Harley Bartel v Podium Hair and Beauty Pty Ltd

[2015] FWC 2689

[2015] FWC 2689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harley Bartel
v
Podium Hair and Beauty Pty Ltd
(U2015/3960)

COMMISSIONER SPENCER BRISBANE, 18 MAY 2015

Application for relief from unfair dismissal - jurisdictional objection - out of time - no exceptional circumstances - confirmation of actual employment of anticipated further engagement does not justify delay - application dismissed.

Introduction

[1] This decision relates to an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Harley Bartel (the Applicant) who alleged that the termination of his employment with Podium Hair and Beauty Pty Ltd (the Respondent) was harsh, unjust and unreasonable.

[2] The Respondent filed a Form F3 (Employer’s Response) making a jurisdictional objection, on the basis, that the Applicant had failed to make the application within 21 days, as required by the Act.

[3] Pursuant to s.394(2)(a), the application must have been made within 21 days, after the date the dismissal took effect. In this matter, the dismissal took effect on 4 February 2015 and the application was filed on 16 March 2015. Therefore, the application was filed 19 days out of time.

[4] The Applicant was represented by his mother, Mrs A Bartel. The Respondent, at the hearing, was represented at by Mr M Swan and Mr S Rinkevich of the Australian Industry Group (AIG).

[5] At the Directions conference the “exceptional circumstances” test was explained to the parties and the Applicant was advised that the material he had filed to date would be considered. Both parties sought to file further material.

[6] Directions were set for the filing of further submissions and evidence in relation to the jurisdictional objection. The Applicant and his mother, Mrs Bartel, who assisted him, provided a letter in response to the directions, which included an alleged statement of service from Ms K Isaac, the owner of the Respondent.

[7] The Respondent filed material in response, and submitted that the Applicant had provided a false copy of the statement of service in his material. The Applicant filed a brief submission in reply, attaching the statement of service that was provided by the Employer to the Applicant, which was different to the version, previously provided, by the Applicant, to the Commission.

[8] The Directions required the parties to confirm whether they consented to the jurisdictional objection being decided on the papers. Neither party objected to the determination on the papers or sought that the Commission convene a hearing in the relation to the objection. However, the Full Bench Decision in Lewis v Altus Traffic Pty Ltd  1 dealt with the issue of procedural fairness, where a matter involved contested facts and referred to s.397 of the Act, which states:

“397 Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.”

[9] The Full Bench concluded that a hearing must be held in such circumstances.

[10] Accordingly, after consideration of the initial written submissions and the above Full Bench decision, a hearing by telephone (given the location of the parties in Townsville) was proposed and agreed to by the parties. The hearing, which was conducted on 30 April 2015, was recorded. The Applicant had provided limited written submissions and the Applicant and his mother provided further submissions at the conference. The Respondent was given an opportunity to respond. Predominantly, the material provided at the hearing further confirmed the matters already before the Commission. The parties were able to fully exhaust any submissions they sought to make.

[11] Whilst not all of the submissions are referred to in this decision, all have been considered in making the determination.

Relevant Provisions of the Legislation

[12] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

Summary of Submissions for the Applicant - Extension of Time

[13] The Applicant was an apprentice hairdresser at the Respondent’s salon. The Applicant submitted that his application was not filed within the 21 day period, because the Respondent had advised the Applicant that his employment was no longer required, due to business reducing at the salon, and that the Respondent could no longer afford to maintain his employment.

[14] The Applicant submitted that, on 4 February 2015, he was asked by the Respondent to return to the salon, where he was met by Ms Isaac, salon owner, and another senior hairdresser. The Applicant stated that he immediately thought that he may have done something wrong, but could not think of anything, as he had never received any warnings, and considered he had always worked hard and been punctual. The Applicant further stated that he had always received positive comments from clients, trainers and other staff. The Applicant submitted that he was advised that he was being “let go”, because the Respondent “couldn’t afford to keep him on because there were too many apprentices in the salon”.

[15] The Applicant submitted that he thought that, if the Respondent could not afford to pay him, there would be nothing he could do to challenge that fact.

[16] The Applicant contended that, subsequent to these events, he had a discussion with a friend, who said to him that the Respondent had proceeded to employ two new staff. The Applicant explained, that the Respondent had previously advised staff about hiring two new staff approximately one week prior to his dismissal. The Applicant further stated that it was after learning of this fact (that the Respondent had hired additional staff) that he had realised that he may have a case for unfair dismissal, although the 21 days had already passed.

Summary of Submissions for the Respondent - Extension of Time

[17] The Respondent refuted the Applicant’s claims, that he was dismissed on the basis of financial hardship, by the Respondent. The Respondent submitted that, the Applicant was dismissed for reasons of underperformance, and that the issue of his underperformance was discussed with the Applicant, in a meeting held in September 2014, where the Applicant was told his job was in jeopardy, if he did not improve.

[18] Ms Isaac described the dismissal in her witness statement, stating that, she had said to the Applicant, “Myself and other senior staff have asked you to get head blocks out and do training when it is quiet but you have not shown any effort.”..... “I can’t afford to keep you on if you aren’t performing and aren’t willing to progress.” Ms Isaac claimed she then asked if the Applicant had anything else he wanted to say. She stated, he asked for a haircut and Ms Isaac agreed that another staff member, Ms Jarrett would cut his hair. Ms Isaac said she had informed the Applicant, that his employment was terminated effective that day (4 February 2015), and that he would be paid two weeks wages in lieu of notice.

[19] Relying on the principles relating to exceptional circumstances in Nulty v Blue Star Group Pty Ltd, and Lees v Container Cargo Specialist[2015] FWC 2004, the Respondent submitted that while the parties are in dispute as to the reason for the termination, this dispute cannot be said to be “unusual”, “special”, or an “uncommon occurrence”.

[20] With regards to the Applicant’s submission that the salon hired two new employees from overseas, one being a first year apprentice, the Respondent submitted that its new staff are both from interstate, and neither is a first year apprentice. It submitted further that it can be gathered from the Applicant’s own statement, that the information about the employment of the two new employees was available to the Applicant, at the time of his dismissal.

[21] The Respondent argued that because the Applicant knew of those facts, at the time of his dismissal, those facts are not capable of making any justification as to the delay in time, or when he could reasonably have made his application. The Respondent argued the fact that the Applicant believed differently about the timing of the two new employees commencing employment, (this being an assumption on his part), does not mean this constitutes an “unusual”, “special” or “uncommon occurrence”.

[22] In relation to the Applicant’s statement, “I didn’t think she would go ahead and put them on now” (referring to the employment of the two new employees), the Respondent submitted that this was also an assumption on the part of the Applicant; there was no information provided by the Respondent to the Applicant, that the two new employees would not be commencing employment, as previously advised to the Applicant, at the team meeting on 21 January 2015.

[23] The Respondent submitted that the Commission should be guided by the statement of the Full Bench in the recent Decision of Halls v KR and KM McCardle and Sons Pty (when considering the term “exceptional circumstances” contained in section 366(2) of the FW Act), that: “the test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension”.  2

[24] The Respondent also cited Commissioner Gregory’s reference to Commissioner Thatcher’s statement from Prasad v Alcatel-Lucent Australia Ltd 3, in his decision in Sharkey v TRUenergy T/A TRUenergy Pty Ltd:

“It should be clear from the case law I have cited that the making of a s.394 application out of time should not be regarded as presenting the applicant with some mere technical problem. Rather s.394(2) is a substantive legislative provision which represent the legislature’s judgement that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the period may often result in a good cause of action being defeated.” 4

[25] The Respondent submitted that the Applicant has not discharged its burden to demonstrate that “exceptional circumstances” exist, so as to warrant the Commission to exercise its discretion, to grant an extension of time.

Consideration

[26] The Act requires the Commission to be satisfied that there are ‘exceptional circumstances’ in order to extend the period of time for a person to make an unfair dismissal application.

[27] In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 5 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)6 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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.” 7

[28] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[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.” 8

[29] In considering an application for an extension of time I must be satisfied that there are “exceptional circumstances” taking into account those matters in s.394(3) of the Act. Each of those criteria is considered below.

s.394(3)(a) - the reason for the delay

[30] The Applicant submitted that the application was not filed within the 21 day period because the Respondent had advised the Applicant that his employment was no longer required due to business levels at the salon, being slow, and that therefore the Respondent could no longer afford to maintain his employment. The Applicant submitted that he thought that if the Respondent could not afford to pay him, then there was nothing he could do to challenge that fact. The Applicant stated he later learnt, (after the 21 day period had lapsed) that the Respondent had engaged two further staff, shortly after his dismissal. Therefore he concluded that the Respondent’s alleged reasoning for dismissal, of the inability to pay him, was not true.

[31] The Respondent submitted that the Applicant admitted, in his own application and submissions, to knowing about the employment of the new employees prior to his dismissal, and therefore this did not explain the reason for the delay in filing the application. The Respondent further submitted that the Applicant also admitted he had discussed the potential to lodge an unfair dismissal application, with his mother, immediately after his employment was terminated. 9

[32] In relation to the Applicant’s attempt to explain part of the period of the delay from, 11 March 2015 to 16 March 2015, as being due to his mother being on holiday. The Respondent stated that no evidence has been put before the Commission to substantiate this, and that the Applicant acknowledged in his statement being able to contact his mother and discuss the matter with her during this period. Additionally, the Respondent submitted that the Applicant is 18 years old and has not provided information, as to why he was unable to complete the application himself.

[33] The Respondent further submitted, that the Applicant did not sufficiently explain the reason for the delay. Whilst the Applicant stated he became aware of the actual employment of the new employees after the dismissal, he was aware at the time of his dismissal, that the Respondent had communicated these additions to the staff.

s.394(3)(b) - whether the person became aware of the dismissal after it had taken effect

[34] The Applicant was verbally advised after a meeting on 4 February 2015 that his employment was terminated with effect on the conclusion of work that day. This fact is not in contention between the parties.

s.394(3)(c) - any action taken to dispute the dismissal

[35] The Applicant did not provide evidence of his intention to dispute the dismissal within the 21 day period. The basis of the Applicant’s later reasoning for challenging the dismissal, regarding the proposed additional employment by the Respondent, was known by him at the time. It is recognised that he stated he became aware of their actual employment at a later stage, however, this had been advised to him prior to his dismissal. No enquiry or action had been taken by the Applicant, with the Respondent during the 21 days to dispute the dismissal. The Respondent’s communication to employ additional staff to the Applicant, contradicts the Applicant’s contention that his termination was due to the Respondent’s financial accounts.

s.394(3)(d) - prejudice to the employer

[36] The Applicant did not make any submissions on this criterion.

[37] The Respondent submitted that it is a small business employer, with 7 employees, located in regional North Queensland, and it would be prejudiced by the time, resources and expenses associated with having to respond to the s.394 application in a hearing. It noted further that 4 of its employees would be required to attend a hearing, and that its business would therefore be unable to service clients or generate income for the duration of a hearing, which would significantly prejudice the Employer.

s.394(3)(e) - the merits of the application

[38] The Applicant did not make submissions on this criterion.

[39] The Respondent submitted that the Commission should have regard to the Applicant’s conduct and character throughout these proceedings in regards to both the merits of the application and in terms of whether to grant an extension. The Respondent stated that this conduct included the Applicant filing a reference letter he purported was prepared by Ms Isaac, but Ms Isaac disputed this in her witness statement, stating it was not the reference she provided, and that it had clearly been altered, to the Applicant’s advantage.

[40] The Applicant and his mother conceded they had altered the reference to make it more favourable to the Applicant. They argued it was not intended for use and stated the incorrect version had been mistakenly provided to the Commission. This conduct has been considered in terms of the credit of the Applicant. However, it has also been considered that no written warnings regarding the Applicant’s performance had been provided. These merits matters would require the testing of sworn evidence.

s.394(3)(f) - fairness as between the person and other persons in a similar position.

[41] The Applicant did not make submissions on this criterion.

[42] The Respondent submitted it would be unfair to grant an extension of time, given that no exceptional circumstances, have been identified. No other persons, in a similar position were identified.

Conclusion

[43] Predominantly, the Applicant’s case for an extension of time was that he had been informed that the Respondent communicated financial hardship, as the reason for the dismissal.

[44] The Respondent denied this and submitted the Applicant’s underperformance had led to the dismissal and the finalisation of the Applicant’s apprenticeship, with the business. The Respondent conceded that written warnings had not been provided, but that a meeting had been held in September 2014, where it was communicated, to the Applicant, that his job was in jeopardy if his performance did not improve. The Applicant denied that performance reasons were provided at the time of termination.

[45] The Applicant had been employed for just over one year and was paid two weeks’ notice on termination. No severance was paid as the Respondent stated that the Applicant’s job had not been made redundant, simply that he was no longer required given his lack of improvement and poor attitude to training.

[46] In terms of the reasons for the late filing, the Applicant recognised that, at the time of the dismissal, there was information known to him, that the Respondent had stated she was employing two other employees. This was included by the Applicant in his written application. However, he stated that, at the time of the dismissal, these employees had not been employed.

[47] Further, the Applicant stated that it was not until 11 March 2015, that he became aware that the two new employees had commenced with the Respondent and that he was able to confirm such with the salon, and by that time the application was out of time.

[48] The Applicant stated that he waited to file the application until his mother returned to assist him with the paper work involved. The application was filed on 16 March 2015. Given that the Applicant was aware, at the time of the dismissal, of the Respondent employing further employees and further, that he took issue with his termination at that time, it was open to him to make the application at that time within 21 days. No other reasoning was advanced as an impediment to the Applicant making the application.

[49] As stated, no other significant reasons were provided to account for the delay. The Applicant considered that the unfairness of his dismissal materialised at the time he became aware of the further engagement of these two employees, as the Applicant previously considered that, given that he understood from the comments at the final meeting that his termination had occurred on the basis of financial hardship and the ability of the Respondent to continue to pay him, he could not challenge his dismissal. His reasoning is illogical given he was aware, at the time of the dismissal, that the Respondent had planned to employ the other employees. Accordingly, it was open to him at that time to file an application.

[50] The reasons for the delay set out above do not meet the ‘exceptional circumstances’ test in s.394(3) of the Act. It is the Applicant’s own submission that he was made aware that the Respondent was hiring two additional staff during the week prior to his dismissal. That the Applicant only considered his dismissal to be unfair at the time of him learning that two additional staff had commenced, does not constitute ‘exceptional circumstances’ within the meaning of the Act. The Applicant was not prevented in any way from making an application to the Commission within the requisite timeframe.

[51] Having considered all the matters raised by the Applicant, there is a lack of reasoning and evidence to meet the ‘exceptional circumstances’ test. In accordance with the aforementioned reasons, an extension of time pursuant to s.394(2)(b) cannot be justified, and on that basis, the application made pursuant to s.394 must be dismissed.

[52] I Order accordingly.

COMMISSIONER

 1   Lewis v Altus Traffic Pty Ltd[2015] FWCFB 259.

 2   Halls v KR and KM McCardle and Sons Pty[2014] FWCFB 9020 at [5]

 3   Prasad v Alcatel-LucentAustralia Ltd[2010] FWA 7804

 4   Sharkey v TRUenergy T/A TRUenergy Pty Ltd[2012] FWA 6298

 5  Wheelan C, [2009] FWA 1638, [30] and [31].

 6   Lawler VP, [2010] FWA 1394.

 7   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 8   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 9   Statement of Harley Bartel dated 24 March 2015

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