Hong Looi v Randstad
[2020] FWC 1392
•16 MARCH 2020
| [2020] FWC 1392 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hong Looi
v
Randstad
(U2019/12161)
| DEPUTY PRESIDENT LAKE | BRISBANE, 16 MARCH 2020 |
Application for an extension of time – unfair dismissal – waiver lodged prior to F2 – waiver not considered a substantial application – application therefore out of time – extension of 6 days not granted – no exceptional circumstances.
Background
This decision concerns an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) by Mr Hong Looi (the Applicant). Randstad (the Respondent) has raised two jurisdictional objections, claiming that the Applicant did not lodge his application within the designated time frame and that he did not serve the minimum employment period. A hearing was held on 19 February 2020 to determine the question of whether an extension of time should be granted. The issue of the minimum period of employment has not yet been heard, except briefly as a consideration of whether an extension should be granted, as required under s 394(3)(e).
There is some discrepancy as to when the Applicant was employed. According to the Applicant he was employed on 28 September 2018, while the Respondent states he was employed on 8 April 2019. This appears to be due to the fact that the Applicant began in one role with the Respondent in September of 2018 until 28 November 2018 and then, on the evidence provided, had a second period of employment from April 2019 to September 2019. However, the Applicant was clearly an employee of the Respondent, which conducted a labour hire organisation.
The Applicant was employed as a Groundsman at the Queensland Police Academy (QPA) prior to his dismissal. He was notified of his dismissal on 11 September. The Applicant then had 21 days (until 2 October 2019) to file an application.
On the Applicant’s evidence, after receiving notice of dismissal he contacted Annabelle Newton at the Queensland Human Rights Commission and they passed on the Applicant’s claim to Legal Aid Queensland. Relevantly, on 2 October at 10:35pm, the Applicant lodged his ‘Form F80 - Waiver of Application Fee’ (F80). Less than 12 hours later, on 3 October at 9:49am the Registry confirmed receipt of only the F80, stating that ‘The material that you have provided does not constitute a valid application.’
On 9 October a completed F2 was lodged. The first question which must be addressed is whether the F80 can be considered a valid application for an unfair dismissal. If the F80 is valid in place of the ‘Form F2 – Application for Unfair Dismissal’ (F2), then the Applicant lodged within time and the claim can proceed on its merits.
The alternative is that the F80 does not constitute a valid application. If this is the case, then the Applicant must be able to explain the 6 day delay between 2 October 2019 and 9 October 2019, before his application can be assessed on its merit.
Can a F80 waiver be considered a valid application?
The Full Bench recently decided the date of filing was considered to be the date upon which an incomplete form has been submitted.[1] In that case, the form submitted was the correct form, but it was missing the first three pages. In finding the incomplete form to be sufficient, the Full Bench in Arch drew on the analogous situation where an incorrect form had been filed within time, considering that to be sufficient:[2]
[31] A similar issue was dealt with in the Full Bench decision in Hambridge v Spotless Facilities Services Pty Ltd, where concerned a situation where a dismissed employee attempted to file an unfair dismissal remedy application but used the wrong form in doing so. The Full Bench said:
[26] … The Commission is required by s.577(b) to perform its functions and exercise its powers in a manner that is ‘quick, informal and avoids unnecessary technicalities’. In this case, that requirement would operate to direct the Commission to look at the substance of the first application, not the form that happened to be used to make it. In substance, we consider that it was an unfair dismissal application: it was intended to be one, it was described as one in Mr Hambridge’s covering email, and its contents were concerned with contentions of unfairness in the dismissal rather than any cause of action for a contravention of Pt 3-1 of the FW Act. It must be acknowledged that Mr Hambridge attempted in the first application to respond to requests and questions concerning the general protections provisions of the FW Act, but it is apparent that he did so in an endeavour to complete a form which he understood at the time to be for an unfair dismissal remedy application.
[32] An examination of the substance, as distinct from the form, of what Mr Arch did on 22 May 2019 makes it clear that he lodged a general protections dismissal application. We have described the documents which Mr Arch lodged on 22 May 2019. In short, he electronically filed a partial Form F8 missing (we presume by accident) the first three pages. The partial document leaves no room for doubt that it was intended to be a general protections dismissal application. Although, because of the missing pages, the document did not identify the respondent or the dismissal the subject of the application, the accompanying documents (in particular the termination letter) made it clear that the application concerned Mr Arch’s dismissal from his employment with IAG on 30 April 2019.
[33] We have set out the chronology of what followed in some detail above. It is clear that the Commission’s registry immediately proceeded on the basis that Arch had filed a general protections dismissal application on 22 May 2019. It was recorded as such on CMS and assigned a matter number. The following day, the Commission obtained from Arch the prescribed filing fee for a general protections dismissal application and informed IAG in writing that it had received such an application in respect of Arch’s former employment with IAG. Subsequent advice to Mr Arch about the need for him to provide a complete Form F8 proceeded, as we have earlier set out, on the express premise that Mr Arch had filed a general protections dismissal application on 22 May 2019, albeit an incomplete one. Arch was repeatedly advised by the Commission that if he did not file a completed document, he was at risk of having his application dismissed – advice that was premised on there being an extant application capable of being dismissed. He was never advised (prior to the decision) that the Commission did not regard him as having filed an application for the purpose of s 366 on 22 May 2019 with the consequence that time was still running for the purpose of that provision. In the circumstances described, it would be unconscionable for the Commission to subsequently proceed on the basis that Mr Arch did not file any application for the purpose of s 366 until 4 July 2019.
(emphasis added)
The substance of the Form F80
First, as outlined in Hambridge v Spotless Facilities Services Pty Ltd, we must look to the substance of the application.[3] An incomplete or incorrect application will still have a degree of salient information regarding a dismissal, or the conduct of the parties which led to the filing of the application. This will vary depending on the application, but in the case of Arch, the partial documents left ‘no room for doubt that [the application] was intended to be a general protections dismissal application.’
This cannot be the case for a F80. The form does not detail the Respondent, the type of application, any facts which have led to the purported conduct of the employer, or even the allegations of the Applicant. The entirety of the substance provided by the Applicant in their F80 can be summarised in the first 6 words of Question 1: ‘Since the termination of my job…’
The F80 is, correctly, entirely concerned with the financial situation of the Applicant. The purpose of a F80 is to assess if any financial hardship would be incurred if the Applicant forced to pay the filing fee – if financial hardship is found then an applicant is not required to pay the associated fee in lodging an application. The F80 does not detail the substance of an applicant’s claim, or even outline what claim an applicant is making, nor does it detail any contentions of unfairness. In this regard, it is materially different to an incomplete or incorrect application – it is substantially deficient and devoid of meaningful content.
One cannot be sure what the intention of the Applicant was in lodging such a form as it provides no context or any constructive information, except that the Applicant wishes to have the fee regarding their application waived. It notifies the Commission that there should be an application on foot, but nothing more. The F80 is designed to supplement an application under the Act – alone it provides very little detail to the Commission and this makes it substantially distinct from an incorrect, but otherwise fulsome form, which could be treated as an application. Further, upon lodgement of the F80, no notification is sent to the Respondent, meaning they are not notified of an impending claim against them.
The conduct of the Commission
In Arch, the Commission Registry ‘immediately proceeded on the basis that Mr Arch had filed a general protections application.’ This is evidenced by the two actions. First, the creation of a CMS file, indicting that an application was on foot. Second, correspondence to Mr Arch that he needed to provide a completed form, otherwise he was at risk of his application being dismissed – the corollary of which is that the Commission considered there to be a valid application in existence.
The current case is noticeably distinct. The Applicant lodged his F80 on 2 October at 10:35pm and on 3 October at 9:49am, was sent the below email:
Dear Mr Hong Kok,
On 3 (sic) October 2019 the Fair Work Commission (the Commission) received the attached email from you with a waiver application only. The material that you have provided does not constitute a valid application under the Fair Work Act 2009 (Cth) as you have not attached a completed application form.
To lodge an application you are required to lodge the appropriate form. Forms can be found on the Commission’s website at you wish to lodge an application you should urgently contact the Commission or provide a completed copy of the application form you wish to lodge.
Please be aware that some applications must be lodged within specific timeframes. Applications lodged outside of these timeframes may be dismissed.
To discuss this matter further you should contact the Commission on 1300 799 675 or reply directly to this email.
Kind regards
…
(emphasis present in the original)
The email above makes it abundantly clear that at no point did the Commission consider the F80 to constitute a valid application. This is expressly stated. The Applicant is also directed to the appropriate form and is instructed to contact the Commission urgently if he wishes to do so. This position is only strengthened by the fact that the Applicant did not have a file created in CMS until 9 October, when he lodged his F2.
On this analysis, I consider the lodging of an F80 does not constitute a valid application. There are significant differences between the cases which indicate that it would be incorrect to consider a F80 synonymous with an incomplete or incorrect application. The F80 lacks any factual substance and it does not particularise any claim, let alone a claim for unfair dismissal: it is not an application before the Commission and the Registry treatment reflects this, with the Applicant being clearly informed within 12 hours of lodging that it did not constitute a valid application. At best it notifies of an intention to make a claim, but in the absence of further material, I believe it is inadvisable to allow the ambit of what constitutes a valid application to be drawn so broadly.
Therefore, the date of lodgement is considered to be 9 October 2019 and the Applicant must demonstrate exceptional circumstances to explain the 6 day delay between 2 October and the date of lodgement.
Should an extension be granted?
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 2 October 2019. The Applicant was therefore 6 days late. The Applicant asks the Commission to grant a further period for the application to be made.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances.’ The meaning of this expression was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty), where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[4] The Full Bench also noted that 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 can be considered exceptional.
The decision in Nulty concerned the expression ‘exceptional circumstances’ in the context of s 365 of the Act however its reasoning is also applicable to s 394(3).[5] Section 394(3) requires the Commission to consider the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Reason for the delay
The Act does not indicate what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or reasonable explanation.[6] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd a Full Bench noted that the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[7]
The Applicant could attempt, although he did not, to explain the period prior to 2 October by stating that he was under the impression that all he needed to do was lodge his F80 and that he did so within the appropriate time frame. While I am not convinced this would be sufficient, even if it was, the Applicant would still need to explain the period after 2 October 2019 when he was notified that his application was invalid.
The Applicant during the hearing could only state that he had ‘tried his best,’ but ‘had to look after his two children.’ While I acknowledge that he tried his best, the test set out under the Act requires extraordinary circumstances and caring for one’s children would sit firmly in the realm of ordinary. This does not adequately explain the period after notification by the Commission that the F80 did not constitute a valid application. I consider this factor to weigh against the Applicant.
When the person became aware of the dismissal after it had taken effect
On the evidence provided by the Applicant he became aware on the same day the dismissal took effect. He had the full period of 21 days to lodge his application. I consider this a neutral factor.
Action taken to dispute the dismissal
Any action taken by an employee to contest the dismissal, other than other than applying under the Act, can be treated as favourable for the purposes of granting of an extension of time.[8]
The Applicant outlined the steps he took to dispute the claim prior to lodging in the Commission:
· On 11 September 2019, the Applicant emailed Anabel Newton at Queensland Human Rights Commission (QHRC) to seek support on the unfair dismissal, as he was unaware of where to file his claim;
· On 16 September 2019 he sent material to Legal Aid regarding the unfair dismissal; and
· On 24 September, the Applicant had a phone meeting with Legal Aid. By email they gave advice to the Applicant that he would need to lodge a Form F2 in the Commission by 2 October 2019.
The Applicant has clearly sought to pursue the claim, having contacted the QHRC within 24 hours of his dismissal. He then sought advice from Legal Aid which directed him to the Commission. While the action in the QHRC may be considered a ‘pursuit of an alternative avenue of redress,’ I do consider that this action does weight positively in favour of the Applicant. [9] These actions also influence the reason for delay and weight positively in explaining the reason for the Applicant’s delay in lodging in the Commission, up until 24 September 2019.
Prejudice to the employer
Neither the Respondent, nor myself identified any prejudice to the employer due to the delay. It should be noted that the conduct engaged in by the Applicant prior to lodging in the Commission would not have notified the Respondent of the impending dispute. The same can be said of lodging the F80. I consider this factor to be neutral.
Merits of the application
The merits of this case have not been the subject of a hearing and therefore have not been fully explored or tested. Therefore, I will consider them neutral in my consideration of this extension of time application. However, I will note that this claim is also subject to a further jurisdictional objection by the Respondent, who alleges his period of employment between April 2019 and September 2019 does not meet the minimum employment period threshold of 6 months under s 383(a) of the Act.
Fairness as between the person and other persons in a similar position.
I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
I do not consider that the F80 waiver form constituted a valid application. While the Commission must conduct itself in a manner that is ‘quick, informal and [that] avoids unnecessary technicalities,’ a distinction must be drawn between pointless technicality and necessary procedure.
The Applicant needed to provide sufficient reasons for an extension of time to be granted. On the facts at hand, I am ultimately not persuaded that the Applicant has demonstrated exceptional circumstances sufficient to warrant an extension of time.
The application is dismissed.
DEPUTY PRESIDENT
<PR717528>
[1] Shane Arch v Insurance Australia Group Services Pty Ltd[2020] FWCFB 601.
[2] Ibid, [31]-[33].
[3]
[4] [2011] FWAFB 975. See the recent decision of Deputy President Coleman in Matthew Simari v Australian Aged Care Group Pty Ltd[2020] FWC 403, for his analysis of Nulty, which I have adopted.
[5] Matthew Simari v Australian Aged Care Group Pty Ltd[2020] FWC 403, [6].
[6] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9] (Gostencnik DP); Roberts v Greystanes Disability Services [2018] FWC 64, [16] (Hatcher VP).
[7] [2018] FWCFB 901, [39].
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[9] Ibid, 300.
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