Jack Martin Ronald Ranken v Swinglehurst Screenprinting Pty Ltd

[2022] FWC 773

[2022] FWC 773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jack Martin Ronald Ranken
v

Swinglehurst Screenprinting Pty Ltd

(U2022/1488)

DEPUTY PRESIDENT LAKE BRISBANE, 6 APRIL 2022

Application for an unfair dismissal remedy - application made outside of statutory timeframe – application for extension of time dismissed

1. Mr Jack Ranken (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Swinglehurst Screenprinting Pty Ltd (the Respondent).

1. The Applicant began his employment on 28 February 2020. It is uncontentious that the Respondent terminated the Applicant’s employment on 10 January 2022. That application was lodged with the Commission on 3 February 2022.

1. In his Form F2 application, the Applicant named his employer as Peter Swinglehurst. The Respondent in its Form F3 response stated the Applicant’s correct employer was Swinglehurst Screenprinting Pty Ltd. The Applicant did not dispute this, and I therefore corrected the application accordingly.

Was the application lodged within time?

1. Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

1. The Applicant lodged his application on 3 February 2022. He accepts that his application was made some 3 days outside of the 21 days required under s.394(2) of the Act.

1. The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.

Consideration of whether a further period should be granted

1. Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(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 like position.”

1. The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1]  In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[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.”

1. Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

1. For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.394(3) of the Act.

1. Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.

1. The Applicant’s submissions may be summarised as follows:

·  The Applicant was distraught at having been dismissed;

·  The Applicant waited for his employment separation certificate to arrive, and then sought advice from Mr MacLean; and

·  The Applicant had financial difficulties in paying the application lodgement fee.

1. The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions were that:

·  The Applicant expressed to another staff member that he would probably not be working for the Respondent in 2022 as he had obtained an apprenticeship;

·  The dismissal was as a result of the Applicant’s decline in work performance, due care and quality to printing and overall attitude to his role;

·  The text message to the Applicant was brief because the Respondent did not believe anything further was required;

·  Mr Swinglehurst always communicated with his staff either in person or by text message and did not use email;

·  The Applicant was paid out his notice and entitlements on 11 January 2022; and

·  The delay in providing the separation certificate was due to the fact that the Respondent’s office manager was on leave until 18 January 2022.

1. At the hearing, the Applicant was asked why he did not pay the application lodgement fee using the leave entitlements and notice that he was paid upon being terminated. The Applicant said that he did not think of doing so.

Consideration

Reason for the delay (s.394(3)(a))

1. The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:

“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 reliant matters and the assignment of appropriate weight to each.”

1. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

1. While I accept the Applicant had some difficulties navigating how to make an application, based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

1. On 10 January 2022, the Applicant was dismissed via a text message from Mr Swinglehurst which stated:

   “Jack,

   Because of your lack of commitment on so many levels and after discussing with other staff we can not allow your attitude to be a part of SPS this year! Goodbye Good luck with your life.”

1. The Applicant does not dispute he became aware of his dismissal on 10 January 2022 with the receipt of the text message. The Applicant at the hearing agreed that he was aware he had been dismissed from the text message, and regardless, received his entitlements and paid notice on 11 January 2022.

1. This consideration therefore does not weigh in favour of an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

1. The Applicant contacted the Respondent after receiving the text message dismissing him by reply text on 10 January 2022 requesting an employment separation certificate. The Applicant did not contact the Respondent after 10 January 2022.

1. The Applicant did not provide any evidence that he took any other steps to dispute his dismissal, either with the Respondent directly or through any other body.

1. This factor therefore does not weigh in favour of an extension of time.

Prejudice to the employer (s.394(3)(d))

1. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). In that case the Commission said:

“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.”

1. However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]

1. Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim.  Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

1. The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]

1. The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

1. Many, if not most, employees who are dismissed find themselves distraught or upset, and many find themselves in financial difficulty. These are not unusual or exceptional circumstances.

1. Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter. I order that the application be dismissed.

DEPUTY PRESIDENT

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

[5]   [2018] FWCFB 901.

[6] See: 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.

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

Printed by authority of the Commonwealth Government Printer

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