate arrangement and did not operate to extend Mr Duncan’s full-time employment. This unfair dismissal application was made 70 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[11] 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.

The reason for the delay

[12] Mr Duncan stated he was aware of the time limit for the lodgement of an unfair dismissal application.

[13] Mr Duncan explains the delay, by stating he was of the belief that the post 22 March 2019 engagement extended the employment and thereby did not trigger the commencement of the 21 day limit. Mr Duncan suggests that the fact that the WAS sent him a Form F2 Unfair Dismissal Application at a time which was more than 21 days after the cessation of his full-time employment indicated that he remained within time. Mr Duncan is a well-educated man who told me he has both a Bachelor and a Master’s Degree.

[14] Mr Duncan was careful in his account of what “Fair Work” advised him. When his various accounts of the conversations are looked at objectively I do not believe it supports the submission that Fair Work provided advice to Mr Duncan that he should delay lodgement. The importance of the time limit was reinforced in the WAS email of 26 April 2019, but does not appear to have been heeded by Mr Duncan.

[15] Mr Duncan’s written submission advised that he assumed that the casual work with STARRS would finish if he lodged his application and he had not yet succeeded in obtaining work, on this basis he decided not to lodge his application whilst he was getting a reasonable amount of casual work. That Mr Duncan determined to delay lodgement for these reasons does not constitute a satisfactory explanation of the delay.

[16] I am unable to accept that Mr Duncan reasonably believed that being engaged to provide some assistance to his replacement at STARRS with the preparation of financial returns and the access to ATO account extended the period in which he had to file his application, and thus explains that part of the delay. There is evidence that suggests that Mr Duncan consciously delayed his decision to lodge his claim based on the desire to continue casual work with STARRS.

[17] On 12 June 2019, Mr Duncan was given advice by WK Lawyers that his application was likely out of time, despite this he did not file until 21 June 2019. Having been provided with that information, I would have expected Mr Duncan to file promptly. Mr Duncan contends he was making sure his application was accurate; this is not a credible explanation for that part of the delay.

[18] In my view, Mr Duncan has not provided a credible reason to explain the delay and that weighs against a finding of exceptional circumstances – Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters. 2

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

[19] Having rejected Mr Duncan’s view that the casual employment did not extend the full-time employment, I must find that Mr Duncan was aware of the dismissal (as he contends occurred) on 22 March 2019 which was the date he proposed in his resignation letter. This is a neutral factor in my consideration.

Any action taken by the person to dispute the dismissal

[20] There was no evidence of any action taken by Mr Duncan to contest the dismissal, other than lodging an unfair dismissal application. This is a neutral factor in my consideration.

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

[21] Prejudice to the employer will weigh against granting an extension of time. 3 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.4 A long delay gives rise “to a general presumption of prejudice”.5

[22] The delay in this matter is lengthy. STARRS suggests it has been prejudiced by the delay as a result of its decision to engage another employee to perform Mr Duncan’s role. I accept that STARRS will be prejudiced and therefore this is a factor which weighs against the granting of the application.

The merits of the application

[23] The perceived merits of the application are a relevant consideration, 6 as explained in the joint judgment of the Federal Court in Haining v Deputy President Drake (1998) 87 FCR 248:

“If a case seems highly meritorious, [it] might legitimately persuade the decision maker to accept the adequacy of an explanation (for the delay) that would not pass muster in a case of little apparent merit.” 7

However, the Commission ‘should not embark on a detailed consideration of the substantive case’, 8 nor is it open to make any findings on contested matters of fact.9 The task at hand is to take the Applicant’s case at face value, and assess the appearance of the merits of their claim. “It would be sufficient for the applicant to establish that the substantive application was not without merit.”10

[24] The information that was put to me about the merits of the application falls into two areas.

[25] In terms of the performance management process and compliance with STARRS polices, there is insufficient evidence before me to make an assessment.

[26] With respect to whether Mr Duncan resigned or was constructively dismissed, the warning letter was conventional and put Mr Duncan on notice that if he did not improve his performance he would be subject to further sanction up to and including dismissal. Mr Duncan received the warning on Friday, and determined to resign on Sunday after reviewing the Commission’s website and consulting friends. Mr Duncan believed that he would be dismissed the following week. Mr Duncan submitted he was concerned how a dismissal would look on his record, his resignation letter described alternative considerations. Despite Mr Duncan working out a lengthy period of notice and attending a farewell function, there was no suggestion prior to the lodgement of the application that he considered the resignation to be a constructive dismissal.

[27] Putting Mr Duncan’s evidence at its highest, I cannot see how viewed objectively STARR’s actions could constitute a constructive dismissal. It appears that Mr Duncan resigned. On this basis (and acknowledging the preliminary nature of this enquiry), the prospects of success for Mr Duncan’s claim appear to be minimal.

[28] On this basis, I have regarded the merits as a factor which weighs against the granting of an extension of time.

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

[29] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 11 considered this criterion and said (at [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.”

[30] 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. As a result it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[31] Having considered and weighed each of the factors under s 394 of the Act, I am not satisfied that Mr Duncan’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order¹² reflecting this Decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr G Duncan the Applicant.

Ms K Smith (of Counsel) on behalf of the Respondent.

Hearing (Conference) details:

2019.

Adelaide:

August 15.

Printed by authority of the Commonwealth Government Printer

<PR711505>

1 [2011] FWAFB 975.

 2   [2018] FWCFB 901.

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 5   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

 6   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 7   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 8   Kyvelos v Champion Socks Pty Ltd, Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at para. 14.

 9   Ibid.

 10   Kornicki v Telstra-Network Technology Group, Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay.

 11   [2016] FWCFB 6963.

12 PR711506.