Jacob Emery v Easyquip Pty Ltd
[2024] FWC 1023
•22 APRIL 2024
| [2024] FWC 1023 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.365—General protections
Jacob Emery
v
Easyquip Pty Ltd
(C2024/1288)
| COMMISSIONER CONNOLLY | MELBOURNE, 22 APRIL 2024 |
Application to deal with contraventions involving dismissal – request for an extension of time – extension not granted – application dismissed.
Introduction
On 28 February 2024, Mr Jacob Emery (the Applicant) lodged a general protections application against Easyquip Pty Ltd (the Respondent) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that on 7 February 2024, he was dismissed by the Respondent in contravention of the general protections provisions of the Act.
On 15 March 2024, the Respondent filed a Form F8A Response and raised a jurisdictional objection, asserting that Mr Emery was notified of his dismissal on 6 February 2024 with immediate effect, and as a consequence raised a jurisdictional objection that the application was made outside the 21-day requirement.
Mr Emery’s F8 application indicated it was lodged within 21 days of the dismissal taking effect. However, in its form F8A, the Respondent maintained Mr Emery was dismissed with immediate effect by way of time stamped email on the 6 February 2024 at 4.19pm. On this basis, the Respondent submitted Mr Emery’s application needed to be filed with the Fair Work Commission (Commission) no later than 27 February 2024 and was therefore filed 1 day late on 28 February 2024.
The Act provides that an application for remedy under the general protections provisions, involving dismissal, pursuant to s.365 of the Act must be made within 21 days after the dismissal took effect.[1] However, the Commission may allow a further period for the application to be made in exceptional circumstances.[2]
As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[3] I am required to determine the jurisdictional objection, extension of time, before I can exercise powers under s.368 of the Act to deal with the dispute about whether the dismissal was in contravention of the general protections provision.
On 22 March 2024, I issued for the filing of material in respect of the jurisdictional objection, and a Hearing was scheduled for 11 April 2024.
At the Hearing, Mr Emery represented himself and the Respondent was represented by Mr Hambas, who, there being no objections was granted leave to appear under s.596 of the Act. Following the Hearing, and considering the submissions and evidence filed by the parties, I delivered an ex-tempore decision not to grant Mr Emery an extension of time. The reasons for my decision are set out below.
Submissions and Evidence
Mr Emery completed and filed an ‘Applicant’s Outline of Argument: Extension of time form’ in support of his submissions. His position is summarised as follows:
· He was told of the dismissal after hours on 6 February 2024 by phone call at approximately 2.30pm. On the morning of 7 February 2024, he opened his email at approximately 9.15am and first read the email provided to him at 4.19pm on the 6 of February confirming his termination.
· His application was submitted late due to a lack of knowledge of the 21 day requirement on the basis he had received the termination email on 7 February and that his termination took effect the following day. Mr Emery submits that he lodged his application on the same day he became aware of the 21 day requirement and lodged his application on 28 February 2024.
· Mr Emery’s submissions are that he searched the Fair Work Ombudsman and Fair Work Commission website on this day and spoke to their staff and was told he should submit his application as soon as possible.
· Mr Emery submits, the sudden change of life circumstances caused by the unexpected nature of his dismissal has placed extraordinary stress and pressure on himself, his partner and young family.
· As the full-time carer of his two daughters, who are 5 months and 4 years old, he submits that he has been unable to undertake adequate research or anything more than attempt to care for his family and children since his dismissal.
· Mr Emery maintains he was not aware he could argue against his dismissal at the time he was dismissed because of his position as a casual employee therefore, he did not do so.
· Mr Emery’s application was only 1 day late therefore, allowing it to proceed would not be unfair or disadvantage his employer.
· Mr Emery was hired under false pretences, was coerced and treated unfairly, and that his situation is exceptional on the above basis, in particular his caring responsibilities.
The Respondent provided a brief written submission to its objection in its original form F8A and filed additional material as per my Directions. The Respondent’s material consisted of written submissions, witness statement of Mr Jeff Grace who is the General Manager for the Respondent, and a copy of the Applicant’s termination email dated 6 February 2024. The Respondent’s position is summarised below:
· Mr Emery’s application has been lodged 1 day outside the 21 day requirement and should be dismissed.
· There are no exceptional circumstances that warrant the granting of an extension of time. Furthermore, the Applicant has not filed any evidence or supporting witness statements in support of his submissions.
· The Applicant’s claim he was unaware of his legal options is not a reason which tends to weigh in favour of a finding of exceptional circumstances.
· The Applicant’s claim that the unexpected impact of his dismissal, including stress and anxiety caused due to the dismissal, combined with his significant caring and family responsibilities are neither unique, rare, or unprecedented to the extent they warrant a granting of an extension of time.
· The Applicant has not presented any independent evidence of his medical condition to support his claims of him being unable to file his application within the required time. Further, that the Applicant’s submissions he became aware of the 21 day requirement on 28 February 2024 and filed his application on the same day does not support his submissions.
· The Applicant did not take any actions to dispute his dismissal prior to filing his application, his claim that his situation is slightly more or less fair than that of another person, prejudice to the employer in the form of time and cost associated with defending the application weigh against granting of the extension of time.
Applicable Law
Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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 test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[4]
I have considered the provisions of s.366 of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[5] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary”. We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[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.”
Consideration
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[6] A dismissal can be communicated orally.[7]
In the present matter, the evidence of the email provided by the Respondent and the material filed by Mr Emery along with his evidence verify that the Applicant was terminated on 6 February 2024 and that his dismissal took effect on the same day.
This application was lodged with the Commission on 28 February 2024 and is therefore 1 day outside the 21 day time limit and can only proceed if the time limit is extended.
Section 366(2) of the Act requires the Commission to take account the matters set out in s.366(2)(a)-(f). Below, I have set out my consideration of each of these factors, insofar as they are relevant.
366(2)(a) - Reason for the delay
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 days.[8] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[9], the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the Applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[10]
“[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.
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
In his submissions, Mr Emery submits that as a result of his dismissal he was confronted with facing the financial and emotional hardship of losing his income; pressure at home compounded by the fact he was the primary carer of his two young children and that these circumstances caused his considerable stress and anxiety impacting his ability to undertake research and to lodge his application within the required time.
Mr Emery further submits at the time of lodgement he had only become aware of the 21 day time requirement for an application to be lodged on the day he filed his application and was advised on the same day that he should lodge his application as soon as possible.
It is Mr Emery’s submissions that he should not be disadvantaged by the exceptional circumstances he was confronted with and that he was treated unfairly, discriminated against and should not be denied the opportunity for his application to be considered.
While I have reasons to doubt Mr Emery’s submissions, in his material filed and in evidence he accepted that he was clearly advised of his termination, with immediate effect, by phone at approximately 2.30pm on 6 February 2024. He submits that it was not until the 28 February that he became aware of the 21 day filing requirement and that he filed his application on this day believing it to be on time. Apart from his written submissions and oral evidence at the Hearing, he has not presented any supporting material, witness statements or documentation in support of his submissions.
In Pottenger v Department of Caffeine,[11] the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, previous decisions of the Commission have referred to an acceptable[12] or reasonable explanation.[13] It is not the case that the Applicant “needs to provide” an acceptable, reasonable or for that matter credible explanation.
It is well accepted that being dismissed from employment can have significant and long-lasting impact on an individual, and that the significance or otherwise of these impacts, which can include stress, hardship and depression will be different in each individual and their particular circumstances.[14]
Mr Emery submits that in the present case the impact of losing his job on 6 February had a significant impact, causing him stress, personal and financial hardship and negatively impacting his overall health and capacity. I am satisfied that this is the case.
I, however, cannot accept that the circumstances confronted by Mr Emery were “out of the ordinary course, unusual or uncommon”. While clearly significant and unfortunate as losing his job was, I am not satisfied that this event and its consequences are exceptional in the circumstances of this case.
While I accept Mr Emery’s submissions as to the impact of losing his job and the circumstances it created, each of the stresses, pressure, and experiences he was confronted with are commonly experienced by other employees facing similar circumstances, including his caring responsibilities.
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. Each circumstance of the ending of a job and its impact will be different and need to be considered on its own merits. There is nothing in the material presented by Mr Emery to the Commission in this case to support this conclusion.
I have also had regard to the length of the delay. While only 1 day late, I am not satisfied that this period, while relatively small in the circumstances, weighs in favour of Mr Emery who has otherwise failed to provide a reason as to the exceptional circumstances justifying the delay or his unawareness of the requirement for filing within 21 calendar days. As per the Full Bench decision in Nulty v Bluestar Group Pty Ltd:
“Indeed, unfortunately, it would seem all to common for dismissed employees to be unaware of the time limits imposed in relation to making an application for unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”[15]
I, therefore, am not satisfied that Mr Emery has provided a credible reason for the delay in filing the application and that this factor weighs against granting an extension of time.
366(2)(b) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[16] Mr Emery submits, as a casual employee he was not aware he had the right to dispute his dismissal and he accepts he did not do so until the filing of this application. However, there is no other evidence to suggest that other than preparing and lodging this application, he took any other steps to dispute his dismissal after it took effect. The Respondents submissions are that this was not the case.
I have considered the evidence before me on this factor, and I consider it to be neutral in whether there are exceptional circumstances in granting an extension of time.
366(2)(c) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[17] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[18]
A long delay gives rise “to a general presumption of prejudice”.[19]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[20]
Mr Emery submits that given the delay is only 1 day there would not be any prejudice to the Respondent in this case. The Respondent submits it is prejudiced as to cost, time and inconvenience.
On the facts before me, I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now than there would have been, had it been made within the 21 day time period. Accordingly, prejudice to the employer is a neutral consideration.
366(2)(d) - merits of the application
The merits of an application are relevant; however, the assessment of the merits for the present purposes is limited to, in effect, a preliminary consideration.[21] Further, the primary consideration is whether the Applicant, Mr Emery has an arguable case.[22]
In Telstra-Network Technology Group v Kornicki[23] the Full Bench 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 stated:[24]
“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 substantive merits of this application have not been fully tested and as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission “should not embark on a detailed consideration of the substantive case” for determining whether to grant an extension of time to an Applicant to lodge their application.[25]
The factual context and merits of the present application would need to be further scrutinised in this case, including under cross-examination, if an extension of time was granted to the application to proceed.
Both Mr Emery and the Respondent have not made substantive submissions as to the merits of the application and as there is insufficient evidence before me to make an assessment, I have regarded the merits as a neutral factor.
366(3)(e) - fairness as between the person and other persons in like position
Mr Emery submits it would be slightly less fair not to grant his application because of his personal circumstances, in particular his caring and family responsibilities. On the other hand, the Respondent submits that it would be unfair to both other employees who have filed unfair dismissal applications on time and those who have applied for an exemption to the filing requirement should the Applicant be granted an exemption.
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd considered this criterion and said:[26]
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
While the specific circumstances facing Mr Emery are inevitably unique, I am satisfied the issue of fairness between Mr Emery and other persons in a similar position is a relevant consideration in this matter.
In particular, I have found that Mr Emery was not confronted with set of facts or circumstances that were uncommon or unusual to the thousands of other employees year in, year out, who have also been dismissed and manage to file their applications within the 21 day requirement.
Accordingly, I am not satisfied that it is likely a person in similar position would not have filed their application within time when dealing with the challenges and stresses of being dismissed from their job and that this factor weighs against the granting of an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.366(3)(a) to (e) of the Act, I have not been persuaded that, on balance, there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which a general protections application may be lodged by Mr Emery.
An Order[27] reflecting this decision and dismissing the application was issued on 11 April 2024.
COMMISSIONER
[1] Fair Work Act 2009 (Cth) s394(2)(a). Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
[2] Fair Work Act 2009 (Cth) s394(3).
[3] [2020] FCAFC 152.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[5] [2011] FWAFB 975.
[6] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49].
[7] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
[8] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[9] [2016] FWCFB 349.
[10] [2018] FWCFB 3288 at [35]-[45].
[11] [2018] FWC 3403.
[12] Ibid at [31], citing Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 at [9].
[13] Ibid, citing Roberts v Greystanes Disability Services[2018] FWC 64 at [16].
[14] See Roe, C in Rose v BMD Constructions Pty Ltd[2011] FWA 673.
[15] Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB975.
[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at [299] – [300].
[17] Ibid.
[18] Ibid.
[19] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at [556].
[20] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16].
[21] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14].
[22] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[23] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[24] Ibid.
[25] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899 at [38].
[26] [2016] FWCFB 6963.
[27] PR773388.
Printed by authority of the Commonwealth Government Printer
<PR773660>
0
16
0