John Cleaver v Aperion Holdings Pty Ltd as Trustee for the PMM Family Trust T/A Hank's Bar and Bistro
[2020] FWC 3540
•7 JULY 2020
| [2020] FWC 3540 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Cleaver
v
Aperion Holdings Pty Ltd as Trustee for the PMM Family Trust T/A Hank’s Bar and Bistro
(U2020/8287)
COMMISSIONER PLATT | ADELAIDE, 7 JULY 2020 |
Application for an unfair dismissal remedy – request for an extension of time – section 725 – 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 An additional issue in this case is the impact of s.725 of the Act.
[2] This decision concerns a consideration of the impact of non-compliance with s.725 of the Act and whether I should exercise my discretion to allow Mr John Cleaver a further period to lodge his unfair dismissal application.
[3] The Applicant and the Respondent have consented to the amendment of the name of the Respondent to Aperion Holdings Pty Ltd as Trustee for the PMM Family Trust T/A Hank’s Bar and Bistro (HBB). I have used my powers under s.586 of the Act to amend the application to correct the Respondent’s name.
Background
[4] The following facts are not in dispute.
[5] On 15 May 2020, Mr Cleaver instructed Mr Gaffney from Unfair Dismissal Experts Pty Ltd to represent him and lodge an unfair dismissal claim.
[6] On 21 May 2020, Mr Cleaver’s representative lodged an unfair dismissal claim in the Western Australian State jurisdiction. This claim was lodged within the 28 day time limit permitted in the Western Australian Industrial Relations Commission (WAIRC).
[7] On 15 June 2020, the Respondent raised a jurisdictional objection, in the state jurisdiction, that the WAIRC did not have jurisdiction as the Respondent was an incorporated trading trust.
[8] On 16 June 2020, Mr Cleaver’s representative lodged this application. The WAIRC claim remained on foot at the time this application was lodged (and had not been withdrawn at the time of the hearing).
[9] The s.394 application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“We lodged this matter in the WAIRC on basis of the ABN details in the ABN register for ABN 55 740 485 311. We attach that application as an appendix to this one.
Earlier today, we received a jurisdictional objection by the Respondent in the WAIRC alleging that the Respondent’s business is run as an incorporated trading trust. It cites ABN 57 623 531 984 which is a corporate entity.
According, we are immediately lodging this matter in the FWC’s jurisdiction in the event the Respondent’s arguments have merit. We make no representation about the merit or otherwise of the Respondent’s argument as we do not have the necessary information to make a determination as to whether the Respondent’s business is run as an unincorporated trading trust or as an incorporated trading trust.
The Commission has previously granted an extension of time in these circumstances. For example: Palmer v RCR Engineering Pty Ltd [2009] FWA 1431 (McCarthy DP, 2 December 2009).”
[10] On 29 June 2020, HBB lodged a form F3 Employer Response which indicated that the dismissal occurred on 25 April 2020 and raised a jurisdictional objection on the basis that a similar application in the WAIRC jurisdiction remained on foot, and that the application before the Commission was lodged out of time.
[11] Mr Cleaver’s s.394 Application advised that the dismissal took effect on 24 April 2020. It was agreed at the hearing that he was advised of the dismissal and that it took effect on 25 April 2020.
[12] On 19 June 2020, the Commission corresponded with the parties 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.
Hearing
[13] A hearing was conducted by way of telephone conference on 1 July 2020. A sound file record of the telephone conference was kept. Mr Cleaver was represented by Mr Lachlan Yule from Unfair Dismissal Experts Pty Ltd and Ms Bianca Grubor from the Australian Hotels Association - Western Australian Branch represented HBB. Permission was granted to Mr Yule pursuant s.596(2)(a) of the Act.
[14] Mr Cleaver submitted a statement and his position is summarised as follows:
• He instructed Mr Stephen Gaffney of Unfair Dismissal Experts Pty Ltd to represent him on 15 May 2020.
• On 21 May 2020, Mr Gaffney lodged an application challenging the dismissal in the WAIRC. This application was lodged within the permitted timeframe.
• On 16 June 2020, the Respondent raised a jurisdictional objection that the WAIRC did not have jurisdiction as the Respondent was an incorporated trading trust. This application was lodged that day.
• Mr Cleaver relies on representative error to explain the delay.
• The WAIRC application remained on foot.
• Mr Cleaver also provided a medical certificate which stated that he had symptoms suggestive of depression and anxiety on 26 May 2020 and a few weeks prior.
• The delay was the result of representational error and Mr Cleaver’s emotional state.
• As to merit, Mr Cleaver conceded he made a mistake but that his dismissal was a disproportionate response. Mr Cleaver’s representative conceded that if the claim was barred by s.725 of the Act, it had no prospects of success.
[15] HBB contended that:
• The dismissal occurred on 25 April 2020.
• On 21 May 2020, Mr Cleaver lodged an unfair dismissal claim in the WAIRC which remained on foot as at the date this application was lodged. The was in breach of the requirements of s.725 of the Act and this application could therefore not proceed.
• In the alternative, exceptional circumstances did not exist as the WAIRC application was lodged more than 21 days after the dismissal and that whilst there was representational error, Mr Cleaver has contributed to the delay.
[16] This decision deals with the issue of duplicate applications (s.725) and the extension of time issue.
Applicable Law
[17] Section 725 of the Act provides as follows:
“General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”
[18] The Fair Work Bill 2008 Explanatory Memorandum provides as follows:
“2707. This Subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.
2708. Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.
2709. Each of clauses 726 to 732 deals with different potential remedies. They each set out particular circumstances in which a person may not be prevented from making an application under one of the clauses even where they have initiated an application under another clause.
2710. In all cases the anti-double dipping provisions will not apply where the initial application has:
• been withdrawn; or
• failed for want of jurisdiction.
2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.
…
2714. Subparagraph 729(1)(b)(iii) provides that a person is not prevented from bringing an application under one of the other clauses if their unfair dismissal application failed because FWA was satisfied that the dismissal was a case of genuine redundancy. This is necessary because a dismissal may be a genuine redundancy even if the reason for selecting the employee for dismissal would contravene the general protections in Part 3-1 or a State or Territory anti-discrimination law. A person must make an application for unfair dismissal within seven days and whether or not a dismissal is a genuine redundancy is a preliminary matter that FWA must deal with before considering whether a dismissal was harsh, unjust or unreasonable. It would therefore be possible for a person to have an unfair dismissal application dismissed before they were even aware of the existence of a potential general protections or other claim.
2715. Clause 732 deals with an application or complaint under another law. This includes an application or complaint made under a law of a State or Territory. This reflects the fact that various State or Territory laws are not excluded by Part 1-3 of the Bill (Application of this Act) and national system employees could therefore seek remedies under those Acts. For example, a person whose employment has been terminated or who has been adversely treated in employment for reasons such as race, colour, sex, sexual preference, age or other discriminatory reasons could seek a remedy under a State or Territory anti-discrimination or equal opportunity law, or a remedy for contravention of protections under Division 5 of Part 3-1 (General Protections), but not both.”
[19] 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.”
[20] The effect of both s.725 and s.394(3) is that there is no application before the Commission in either case until the matter is resolved. As s.725 does not allow for any discretion, having considered the matter further after the hearing, I have determined to deal with that matter first, followed by a consideration of the extension of time matter. Whilst this represents a departure from the order taken during the hearing, the issues concerning the factual circumstances and the requirements of s.725 and its impact were well canvassed.
[21] The WAIRC application is clearly an application contemplated by s.732 of the Act. The intention of s.725 is that an employee cannot have duplicate actions of the types described in sections 726 to 732. In essence an applicant cannot have two bites at the cherry. Prior to the submission of the competing claim, the prior application must be withdrawn (prior to finality) or fail for want of jurisdiction to allow the other to proceed. The public policy reasons for this approach are detailed in the explanatory memorandum.
[22] In this case Mr Cleaver has not discontinued his WAIRC application prior to lodgement of this application. Whilst this may have resulted from further ‘representative error’, s.725 is not forgiving of this type of error and I am required to dismiss this application.
[23] If I am wrong about dealing with the s.725 matter first, I would have taken the following approach in respect of the extension of time application.
[24] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.3
[25] The provisions of s.394(3) of the Act must be considered 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
[26] This unfair dismissal application by Mr Cleaver was made 29 days late (noting that the dismissal occurred on a Saturday which will extend the lodgement by two days) after the dismissal and therefore, can only be pursued if this time limit is extended.
Paragraph 394(3)(a) - reason for the delay
[27] 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 v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,6the 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.”
[28] 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.”
[29] I note that Mr Cleaver did not instruct his lawyer until 15 May 2020, however, had his claim been correctly made within the WAIRC jurisdiction the late instruction would have been of no consequence. In my view the delay in this matter is entirely explained by the incorrect advice given to Mr Cleaver. The delay is wholly explained by representative error. Whilst I recognise Mr Cleaver did not file in the WAIRC within 21 days, a 28 day filing period is permitted by the Industrial Relations Act 1979 (WA).
[30] This application was filed promptly upon Mr Cleaver realising that the original application had been filed in the wrong jurisdiction.
[31] It is common for employees to suffer shock and trauma as a result of a dismissal.8 This of itself is not an exceptional circumstance. With respect to Mr Cleaver’s medical condition, the medical certificate provided appears not to contend anything other than normal shock and trauma.
[32] Given that Mr Cleaver has provided a credible reason for the totality of the delay in filing his Application, this factor weighs in favour of granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[33] Mr Cleaver was aware of the dismissal on the date that it occurred (25 April 2020).
[34] This is a neutral factor towards a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
[35] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.9
[36] The lodgement of the WAIRC application represents action taken to contest the dismissal and this factor weighs in favour of granting an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
[37] Prejudice to the employer will weigh against granting an extension of time.10 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.11
[38] A long delay gives rise “to a general presumption of prejudice”.12
[39] 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.13
[40] I accept that the employer has suffered prejudice in having to defend two applications alleging unfair dismissal and this is a consideration which weighs against the granting of an extension time.
Paragraph 394(3)(e) - merits of the application
[41] In terms of the merits of the application, there are two considerations.
[42] In respect of the factual circumstances that led to the dismissal, there is a contest and insufficient evidence is before me to make an assessment. I have regarded this part of the merits as a neutral factor.
[43] In so far as Mr Cleaver has not met the requirements of s.725 of the Act, this application is doomed to fail (for the reasons previously discussed) and in this respect I have regarded the merits as a factor which weighs against the extension of time issue.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
[44] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd14 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.”
[45] 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
[46] 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, as a result of the impact of s.725 of the Act this application has no prospects of success.
[47] 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.
[48] An Order15 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
L Yule of Unfair Dismissal Experts Pty Ltd on behalf of the Applicant.
B Grubor of the Australian Hotels Association - Western Australian Branch on behalf of the Respondent.
Hearing (Conference) details:
2020.
Adelaide:
July 1.
Printed by authority of the Commonwealth Government Printer
<PR720775>
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 Rose v BMD Constructions Pty Ltd[2011] FWA 673
9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
10 Ibid
11 Ibid
12 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556
13 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
14 [2016] FWCFB 6963
15 PR720776
0
14
0