Guy Birchall v Nauru Air Corporation
[2022] FWC 1785
•8 JULY 2022
| [2022] FWC 1785 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Guy Birchall
v
Nauru Air Corporation
(C2022/2312)
| DEPUTY PRESIDENT LAKE | BRISBANE, 8 JULY 2022 |
Application to deal with contravention involving dismissal – application made outside of statutory timeframe – extension of time granted.
On 10 April 2022, Mr Guy Birchall (the Applicant) lodged an application with the Fair Work Commission (the Commission/the FWC) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to his dismissal by Nauru Air Corporation (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Brisbane. The Applicant’s employment commenced with the Respondent on 29 July 2019 and he was notified by email of his termination on 18 March 2022 at 5.33pm AEST. There is contention as to when the notice took effect.
By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act.
The Respondent submits that the Applicant filed their application out of time and opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.
On 13 June 2022, I convened a hearing by telephone to determine whether the application was lodged in time and if not, to allow the Applicant an additional period within which to lodge his application.
Representation
Both parties sought to be represented. To allow the matter to be dealt with most efficiently – given the legal question of when notification occurred and if an extension should be granted – I was satisfied that the present case is one in which both parties and the Commission would benefit from the assistance of legal representation to allow for the efficient conduct of the case. Accordingly, both parties were granted permission to be represented. Mr Robert Grealy of Australian Law Partners Pty Ltd represented the Applicant, while Ms Annie Smeaton of Cooper Grace Ward represented the Respondent.
The Applicant’s submissions
The Applicant admits he received written notice of his dismissal (Termination Notice) by email on 18 March 2022 at 5.33pm AEST.[1]
The Applicant submits that the Termination Notice did not comply with the requirements of s.117 of the Act as it was not hand-delivered, or left at the Applicant’s last known addressed, or received by pre-paid post at the Applicant’s last known address.[2]
The Applicant’s dismissal could not take effect until he was served with written notice of that dismissal in accordance with the requirements of the Act.[3]
Any written notice received after normal business hours (9am to 5pm) was deemed to be received on the next business day being 21 March 2022.[4]
The Application was filed in time as the Act and the Fair Work Commission Rules 2013 (Cth) (the Rules) are silent on the timing of service. However, the Federal Court Rules 2011 (Cth) r.10.32 states that a document served by email is taken to be served on the next business day. Where the Termination Notice is a statutory notice and a pre-condition to action under the Act, it is submitted that the Federal Court Rules 2011 (Cth) should be applied to its service.[5]
As the Termination Notice was sent by email on 18 March 2022 at 5.33pm AEST, it is deemed to be served on the Applicant on 21 March 2022.[6]
In the event that the Termination Notice is effected on 18 March 2022, then the late lodgement of the Application was caused solely by the Applicant’s solicitors. The Applicant had instructed his solicitors to lodge the Application on 8 April 2022. Had the Application been lodged on that day, it would have been lodged within the 21 day statutory time limit.[7]
He did everything in his power to ensure the Application was filed in time.[8] At the Hearing, I requested that the Applicant provide email correspondence between the Applicant his Representative. This was provided to my Chambers.
On 21 March 2022, the Applicant instructed his solicitors to prepare and lodge a General Protections Application on his behalf.
On 6 April 2022 at 3.24pm AEST, the Australian Law Partners’ office informed the Applicant that the application was finished but needed approval from the Applicant’s Representative before sending.
On 6 April 2022 at 4.09pm AEST, the Applicant replied,
“… As long as it’s filed before the deadline I’m happy!”
On 7 April 2022 at 6.05pm, the Applicant followed up the Australian Law Partners’ office.
“I’m sure yourself and the team are all over it, however I just want to reiterate that tomorrow is the dead line for my fair work claim to be submitted.
I obviously want to make sure this is not missed.”
On 7 April 2022 at 9.30pm AEST, the Applicant’s Representative responded.
“I just have to review the draft and send it onto you. Apologies, we had a run of conflicting hearings and conferences over the last two days.”
On 7 April 2022 at 9.34pm AEST, the Applicant replied.
“No worries at all I understand you’re flat out. Just don’t want to miss the deadline.”
On 8 April 2022 at 12.49pm AEST, the Applicant emailed the Applicant’s Representative’s office.
“Any update on the below ?”
On 8 April 2022 at 1.24pm AEST, the Applicant’s Representative responded.
“All under control. I just have to finalise a NSW IRC claim that has to go out by 4pm today. In Fair Work, the deadline expires at midnight, so we have plenty of time.
On 8 April 2022 at 1.34pm AEST, the Applicant replied.
“No worries at all, thank you for the update.”
On 8 April 2022 at 4.27pm AEST, the Applicant was sent the below email with a draft of the Application attached.
“Here is the draft. Let us know if you are happy with it and we will arrange for it to be lodged with Fair Work today. Any issues, please advise ASAP.”
On 8 April 2022 at 5.17pm AEST, he replies to his solicitors.
“Thank you to yourself and the team for that. All looks great. I’ll be honest a lot of that is legal jargon I don’t really understand but I trust your judgement.
I’m happy for you to submit to fair work. If you could advise when this is done that would be great.”
The Application was lodged on 10 April 2022 by Australian Law Partners. The Applicant’s Representative provided a statement noting that it was his belief that the termination notice was received by the Applicant on 21 March 2022, making the Application in time.[9]
The Applicant also provided various precedent for practitioner error:
(a) Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [13];
(b) Paterson v Sunraysia Crane and Rigging Pty Ltd T/A Sunraysia Crane and Rigging [2011] FWA 2496;
(c) Clark v Ringwood Private Hospital (1997) 74 IR 413, 418–420;
(d) Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) [28]; and
(e) Dean-Villalobos v QGC Limited T/A QGC [2013] FWC 1537 (Asbury C, 21 March 2013) [146].[10]
The Respondent was in receipt of correspondence from the Applicant’s solicitors challenging the lawfulness of his dismissal.[11]
The Applicant submits that there is no prejudice to the employer as there was a minor delay.[12]
The Respondent’s submissions
The Respondent submits that the Applicant filed the Application twenty-three days after termination. There is no evidence before the Respondent which explains the reason for the lateness.[13]
The actions of the Applicant are the central consideration in deciding whether the explanation of representative error is acceptable. For example, where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused. The Respondent relied upon Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [13] (Nulty).[14]
The Commission is required to consider the Applicant’s actions at or around the time the Application was due to be filed.[15]
Any error by the Applicant’s representative is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted and any error cannot justify an extension of time. The Respondent relied upon Nulty at paragraph [13].[16]
Consideration of whether a further period should be granted
As noted above, s.366 of the Act requires that a general protections application under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 3662(2) of the Act.
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant.[17] The Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd extensively canvassed the meaning of ‘exceptional circumstances’, concluding:
“[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.”
The principles of Nulty have been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.[18]
In order for the Applicant’s general protection application to proceed, it is necessary for him to obtain an extension of time under s.366(2) of the Act. In considering an application for an extension of time, I must be satisfied there are “exceptional circumstances” taking into account each of the matters in s.366(2) of the Act. I now turn to address the particular matters to which regard must be had.
Consideration
Section 366(2)(a) – The reason for the delay
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[19] or a reasonable explanation.[20] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[21] the Full Bench noted at [39]:
“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 reliant matters and the assignment of appropriate weight to each.”
There was contention between the parties as to whether dismissal occurred on 18 March 2022 or 21 March 2022. I accept that the Applicant’s termination of employment occurred by way of email on 18 March 2022. I am satisfied that this is the effective date of dismissal.
Therefore, the Applicant’s Application was made 23 days after his dismissal, 2 days out of time. The Applicant provided the following reasons for the delay in the filing of his application.
The Applicant relies on Representative error for the delay. During the Hearing, the Applicant provided emails that illustrated his swiftness in acting on his dismissal. The Applicant was notified of his dismissal on 18 March 2022 at 5.33pm AEST and provided his Representative with the notification email and letter of dismissal notification on the same day at 5.42pm AEST. The Applicant on 6 April 2022 at 4.09pm AEST gave his approval and requested that it be filed on time. On 7 April 2022, he followed up and again on 8 April 2022 he was assured that the Representative would lodge on time and they did not. This was clearly Representative error.
I consider that this is an exceptional circumstance which warrants me exercising my discretion to allow an extension of time.
The existence of an acceptable or reasonable explanation for the delay in lodging a completed application weights strongly in favour of the Applicant’s request for an extension of time.
Section 366(2)(b) - Action taken to dispute the dismissal
An action taken by an employee to content the dismissal, other than lodging an application, can be treated as favouring the granting of an extension of time.[22]
The Applicant demonstrated, through correspondence tendered and discussed above, that during the 21 days he sought clarification regarding his final termination package. However, on review of the evidence before me, I cannot identify that the Applicant took any steps to contest the dismissal, in fact I note that the Applicant tendered his resignation on the 11 December 2019.
Accordingly, I do not accept that the Applicant took steps to contest his dismissal, and only took steps to negotiate a termination package. This consideration weighs against the Applicant’s request for an extension of time.
Section 366(2)(c) - Prejudice to the employer
In considering this factor, the employer must produce evidence to demonstrate prejudice. It is then a matter for the applicant to show the facts do not amount to prejudice.[23]
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice.
The mere absence of prejudice to the Respondents is an insufficient basis to grant an extension of time.[24] I consider this factor to be neutral.
Section 366(2)(d) - Merits of the Application
In Kornicki v Telstra-Network Technology Group,[25] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
Without a proper assessment of all the evidence in this matter, this is a neutral determination.
Section 366(2)(e) - Fairness as between the Applicant and other persons in a like position
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[26]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am satisfied that the requisite exceptional circumstances exist in this matter.
Pursuant to section 366(2) of the Act, the extension of time is granted. The Applicant’s Application will be progressed by way of a conference at a time and date to be advised. I Order accordingly.
DEPUTY PRESIDENT
[1] Birchall, ‘Outline of Argument’, Submission in Guy Birchall v Nauru Air Corporation, C2022/2312, 6 June 2022, 2 [1].
[2] Ibid 2 [2].
[3] Ibid 2 [3].
[4] Ibid 2 [4].
[5] Ibid 2 [5]–[6].
[6] Ibid 2 [7].
[7] Ibid 2 [8]–[9].
[8] Ibid 2 [10].
[9] Nauru Air Corporation, ‘Statement of Robert Grealy’, Submission in Guy Birchall v Nauru Air Corporation, C2022/2312, 6 June 2022, 2 [12]–[14].
[10] Birchall (n 1) 2 [11].
[11] Ibid 3 [12]
[12] Ibid 3 [13]–[14].
[13] Nauru Air Corporation, ‘Respondent’s Outline of Submissions opposition to a further period to make application’, Submission in Guy Birchall v Nauru Air Corporation, C2022/2312, 30 May 2022, 2 [11].
[14] Nauru Air Corporation (n 13) 2 [14].
[15] Ibid 2 [15].
[16] Ibid 3 [16].
[17] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[18] [2019] FWC 25.
[19] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[20] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[21] [2018] FWCFB 901.
[22] Brodie-Hanns v. MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[23] Cowie v State Electricity Commission of Victoria [1964] VR 788.
[24] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299‒300.
[25] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[26] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].
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