John Palmer v The Trustee for T & P Removals Unit Trust trading as Allied Business Relocations Adelaide
[2024] FWC 707
•19 MARCH 2024
| [2024] FWC 707 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
John Palmer
v
The Trustee for T & P Removals Unit Trust trading as Allied Business Relocations Adelaide
(U2024/99)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 19 MARCH 2024 |
Application for an unfair dismissal remedy – extension of time – erroneous belief that six month time period applied – custodial detention after three months – filing at end of six month period – whether exceptional circumstances – discretionary considerations – extension refused – application dismissed – observations on responsiveness of custodial authorities to Commission proceedings
On 3 January 2024 John Palmer (Mr Palmer or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy in relation to a dismissal by Allied Pickfords which took effect on 4 July 2023.[1]
Allied Pickfords is the former trading name of the correctly named respondent, The Trustee for T & P Removals Unit Trust trading as Allied Business Relocations Adelaide (Allied Business Relocations Adelaide, the respondent or the employer).
The application is one hundred and sixty two days outside the statutory 21-day period for making unfair dismissal claims. Mr Palmer seeks an extension of time. Allied Business Relocations Adelaide oppose an extension.
This decision determines whether an extension of time should be granted.
I conducted a directions hearing (by telephone) and issued directions on 29 February 2024.
I heard the extension of time issue (again by telephone) on 12 March 2024.
Mr Palmer and Allied Business Relocations Adelaide were self-represented; Allied Business Relocations Adelaide by its owner and director Mr Tim Hosking.
At the time of making his application and in the period following up to and including the hearing, Mr Palmer was in custody under the supervision of officers of the South Australian Department for Correctional Services.
Mr Palmer was only permitted to attend hearings of the Commission by telephone (not video) and only with the permission of correctional services officers and at specified times. Given that Mr Palmer was not represented, I provided a measure of assistance to ensure his case was presented and understood, and the employer’s tested. Correspondence to or from the Commission concerning the application occurred only via correctional services officers (or relevant social workers).
The unorthodox circumstance of an applicant seeking to advance industrial litigation before the Commission whilst in custody presents difficulties for parties, the Commission and custodial authorities. Whilst recognising those difficulties, I express concern at the inconsistent and at times low level of interest my chambers experienced in dealing with the relevant South Australian custodial authority (Adelaide Remand Centre) on administrative arrangements necessary to ensure proceedings occurred with the minimum required procedural fairness and efficiency. These shortcomings included not confirming that Commission notices or materials had been given to Mr Palmer and, according to Mr Palmer, not on-forwarding material he requested be sent.[2]
Having in separate proceedings expressed concern at an apparent failure by the same custodial authority to efficiently deal with employment matters,[3] I again request the General Manager of the Commission to draw these further observations to the attention of the Chief Executive of the Department for Correctional Services (SA) for the purpose of seeking clarity on the protocols (if any) the State’s custodial authorities (and in particular the Remand Centre) adopt to facilitate Commission proceedings involving persons under its care and control.
Despite these constraints, I am satisfied that Mr Palmer had due notice of the hearing, a working knowledge of what was required of him, an opportunity to reply to the employer’s contentions and, with the Commission’s assistance, a fair opportunity to present his case.
The facts are largely not in dispute.
Facts
Employment
Allied Business Relocations Adelaide is a removalist business servicing commercial and domestic customers.
Mr Palmer is a resident of Adelaide. He first commenced with the business as a labour hire employee in 2020. He was directly employed in September 2021 as a casual removalist. His wages and conditions were governed by the Road Transport and Distribution Award 2020.
Mr Palmer sustained a work related injury in December 2022. He returned to work in May 2023 after being certified fit to do so.[4]
On 4 July 2023 Mr Hosking dismissed Mr Palmer for cause with immediate effect. The dismissal was communicated orally (by telephone) with Mr Hosking advising the reason. No written record of dismissal was made or exchanged.
Events following dismissal
Two days after dismissal Mr Palmer attended the workplace and returned company property. It was apparent to Mr Hosking from the telephone discussion on 4 July and their subsequent exchange two days later that Mr Palmer disagreed with the dismissal.
Mr Palmer’s evidence was that approximately one week after being dismissed he telephoned the government agency which had managed his earlier workers compensation claim (Return to Work SA) and briefly spoke to an officer about his discontent at having been dismissed. Mr Palmer’s evidence was that he was told that he had six months within which to file an unfair dismissal or bullying claim.
Mr Palmer’s evidence was that he did not wish to make a claim but felt he had been unfairly treated and made a mental note of the time frame he says he had been told.
In the immediate post dismissal period, Mr Palmer’s evidence was that he did not make other enquiries about his unfair dismissal rights nor verify whether the information he says he had been told about time frames was correct. In this period, Mr Palmer remained a resident of Adelaide and had access to the internet but did not take the matter further because doing so was not his preference and he believed he had a full six months to do so.
In September 2023 Mr Palmer sought his job back. He did so by sending a lengthy email to Mr Hosking on 22 September 2023. In that email Mr Palmer responded to some of the reasons for dismissal and stated:[5]
“I think all in all it’s definitely an unfair dismissal from what I’ve been told. I just thought it would be easier to go the route of asking politely for my position back.”
Mr Palmer concluded the email with a postscript:
“…not even work place lawyers think this is okay.”
Mr Hosking replied by email on 25 September 2023 repeating the reasons for dismissal. Mr Palmer immediately replied refuting the employer’s claims and again stating:
“I’ve spoken to lawyers and it’s not at all okay. I just haven’t done anything yet as I thought I would ask for my job back first and see what you said.”
Custodial detention
One month later, on 28 October 2023, Mr Palmer was taken into custodial detention for unrelated matters by the South Australian authorities. He was initially taken to the Adelaide Remand Centre, then moved to Mobilong Prison, then moved back to the Remand Centre.
Whilst in custody, Mr Palmer reflected further on his dismissal. Two months into the custodial period, on 3 January 2024, and immediately prior to what he believed to be the six month deadline, Mr Palmer decided to make a clam of unfair dismissal. 4 January 2024 was six months after the dismissal date of 4 July 2023.
Whilst in custody, Mr Palmer had no access to the internet, to his private email address or to electronic communication devices. On or about 1 January 2024, whilst at the Mobilong Prison, Mr Palmer asked a correctional services social worker to download a copy of an unfair dismissal application form (F3) from the internet. He was given the form on 1 or 2 January 2024. He populated the form by hand on one of those days.
On or around 3 January 2024 Mr Palmer signed and dated the application form. He requested that his handwritten unfair dismissal application be forwarded to the Commission by the correctional services social worker.
At 3.55pm on 3 January 2024 the Commission received, from the email account of a correctional services social worker, Mr Palmer’s application. The covering email indicated that the officer was forwarding the document on Mr Palmer’s behalf. The application stated that Mr Palmer was representing himself.
Consideration
Unfair dismissal applications are required to be filed within twenty-one days of a dismissal taking effect. However, s 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(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.”
The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[6]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[7] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[8]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[9]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[10]
It is not in dispute that the application is one hundred and sixty two days out of time.
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[11] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[12]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[13]
The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[14]
In his application, Mr Palmer stated the reason for delay as follows:
“After released from hospital with a left lower broken leg I was placed on Workcover for six months then returned to work for approximately 4 weeks. I spoke with Workplace SA who advised me that due to my situation I had up to six months to lodge.”
This explanation advances two reasons; firstly, the Workcover claim, and secondly advice said to have been received about a six month time frame to make a claim.
Do either of these explanations individually or collectively constitute an acceptable reason for the delay?
The first reason clearly does not do so. The uncontroverted evidence is that Mr Palmer returned to work in May 2023 when medically certified fit to do so. This was well prior to the dismissal. Neither the work related injury nor Mr Palmer’s return to work from that injury explain the delay.
With respect to the second reason, Mr Palmer’s evidence was that the organisation “Workplace SA” he referred to in his application was the government agency that had handled his workers compensation claim (Return to Work SA). As noted, Mr Palmer’s evidence was that he spoke by phone to an officer of that agency about a week after dismissal and recalls being told that unfair dismissal or bullying claims needed to be pursued within six months.
There is no corroborating evidence of that telephone call, nor of Mr Palmer’s assertion that he was told that he had six months to make an unfair dismissal claim. Absent corroboration, it is implausible that a government officer would advise a dismissed employee that a six month time limit applies, when under both federal law and South Australian law unfair dismissal claims must be lodged within 21 days.[15] However, I do not discount that Mr Palmer may have misunderstood what he was being told. Whilst there is no specific evidence before me that Mr Palmer was told about eligibility criteria, he may, for example, have confused information about unfair dismissal eligibility rules (twelve months continuous service in a small business, six months in other businesses) as being about filing periods, not eligibility. The fact that Mr Palmer made the application immediately prior to the six month mark but not before supports an inference that, at the very least, Mr Palmer believed this to be so.
However, even if I were to draw the aforementioned inference or accept the uncorroborated evidence of Mr Palmer that this is what he was told by a government agency at around the time of being dismissed, there is no evidence that Mr Palmer did anything with that information for many months other than communicate in late September 2023 with Mr Hosking. There is no evidence that Mr Palmer actively sought to make a claim or take any further advice inside whatever period he knew of or may have been advised about until six months later when he was in custody.
I note that in his emails to Mr Hosking on 22 and 25 September 2023 Mr Palmer makes reference to ‘work place lawyers’. There is no evidence before me that Mr Palmer did in fact seek or receive legal advice in the more than three month period that elapsed after dismissal and before being taken into custody (5 July 2023 to 27 October 2023 inclusive). Had he done so, this would not necessarily explain the delay because no claim was made or sought to be made in this period.
I take into account that whilst in custody (28 October 2023 and following) Mr Palmer had no practical access to information or advice from government websites. However, in the three months prior Mr Palmer had such access. Irrespective of whether Mr Palmer had been advised or correctly advised about time periods to make a claim, Mr Palmer could have but failed to follow-up his interests in that pre-custodial period. Once in custody Mr Palmer waited until the near full expiry of the six month period before making the claim.
Whilst the three month period in custody is a materially different circumstance and somewhat explains the delay in that custodial period, neither of the explanations individually or collectively constitute an acceptable reason for the delay.
The absence of a reasonable explanation weighs against a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Mr Palmer was aware that he was dismissed with immediate effect on 4 July 2023.
Mr Palmer was also aware of the reason.
In the circumstances, this factor does not weigh in favour of a finding of exceptional circumstances.
Action taken to dispute dismissal (s 394(3)(c))
It is readily apparent that Mr Palmer made the employer aware at the time of dismissal that he disagreed with the decision.
It is also readily apparent, and somewhat weighing in Mr Palmer’s favour, that he maintained this position by communicating it formally two months later on 22 and 25 September 2023, and upon doing so indicated that he knew of unfair dismissal laws and considered that he had a potential claim if his request to be voluntarily re-employed was not agreed. It was not agreed. However, a further month elapsed and no action was taken by Mr Palmer, prior to the custodial detention.
A consequence of this is that whilst the late filing was a surprise to the employer, the fact that action was taken in the Commission was not, objectively considered, entirely unexpected.
This factor weighs somewhat in favour of extending time.
Prejudice to the employer (s 394(3)(d))
Allied Business Relocations Adelaide would incur time and effort in responding to an unfair dismissal claim. That said, the prejudice to the employer is not unique though the considerable lapse of time since the dismissal has the potential to detract from the quality of evidence that may be led at a merits hearing concerning Mr Palmer’s alleged conduct.
However, the absence of prejudice would not itself be a reason to grant an extension.[16]
In the circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
The merits of Mr Palmer’s unfair dismissal application appear to concern conduct issues and whether the conduct which triggered the dismissal, or an alleged prior pattern of conduct, was a valid reason for termination.
Not having heard evidence on these issues, it is not safe to express a provisional view on the merits.
In this matter, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
This issue does not arise in this matter.
Conclusion
The one hundred and sixty two day period of delay is significant in the context of a twenty-one day statutory time limit.
It is unusual that an employee makes an unfair dismissal application whilst in custody. Custody materially limits access to industrial advice, the capacity to research employment matters and exercise workplace rights. Depending on the circumstances, these factors may point towards a finding of exceptional circumstances.
However, in this matter that fact alone does not reasonably explain the delay. In the three month period that elapsed between Mr Palmer’s dismissal and prior to his custodial detention he could reasonably have, but did not, commence proceedings.
The essential reason why Mr Palmer delayed filing until when he did was his belief that he had six months to make a claim. I have concluded that this belief was genuinely held even though it was wrong. However, the genuine but mistaken belief does not weigh decisively in Mr Palmer’s favour because, even if it was the product of a discussion with a workers compensation officer, Mr Palmer took no steps after that discussion to ascertain whether he had correctly understood the information communicated, nor promptly advanced his interests. Rather, Mr Palmer chose to wait until the next to last day of the presumed six month period to exercise legal rights.
A person who could have filed earlier but chooses to file on the last or near to last day is taking a calculated risk and gives themselves no leeway for error. In doing so and, if they have in fact acted in error, then the choice made in taking that risk does not, of itself, point to exceptional circumstances. As observed in Shaw v Australia and New Zealand Banking Group Limited:[17]
“...a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation.”
However, weighing somewhat in Mr Palmer’s favour is the fact that he put the employer on notice orally on 4 July and then in writing on 22 and 25 September 2023 that he considered the dismissal unfair. However, by 22 and 25 September 2023 the statutory time limit had already passed; and had passed because Mr Palmer had not advanced his interests beyond a discussion with a workers compensation officer. Even after Mr Hosking rebuffed Mr Palmer’s request for re-employment, nothing was done for another month before custodial detention.
No other factor required to be considered by s 394(3) weighs in favour of a finding of exceptional circumstances. Considered overall, I do not consider that the circumstances, particularly taking into account the three month period of delay before custodial detention when an application could have been but was not filed, are exceptional.
Disposition
There being no exceptional circumstances, the time for lodgement of application U2024/99 cannot be extended.
Being out of time, the application must be dismissed.
An order[18] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
J. Palmer, on his own behalf
T. Hosking, of The Trustee for T & P Removals Unit Trust trading as Allied Business Relocations Adelaide.
Hearing details:
2024.
Adelaide;
12 March
[1] The employer’s response stated dismissal was notified and took effect on 5 July 2023; it was an agreed fact at the hearing that dismissal took effect on 4 July 2023
[2] Mr Palmer advised the hearing on 12 March 2024 that he had prepared a written submission on the extension of time request and had asked an officer of the Adelaide Remand Centre to on-forward it to the Commission. As at the hearing date, this had not been received by chambers. So as to not disadvantage Mr Palmer, he was invited to outline orally what he had put in writing, and did so
[3] Ali Qureshi v Spotless Services Australia Limited[2023] FWC 2411, [220] – [226]
[4] R2
[5] R1 Email chain 22 September 2023 and 25 September 2023
[6] Smith v Canning Division of General Practice[2009] AIRC 959
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21]
[8] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[9] [2011] FWAFB 975, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251, [5]
[10] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954, [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167, [6]
[11] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [30] and [36]
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, [35]-[45]
[13] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[14] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[15] Section 394 Fair Work Act 2009 (Cth); s 106(1) Fair Work Act 1994 (SA)
[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
[17] [2014] FWC 3903, [28]
[18] PR772504
Printed by authority of the Commonwealth Government Printer
<PR772503>
3
13
0