Jack Larkin v Sky Channel Pty Ltd
[2021] FWC 5480
•2 SEPTEMBER 2021
| [2021] FWC 5480 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jack Larkin
v
Sky Channel Pty Ltd
(U2021/5873)
COMMISSIONER P RYAN | SYDNEY, 2 SEPTEMBER 2021 |
Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Introduction
[1] This decision concerns an application by Mr Jack Larkin (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[2] The unfair dismissal application was lodged on 5 July 2021 and identified the respondent as “Tabcorp Limited Trading as Tabcorp Sky Division” and stated the date of dismissal was 9 June 2021.
[3] Section 394(2) of the FW 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 30 June 2021. The application was therefore filed 5 days outside the 21 day period. This means the application can only proceed if the Commission grants a further period for the application to be made under s.394(3).
[4] On 15 July 2021, prior to the allocation of this matter to my chambers, correspondence was sent to the parties from the chambers of Vice PresidentCatanzariti seeking that the Applicant provide reasons as to why an extension should be granted having regard to the matters in s.394(3) of the FW Act, and for the Respondent to file a Form F3 – Employer Response to the application.
[5] The matter was subsequently allocated to my chambers.
[6] On 23 July 2021, an F3 Response was lodged disputing that Tabcorp Limited or TAB Limited was the employer and identifying the correct employer as “Sky Channel Pty Ltd”. In addition, the F3 Response did not dispute the date of dismissal as 9 June 2021 and opposed any further period for the application to be made under s.394 (3).
[7] On 29 July 2021, a case management and directions hearing was conducted to deal with issue of the correct employer, and program the application for an extension of time for hearing.
[8] On 30 July 2021, the Applicant made an application pursuant to s.586 of the FW Act to amend the respondent to “Sky Channel Pty Ltd”, which was not opposed. On 2 August 2021, I issued an order 1 amending the respondent in the matter to “Sky Channel Pty Ltd” (Respondent).
[9] On 2 August 2021, directions were issued by my chambers giving both parties an opportunity to file any additional materials in support of, or in opposition to, the Applicant’s application for an extension of time.
[10] The matter proceeded as a hearing 2 via Microsoft Teams Video at 10.00am on 24 August 2021. I exercised my discretion to grant permission to the parties to be represented by lawyers, as I was satisfied as to the matters set out in s.596 (2) (a) and (c) of the FW Act. The Applicant was represented by Mr T. Lovejoy. The Respondent was represented by Ms V. Bulut.
[11] For the reasons that follow, I decline to grant an extension of time under s.394(3).
Submissions and Materials Filed by the Parties
[12] It is relevant to set out the materials filed by the parties.
[13] On 21 July 2021, submissions were filed by the Applicant in response to the request from the chambers of Vice President Catanzariti.
[14] On 6 August 2021, further written submissions were filed by the Applicant. Shortly after the filing of these submissions, an attachment to the submission was filed. The attachment was a screen shot of an exchange of text messages.
[15] On 13 August 2021, the Respondent filed submissions in response.
[16] The directions issued by my chambers provided the Applicant with the opportunity to file materials in reply by 4.00pm on Friday 20 August 2021. On 20 August 2021, the Applicant sought, and I granted, an extension until 4:00pm on Saturday 21 August 2021. No submissions or materials were received by that time.
[17] On 23 August 2021, the unfair dismissal application, employer response and materials filed by the parties were consolidated by my chambers into a “court book” and provided to the parties. The court book omitted the annexure to the Applicant’s submissions filed on 6 August 2021.
[18] On 24 August 2021 at 9.17am, my chambers issued an “amended court book” (Amended CB) to the parties. The amendment was the inclusion of the annexure to the Applicant’s submissions filed on 6 August 2021.
[19] On 24 August 2021 at 9.57am, Mr Lovejoy filed an email with my chambers explaining that he had experienced computer and email problems over the weekend and would deal with submissions in reply during the course of the hearing.
[20] Of note, and despite the directions clearly providing the parties the opportunity to do so, neither party filed any witness statements, nor sought to adduce any evidence, in chief or in reply, and the matter proceeded on the basis of the written submissions filed, supplemented by oral submissions during the hearing.
Exceptional Circumstances
[21] The FW 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’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 3 Exceptional circumstances may 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.4
[22] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[23] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account 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.
[24] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
[25] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application. 5
[26] I now consider these matters in the context of the application.
Reason for the delay
[27] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 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 an applicant’s favour, however all of the circumstances must be considered. 6
[28] The Applicant submitted the following were reasons for the delay:
(a) representative error; 7
(b) COVID-19 lockdown; 8 and
(c) waiting for a response to a request for documents from the Respondent. 9
Representative Error
[29] In the Applicant’s submissions filed on 21 July 2021, it was submitted that Mr Lovejoy was experiencing health issues “prior to the due date for the claim to be lodged and in the days immediately after” and “as a consequence…I missed the lodgement date, counter to my instructions”. 10 In support of, and annexed to, these submissions was a letter from a health practitioner, dated 21 July 2021, which contains a reference to lodging documents and Mr Lovejoy11. The letter requests the reader to accept it as confirmation that:
(a) Mr Lovejoy attended the health practitioners’ practice on 30 June 2021;
(b) Mr Lovejoy was very unwell and his ability to work was severely compromised on this occasion; and
(c) Mr Lovejoy was referred on immediately to his general practitioner for further care.
[30] In further submissions filed on 6 August 2021, it was submitted that the Applicant had given clear instructions to Mr Lovejoy to lodge the application for unfair dismissal, that Mr Lovejoy failed to carry out those instructions despite the Applicant’s efforts to ensure the claim was lodged, and that the Applicant and Mr Lovejoy had been in regular contact. 12 In support of, and annexed to, these submissions was a text message screen shot showing an exchange of text messages.13
[31] The first text message was sent by the Applicant at 6.51pm on Sunday, 27 June 2021 and states:
“How’s it all going”
“Im in lockdown”.
[32] The recipient, who the Applicant submitted was Mr Lovejoy, responds at 4.21pm on Monday 28 June 2021 stating:
“All good, claim will be lodged this week. Hope lockdown is not proving too hard”
[33] The Applicant then responds (time/date obscured):
“Yeh it’s okay not to [sic] bad”
[34] It was submitted that the exchange of text messages confirms Mr Larkin was following up the lodgement of his unfair dismissal application. 14
[35] The Applicant cites several authorities in support of his submissions: Burns v Aboriginal Legal Service of Western Australia (Inc); 15 Clark v Ringwood Private Hospital (Clark);16 Davidson v Aboriginal & Islander Child Care Agency (Davidson);17 and Robinson v Interstate Transport Pty Ltd (Robinson)18.
[36] In response to the Applicant’s submissions on representative error the Respondent submitted:
(a) The Applicant has not filed any evidence in support of his application for an extension of time; 19
(b) Mr Lovejoy’s heath issues and the health practitioners’ letter do not explain any delay beyond 30 June 2021; 20
(c) The submissions on representative error do little more than extract the principles of representative error from the Commission’s unfair dismissal benchbook; 21 and
(d) The text message exchange is not evidence of Mr Larkin following up the lodgement of his unfair dismissal application, and that he took no steps, or insufficient steps, to enquire about the unfair dismissal application. 22
[37] The Respondent relied on Clark in support of its submissions.
[38] The relevant principles of representative error were established in Clark. In Davidson a Full Bench of the Australian Industrial Relations Commission summarised the principles of representative error as follows:
‘In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(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 exists 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 considered.’ 23
[39] It is clear from the principles of representative error that an assessment of the conduct of the Applicant will be a central consideration. Before assessing the conduct of the Applicant, it is relevant to deal with the particular circumstances of the representative error, being the health issues of Mr Lovejoy.
[40] I do not accept that the letter from the health practitioner can be relied on to support a delay of 5 days. The letter is unambiguously clear and states in reference to Mr. Lovejoy’s consultation on 30 June 2021, the 21st day following the termination of the Applicant’s employment, that Mr Lovejoy’s ability to work “was severely compromised on this occasion.” The letter refers to Mr Lovejoy being “immediately referred to his GP for further care” and there was no evidence or submission about whether that referral was acted on and if so, how that contributed to the delay. If the application had been filed 1 day out of time, a different view may have been taken, subject to the assessment of the conduct of the Applicant.
[41] Furthermore, I do not accept the letter can be relied on to support incapacity in the period prior to the expiration of the 21 day time limit for two reasons. First, as stated above, the letter is clear as to the date it applies, and no other medical evidence or any evidence was led in relation to Mr. Lovejoy’s incapacity or otherwise. Second, if the parties to the text message exchange are accepted as the Applicant and Mr Lovejoy, there was no indication as at 28 June 2021 (the 19th day of the 21 day time limit) that Mr Lovejoy’s health issues would prevent the filing of a ‘claim’ that week. I deal with this further below.
[42] In relation to the conduct of the Applicant, the Applicant did not adduce any evidence in support of his application for an extension of time. That position was maintained by the Applicant even after the Applicant had the benefit of the Respondent’s submissions which deal directly with this point. 24
[43] As a consequence, and despite submissions to the contrary, there was no evidence of ‘clear instructions’ given by the Applicant to Mr Lovejoy to file an unfair dismissal application.
[44] As to the text message exchange, if for present purposes it is accepted that it took place between the Applicant and Mr. Lovejoy, and that the ‘claim’ referred to is an unfair dismissal application, the following observations can be made:
(a) The Applicant’s initiating message was sent on the 18th day of the 21 day time limit;
(b) Mr Lovejoy’s response is sent on the 19th day of the 21 day time limit;
(c) Mr Lovejoy’s response that the ‘claim’ would be filed that week, put the Applicant on notice that depending upon which day the claim was filed in that week, it may or may not be filed within the 21 day limit; and
(d) Having been put on notice that the claim may be filed out of time, there were no further actions or efforts by the Applicant to ensure the claim was filed in time.
[45] The conduct of the Applicant in this case can be distinguished from the conduct of applicants in other matters before the Commission where there the Commission has accepted evidence of clear instructions to file an application, and a response from the representative that the application would be filed within the time limit. 25
[46] While ‘little’ 26 might be required to satisfy the Commission that an applicant is blameless in the delay, it must nonetheless be something, and at the very least, there must be evidence of clear instructions.
[47] The Applicant submits that Applicant and Mr Lovejoy were in “regular contact regarding the lodgement of the application” 27 and the text message exchange was sent in “the context of various text messages and phone conversations between the Applicant and [Mr Lovejoy] over which privilege is claimed”.28 However, I cannot accept that submission and that the Applicant was blameless without a proper evidentiary foundation. In this respect, I agree with the observations and findings of Yilmaz C, in Toulson v Your Way Support Services Pty Ltd T/A Your Way Support Services29, relevant to a representative error case proceeding on submission only in the absence of any evidence.
[48] For these reasons I am not satisfied that the Applicant is blameless and do not accept representative error is an acceptable or reasonable explanation for the delay.
COVID-19 Lockdown
[49] The Applicant did not provide more than a bare assertion that the COVID-19 Lockdown contributed to the delay in filing the unfair dismissal application. 30 In the absence of any evidence or submissions explaining how the COVID-19 Lockdown contributed to the delay, I do not accept that this can be an acceptable or reasonable explanation for the delay.
Waiting for Response to Document Request
[50] It is not in dispute that:
(a) Shortly after the termination of the Applicant’s employment, Mr. Lovejoy made a request by email for the provision for various documents relating to the Respondent’s investigation of the circumstances that lead to the termination of the Applicant’s employment; 31
(b) On 10 June 2021, the day after the Applicant’s employment was terminated, the Respondent replied to the request confirming some of the documentary material requested had been previously provided and refusing to provide any further materials. The Respondent considered the matter ‘closed’; 32
(c) Mr Lovejoy responded foreshadowing that the matter will be subject to an unfair dismissal claim; 33 and
(d) There was no further contact between the parties after 10 June 2021.
[51] As can be observed from the above, which is not in dispute, the Respondent replied to the Applicant’s request on the day following the termination of the Applicant’s employment. In other words, the Respondent replied on the first day of the 21 day time period, which was 25 days prior to the lodgement of the unfair dismissal application.
[52] The Applicant’s submission that the Respondent’s delay (or failure) in responding to the request for documents contributed to, or was a reason for, the delay in filing the unfair dismissal application is simply unacceptable. I do not accept that this can be an acceptable or reasonable explanation for the delay.
Reason for the delay - conclusion
[53] For the reasons set out above, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[54] It is not in dispute, and I so find, that the Applicant was notified of the dismissal on 9 June 2021, the same day that it took effect, and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
[55] I refer to paragraph [50] above. It is not in dispute, and I so find, that no other action to dispute the dismissal was taken after 10 June 2021 until the filing of the unfair dismissal application on 5 July 2021. This circumstance weighs against a conclusion that there are exceptional circumstances.
Prejudice to the employer
[56] The Respondent did not submit that it would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[57] The FW Act requires me to take into account the merits of the application in considering whether to grant a further period for the application to be made under s.394(3).
[58] The Applicant’s employment was terminated for gambling on duty in breach of the Respondent’s policies. 34 While the Applicant does not deny the conduct, the Applicant submitted that gambling on duty was “common place”35 and the Respondent’s policy was “selectively applied”36 resulting in the inconsistent treatment of employees.37
[59] It is clear to me that the merits of the application will turn on these contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
[60] In the absence of these matters being tested, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[61] Apart from the Applicant’s submissions regarding the selective application of the Respondent’s gambling policy and inconsistent treatment of employees, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
[62] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
[63] An order to that effect will issue with this decision.
COMMISSIONER
Appearances:
Mr T Lovejoy, solicitor for the Applicant.
Ms V Bulut of counsel for the Respondent
Hearing details:
2021.
Sydney (via Microsoft Teams video-link):
24 August.
1 PR732383
2 See s.397 and s.399 of the FW Act.
3 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
4 Ibid.
5 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
7 Amended CB at page 7 and 91-99.
8 Amended CB at page 7.
9 Amended CB at pages 7 and 91.
10 Amended CB at pages 91-92.
11 Amended CB at page 93.
12 Amended CB at pages 95-96.
13 Amended CB at page 99.
14 Amended CB at page 97.
15 Burns v Aboriginal Legal Service of Western Australia (Inc) Print T34696.
16 Clark v Ringwood Private Hospital (1997) 74 IR 413.
17 Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1.
18 Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728.
19 Amended CB at page 100.
20 Amended CB at page 103.
21 Ibid.
22 Amended CB at page 104.
23 Davidson at p.6.
24 Amended CB at page 100.
25 See for example Robinson at [30]; Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 at [26]-[28].
26 De La Rosa v Motor One Group Pty Ltd PR924583 at [24] as cited in Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [54]-[55].
27 Amended CB at page 96.
28 Amended CB at page 97.
29 Toulson v Your Way Support Services Pty Ltd T/A Your Way Support Services [2021] FWC 2059 at [24].
30 Amended CB at page 7
31 Amended CB at page 69.
32 Amended CB at page 70.
33 Ibid.
34 Amended CB at pages 7, 78 and 82-84.
35 Amended CB at page 8.
36 Amended CB at page 92.
37 Amended CB at page 8.
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