Hunter Richard Curtis v WFL Equipment Pty Ltd
[2023] FWC 348
•14 FEBRUARY 2023
| [2023] FWC 348 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hunter Richard Curtis
v
WFL Equipment Pty Ltd
(U2023/281)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 14 FEBRUARY 2023 |
Application for an unfair dismissal remedy – extension of time – discretionary considerations – no exceptional circumstances – application dismissed
On 10 January 2023 Hunter Curtis (Mr Curtis or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to an alleged termination of employment by WFL Equipment Pty Ltd (WFL or the employer) which took effect on 19 December 2022.
WFL filed a response on 31 January 2023.
Mr Curtis’s application was made twenty-two days after the alleged dismissal took effect, being one day beyond the twenty-one day statutory time-limit. For the application to proceed it requires an extension of time. Mr Curtis seeks that extension.
This decision deals with whether an extension should be granted.
I issued directions on 1 February 2023.
Materials were filed by Mr Curtis and by WFL.
I conducted a hearing by video on 10 February 2023.
Mr Curtis gave evidence. Both parties made submissions.
Following the hearing I reserved my decision.
Facts
I make the following findings.
WFL operates in the transport and logistics industry.
Mr Curtis commenced employment as a fabrication assistant at Warwick, Queensland on 1 March 2021.
Resignation
On 19 November 2022 Mr Curtis completed a pro forma resignation. His reason for resignation was stated as “disagreement”.
Mr Curtis did not work out his notice of resignation. He left immediately.
Mr Curtis received his final pay the following week.
Approximately two weeks after his resignation, WFL invited Mr Curtis to attend an exit interview. Mr Curtis declined.
New employment
Mr Curtis secured new employment on the day of his resignation but did not commence immediately.
His new employment was as a feed truck driver in Mugindi on the Queensland/New South Wales border where his parents lived, some 400km from Warwick.
Mr Curtis remained in Warwick over Christmas and until the 2023 new year. He commenced his new employment on 3 January 2023.
From 3 January 2023 Mr Curtis worked driving trucks. He commenced at around 5.30am and finished daily shifts early to mid-afternoon (2.00pm to 3.00pm). After each shift he drove some 30 minutes back to his (parents) home in Mugindi.
Relocation
On 2 January 2023 Mr Curtis drove from Warwick to Mugindi where he relocated to his parents’ home.
Dismissal application
At the time of his resignation and following, Mr Curtis considered that he had been treated unfairly. He says he was forced to resign because he was told that if he was not willing to move to a different area, he could leave. The employer disputes this. The employer says that a week earlier Mr Curtis had asked to be transferred to a different area and was not forced to resign.
In around Christmas 2022 Mr Curtis researched his employment rights. He continued to do so once relocated to Mugindi. He came to be aware of the right of an employee to claim unfair dismissal for a forced resignation.
By 7 January 2023 Mr Curtis decided that he would make an unfair dismissal claim.
On 7 January 2023 Mr Curtis told his mother that he had decided to make a claim and asked for her help in completing the application.
On 7 and 8 January 2023, after his work shift, Mr Curtis and his mother worked on populating his unfair dismissal form. It was completed in his mother’s handwriting.
Whilst working through the application form, Mr Curtis noticed that it required claims to be made within 21 days of a dismissal taking effect. In answer to question 1.6 of the application form, Mr Curtis’ mother wrote that the application was being filed within 21 days. At that time (7 or 8 January) the 21 day limit had not been reached. Mr Curtis did not calculate when the 21 day limit would be reached. Somewhat confusingly, Mr Curtis’ mother also wrote “public holidays apply” in answer to the question why the application was not filed within 21 days.
By the time Mr Curtis returned from work mid-afternoon on 9 January 2023 the application form was awaiting his signature. Mr Curtis signed and dated the form. He did not send it to the Commission. He left that to his mother. He did not discuss with his mother when she would do so or the urgency of the need to do so.
At 7.18pm the next day, 10 January 2023, Mr Curtis’s mother emailed the unfair dismissal application to the Commission.
Mr Curtis was not aware that his application was filed one day late until contacted by the Commission on 18 January 2023.
The employer filed a response on 31 January 2023.
Submissions
Mr Curtis seeks an extension of time. He says that the circumstances were exceptional.
He relies on three reasons for the delay:
· Public holidays;
· Relocating to commence new employment; and
· Working long hours.
In response, WFL contend that no jurisdiction exists because the application is out of time and because Mr Curtis was not dismissed.
On the out of time issue, WFL submit that none of the reasons advanced constitute exceptional circumstances and that Mr Curtis’s prospects in the litigation are poor given the jurisdictional issue.
However, WFL says that it has no hard feelings towards Mr Curtis, considered him a good employee and would be willing to have him working back in Warwick.
Consideration
The first observation that I make in considering this matter is to note that it was a pleasure to have Mr Curtis and the employer representatives appear before me. Unlike many other matters before me, neither put any gloss on their position, Mr Curtis was as honest as the day is long, and each were cordial to the other and the Commission.
That said, this matter is to be determined on the evidence and according to law, not by pleasantries.
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
Being one day out of time, Mr Curtis’s application can only proceed if he establishes that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[1]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[2] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[3]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[4]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[5]
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[6] The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.[7]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[8] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[9]
I now deal with each of the reasons advanced by Mr Curtis.
Public holidays
Five public holidays fell between the date employment ceased and the filing of the application (Christmas Day, Christmas Day observance, Boxing Day, New Year’s Day and New Year’s Day observance). However, none fell in the six days prior to 9 January 2023 (the twenty-first day after employment ceased), nor on the day of lodgement. The public holiday most temporal to the date lodgement was required was the New Year’s Day observance on 2 January 2023.
All of the public holidays that fell were known and predictable.
This is not a matter where the twenty-first day was a public holiday and where, as a result, the law[10] permits filing on the day following as if such filing had occurred the day prior.
There is no evidence that Mr Curtis was impaired in ascertaining his rights or taking action to complete or lodge his unfair dismissal claim on account of the public holidays.
The existence of public holidays in the period following Mr Curtis’s employment ceasing presents no reasonable explanation for the delay.
Relocation
Mr Curtis relocated from Warwick to Mugindi on 2 January 2023. He did so to take up his new employment.
The relocation occurred over one day (2 January 2023). In the two weeks prior Mr Curtis had opportunity to advance his interests by acquiring information about his rights. This he did. The imminent relocation did not preclude him from doing so.
In the week following relocation Mr Curtis continued to explore his rights and make a decision to lodge a claim. This he did. The fact of relocation having occurred did not preclude him from doing so.
At best, relocation took Mr Curtis out of circulation in pursuing his employment rights for one day of the 21-day period. Mr Curtis was not in the act of relocating in the delay period or in the six days immediately prior.
Whilst relocating from one town to another no doubt involved time and effort, it was known to Mr Curtis as necessary to take up the new employment he had accepted at the time of his resignation.
The fact of relocation presents no reasonable explanation for the delay.
Working long hours
In his new role Mr Curtis worked daily from 5.30am until mid-afternoon. He did not work every day of the twenty-two days after his employment ceased. His new employment did not commence until day fourteen after his resignation took effect.
Nor did his new work from 2 January 2023 prevent him from considering his rights. Whilst in the week prior to filing his application the new employment occupied nine or ten hours per day, he had time in late afternoons and early evenings to advance his interests, and did so.
Mr Curtis signed an application form on 9 January 2023 (day 21) but left it to his mother to submit that form. She did so the next day, which was a day late. If Mr Curtis had been attentive to his interests he would have either not left it to the last day or, having done so, recognised the urgency of the moment and ensured that either he or his mother sent the form electronically that day or evening. This he did not do despite being aware of the 21-day rule given that question 1.6 had been read and completed in the days immediately prior.
Working long hours does not explain the late lodgement of the application. It is not unusual that an employee, upon leaving one job, has to adjust to a different employer, different role or different working arrangements in a new job. Doing so is usual and the late lodgement of his unfair dismissal claim is not reasonably explained by the requirements of Mr Curtis’ new job.
Considered overall, the explanations for the delay neither individually nor collectively weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Mr Curtis decided on 19 December 2022, when he resigned, that his employment would end that day.
That Mr Curtis was well aware of his employment ending and of the reason for his resignation makes this a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
Mr Curtis alerted the employer to his sense of unfairness by referring in his resignation letter to a “disagreement”. This indicated some unhappiness with the events leading to resignation but was not, of itself, notice that dismissal was alleged or would be disputed. It was notice of a resignation arising from a disagreement, no more, no less.
By declining an exit interview, Mr Curtis did not take up an opportunity where he may have put the employer on more specific notice.
This is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[11]
There is no material prejudice to WFL by having to defend a late claim.
A claim would have to be responded to, involving time and cost. However, that prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not of itself be a reason to grant an extension.[12]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would concern a further jurisdictional question, whether Mr Curtis was forced to resign within the meaning of the FW Act such that his resignation was a dismissal.
If and only if he was so dismissed, would the Commission then consider whether the overall circumstances were unfair.
I have not heard evidence relating to the alleged “disagreement” and there appears to be contested versions of relevant facts. Not having probed these matters, it is not possible to express a provisional view on whether the case will fall within jurisdiction or has merit.
For the purposes of the extension of time issue, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
It is not submitted that the application for an extension of time gives rise to issues of fairness between Mr Curtis and persons in similar positions.
This is not a relevant factor.
Conclusion
The period of delay being one day is short. This consideration weighs somewhat in favour of Mr Curtis as no prejudice to the employer arises.
However, the FW Act requires the circumstances to have been exceptional in order for an extension to be granted, even for a short delay.
None of the explanations for delay individually or collectively weigh in favour of such a finding. All other factors other than the short period of delay are neutral.
I am therefore unable to conclude that the circumstances giving rise to the late filing were exceptional. Mr Curtis had the opportunity to file within time and missed that opportunity by not being sufficiently attentive to his interests. The circumstances for the late filing were not unusual or out of the ordinary. Mr Curtis could have but did not file electronically on 9 January 2023 despite the 21-day requirement being reasonably apparent on the face of his signed and completed application. Nor is this a case where an unusual circumstance arose that day requiring Mr Curtis to unexpectedly put the lodgement in the hands of his mother or where his mother was asked to lodge that evening but failed to do so.
Whilst the late lodgement was unintended, it did not arise from exceptional circumstances.
There being no exceptional circumstances, the time for lodgement cannot be extended.
As Mr Curtis’s application is out of time, it is unable to proceed. The application is dismissed. An order[13] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr Hunter Richard Curtis, on his own behalf
Ms T Roberts with Ms C Ridge, of and on behalf of WFL Equipment Pty Ltd
Hearing details:
2023
Adelaide (by video)
10 February
[1] Smith v Canning Division of General Practice[2009] AIRC 959
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[3] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[4] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[5] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[6] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[8] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[9] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[10] s 36(2) Acts Interpretation Act 1901 (Cth)
[11] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[13] PR750408
Printed by authority of the Commonwealth Government Printer
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