Jeradd Clark v ADP Recruitment Services

[2019] FWC 4864

[2019] FWC 4864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeradd Clark
v
ADP Recruitment Services
(U2019/4906)

COMMISSIONER PLATT ADELAIDE, 12 JULY 2019

Application for relief from unfair dismissal – extension of time – date employment ceased – when applicant became aware of dismissal – exceptional circumstances – application granted.

Summary

[1] Mr Jeradd Clark has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with ADP Recruitment Services (ADP) which his form F2 Unfair Dismissal Application advised took effect on 14 April 2019.

[2] Mr Clark did not consider that he filed his unfair dismissal beyond 21 days from the date of dismissal.

[3] On 9 May 2019, ADP lodged a form F3 Employer Response which indicated that the applicant had not been dismissed and raised a jurisdictional objection on this basis.

[4] The matter did not resolve at conciliation and was allocated to my Chambers.

[5] On 12 June 2019, a Directions Conference was conducted. Mr Clark was represented by Mr Lincoln Smith (of Counsel) with permission pursuant to s.596 of the Act. Mr Ano Doukas (Managing Director) represented ADP. ADP conceded that the applicant had met the requirements of s.382 of the Act save for its contention that Mr Clark had not been dismissed. This was confirmed in writing by Mr Doukas on 13 June 2019. The jurisdictional objection and the merits were listed for hearing on 16 July 2019.

[6] On 20 June 2019, Mr Greg Griffin (of Counsel) corresponded on behalf of ADP and raised the issue that the application had been made out of time. A further Directions Conference was held on 20 June 2019, and the extension of time issue was listed for hearing.

[7] The jurisdictional objection with respect to the application being made out of time was heard on 10 July 2019. Mr Clark continued to be represented by Mr Smith and ADP was represented by Mr Griffin (of Counsel). Permission was granted pursuant to s.596 of the Act based on the written submissions.

[8] Mr Clark submitted two statements 1 and gave evidence. Mr Doukas also submitted two statements2 and gave evidence.

[9] Mr Clark’s evidence (as related to the extension of time issue) can be summarised as follows:

•  His employment with ADP commenced in February 2018. Mr Clark’s employer contact was Mr Doukas.

•  He was placed with Jets Transport Express (the host employer) in the position of Warehouse Operator / Forklift Driver.

•  He was supervised by Stephen [surname unknown] or Mr Mark Reaburn from the host employer on a rotating weekly basis.

•  He was required to work from 8:00am to 2:00pm Monday to Friday and 8:00am to noon on Sundays.

•  Mr Clark alleged that Mr Reaburn had acted inappropriately towards him on a number of occasions since May 2018.

•  Mr Clark alleged that on 18 March 2019 Mr Reaburn spoke to him in an inappropriate manner stating (on separate occasions during the day) that he was ‘a fuckwit and a hopeless idiot’, ‘you’re are a fucking loser; do what I say or you’re out of here’, ‘you’re fucking hopeless, you can’t do anything right, you should just fucking quit or I’ll make you quit fuckhead’, ‘you’re not good enough, I should never hired you.’ Mr Clark contends he protested at the way he was spoken to.

•  Mr Clark alleges on 18 March 2019 Mr Reaburn said to him ‘I have received your email that you sent your employer Ano/Irma and my boss Lenny. This is fucking bullshit, I am sending you home now after your behaviour this morning. I will call you if you need to come in and help with work.’

•  Mr Clark sent a text message to Mr Doukas about his interaction with Mr Reaburn on 18 March 2019 complaining about his treatment.

•  Mr Clark has not worked at the host employer since this conversation.

•  Mr Clark sent a number of further messages to Mr Doukas.

•  On 21 March 2019, Mr Clark received an email from Ms Vanessa Nikolovska from Unfair Dismissals Direct, seeking information about his recent dismissal requesting that he provide information to allow an assessment to be completed. Mr Clark replied and asked if the sender was the same as the Fair Work Ombudsman. On 22 March 2019, Ms Nikolovska replied and advised that ‘Unfair Dismissal Direct works with the Fair Work Commission and other tribunals to represent employees who have been dismissed. As you have been dismissed we can assist you with an unfair dismissal matter as such please send through further information as requested in my initial email for an assessment.’

•  On 22 March 2019, Mr Clark sent an email to Unfair Dismissals Direct advising that ‘Technically I haven’t been terminated but since my Supervisor attacked me I haven’t been back!’

•  In his evidence, Mr Clark has referred to his various communications with Unfair Dismissals Direct as ‘Fair Work Australia’ and/or the ‘Fair Work Ombudsman’.

•  On 21 March 2019, Mr Clark asked Mr Doukas to ‘send me a copy of my termination document from Jets…’ A follow up text message and an email was sent on 27 March 2019, which advised that Mr Clark had been in contact with ‘Fair Work Australia’.

•  Further follow up emails were sent to Mr Doukas on 29 March, 4 and 10 April 2019.

•  On 10 April 2019, Mr Doukas said he had ‘absolutely nothing to do with how Jets Transport conduct their investigations, or how they deal with their internal staff….’ Mr Doukas offered to discuss Mr Clark’s employment status with ADP with ‘Fair Work Australia’ and/or his legal advisor.

•  On 14 April 2019, Mr Clark emailed Mr Doukas and inter alia asked ‘Now as for my employment, what is going on with me and ADP?’

•  On 17 April 2019, Mr Clark sent a text message and emailed Mr Doukas seeking a letter regarding his employment.

•  On 18 April 2019, Mr Doukas emailed Mr Clark and advised that ‘Jet’s Transport have not stated to me at any time that they don’t want you back…’ ‘As far as your employment status as a casual employee goes with ADP Recruitment Services, it remains as active.’

•  On 21 April 2019, Mr Clark emailed Mr Doukas advising that he would be contacted in the future and ‘As for Jets Transport Express obviously working with Mark will not be happening anymore.’

•  On 21 May 2019, Mr Clark asked Mr Doukas to arrange ‘mandatory interim payment’ and that EML and the ‘Fair Work Commission’ will continue to communicate with ADP as my representatives.

•  Mr Clark’s second statement included a number of communications between himself and ‘Fair Work Australia’.

•  Mr Clark states he was waiting for his formal termination letter which was never received.

•  Mr Clark completed his form F2 Unfair Dismissal Application on 31 [sic] April 2019 and lodged same on 1 May 2019. The application nominated 14 April 2019 as the date of dismissal.

[10] Mr Clark submitted an extract of a medical report 3 from Dr M Harrington, dated 3 April 2019, which appears to indicate that Mr Clark was suffering from anxiety and depression and acute stress which were to be treated by counselling and recommended that he avoid contact with his current supervisor. Mr Clark also submitted an undated report from Dr G Dewar which refers to a request of 16 May 2019 and records a diagnosis that Mr Clark has had a relapse associated with PTSD.

[11] Mr Clark submits that:

•  He was constructively dismissed on 14 April 2019 and that his application was made in time.

•  In the alternative, Mr Clark submitted that:

•  the key reason for the delay arose from ADP advising him on 10 April 2019 that he had not been dismissed;

•  he took steps to dispute the dismissal thought contacting ‘Fair Work Australia’;

•  the employer has not suffered prejudice; and

•  that the circumstances are such as to establish exceptional circumstances as detailed in s.394(3) of the Act.

[12] The evidence of Mr Doukas (as related to the extension of time issue) can be summarised as follows:

•  Mr Clark was engaged on a casual basis pursuant to a contract of employment entered into on 15 February 2018 and remains so employed.

•  ADP has only one client in South Australia – JETS Transport Express.

•  Mr Doukas provided Mr Clark’s payroll history for the period 1 February 2018 to 30 April 2019.

•  On 15 January 2019, Mr Clark represented 4 in an email to Lenny Ationne (JETS Regional Customer and Business Manager) that he had a strong relationship and work ethic with the great Team [at JETS] and this was inconsistent with Mr Clark’s evidence.

On 23 January 2019, Mr Clark had represented to Lenny Ationne in an email 5 that he enjoyed working at JETS but had been approached by several people in regards to alternative employment and sought to be offered full time employment.

•  A similar email was also sent by Mr Clark at 11:12am on 18 March 2019 and about 90 minutes later Mr Doukas was advised in an email from Mr Reaburn that ‘due to an incident’ he had finished Mr Clark’s shift that morning and he would call Mr Clark in the afternoon if he required him to work the next days from that point on.

•  On 22 March 2019, he emailed Lenny Ationne about a complaint made by Mr Clark against Mr Reaburn and sought that JETS investigate the matter.

•  Mr Doukas submitted a number of emails exchanged between the parties between 29 March and 21 May 2019 including advice that Mr Clark had not been dismissed.

•  Mr Doukas submitted a letter from Lenny Ationne dated 19 June 2019 which advised that JETS had seen a significant downturn in volumes and workloads and have not required any additional external labour hire emergency workers.

•  Mr Doukas gave evidence that the workloads had decreased and that ADP currently had no alternative employment in which to place Mr Clark.

[13] ADP submits that:

•  Mr Clark has not been dismissed.

•  In the alternative, ADP submits that:

•  the dismissal occurred on 18 March 2019;

•  Mr Clark did not take any meaningful steps to dispute the dismissal;

•  the passage of six weeks between the time Mr Clark ceased performing duties and the lodgement of the claim represents prejudice to the employer; and

•  the application is premature and it would be unfair to allow it to proceed.

Applicable Law

[14] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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 similar position.”

[15] 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 Ltd⁶which 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

[16] There is a contest as to whether Mr Clark was dismissed at all, and if so on what date.

[17] Mr Clark contends he was dismissed on 14 April 2019, ADP suggest there was no dismissal or in the alternative the 18 March 2019.

[18] ADP has suggested to me that Mr Clark is not a witness of truth. I do not propose to make any findings as to credit at this time, however, I do note that Mr Clark’s evidence appears, on occasions, to be inconsistent and as I result I have taken a cautious approach to his evidence which is not corroborated.

[19] There is no definitive evidence which supports Mr Clark’s contention he was dismissed on 14 April, indeed the email of Mr Doukas or 15 April contradicts this assertion. There is no subsequent communication that established a date of dismissal post 15 April 2019.

[20] The work record provided by ADP indicates that Mr Clark’s work attendance was to be regular and systematic until 18 March 2019, noting that there were some occasions where he was unavailable to work.

[21] There is no dispute that Mr Clark made a complaint about Mr Reaburn’s conduct and the host employer was advised.

[22] There is no dispute that Mr Clark was sent home early on 18 March 2019 and did not work at the host employer from that point on.

[23] There is a dispute as to why Mr Clark was not further engaged.

[24] It appears to me that the events of 18 March 2019, together with the sudden withdrawal of work compared to the engagement over preceding months, is evidence that the employment ceased on 18 March 2019, and I so find.

[25] On that basis, Mr Clark’s application is 23 days out of time and, therefore, can only be pursued if this time limit is extended.

[26] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[27] It appears that a portion of the delay arises from Mr Clark’s belief that from 21 March 2019 he was conversing with and obtaining advice and support from Fair Work Australia and/or the Fair Work Ombudsman about his complaint. His communications are consistent with concerns being raised about his treatment.

[28] As it turns out, Mr Clark was not communicating with ‘Fair Work Australia’ (the Fair Work Commission) but with an organisation called Unfair Dismissals Direct which appears to have made communication which misled Mr Clark into the belief that he was dealing with a regulatory body. This is unfortunate and may warrant the attention of the ACCC. I accept that Mr Clark thought he was dealing with a regulatory body and was seeking assistance to resolve his workplace issues.

[29] It appears that the majority of the delay can be attributed to Mr Clark being unaware that his employment has ceased.

[30] On 14 April 2019, Mr Clark sought information about his employment status and was advised on 18 April 2019 that he remained an active [ADP] employee. It is apparent that for the period between 18 March to 18 April Mr Clark was not aware that he had been dismissed.

[31] A review of the correspondence indicates that Mr Clark continued to engage with ADP about his complaint and was hopeful that his complaint would result in Mr Reaburn being removed from the host employer which would allow Mr Clark to return to the workplace. Mr Clark has explained the majority of the delay.

[32] If there is a credible explanation for the entirety of the delay then this weighs more heavily in favour of a finding that there are exceptional circumstances. 7

[33] Given that Mr Clark has provided a credible reason for the majority of the delay in filing his Application, this factor weighs in favour of granting an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[34] Whilst I am unable to determine the exact date, it appears that Mr Clark became aware that he was dismissed and that his employment had ceased on a date after 18 April 2019.

[35] This factor weighs in favour of a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[36] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 8

[37] In my view, Mr Clark’s complaint with ADP as to his treatment by Mr Reaburn (which preceded 18 March 2019) was not an action contesting the dismissal.

[38] However his communication with what he thought was ‘Fair Work Australia’ could represent action taken to contest the dismissal.

[39] On balance this factor weighs is a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay)

[40] 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 A long delay gives rise “to a general presumption of prejudice”.11

[41] Whilst the delay in this matter is 23 days, there is no suggestion that the delay will prejudice the employer’s defence of the substantive claim. In my view, this factor is a neutral consideration.

The merits of the application

[42] 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.

Fairness as between the person and other persons in a similar position

[43] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 12 considered this criterion and said (at [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.”

[44] 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

[45] Having considered and weighed each of the factors under s.394 of the Act, I am satisfied that Mr Clark’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted. An Order¹³ reflecting this decision will be issued.

COMMISSIONER

Appearances:

L Smith of Counsel on behalf of the Applicant.

G Griffin of Counsel on behalf of the Respondent.

Hearing details:

2019.

Adelaide:

July 10.

Printed by authority of the Commonwealth Government Printer

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 1   Exhibits A1 and A2 (including attachments)

 2   Exhibits R1 and R2 (including attachments)

 3   Exhibit A1 – attachment JC22

 4   Exhibit R1, attachment AD3

 5   Exhibit R1, attachment AD5

6 [2011] FWAFB 975

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901

 8   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 9   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

 10   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

 11   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

 12   [2016] FWCFB 6963

13 PR710275