Jack Fitzgibbon v JB Hi-Fi Group Pty Ltd
[2023] FWC 1548
•28 JUNE 2023
| [2023] FWC 1548 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jack Fitzgibbon
v
JB Hi-Fi Group Pty Ltd
(U2023/3305)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 28 JUNE 2023 |
Application for an unfair dismissal remedy
On 18 April 2023, the Commission received an application from Mr Jack Fitzgibbon (the Applicant) asserting he had been unfairly dismissed by JB Hi-Fi Group Pty Ltd (the Respondent). The Applicant says his dismissal took effect on 24 March 2023 rendering his application four days late. The Applicant’s representative, a family friend, who had completed the application on the Applicant’s behalf, acknowledged that application was late and apologised noting that the Applicant had been under duress and had sought medical attention prior to lodgment. This decision addresses the Applicant’s extension of time request in addition to his repeated non-compliance with the directions issued in respect of this matter.
Briefly stated, I have concluded that there are not exceptional circumstances that warrant granting an extension of time in which to make the unfair dismissal application and having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension. Whilst there was repeated non-compliance with the directions, I decided to determine the extension of time request, given the Applicant was ultimately able to file his materials prior to the date of the proposed hearing. However, as the parties did not object to the matter being determined on the papers and given the absence of a factual dispute, I considered this the appropriate course in the circumstances and the hearing date was vacated.
The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. The application for unfair dismissal remedy is therefore dismissed.
Background
The Applicant commenced work for the Respondent on 14 May 2018 as a Merchandise Team Member at JB Hi-Fi Belmont Forum. On 24 March 2023, his employment was terminated for serious misconduct. It is uncontroversial that he was notified of his dismissal on that day and that the dismissal took effect at that time.
His application for an unfair dismissal remedy was made on 18 April 2023, and the matter was allocated to my Chambers on 30 May 2023. On that same day a Notice of Listing for a hearing was issued, as were directions requiring the parties to file materials in respect of the extension of time hearing. The Applicant was due to file his materials by 4:00 PM on Tuesday, 6 June 2023. The directions were sent by email to the parties utilising the contact information that had been provided on the relevant forms.
By Wednesday, 7 June 2023, the Applicant’s materials had not been filed in accordance with the directions and as a consequence Chambers emailed the parties alerting them to the Applicant’s non-compliance. In addition, a phone call was placed to Ms Helena Goellner, the family friend of the Applicant, who had filed his unfair dismissal application. Once alerted to the directions, Ms Goellner claimed she was unaware that the Applicant was required to file any material and she would respond to the directions straight away.
Ms Goellner did not respond to the directions. This necessitated the issuance of further directions on Thursday, 8 June 2023, regarding the potential dismissal of the Applicant’s unfair dismissal application pursuant to s 587 of the Act. A further phone call was placed with Ms Goellner and a voice message was left regarding the potential dismissal of the application. A phone call was also placed with the Applicant, who provided the Commission with his correct email address, an incorrect email address having been included on his application.
In light of the Applicant having not received correspondence and directions from Chambers due to Ms Goellner providing the incorrect email address on the application, on Monday, 12 June 2023, amended directions were issued for the filing of material relevant to the extension of time hearing. The Applicant was provided with an additional week to file such materials.
Regrettably, no such materials were forthcoming and on Tuesday, 20 June 2023, Chambers issued an email to the parties, directing the Applicant to address his non-compliance with the directions of Monday, 12 June 2023. A phone call was made to the Applicant to alert him to the non-compliance with the directions. The Applicant confirmed he had received the directions of Monday, 12 June 2023, and the non-compliance email, and that Ms Goellner had, the week prior, assured him that she was on top of it all. It was explained to the Applicant that he was required to email the Commission by 4:00 PM that day to explain his non-compliance in writing and that his failure to do so may result in the Commission considering the dismissal of his application.
On Wednesday, 21 June 2023, directions were issued to the parties concerning the potential dismissal of the Applicant’s application. Again, no response in writing had been provided by the Applicant to explain his non-compliance with the directions of Monday, 12 June 2023, and no materials had been filed in response to those same directions.
On Friday, 23 June 2023, the Applicant emailed Chambers and asked that Chambers call him. On that same day, at 8:32 AM, Chambers placed a call to the Applicant and he informed Chambers that he had prepared materials to file but was confused by the process. It was explained to the Applicant that given he had not filed materials in response to his extension of time request and in response to the other directions that had been issued, the Commission was considering whether to dismiss his application. Chambers also spoke to the mother of the Applicant explaining that he should file his materials in respect of his extension of time request and also explain why he had not complied with the directions issued by Chambers and why the Commission should not dismiss his application for that same non-compliance. By 9:00 AM, the Applicant had filed an explanation for his non-compliance and had attached his Outline of Argument in respect of his request for an extension of time.
Extension of time
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other matters are not relevant for present purposes.
The Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are taken 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.
The meaning of the term ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said 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.[1] It is accepted 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.[2]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:
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.[3]
Reason for the delay
In respect of this first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[4] 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.[5]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[6] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[7]
The Applicant’s application was made four days late. In his unfair dismissal application, prepared by Ms Goellner, the Applicant acknowledges the lateness of the application and attributes that lateness to having been placed under duress, having sought medical attention prior to lodgement, and Ms Goellner apologising for filing the application late.
Turning first to the Applicant’s argument that he was seeking medical attention prior to making the application, and in addition had experienced mental health issues since leaving school. It is observed that the majority of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd expressed that stress, shock and confusion, in and of themselves, are not exceptional.[8] The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.[9] Further, the Applicant has provided no evidence in support of his contention of mental incapacity. In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition, particularly where there is no suggestion that the employee was unable to perform other tasks following the dismissal.[10]
Regarding the assertion that the Applicant was under duress, there is no evidence before me to make good the proposition and as such it simply cannot be sustained.
Evidently, Ms Goellner had initially assisted the Applicant with his application and whilst it was not expressly argued that representative error contributed to the delay in filing the application, I consider it appropriate to address the issue. A number of decisions of the Commission and its predecessor have considered the principles which apply to cases concerning representative error in the context of an application.[11]
In McConnell v A & PM Fornataro,[12] a Full Bench decision that considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:
Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.[13]
Shortly stated, it is not necessary for an applicant to demonstrate that they were ‘blameless’ for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion.[14] However, as the Full Bench explained in Long v Keolis Downer, ‘an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by.’[15]
While the Applicant speaks to his world having been ‘left spinning’ and not being in a good mental space after his employment was terminated, there is no evidence before the Commission to suggest that the Applicant made his own enquiries regarding the pursuit of an unfair dismissal application. In fact, it appears that the application was left to the family friend, Ms Goellner, to deal with. In my view there is no plausible explanation as to why it took the Applicant until 18 April 2023 to have arranged for his application to be made or why he did not take steps to ensure it was filed within the statutory period.
Whilst accepting that the termination of his employment left the Applicant not knowing what direction to take, I am not persuaded on the evidence before me that the Applicant’s medical condition provided a plausible reason for the delay, or that other personal reasons cited provide a reasonable excuse. Further, when the Applicant’s conduct is examined – based on the very limited evidence before me, it is not apparent that the Applicant took steps to make enquiries regarding the filing of his application. In my view, the reasons when considered together are insufficient to explain part of, or the entirety of, the four-day delay. These findings in culmination weigh against a finding of exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21-day period.
Whether the person first became aware of the dismissal after it had taken effect
On 24 March 2023, the Applicant became aware of his dismissal. It was therefore not the case that the Applicant became aware of the dismissal after it had taken effect. Notwithstanding, on balance, I consider this to be a neutral factor in respect of a finding of exceptional circumstances.
Action taken by the person to dispute the dismissal
The evidence does not favour a finding that the Applicant took action to dispute his dismissal. This weighs against a finding of exceptional circumstances.
Prejudice to the employer
It is not apparent that the Respondent has asserted any prejudice. It is noted that a ‘lack of prejudice is a positive factor but not a major factor’ in considering exceptional circumstances.[16] I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances of this case.
Merits of the application
In Telstra-Network Technology Group v Kornicki,[17] 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.[18]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[19] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. As such, the merits in this case are a neutral factor.
Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[20]
Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, and as such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one.
The Applicant has not provided a satisfactory explanation for the delay in making his application. The remaining matters I need to consider are otherwise neutral in this respect or weigh against a finding of exceptional circumstance. Having considered all submissions and evidence, I am not convinced there are exceptional circumstances such that an extension of time should be granted. Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension.
Further, it should be noted that whilst the Applicant demonstrated repeated non-compliance with the directions issued by this Commission that in most circumstances would warrant the dismissal of his application for this reason, ultimately the Applicant was able to submit his materials prior to the date of the hearing. The Respondent was similarly positioned to do the same, and therefore I decided to proceed with the determination of the extension of time application.
The Commission, of course, has power to dismiss an unfair dismissal application on its own initiative, and it is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[21]
Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal.[22] That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[23] Nevertheless given my conclusion in respect of the Applicant’s request for an extension of time, his application for an unfair dismissal remedy is dismissed. An Order[24] to this effect issues concurrently.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] (2011) 203 IR 1, 5 [13].
[2] Ibid 6 [13].
[3] (2018) 273 IR 156, 165 [38] (emphasis in original).
[4] Ibid 165 [39].
[5] Ibid.
[6] Long v Keolis Downer (2018) 279 IR 361, 371 [40] (Long).
[7] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[8] Ibid 366 [15].
[9] Ibid.
[10] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.
[11] See, eg, Davidson v Aboriginal & Island Child Care Agency (1998) 105 IR 1; Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; Qantas Ground Services Pty Ltd v Rogers[2019] FWCFB 2759 (Rogers); Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd[2011] FWA 2802; Long (n 6).
[12] (2011) 202 IR 59.
[13] Ibid 65 [35].
[14] Rogers (n 11) [17]; Long (n 6).
[15] Long (n 6) 375 [60].
[16] Caire v Imscan Technologies[2013] FWC 3154, [16].
[17] (1997) 140 IR 1.
[18] Ibid 11.
[19] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[20] [2015] FWC 8885, [29].
[21] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[22] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925.
[23] Ibid [31].
[24] PR763636.
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