Jeremy Anthony Cariss v Rockpool Group Holdings Pty Ltd
[2023] FWC 948
•27 APRIL 2023
| [2023] FWC 948 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jeremy Anthony Cariss
v
Rockpool Group Holdings Pty Ltd
(C2023/1425)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 27 APRIL 2023 |
Application to deal with contraventions involving dismissal
Issue and outcome
On 14 March 2023, Mr Jeremy Anthony Cariss (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, Rockpool Group Holdings Pty Ltd, objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act and the Applicant was not its employee.
In his application, the Applicant says his dismissal took effect on 20 February 2023. The Respondent of course says the Applicant was not dismissed as the Applicant was not its employee.
In Herc v Hays Specialist Recruitment (Australia) Pty Ltd (Herc), the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[3] It is accepted that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless and until a further period has been granted.[4] The proper approach is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[5] This of course requires an assumption that an applicant was an employee for this purpose.[6]
Herc addressed the statutory period under s 394(2) and the accompanying ‘extension of time’ provision in s 394(3). These sections of the Act resemble s 366, sharing the same statutory period in which to make an application and factors which are considered when determining whether there are exceptional circumstances warranting an extension of time. However, it is noted that with respect to the term ‘exceptional’, the factors considered in making that determination are all but the same, with the exception that s 394(3) of the Act includes the factor of whether ‘the person first became aware of the dismissal after it had taken effect’. Nevertheless, it follows that the reasoning of the Full Bench in Herc is apposite here and therefore the first issue to be determined is whether to grant an order extending the time in which the application is made.
The Act requires the application to have been made within 21 days of the dismissal taking effect. However, s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 366(2)(a)–(e) are considered.
The Applicant’s application was made one day outside of the statutory period. Having considered the factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(1)(b). Accordingly, the application is dismissed and an Order issues concurrently.[7]
Background
Before the hearing, directions were issued to the parties providing detailed information of what was required of both. The following background is drawn from the evidence and submissions of the Applicant and Respondent filed in response to those directions and the evidence provided at hearing.
According to the Respondent, the Applicant was offered employment with it in the role of General Manager.[8] He was issued a contract of employment with the Respondent on 8 February 2023.
The terms of the employment contract provided:
[y]our employment shall commence on 21 February 2023.[9]
The Respondent states that it had a telephone discussion with the Applicant on 20 February 2023, in which it was decided during that discussion that the Applicant would not commence employment with the Respondent.[10] The Respondent clarified that it did not want the Applicant to commence employment with it due to the Applicant’s conduct.[11]
The Applicant’s evidence illuminated the reason provided by the Respondent to him regarding its decision not to proceed in accordance with the employment contract. The Applicant said that the Respondent had alleged he had poor interpersonal dealings with a previous employee at another venue.[12]
The Applicant disagreed with the assertion that he had mutually agreed ‘not to commence’ without compensation as he had missed another work opportunity and was left unemployed.[13]
Consideration
3.1 Extension of time
Consideration now turns to whether to extend the 21-day period within which the Application was to be brought.
In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.
It has been said that proceedings not commenced in time should not be entertained.[14] However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[15]
In decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.[16] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[17] 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 can be considered exceptional.[18]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:
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.[19]
At the commencement of the hearing, the parties were referred to s 366(2) of the Act and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.
3.2 Reason for the delay
In Pottenger v Department of Caffeine,[20] it was observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,[21] or a reasonable explanation.[22]
The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment.[23] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[24]
The Applicant attributes the delay in making the application upon several reasons which are addressed as follows.
The Applicant said that first he was shocked and dismayed at the actions the Respondent took in dismissing him before starting work after signing the employment contract. The Applicant explained that he missed another work opportunity, and this left him in a very poor state of mental health.
In applying for an extension of time, the Applicant explained that the Easter holiday was also a cause for delay. However, the Applicant said that he now realises that he meant Labour Day. The Applicant added that his confusion over the particular public holiday provided evidence of his state of mind at the time – noting that he was very distressed and upset.
The Applicant states that he emailed Mr Vincent Martzloff on 27 February 2023, having spoken to ‘Fair Work’, hoping to resolve the matter, but received no response. On that point, in his Outline of Submissions, the Applicant notes that he contacted ‘Fair Work’, but a representative was purportedly unable to speak to him on the telephone until 2 February 2023. It is presumed that the Applicant means 2 March 2023 given the employment contract was not provided to the Applicant until 8 February 2023.
In respect of the Applicant’s assertion that he was shocked and dismayed by the Respondent’s actions, there is no medical evidence before me to suggest that the Applicant’s health was so incapacitated that he was rendered incapable of dealing with his purported dismissal (including by making the application currently on foot). In the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition particularly where the employee demonstrates capacity to act by performing other tasks following the dismissal.[25]
Furthermore, and as has been observed by the Respondent, stress, shock, confusion and similar responses have been found not to constitute exceptional circumstances as they are ordinarily encountered by many employees subsequent to a dismissal.[26] It follows that I do not consider that the Applicant’s shock and distress constitutes an acceptable reason for the duration of the delay in making the application.
Regarding there having been a public holiday in the period following the purported ‘dismissal’, I do not consider that this constitutes a plausible reason for the delay or provides in part a reason for the delay. Whilst the jurisdiction accommodates circumstances for the filing of documents when the date of filing falls upon a public holiday, there is nothing extraordinary or uncommon that the period in which to make the application includes a public holiday.
Whilst the Applicant refers to having made contact with Mr Martzloff and with ‘Fair Work’, I do not consider that these assertions advance the Applicant’s case in respect of his argument concerning the delay in making the application.
Having considered the evidence before me, I am not persuaded that there is a credible explanation for the entirety of the delay or for that matter part of the delay.
On balance, and in the circumstances of this particular case, I find the reason for the delay is not an acceptable one. This weighs toward a finding of there not being exceptional circumstances.
3.3 Action taken to dispute the dismissal
There is no evidence before me to suggest that the Applicant took action to dispute the ‘dismissal’. The Applicant spoke of having attempted to resolve issues with Mr Martzloff and the Respondent submitted that the Applicant emailed the Respondent in relation to the termination of the contract asking for a payment. It is not obvious from the evidence provided that the Applicant disputed his dismissal or sought to dispute his dismissal. However, cognisant that the Applicant sought payment for the termination of the employment contract, I am, in the circumstances, content to find the factor a neutral consideration, such that it weighs neither in favour of, nor against, a finding of exceptional circumstances.
3.4 Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would face if an extension of time is granted.
However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. In the present case, I consider this to be a neutral factor.
3.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[27] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). The Full Bench said in respect to the merits of an application:
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.[28]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[29] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. However, in this case there is no factual dispute that the Respondent chose not to honour the employment contract, such that the Applicant’s employment did not commence on 21 February 2023 pursuant to clause 2.1 of the employment contract.
The Respondent argues that the Applicant was not its employee and therefore he was not dismissed. The contention is not absent merit. As was said by the majority in Khayam v Navitas English Pty (Navitas):
…The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to the termination of the employment relationship, not be reference to the termination of the contract of employment operative immediately before the cessation of employment…[30]
Of course, Navitas addressed the operation of s 386(1) in the context of dealing fundamentally with the operation of fixed or outer-limit contracts and there is no suggestion in this matter that the Applicant had signed up to such contract. However, the decision does shed light on the distinction between the employment relationship and the employment contract. That distinction is further traversed in Navitas by Colman DP, where the Deputy President explains:
[115] The ‘employment relationship’ is a relationship of employment: it is not simply any relationship that has some connection to employment. ‘Employment’ means the ‘state of being employed’ or the ‘state of having paid work’. The employment relationship is formed and substantially governed by the contract of employment. It may also be affected by statute and industrial instruments such as awards and enterprise agreements. It is useful to consider how the distinction between the employment relationship and the contract of employment can manifest itself in circumstances of termination of employment.
[116] Commonly, the contract of employment and the employment relationship will end at the same time as one another, and in the same manner, either at the initiative of the employer or the employee, or by agreement. As the Full Court of the Industrial Relations Court noted in Brackenridge v Toyota Motor Corporation Australia Ltd, ordinarily the conceptual difference between the contract of employment and the employment relationship does not matter; dismissal will ordinarily terminate both the particular contract of employment and the employment relationship.
[117] A second, not uncommon situation is where the employment relationship ends, but the contract of employment endures. This is what can occur in cases of wrongful dismissal, where the employment ends, but the employee does not accept repudiation of the contract, and it remains in existence. The High Court decisions in Automatic Fire Sprinklers, Byrne and Frew, Barker and Visscher contemplate this situation.
[118] A third theoretical postulation might be that the contract of employment ends but the employment relationship continues. Lunn was quite clear that ‘there can be no employment relationship without there also being a contract of employment in existence between the parties to the employment relationship’. It is very difficult to see how the employment relationship could exist in a contractual void. There might be rare cases where statute deems employment to survive the termination of the contract of employment. But even here there is likely to be some form of implied contractual foundation to the ongoing relationship.
It is an indubitable fact that the parties had entered into an employment contract. But it does not follow from this fact that an employment relationship had been established or otherwise commenced. The employment contract expressly provided that the Applicant’s ‘employment shall commence on 21 February 2023’. It never did. It is therefore difficult to conceive that the Applicant was an employee of the Respondent and was, prior to an employment relationship existing, dismissed, as that term is understood by reference to s 386(1) of the Act.
In his application, the Applicant has alleged that he has been the subject of unlawful discrimination in contravention of s 351 of the Act, but the attribute that he has specified, as required by section 351(1), is stated to be ‘Equal Opportunity’, which is not a protected attribute under s 351 of the Act. While the Applicant has taken umbrage to the Respondent acting upon the ‘hearsay’ of one of its current employees who purportedly worked with the Applicant previously and provided unfavourable feedback about the Applicant, such conduct does not suggest that unlawful discrimination lies at the heart of this matter.
The Applicant has not established that the substantive application in this jurisdiction is not without merit and this factor therefore weighs against a finding of exceptional circumstances. However, it is not the case that this conclusion detracts from the Applicant’s discontent with the Respondent’s failure to honour the terms of the employment contract.
3.6 Fairness as between the applicant and other persons in a similar position
Having considered the submissions of the parties in respect of this factor, I consider it to be a neutral consideration in the present matter.
Conclusion
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. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.
Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. No factors weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together. In all the circumstances, I do not consider it fair and equitable to extend the time in which the Applicant could make his application.
DEPUTY PRESIDENT
Appearances:
J Cariss, Applicant.
E Mirams, for the Respondent.
Hearing details:
2023.
Perth (by telephone):
27 April.
[1] Fair Work Act 2009 (Cth) s 366(1)(a).
[2] Ibid s 366(1)(b).
[3] [2022] FWCFB 234, [15].
[4] Ibid.
[5] Ibid.
[6] Ibid [17].
[7] PR761448.
[8] Respondent’s Outline of Submissions, [1].
[9] Ibid [2]; Digital Hearing Book, 50.
[10] Respondent’s Outline of Submissions, [3].
[11] Ibid [7].
[12] Applicant’s Outline of Submissions, [1h(2)].
[13] Ibid [1h(4)].
[14] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].
[15] Ibid [21].
[16] (2011) 203 IR 1, 6 [15].
[17] Ibid 5 [13].
[18] Ibid 5–6 [13].
[19] (2018) 273 IR 156, 165 [38] (emphasis in original) (Stogiannidis).
[20] [2018] FWC 3403.
[21] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[22] Roberts v Greystanes Disability Services [2018] FWC 64, [16].
[23] Stogiannidis (n 19) 165 [39].
[24] Ibid.
[25] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.
[26] Menelet v Enterprise & Training Company Ltd [2023] FWC 226, [19], citing Mamo v ICLED Australia Pty Ltd[2021] FWC 3903, [21], citing Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [15].
[27] (1997) 140 IR 1.
[28] Ibid 11.
[29] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[30] (2017) 273 IR 44, 80 [75].
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