James Phelan v Electronics Boutique Australia Pty Ltd T/A EB Games
[2020] FWC 3218
•19 JUNE 2020
| [2020] FWC 3218 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
James Phelan
v
Electronics Boutique Australia Pty Ltd T/A EB Games
(U2020/8024)
COMMISSIONER PLATT | ADELAIDE, 19 JUNE 2020 |
Application for an unfair dismissal remedy – request for an extension of time – application dismissed.
Introduction
[1] 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
[2] This decision concerns whether I should exercise my discretion to allow Mr James Phelan a further period for his unfair dismissal application (Application) to be made against Electronics Boutique Australia Pty Ltd T/A EB Games (EB Games).
Background
[3] Mr Phelan has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with EB Games. His form F2 Unfair Dismissal Application did not advise when the dismissal took effect or when he was notified of the dismissal.
[4] The application was lodged on 11 June 2020.
[5] The application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“My employer never made Any (sic) attempt to notify me of my termination so I had no idea I no longer had a job until I asked questions.”
[6] On 17 June 2020, EB Games lodged a form F3 Employer’s Response which indicated that the dismissal occurred on 14 January 2020 and raised a jurisdictional objection on the basis that the application was lodged out of time. The Form F3 Employer’s Response to the application advised that the correct name of the Respondent is Electronics Boutique Australia Pty Ltd T/A EB Games. I have utilised the discretion in s.586 of the Act to amend the application accordingly.
[7] On 12 June 2020, the Commission corresponded with Mr Phelan and EB Games and advised that the extension of time issue would be considered at a conference. 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. Mr Phelan was directed to provide a statement concerning the extension of time and any documents to be relied upon by 15 June 2020.
Hearing
[8] A hearing was conducted by way of telephone conference on 18 June 20120. A sound file record of the telephone conference was kept. Mr Phelan represented himself and Ms Rhiannon Campbell (Senior HR Advisor) represented EB Games.
[9] Mr Phelan’s position is summarised as follows:
• He had been employed as a casual employee since 2015. He had previously taken ‘time off’ to travel.
• In January 2020 he travelled overseas to perform other work. He understood that he could be absent for a period of 3 months. If he was going to be absent for more than 3 months, he would advise EB Games.
• Mr Phelan travelled overseas but returned earlier than expected due to the impacts of the COVID-19 Pandemic.
• On 5 April 2020 he contacted EB Games advising he was available for work.
• On 17 April 2020 he was advised that EB Games had considered that his employment with them had ceased.
• Mr Phelan unsuccessfully contested the cessation of his employment with EB Games Human Resources between 17 and 23 April 2020.
• On 1 May 2020 Mr Phelan sought the assistance of the Workplace Advice Service (WAS) facilitated by the Commission. A confirmation email sent to Mr Phelan by WAS highlighted the 21 day filing time limit for unfair dismissal claims. Later that day WAS advised Mr Phelan that it was unable to assist him, that email also highlighted the 21 day filing time limit for unfair dismissal claims.
• On 9 June 2020 Mr Phelan made an enquiry with a law firm seeking advice on an employment matter.
• The Application was filed on 11 June 2020.
[10] EB Games did not file a submission. Its position is summarised as follows:
• Mr Phelan’s conduct in travelling overseas to work for an extended period was in effect a resignation.
• It did not confirm this resignation in writing or send him any document or advice that it regarded the employment as having come to an end. Ms Campbell did not believe such process was necessary.
• It accepted that Mr Phelan first became aware that his employment ceased on 17 April 2020, and that he contested the matter between 17 and 23 April 2020.
• EB Games was prejudiced by the delay in that Mr Phelan’s Store Manager left its employ on 11 June 2020.
• EB Games did not believe that Mr Phelan’s circumstances were so exceptional as to justify an extension of time.
Applicable Law
[11] 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.”
[12] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.3
[13] 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 Ltd4 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).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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
[14] It appears to me that Mr Phelan’s employment ceased on 11 January 2020, his last day of work. This unfair dismissal application by Mr Phelan was made 150 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
Paragraph 394(3)(a) - reason for the delay
[15] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.5 A dismissal can be communicated orally.6
[16] There is no dispute that Mr Phelan did not become aware of the cessation of his employment until 17 April 2020.
[17] 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.7 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,8the 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.”
[18] 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:9
“[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.”
[19] Mr Phelan said he was distressed by what he perceived to be a dismissal. It is common for employees to suffer shock and trauma as a result of a dismissal.10 This of itself is not an exceptional circumstance.
[20] As to acceptable explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance.11
[21] Whilst Mr Phelan actively disputed his cessation of employment until 23 April 2020, he did little more until 1 May 2020 when he attempted to seek legal advice. On 1 May 2020 he was advised in writing on two occasions about the applicable time limit.
[22] Despite that he did not immediately lodge his claim.
[23] On 9 June 2020 Mr Phelan sought legal advice and filed his claim on 11 June 2020.
[24] In my view Mr Phelan has not provided a credible reason for the delay in filing his Application for the period 24 April to 11 June 2020, this factor weighs against the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[25] Mr Phelan did not become aware of his cessation of employment until 17 April 2020.
[26] This factor weighs in favour of a finding that there are exceptional circumstances.
[27] In my view, EB Games’ conduct in failing to confirm that it viewed the circumstances as a resignation reflects poorly on its human resource practices.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
[28] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.12
[29] It was agreed that Mr Phelan contested the cessation of his employment between 17 and 23 April 2020. This weighs in favour of granting an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
[30] Prejudice to the employer will weigh against granting an extension of time.13 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.14
[31] A long delay gives rise “to a general presumption of prejudice”.15
[32] 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.16
[33] I accept that with the departure of the Store Manager, EB Games may suffer prejudice in defending the claim as a result of the late application.
Paragraph 394(3)(e) - merits of the application
[34] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
[35] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd17 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.”
[36] 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
[37] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting the granting of an extension of time and, accordingly, I decline to exercise my discretion to so order. In reaching this conclusion, I am particularly (but not solely) influenced by the fact that, in my evaluative assessment, the Applicant did not have an acceptable explanation for the delay.
[38] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.
[39] An Order18 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr J Phelan on behalf of the Applicant.
Ms R Campbell on behalf of the Respondent.
Hearing (Conference) details:
2020.
Adelaide:
June 18.
Printed by authority of the Commonwealth Government Printer
<PR720331>
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 Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
6 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
7 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]
8 [2016] FWCFB 349
9 [2018] FWCFB 3288 at [35]-[45]
10 Rose v BMD Constructions Pty Ltd[2011] FWA 673
11 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
12 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
13 Ibid
14 Ibid
15 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
16 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
17 [2016] FWCFB 6963
18 PR720332
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