Jack Angus Coles v Anderson Sjoquist Pty Ltd
[2023] FWC 1353
•8 JUNE 2023
| [2023] FWC 1353 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jack Angus Coles
v
Anderson Sjoquist Pty Ltd
(C2023/1416)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 8 JUNE 2023 |
Application to deal with contraventions involving dismissal – request for an extension of time – no exceptional circumstances – request for extension of time refused – general protections application dismissed.
Introduction
On 14 March 2023, Mr Jack Angus Coles (Applicant) filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that he was dismissed by Anderson & Sjoquist Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.
Section 366(1) of the Act provides that an application made under s.365 must be made within 21 days after a dismissal took effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances”).[1]
It is not in dispute that the Applicant commenced his engagement with the Respondent on 4 October 2022, and that this engagement came to an end on 16 February 2023. Nor is it in dispute that the Applicant was aware of the cessation of his engagement with the Respondent on 16 February 2023.
Given that the Applicant filed his Application on 14 March 2023, the Application has been filed five days outside of the 21 day time limit under s.366(1)(a) of the Act. The Applicant should have filed his Application on or before 9 March 2023 for it to have been filed within the requisite 21 day time period.
There is a dispute between the parties as to whether the Applicant was an employee or independent contractor, and a dispute as to whether the Applicant was “dismissed” within the meaning of ss.12 and 386 of the Act. In respect of the latter dispute, the Respondent says that even if the Applicant was an employee of the Respondent, he voluntarily resigned from his employment.[2] The Applicant contends that he was constructively dismissed (or had no choice but to resign) on 16 February 2023.[3]
In Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[4] (Lisha Herc) the Full Bench stated as follows:
“[15] The question of whether an application … is made outside the required time, is not strictly a jurisdictional objection. Quite simply, an … application made outside the time required in s.394(2) [or s.36(1)(a)] is not validly made, unless and until, a further period has been granted. … Before any of the other jurisdictional objections can be considered, it is necessary that the question of the date the Appellant’s dismissal took effect (if the Appellant was dismissed) [be determined first].”[5]
It follows from the decision in Lisha Herc that it is necessary for me to put to one side the jurisdictional objections raised by the Respondent (as to whether the Applicant was an employee or independent contractor, and whether or not he was dismissed), and determine whether I should extend the time for the Applicant to file his Application. This decision concerns (and is limited to) the Applicant’s request for an extension of time.
At the hearing on 8 June 2023, the Applicant appeared for himself, and Mr Eustratios Stavropoulos, Solicitor, Solve lawyers, appeared with permission for the Respondent.[6] Neither party extended their arguments or submissions (in any significant sense) beyond the written materials that they had filed.
Legal principles
Section 366(2) of the Act reads:
“366 Time for application
…
(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.”
Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances before I can determine whether to exercise my discretion to extend time. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term “exceptional circumstances”, has stated:
“[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.
[14]Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…”[7]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”[8]
(emphasis added)
The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[9]:
“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.
..
[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:
‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.
…
[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.”[10]
Reason for delay[11]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[12], as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[13] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay (but this will be most unusual).[14]
The Applicant’s reasons for delay may be shortly stated, or summarised, as follows:
a) He had commenced a new job and was busy in his new role.
b) He was under pressure and stress arising from not being paid by the Respondent for an extended period of time.
c) He had attempted to settle his dispute with the Respondent between 16 and 24 February 2023, but had been unsuccessful in doing so.
d) He was waiting on an affidavit from a colleague (Jason Anthony Cavallaro, Marketing Sub-Contractor to the Respondent) to file with his Application, and when such affidavit was not forthcoming, he had to change his Application prior to filing same with the Commission (covering the days 8 and 9 March 2023).
e) He was hoping to receive assistance from a new work colleague to finalise his Application, but the colleague was unable to assist due to a family emergency.
f) After lodging an unfair dismissal application on 9 March 2023, the Applicant became aware (on 14 March 2023, via contact from or with the Commission’s Registry) that he had not completed the minimum employment period with the Respondent (who is a small business employer), and that his unfair dismissal application could not proceed. After withdrawing his unfair dismissal application on 14 March 2023, the Applicant filed this (general protections involving dismissal) Application that same day.[15]
The Respondent points out that after ceasing work on 16 February 2023, the Applicant almost immediately commenced employment (on 20 February 2023) with another law firm, Atkinson Vinden Lawyers. In other words, any delay in the filing of the Applicant’s claim cannot be said to arise due to issues of incapacity or alike. Nor can it be said, noting the Applicant’s legal qualifications as a Solicitor, that any delay in the filing of his Application arises from an absence of legal knowledge. In short, the Respondent submits that the Applicant made his own choice (or election) to file the wrong (unfair dismissal) application, which is not a special, or unusual or uncommon circumstance. The Applicant had ample means and opportunity to file a general protections involving dismissal application within the 21 days after the cessation of his engagement with the Respondent, but failed to do so. Whether that failure arises intentionally, by mistake, through incompetence or via error, or because the Applicant only became aware that he filed the wrong application after being told as such by the Commission’s Registry, is neither here nor there in terms of explaining or otherwise justifying the five day delay in the filing of the Application.[16]
In my view, none of the reasons for delay identified by the Applicant (as a matter of substance on the evidence before me), might be said, even at their highest, to be special, unusual, or uncommon. I note that there is no requirement for affidavit or other evidence to be filed with an unfair dismissal, or general protections involving dismissal, application.[17] More specifically, the nub of the Applicant’s reasons for delay really centre upon him filing an unfair dismissal, as opposed to a general protections involving dismissal application. This is not out of the ordinary course, or unusual, or special, or an uncommon occurrence or circumstance. All in all, I find (on the evidence before me) that the reasons the Applicant advances to explain or justify his failure to file his Application within 21 days of his dismissal taking effect weigh against any finding (or satisfaction) as to the existence of exceptional circumstances.
Action taken by the Applicant to dispute her dismissal[18]
There is evidence before me as to the various actions that the Applicant took to dispute his dismissal on and after 16 February 2023.[19] However, in my view, none of this evidence is such that it can be said to weigh in favour of a finding as to the existence of exceptional circumstances. I therefore consider it appropriate to treat this criterion as a neutral consideration.
Prejudice[20]
In relation to prejudice to the Respondent, I am not aware of any. Nor did the Respondent submit otherwise. The absence of prejudice to a respondent is not uncommon, but neither is such absence of prejudice a factor weighing in favour of a finding as to exceptional circumstances, or a discretionary grant of an extension of time (after a finding as to the existence of exceptional circumstances has been made). I therefore treat this criterion as a neutral consideration.[21]
Merits[22]
The principles stated Kyvelos v Champion Socks Pty Ltd[23] (Kyvelos) albeit in relation to a predecessor of the Act, still remain good law and are worth noting and setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[24]
In Kornicki v Telstra-Network Technology Group,[25] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:
“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.”
The Applicant says that he was constructively dismissed (i.e. had no choice but to resign) in contravention of Part 3-1 of the Act (by reason of undue influence or pressure, and dismissing him to engage him as an independent contractor).[26] The Respondent rejects these allegations or assertions, says that the Applicant was an independent contractor, voluntarily resigned (or voluntarily ceased his engagement with the Respondent), and otherwise denies any contravention of Part 3-1 of the Act.[27]
The Commission “should not embark on a detailed consideration of [a] substantive case” for the purpose of determining whether to grant an extension of time to an applicant. In this case, the merits of the Application were not fully tested before me. I note that all of the evidence as to the substantive merits of the Application (from both the Applicant and the Respondent) is not before me. In my view, the merits of the Application in this case, and the strength of the Respondent’s defence and counter assertions, are both arguable. To reach a conclusion beyond this would require close scrutiny in a contested hearing.[28] I am thus not in a position to definitively determine the merits of the Application, and treat the merits as a neutral consideration that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[29]
I am required to consider fairness as between the Applicant and other persons in a similar position. There were no submissions made as to this criterion, and I am not otherwise aware of any person in a similar position to the Applicant. I therefore treat this criterion as a neutral consideration.
Conclusion
I have taken into account and considered each of the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. one criteria weighs against a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[30]
On the basis of my reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence exceptional circumstances. In view of this finding, there is no power at law for me to exercise my discretion to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 14 March 2023 is dismissed and an Order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Jack Angus Coles (Applicant), for himself.
Mr Eustratios Stavropoulos, Solicitor, Solve lawyers, appeared with permission for the Respondent.
[1] See ss.366(1)(b) and (2) of the Fair Work Act 2009.
[2] Form F8A, Items 2.2 and 2.4, F8A Attachment, at [32]-[35].
[3] Applicant’s Affidavit, 6 March 2023, at [61].
[4] [2022] FWCFB 234.
[5] Ibid, at [15].
[6] Permission to appear granted under s.596(2)(a) of the Fair Work Act 2009 (see transcript for decision).
[7] [2011] FWAFB 975.
[8] Ibid.
[9] [2018] FWCFB 901.
[10] Ibid, at [17], [19], [38]-[39].
[11] Section 366(2)(a).
[12] [2021] FWC 3903.
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[14] Ibid, at [40].
[15] Form F8, at Item 1.4. Applicant’s Affidavit, 22 May 2023, at [30]-[59], and [66]. See also Affidavit of Taylor Angela Bruno, affirmed 20 May 2023.
[16] Respondent’s Submissions, 29 May 2023, at [1]-[10].
[17] Applicant’s Affidavit, 22 May 2023, at [55], [57] and [66].
[18] Section 366(2)(b)
[19] Applicant’s Affidavit, 22 May 2023, at [11]-[14], [32].
[20] Section 366(2)(c).
[21] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[22] Section 366(2)(d).
[23] (1995) 67 IR 298.
[24] Ibid at 299 to 300.
[25] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[26] Applicant’s Affidavit, 22 May 2023, at [8]. Applicant’s Affidavit, 6 March 2023, at [61]. Form F8 Application, at Item 3.2, relying upon ss.344 and 358 of the Fair Work Act 2009. I note that there is no evidence to support the Applicant’s assertions as to a contravention of s.358.
[27] Respondent’s Submissions, 29 May 2023, at [13]-[21]. Form F8A, at Item 5.1. F8A Attachment, at [32]-[40].
[28] Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[29] Section 366(2)(e).
[30] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
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