James Andrew Castle v DP World Brisbane Pty Limited
[2022] FWC 2590
•28 SEPTEMBER 2022
| [2022] FWC 2590 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
James Andrew Castle
v
DP World Brisbane Pty Limited
(U2022/8041)
| COMMISSIONER PLATT | ADELAIDE, 28 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – application for an extension of time – application granted
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Mr James Castle a further period for his unfair dismissal application (Application) to be made against DP World Brisbane Pty Limited (DP World or the Respondent).
Background
Mr Castle has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with DP World which his form F2 Unfair Dismissal Application advised took effect on 11 July 2022.
The application was lodged on 3 August 2022, and as such was made two days outside of the 21-day time limit provided for in the Act.
On 1 September 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal took effect on 11 July 2022 and pressed the jurisdictional objection that the application had been lodged out of time.
On 9 September 2022, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 28 September 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties.
Hearing
A Hearing was conducted by way of telephone conference on 28 September 2022. A sound file record of the telephone conference was kept. Mr Castle represented himself at the Hearing, whilst Mr Milne of Kingston Reid sought permission to represent DP World on the basis of s.596 (a) and (b). The Applicant did not oppose a grant of permission. Permission was granted, however the Hearing was conducted by way of determinative conference in order to ameliorate the impact of permission being granted.
Mr Castle gave evidence at the Hearing and was cross-examined. His position is summarised as follows:
· The Applicant was dismissed on 11 July 2022 and was aware of the dismissal on the day it occurred.
· The Applicant was dismissed after testing positive to THC, amphetamines and methylamphetamines. Mr Castle suggested the positive THC reading was due to ‘passive smoking’ and that the positive amphetamines reading was due to a prescription medication which he could not name.
· The Applicant became homeless on 23 February 2023 after his landlord declined to renew his rental agreement. Since that time, he has been living in his Ute, various motels, and occasionally at his daughter’s house (in which he felt that he was a burden).
· The Applicant sold his Ute after the dismissal.
· The Applicant tried to telephone his Union on three or four occasions and left messages with his Union, but these were not returned.
· The Applicant’s prepaid phone ran out of credit, and after this time he was generally unable to make outgoing phone calls or access the internet. He was, however, able to receive incoming calls.
· Mr Castle sent an email to his Union dated 22 July 2022 (by connecting to the internet at his daughter’s house) in which he sought assistance. The Applicant did not receive a reply from his Union.
· The Applicant stated that despite his final pay (some of which was subject to a garnishee order), he had no power or money to charge his phone until he received a crisis payment from Services Australia on 2 August 2022. Documentary evidence to support the receipt of this payment was supplied.
· The Application was submitted on 3 August 2022, two days outside the statutory timeframe.
· The Applicant submitted that he was under significant stress after his dismissal and was unable to find anyone to help him in lodging his application.
The Respondent filed written submissions in relation to the extension of time issue but did not file any evidence. The Respondent relied on its written submissions at the Hearing. The Respondent’s position is summarised below:
· Despite the Applicant’s circumstances being regrettable, the Applicant has failed to establish that any of the circumstances actually prevented him from making the Application within the prescribed timeframe.
· The Applicant did not do enough to utilise free and publicly available electricity and internet services.
· The Applicant’s interactions with his Union were merely “vague inquiries” and were not instructions to lodge an unfair dismissal claim on his behalf. The Respondent contends the Applicant “sat on his hands” after sending the email to his Union on 22 July 2022.
· The Applicant was aware of the dismissal on the day that it occurred.
· There is no evidence of the Applicant taking any steps to dispute the dismissal outside of lodging the application late.
· The merits of the application are weak, which weighs against the granting of an extension of time.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal 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.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] 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
Paragraph 394(3)(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 day period.[5] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[6] 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:[7]
“[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.”
The delay in this matter is relatively short. It appears that Mr Castle was impecunious, and his living circumstances would not have assisted him in promptly lodging a claim. It appears that Mr Castle was abandoned by his Union in his hour of need. Upon securing a crisis payment from Services Australia, Mr Castle acted promptly by topping up his mobile phone and lodging his claim the following day. In my view, Mr Castle has provided a credible explanation for the period of the delay.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Mr Castle was aware of the dismissal on the date it occurred.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - 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.[8]
Mr Castle sought assistance from his Union to no avail. Mr Castle took no other action to contest the dismissal. This factor weighs slightly in favour of the granting of an extension.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[9] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[10]
There is no submission that the granting of an extension of time represents prejudice to DP World. This factor is considered a neutral consideration.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, it appears that the Applicant was in breach of the Respondent’s Drug and Alcohol Policy, although there may be some mitigating factors. I have regarded the merits as a factor which weights slightly against the granting of an extension of time.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[11] considered this criterion and said:
“[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.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
An Order[12] reflecting this decision will be issued.
At the conclusion of the Hearing, after delivering my determination, I allowed the parties an opportunity to conciliate the matter. This offer was not accepted. Accordingly, the matter will now be re-allocated to another Member of the Commission for determination of the merits of the application.
COMMISSIONER
Appearances:
Mr Castle, the Applicant.
Mr Milne for the Respondent.
Hearing details:
2022.
Adelaide (by teleconference):
September 28.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment 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] Section 394(3) of the Act.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].
[4] [2011] FWAFB 975.
[5] 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].
[6] [2016] FWCFB 349.
[7] [2018] FWCFB 3288 at [35]-[45].
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[9] Ibid.
[10] Ibid.
[11] [2016] FWCFB 6963.
[12] PR746310.
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