Jarrod Haggart v Wollongong Golf Club Ltd
[2024] FWC 14
•3 JANUARY 2024
| [2024] FWC 14 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jarrod Haggart
v
Wollongong Golf Club Ltd
(U2023/11061)
| COMMISSIONER MATHESON | SYDNEY, 3 JANUARY 2024 |
Application for an unfair dismissal remedy – extension of time – circumstances not exceptional – application dismissed
Mr Jarrod Haggart (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Wollongong Golf Club Ltd (Respondent).
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
Section 394(2) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The Commission’s records indicate the Applicant made his application on 11 November 2023. On 23 November 2023 the Commission wrote to the parties via email indicating that the Applicant said in his application that the dismissal of took effect on 20 October 2023 and that as such it appeared the application was one day late. The Commission requested that the Applicant respond in writing by 28 November 2023 explaining why he considers his circumstances are exceptional and providing any supporting evidence. The Applicant did not provide a response as requested.
On 30 November 2023 the Commission wrote to the Applicant indicating that it had not received a response to the Commission’s email of 23 November 2023 and directed a response by 4 December 2023. The email stated that if the Commission did not receive a response the application may be dismissed without further notice.
On 1 December 2023 the Respondent lodged a ‘Form F3 - Employer response to unfair dismissal application’ (Form F3) objecting to the application on the basis that it was made out of time. The Respondent submitted that the Applicant’s employment was terminated on 20 October 2023 and made his application on 11 November 2023 which is one day outside the 21 day timeframe prescribed by the Act. The Respondent also objected to the application proceeding on the basis that the Applicant had not responded to the Commission’s email of 23 November 2023 or provided any evidence.
The Respondent lodged a number of documents with the Form F3 including:
a letter of offer to the Applicant dated 11 July 2022;
warning letters dated 19 June 2023 and 10 August 2023;
a copy of the Respondent’s Disciplinary Policy;
a copy of the Respondent’s Code of Conduct; and
a ‘Letter or Termination for Poor Performance with Notice’ (Termination Letter).
The Termination Letter is dated 20 October 2023 and states that the Applicant’s employment is terminated effective that day.
On 4 December 2023 the Applicant emailed the Commission stating that he did not wish to add anything else to the case other than what he had already listed in his submission. The Form F2 application was the only document the Applicant had provided the Commission, and this remains the case. The Form F2 application does not address whether there are exceptional circumstances warranting the granting of an extension of time for the making of an application.
The matter was allocated to my Chambers on 5 December 2023 and the parties were notified of this. Directions were issued that same day directing the Applicant to file with the Commission by 12 December 2023 his outline of argument, statement of evidence (if any) and document list addressing whether or not there are exceptional circumstances. The matter was listed for a hearing to be held on 20 December 2023 and the notice of listing was issued on 5 December 2023.
The Applicant did not file any submissions in accordance with the directions and on 13 December 2023 the Commission wrote to the Applicant via email noting this and that there had been no request from the Applicant for an extension to file his materials. The Commission directed that the Applicant advise the Commission whether he wished to proceed with the matter and, if so, his reasons for non-compliance with the Directions by 15 December 2023. The email stated that if the Commission did not hear otherwise by 4pm on 15 December 2023, the matter may be dismissed without further notice. The Applicant did not respond to the Commission’s email or comply with the directions in the email of 13 December 2023.
As noted above, the matter was listed for a hearing to be held on 20 December 2023. The Applicant did not attend the hearing and did not notify the Commission in advance of the hearing of his inability to attend. My Chambers called the Applicant at the commencement of the hearing and by way of summary the Applicant advised he was at work. The Applicant indicated he had tried to call the Commission however my Chambers does not have any records of any calls missed or voicemails received by my Chambers. Further, this does not explain why the Applicant was unable to correspond with my Chambers.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 20 October 2023.
When was the application made?
The Commission’s records indicate, and I so find, that the application was made on 11 November 2023.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 20 October 2023. The final day of the 21 day period was therefore 10 November 2023 and ended at midnight on that day. As I found above, the application was made on 11 November 2023. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 10 November 2023. The delay is the period commencing immediately after that time until 11 November 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
The Applicant has not provided any submissions or evidence explaining the reason for the delay.
Did the Applicant first become aware of the dismissal after it had taken effect?
In his Form F2 the Applicant indicates that he was notified of his dismissal on 20 October 2023. It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
The Applicant has not provided any evidence and I am not satisfied that he took any actions to dispute his dismissal prior to making the application on 11 November 2023.
What is the prejudice to the employer (including prejudice caused by the delay)?
The application is out of time by one day and I find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
Having examined the materials before the Commission, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[6] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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.[7] 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.[8]
The Applicant has failed to file any materials or evidence turning to the relevant considerations in s.394(3) of the Act in accordance with the directions issued by the Commission, did not attend the hearing to plead his case and did not notify the Commission of his inability to attend. Based on the limited material before the Commission, I am not satisfied that there are exceptional circumstances. Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
Upon consideration of the Applicant’s pattern of conduct it is apparent to me that the Applicant has not attached priority to compliance with the Commission’s directions in relation to his application and has failed to attend a hearing as directed by the Commission and in doing so has failed to prosecute his case in a reasonable manner. In these circumstances I consider that there are also grounds for the Commission to exercise its discretion to dismiss the application of its own motion pursuant to s.587 of the Act.
The Applicant’s application is dismissed as there is no basis for the Commission to allow an extension of time for the making of the application in accordance with s.394(3) of the Act and for want of prosecution pursuant to s.587 of the Act. An Order to this effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
Mr David Potts on behalf of the Respondent.
Hearing details:
2023.
Sydney (by Video).
December 20.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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