John Whybrow v Swetha International Pty Ltd

[2016] FWC 8019

[2016] FWC 8019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

John Whybrow
v
Swetha International Pty Ltd
(U2016/7993)

COMMISSIONER JOHNS MELBOURNE, 14 DECEMBER 2016

Application for relief from unfair dismissal – jurisdictional objection – not dismissed – extension of time – casual employee.

Introduction

[1] On 27 June 2016 John Whybrow (applicant) made an application to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work Act 2009 (FW Act) seeking a remedy for his alleged unfair dismissal by Swetha International Pty Ltd (respondent/employer/Swetha).

[2] On 22 August 2016 the respondent filed a response to the unfair dismissal application. It raised two jurisdictional objections to the Commission hearing and determining the matter, as follows:

a) the applicant was not dismissed within the meaning of s.386 of the FW Act, because the applicant’s employment was not terminated at the employer's initiative (Not Dismissed Objection); and

b) if the Commission determines that the applicant was dismissed, that the applicant’s application was lodged outside of the 21 day time limit prescribed by s.394 of the FW Act (Out of Time Objection).

Hearing

[3] At the hearing of the matter on 13 October 2016 in Sydney:

a) the applicant was represented by Ms Lizanne Bennett from the Australian Rail Tram and Bus Industry Union (RTBU) and relied upon the applicant’s submissions (Exhibit A1).
b) Mr R Warren of counsel appeared for the respondent and relied upon the respondent’s submissions (Exhibit R1).

c) The applicant gave evidence and relied on his first and second witness statements (Exhibit A2 and Exhibit A3 respectively).

d) Mr Praveen Challa, Managing Director of the respondent, gave evidence and relied on his witness statement (Exhibit R2).

[4] Before determining whether the dismissal of the applicant was harsh, unjust or unreasonable, I must determine the jurisdictional objections raised by the respondent. For the reasons below I have decided:

1. the Not Dismissed Objection in favour of the applicant; and

2. the Out of time Objection in favour of the respondent.

Background
[5] The following factors are either expressly agreed or are not in contention:

a) Swetha is an employment agency specialising in providing manpower solutions to general and specific technical services;

b) Swetha provides safe working services to its client Sydney Trains, NSW and other rail transport networks; 1

c) On 13 May 2007, the applicant commenced employment with Swetha (as his primary employer) as a Hand Signaller and then a protection officer; 2

d) On 9 June 2015, the applicant was found to have breached work safety policies at the Gosford, Sydney Trains site during a shift he was working on 28 May 2016; 3

e) On 25 June 2015, Swetha proposed to Sydney Trains, NSW a “Return to Work Plan” for the applicant, where he would be confined to the duties of a Protection Officer Level 1; 4

f) On 17 July 2015, Sydney Trains, NSW accepted the respondent’s offer on the basis of the restriction to the applicant’s duties applying for two months;

g) 28 July 2015, was the last date of communication between the applicant and respondent; 5

h) On 25 September 2015, the RTBU wrote to the respondent informing it of their intention to pursue the payment of Long Service Leave (LSL) to the applicant; 6

i) On 18 February 2016, the applicant received an email distributed to “All Field Staff Distribution List”, from Mr George Mula, Manager Safeworking, detailing information on upcoming safework briefings; 7

j) On 1 March 2016, the applicant nominated Multi Civil Rail Services (MCR) as his primary employer; 8

k) On 22 March 2016, the RTBU filed an application to deal with the dispute relating to LSL in the Commission; 9

l) On 17 June 2016, the RTBU discontinued the LSL application in order to pursue this unfair dismissal application.

Relevant Legislation
[6] The term “dismissed” is defined under s.386 of the FW Act as follows:

“S.386 Meaning of dismissed
(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:

(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[7] It was not contended by either party that the applicant had resigned from his position. Accordingly, s.386(1)(b) of the FW Act does not relevantly arise for consideration in this case. Consequently, the Commission must determine, pursuant to s.386(1)(a) of the FW Act, whether the applicant was dismissed at the initiative of the employer.

Was the applicant dismissed?

[8] Deputy President Kovacic, outlined the relevant considerations in determining whether a dismissal was “at the initiative of the employer” in Israel Mor Hiam v Jodack Pty Ltd T/A Snap Caulfield South [2016] FWC 2265:

“[30]A Full Bench of the then Australian Industrial Relations Commission considered the meaning of the expression ‘Termination at the initiative of the employer” in Searle v Moly Mines Ltd (Searle). Specifically, the Full Bench said in Searle:

“[20] A Full Bench recently considered the meaning of the expression “termination at the initiative of the employer” ‘in O’Meara v Stanley Works Pty Ltd. For our purposes it is sufficient to refer to the following passage in which, having referred to the authorities, the Commission said:

‘[23] In our view the full statement of reasons in Mohazab [(1995) 62 IR 200] which we have set out together with the further explanation by Moore J in Rheinberger [(1966) 67 IR 154] and the decisions of Full Benches of this Commission in Pawel [Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C] and ABB Engineering [Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C] require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” [ Mohazab at page 205.] Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab . In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.’ ” (Underlining added)

Respondent’s Case

[9] The respondent submitted that the applicant was not terminated at the respondent’s initiative, for the following reasons: 10

“4. It is apparent from the evidence that at no time since the end of July 2015 has the Respondent advised the Applicant that his employment had been terminated. The Applicant cannot point to, nor could he, any conversation or correspondence from the Respondent indicating that his casual employment had been terminated. It is thus left for the Applicant to sustain an argument that the Applicant has been, or had been, terminated by the Respondent through some course of conduct.

5. Evidence has been received by the Commission that the Applicant’s employment grade as a Protection Officer (PO) had been reduced, as a result of a serious breach of safety protocol, from PO4 to PO1. The reduction in grade, negotiated by the Respondent with Sydney Trains as an alternative to the Applicant being deregistered as a Protection Officer, was for a 2 month period commencing on 15 July 2015. There is clear evidence that there was at the time scarce employment opportunities for a person classified as PO1.

6. The Applicant regained his PO4 classification on 15 September 2015. The fundamental question put by the Applicant, and questioned by the Commission during the proceedings, was the effect on the continued employment of the Applicant in circumstances where the Applicant was offered no work after 15 September 2015, prior to him nominating an alternate primary employer, being MultiCivil Rail Services (MCR), on 1 March 2016.

7. The Applicant’s failure to provide satisfactory service occurred at a time when the Respondent was under significant pressure from its client, Sydney Trains, to show cause why the Respondent should not be excluded as a provider of safeworking services on the Sydney Trains network. Mr Challa gave evidence that:

“27. We were notified by Sydney Trains that we were required to attend a meeting with Sydney Trains’ Director of Maintenance on 1 October 2015 to show cause why Swetha should not be excluded as a provider of safeworking services for Sydney Trains.

28. I realised that due to the number of incidents that had occurred, Swetha’s contract with Sydney Trains was at risk. I knew that we needed to be very careful to ensure that no further incidents took place. If Swetha had been excluded as a provider of safeworking personnel for Sydney Trains, we would have had no work at all for many of our casual employees, regardless of their PO level.” 11

8. The above evidence of Mr Challa is consistent with the position put in paragraph 37 of the Employer Response where it submitted:

“37. During the period from October to February, 2016, Swetha exercised considerable caution in the rostering of its Level 3 and 4 Protection Officers with Sydney Trains in order to place itself in the best possible position to ensure its employees’ strict compliance with safeworking procedures and thereby avoid the recurrence of safety breaches that would in all likelihood jeopardise Swetha’s contract.”

9. The Respondent remained concerned to only call on its most competent employees from its casual pool to attend for work for Sydney Trains from September 2015 to February 2016.

10. During questioning from the Commission on 13 October 2016, the following exchange occurred between the Commission questioning and Mr Challa giving answers:

“PN452: So you made a decision to give him no more shifts, didn’t you? --- No. Like, there was no suitable shift - - -

PN453: You thought he was too great a risk for you, didn’t you? --- To some extent, yes.

PN454: And so you decided to give him no more shifts, isn’t that right --- Because at that - - -

PN455: I’m not asking you about the because. You decided to give him no more shifts because you decided he was too great a risk for you, didn’t you -- - I was waiting for the proper job to give it to him, low-low risk job.”

11. No decision had been taken to dismiss the Applicant; indeed, he remained in the casual pool of employees throughout the period from September 2015 to March 2016. The Applicant received an email from the Respondent on 18 February 2016 advising the Applicant, as one of the then current “Primary Swetha Protection Officers and Hand Signallers”, to attend a briefing session, conducted by Swetha personnel, in order that he may maintain his currency to work on the Sydney Trains network as an employee of the Respondent. 12 In that correspondence by email the Applicant was informed:

“All Primary Swetha Protection Officers and Hand Signallers please be advised that the Network Rules and Procedures will be changing from 0001 hours on Sunday 20th March, 2016. The changes will impact all Protection Officers and Hand Signallers, Sydney Trains has directed that all Safe Working Staff (Traffic Officers, Protection Officers and Hand Signallers) must be briefed on the changes prior to being permitted to work within the Sydney Trains and NSW Trains Network from 0001 hours on Sunday, 20th March, 2016. … All note – if you have not been recorded as being briefed by an authorised briefer then you will not be permitted to work for Sydney Trains or NSW Trains until you have been briefed.”

12. The Applicant received the above correspondence from the Respondent as he had not been dismissed and remained in the Respondent’s casual pool of available employees. However, the Applicant failed to take up the Respondent’s offer or, it could be said, its direction to contact a briefing officer and arrange for that essential briefing to take place. The Applicant chose not to organise to be briefed on the changes as directed. 13

13. Whilst it is clear that the Respondent was reluctant to give the Applicant casual shifts from September through to February 2016, as a result of their serious concerns as to his safety credentials, it cannot be said that his employment had been terminated at the initiative of his employer. The Applicant remained on the Respondent’s substantial list of casual employees, during a period of very low availability of any work, and indeed whilst still clearly considered by the Respondent as a casual employee in February 2016, he neglected to take up an invitation by the Respondent to receive essential additional briefings to continue in his employment with the Respondent.

14. The Applicant’s casual employment with the Respondent had not been terminated at the initiative of the Respondent.”

Applicant’s Case

[10] The applicant submitted that his termination was at the respondent’s initiative for the following reasons:  14

“Swetha have consistently denied that they have dismissed Mr Whybrow but he has not been provided with work by Swetha since 29 July 2015. Swetha has argued that there has been no work to offer him and that this is due to a downturn in business and that this is the nature of the business and there are seasonal impacts on the availability of work. This is shown in the evidence provided by the employer in exhibit R1 and in the statement of Mr Challa exhibit R2. He also states that the company’s safety record had resulted in Sydney Trains questioning Swetha as a provider (exhibit R2 para 26-27). He state Mr Whybrow did not want to work out of the area.

In response to questions from the Commission Mr Challa admitted that there had been work available at Mr Whybrow’s classification, on a project in the North, since September 2015 but he did not offer one hour of work to Mr Whybrow (transcript PN407 to PN423)

Mr Whybrow had been provided with regular and systematic employment with Swetha for almost 8 years and had a reasonable expectation of continuing employment on a regular and systematic basis, especially once he was back to being a PO4.

In exhibit A1, there is evidence in emails (attachment 5(i)) between Steve Mulry Workforce Allocation Manager and Mr Whybrow) of Mr Whybrow being allocated work and then being pulled off it. This demonstrates that work was available. Not being given work was purely at the employer’s initiative. Mr Whybrow had been continuously employed for eight years.

Continuous service of a casual is only broken by one party making it clear to the other party that there will be no further engagements. Not being provided with work by Swetha since July 2015 is a termination on the employer’s initiative despite Swetha’s contention they have never terminated Mr Whybrow’s employment.

There is some difficulty as to the date of termination as, although Mr Whybrow had an expectation at the end of September 2015 that he would again be provided with work by Swetha, this did not occur. However the actions he took in seeking to raise a dispute under the Enterprise Agreement over his lack of work demonstrate that he still thought he would get work with Swetha.

It was only on 1 March 2016 that Mr Whybrow came to the final conclusion that he would not get any work in the future with Swetha that he changed his primary employer to MCR.”

Consideration

[11] It is clear that the respondent did not expressly terminate Mr Whybrow’s employment. Consequently, for the termination to be at the initiative of the employer, it must be demonstrated that the termination was somehow evident from the respondent’s conduct.

[12] In Gilda Cohen-Shapira v The Scots College [2014] FWC 953 (Gilda) the facts were similar to the matter currently before the Commission. The Scots College raised a jurisdictional objection to an unfair dismissal application brought against it on the grounds that the applicant was not dismissed. The Scots College submitted that the applicant was a casual employee and due to a lack of work, had not been employed for a lengthy period of time; and that not providing the applicant with work, did not constitute a dismissal.

[13] In Gilda, Deputy President Lawrence observed that:

“[47] In a similar case, Kalinda Ferguson and Belinda Betts v Pleasant Way Motel Pty Limited [2011] FWA 3815, on which Mr Read relied, Commissioner Connor concluded at [26]:

“Both Ms Ferguson and Ms Betts recorded in their s.394 application that they were dismissed effective from Thursday, 9 December, 2011. Whilst they at no time were told that they were dismissed - and Mr Eivers asserts that they were not- from that date they had simply not been picked up to work. It would be natural for Ms Ferguson and Ms Betts to assume from that fact that they were dismissed. It is not sufficient for Mr Eivers to say, as he has in his e-mail to me, that they were still employed and that he had offered them to return to work - albeit I would believe on a very casual basis. I am satisfied that from the evidence before me from Ms Ferguson and Ms Betts that from the outset they were both engaged on a regular and systematic basis only to have the terms of their employment altered unilaterally to a most casual arrangement from which they were not being picked up for work at all, or at least picked up on a very limited basis only. That constitutes such a fundamental change to the employment conditions under which they were formerly engaged as to effectively support Dr Thornton’s submission that they had been dismissed, in my opinion.” (Underlining added for emphasis).

[14] In Gilda, the applicant filed an unfair dismissal application two months and two weeks after her last shift with the respondent. During this period the respondent never expressly dismissed the applicant. The applicant remained on its casual employee register. However, Deputy President Lawrence found that the respondent’s actions constituted a dismissal.

[15] In the present matter, Swetha was the primary employer of the applicant. As his primary employer, Swetha owed him a duty to allocate him casual work where it was possible and vacant hours existed. 15 It was argued by Mr Challa that it was difficult to find the applicant work during the periods in which his PO level was reduced to PO1 as there were very limited hours available for PO1 workers. I accept his evidence in this regard.

However, Mr Challa conceded that after 17 September 2015, when the applicant’s PO level was PO4, there were plenty of hours available which could have been allocated to the applicant. 16 Mr Challa’s reason for not allocating any work to the applicant after 17 September 2016 was the applicant’s previous non-compliance incident. Mr Challa avoided allocating him hours as he was not confident in the quality of his work.17

I can understand why Mr Challa thought this was a valid reason for not allocating shifts to the applicant. The applicant was found to have breached safety policy in May 2015 and consequently was placed on a two month period (from 17 July to 17 September 2015) of restricted duties (probation). During this two month period, the applicant was to be restricted to PO1 duties only (these facts are disputed). However, it is clear that the respondent held a genuine belief that the applicant was in fact, for those two months, operating within the bounds of the probation known as the “Return to Work Plan”. 18

[16] In essence, the probation period was used to “counsel” the applicant. Following the probation it was expected that, moving forward, the applicant would comply with all policies and procedures and regain his status as a PO4 employee. 19 The respondent, contrary to the probation’s purpose, then restricted the allocation of hours to the applicant. The respondent says this was due to a lack of confidence. However, the probation period in itself should have satisfied the respondent that the applicant could return to work and fulfil his duties as a PO4 officer; otherwise it would not have imposed the two month period of probation.

I do not accept that a lack of confidence, whether genuinely held or not, was a proper reason for restricting the allocation of hours to the applicant.

Further, during the probation period, the applicant was allocated PO2 officer duties (when he was meant to be restricted to PO1). To allocate him duties which surpassed the very limits imposed on him by the respondent, suggests that the respondent had a degree of trust in the applicant. 20

On 25 September 2015, the RTBU wrote to Swetha in regards to the “sudden cessation of work availability” for the applicant.

On 12 October 2015, Mr Challa wrote back stating “…we do our best to give our employees equal share of work that becomes available…we need to spread what work we have among the work force we have so that we can keep our employees from migrating to other employers”. 21

However, Mr Challa’s evidence was contradictory to this. Mr Challa conceded there were hours available to the applicant which he (Mr Challa) did not assign to the applicant:  22

“COMMISSIONER: Since 17 September last year, you've had five, six or seven blokes working 32 to 40 hours a week, isn't that right?

MR CHALLA: Yes.

COMMISSIONER: So you've had plenty of hours available, haven't you?

MR CHALLA: Yes, but – but

COMMISSIONER: And you haven't made one hour available for this bloke, have you?

MR CHALLA: But the -

COMMISSIONER: Have you?

MR CHALLA: No, I've not called him, yes.”

[17] In actual fact, Mr Challa took the further step of making sure that the applicant was not allocated any hours by instructing Steve Mulry, Workforce Manager, to replace the applicant on any shifts allocated to him. 23

The respondent submitted that the email sent to the applicant on 18 February 2016, from Mr George Mula, Manager Safeworking, detailing information on upcoming safework briefings is evidence that his casual employment was not terminated. Whilst I accept that the applicant’s lack of action in not replying to the email was inconsistent with a genuine desire to return to work, there still existed a period of almost seven months of no contact between the employer and the applicant (period from last contact, being 28 July 2016 to the date of the email).

Considering it was Mr Challa who stated in his reply to the RTBU, that hours are shared amongst employees in order to prevent them from migrating to other employers, it tells knowingly against the respondent that the it did not allocate a single hour to the applicant in this extended period.

The deliberate decision not to contact Mr Whybrow to allocate him available work, or to share the work around with him and to reallocate work away from him has all the hallmarks of the employer having made a definite decision to not only, not engage the applicant, but also, by their conduct, to dismiss him at the initiative of the employer.

Consequently the Commission, as presently constituted, is satisfied the applicant was dismissed at the initiative of the employer. The decision was made in September 2015 (likely on or about 17 September 2015) when the applicant reverted to PO4. However, it was never communicated to the applicant. In fact the respondent maintained at all times there was no dismissal. That was a fiction. For these reasons I reject the Not Dismissed Objection.

Are there exceptional circumstances to grant an extension of time?

[18] A dismissal does not take effect unless and until it has been communicated to the employee who is being dismissed. 24 What then where there has been no communication? In those circumstances the effective date of termination for assessing whether an application is out of time is when the employee thought they had been terminated.

To be able to lodge an application for a LSL payment an employee must have been terminated. The RTBU lodged a LSL application for Mr Whybrow in September 2015. They must have done so because they and Mr Whybrow believed there had been a termination.

Despite this, the applicant submitted that he only came to believe that he was no longer an employee of the respondent on 1 March 2016, when he made the decision to make MCR his primary employer.

Assuming that 1 March 2016 was the date of dismissal (the applicant’s best case), this would mean that the prescribed 21 day time period to file for an unfair dismissal closed on 22 March 2016. The application was lodged on 27 June 2016, meaning the application, on its best possible case, is 98 days out of time.

Applicant’s EOT Case

[19] The applicant submitted the following: 25

“The test for granting an extension of time allows for a broad discretion that can be exercised by the FWC.

The reason for the delay: Mr Whybrow only truly came to believe that he would not get any further work with Swetha and that they had terminated his employment when he made the decision to move his primary employer to MCR. Until then Swetha had continually stated that it had not ceased to employ him and would provide him with work when it became available. Mr Whybrow had initially sought to get a pro rata payment of his long service leave to pay his bills whilst waiting for work. In March 2016 when he moved his Primary Employer to MCR the dispute process was already in progress and he mistakenly believed that this process would give him the only unpaid entitlement he was seeking to resolve the matter. It was only once this dispute was withdrawn that an Unfair Dismissal Application was lodged.

When he first became aware of the dismissal: Mr Whybrow only came to the absolute realisation that he would never be offered further work after he was excluded from a Swetha Safety Briefing in February 2016 so on 1 March 2016 he changed his primary employer in acknowledgement of this.

Actions taken: Mr Whybrow believed that by lodging a dispute over his only outstanding entitlement of unpaid Long Service Leave that he was challenging Swetha’s lack of provision of work to him.

Prejudice to the employer: There is none.”

[20] In answer to a question from me, Mr Whybrow stated the following: 26

“COMMISSIONER:  Why didn't you instruct them to file an unfair dismissal?

MR WHYBROW: I was only under the – well, as I say, at the time I spoke to Luke Hayden, I think it was not long after that Lusanne started and I – I -

COMMISSIONER: But you've heard of unfair dismissal?

MR WHYBROW: I have heard – yes, I have.  At the end of the day, for me it was just – all I was after was my long service leave.”

Respondent’s EOT Case

[21] The respondent submitted that there are no exceptional circumstances and therefore, no extension of time should be granted. The respondent submitted: 27

“16. Both the Union, representing the Applicant, and the Applicant, during the period of time from September, 2015 to May, 2016, wanted to give priority to pursuing a claim for the payment of Long Service Leave over commencing an Application alleging unfair dismissal. This was a choice made by the Applicant in conjunction with his Union.

17. It is apparent that at no stage did the Applicant instruct, or seek, that his Union pursue an unfair dismissal claim in priority to a claim for Long Service Leave, despite both the Union and the Applicant being aware that to succeed in the Long Service Leave claim the Applicant needed to prove that his employment had been terminated. Indeed so much was alleged that his employment had been terminated in August, 2015. Ultimately the claim for the payment of Long Service Leave was discontinued on 17th June, 2016.

18. Even with the discontinuance of the Long Service Leave claim, the Applicant’s claim for unfair dismissal was not lodged for a further 10 days.

19. Whichever date is chosen by the Applicant as his claimed date of termination, whether it be the 29th July, 2015; the 24th September, 2015; or the 29th February, 2016, the Application remains grossly out of time as being in excess of the 21 day time limit imposed by the Act for the bringing of such a claim.

20. Tellingly, no reason, let alone an exceptional reason, has been given for the excessive delay between the claimed date(s) of termination and the filing of the Application on the 27th June, 2016. The only explanation given was that the Applicant preferred to pursue a claim for the payment of pro rata Long Service Leave whilst being fully aware that there was a statutory remedy available for unfair dismissal.4

21. In Ozsoy v Monstamac Industries Pty Ltd5 Gostencnik DP dismissed an application to bring an unfair dismissal claim to the Commission, which application was one day out of time from the 21 day time limit imposed by the Act. His Honour found:

“Applications seeking relief from unfair dismissal must be made within 21 days after dismissal takes effect. Only in exceptional circumstances should the Commission consider allowing a further period. Whilst I accept that the application lodged by the Applicant was late by only 1 day, that is not the point. The length of delay says nothing or very little about whether there are exceptional circumstances. Weighing all of the matters set out in s.394(3), there is nothing in the evidence before me to establish that there are exceptional circumstances warranting consideration of the exercise of my discretion to allow a further period within which the Applicant may lodge an unfair dismissal remedy application.”6

22. This decision by Deputy President Gostencnik was upheld on Appeal and the Appeal Bench noted:

“S.394(3)(a) of the Act requires regard to be had to the reason for the delay in lodgement. The delay is the period between the 21 day period specified in s.394(2)(a) after which the Application was lodged – 1 day in the current case. The explanation as to why the Application was lodged beyond the 21 day period and goes to circumstances from the time of the dismissal until the lodgement explaining that delay. An Applicant needs to provide a credible reason for the whole of the period that the Application was delayed.”7.

23. The only explanation given by the Applicant for the delay was the preference to pursue Long Service Leave claim, since abandoned. Whilst representative error is raised, no evidence of such error has been tendered before the Commission.

24. No exceptional circumstance has been demonstrated by the Applicant to warrant the Commission to grant an extension of time pursuant to s.394 of the Act.

25. In all of the circumstances the Application for Unfair Dismissal Remedy should be dismissed.”

Relevant Legislation

[22] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

“(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.”

[23] A Full Bench of the Commission has held (in the context of unfair dismissal applications) the following in relation to “exceptional circumstances”: 28

“[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.”

[24] The applicant bears the onus of demonstrating that exceptional circumstances exist. 29

Consideration

394(3)(a) Reason for the delay

[25] The applicant’s reason for delay in filing his unfair dismissal application is addressed in the applicant’s final submissions above. In short, the applicant says the delay was because he preferred to pursue his LSL application rather than an unfair dismissal.

[26] Commissioner Ryan found in Belford v Swan Transit Services Pty Ltd [2016] FWC 5201, which was a matter involving an application for an extension of time, “the reason for not filing an unfair dismissal application with the Fair Work Commission was nothing more than waiting to see how matters developed through use of the WA Act and Regs in relation to the Respondent’s application for approval to terminate the training contract”. 30

Further the Commissioner went on to say:

“[49] In the circumstances of the present matter, where the Respondent has to deal with the Applicant’s appeal to the WAIRC in relation to the termination of the training contract, the Respondent would be prejudiced if an extension of time  was granted to the Applicant, as the Respondent would be required to run essentially the same case in two jurisdictions

[50] Whilst the Commission is required to take into account the merits of the unfair dismissal application this is not the time to engage in a detailed consideration of the substantive merits of the Applicant’s case as neither the Applicant nor the Respondent have presented their cases as to merit. This factor is at best of neutral value in determining the application for an extension of time .

[51] Taking into account each of the relevant factors in s. 394 (3) the Commission cannot be satisfied that there are exceptional circumstances which would warrant the Commission granting an extension of time to the Applicant to file his unfair dismissal application.”

[27] I adopt the approach outlined by the Commissioner.

[28] In adopting the Commissioner’s reasoning above, it is clear that the applicant’s delay is not due to exceptional circumstances. As correctly pointed out by the Commissioner, a preference for one dispute over another, in no way is exceptional, if anything it further hinders one’s ability to seek an extension of time, as they consequently fail to satisfy that there is no prejudice to the respondent in granting the extension of time.

[29] Consequently, the Commission, as presently constituted, is not satisfied that the reasons provided by the applicant constitute exceptional circumstances. The applicant should have lodged his unfair dismissal application when he first came to the realisation that he had been dismissed, or within 21 days of that date. Choosing not to do so, is exactly that, a choice purposefully made by the applicant and the RTBU in order to pursue his LSL application. In other words, there were no external factors mitigating the applicant’s ability to file for an unfair dismissal remedy, only the lack of action on his part, and this is not exceptional in any circumstance. Therefore this factor weighs against granting the applicant a further period to make his application for an unfair dismissal.

394(3)(b) Whether the person first became aware of the dismissal after it had taken effect

[30] The Commission, as presently constituted, is satisfied that the applicant first became aware of his dismissal on 25 September 2015 when the RTBU first complained about the lack of shifts. In seeking a LSL payment on 25 September 2016, the RTBU and the applicant where of the opinion that a termination had occurred.

[31] Therefore this factor weighs against granting the applicant a further period to make his application for an unfair dismissal.

394(3)(c) Any action taken by the person to dispute the dismissal

[32] The RTBU and Mr Whybrow were aware of the dismissal on 25 September 2016. The unfair dismissal application was lodged on 27 June 2016. Other than pursuing his LSL application, no other action was taken to “dispute” the dismissal.

[33] The Commission, as presently constituted, is not satisfied that the applicant took any action to dispute his dismissal until 27 June 2016. Therefore this factor weighs against granting the applicant a further period to make his application for an unfair dismissal.
394(3)(d) Prejudice to the employer (including prejudice caused by the delay)

[34] Where the reasons for the delay arise out of the applicant’s preference to pursue one application over his unfair dismissal application, as is the case in this matter, a prejudice to the employer may exist. The nature of the prejudice is that the employer will be required to devote time, resources and money to refute any allegations made against it for a second time.

[35] Consequently, the Commission, as presently constituted, is satisfied that granting the applicant an extension of time to file his unfair dismissal application will prejudice the employer. This factor weighs against granting the applicant an extension of time.

394(3)(e) Merits of the application

[36] In the matter of Kornicki v Telstra-Network Technology Group 31the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 32

[37] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[38] Accordingly, I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[39] Consequently, for present purposes the Commission, as presently constituted, is satisfied that the applicant’s case is not one that is without merit or lacking in any substance. The denial of shifts after 17 September 2015 would have constituted a valid reason for termination.

[40] This factor weighs in favour of granting the applicant an extension of time.

394(3)(f) Fairness as between the person and other persons in a similar position

[41] This consideration does not relevantly arise in determining the applicant’s application for an extended period to file his application. It is a neutral consideration.

Decision

[42] Having considered all the matters under section 394(3), the Commission, as presently constituted, is not satisfied that even on its best case, the applicant’s delay to lodge an unfair dismissal application is within the legislative definition of “exceptional circumstances”.

[43] Ordinarily where no direct dismissal has occurred, more scrutiny would have been exercised in determining the dismissal date. However in the present matter, even on the applicant’s best case, the delay by the applicant was very lengthy.

[44] Suffice to say, even where the dispute surrounding the applicant’s LSL was discontinued on 17 June 2016, it took the applicant a further 10 days to lodge the unfair dismissal application. Both the applicant’s representative and the applicant himself were aware of their ability to lodge an unfair dismissal claim; however they plainly choose not to do so in favour of another dispute, this is in no way exceptional. 33

[45] As a result, the respondent’s Not Dismissed Objection is dismissed; however for the reasons set out above, on balance, the Commission is satisfied that there are no exceptional circumstances warranting the applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application). The Out of Time Objection is upheld.

[46] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

L Bennett, RTBU for the applicant

R Warren, Counsel for the respondent

Hearing details:

2016.

13 October

Sydney.

 1   Form F3 – Employer Response Q3.2 paragraph 1

 2   Exhibit A1 paragraph 1

 3   Transcript PN305

 4   Form F3 – Employer Response, attachment 4

 5   Transcript PN144

 6   Form F2 – Unfair Dismissal Application, attachment 1

 7   Transcript PN 211- PN213

 8   Transcript PN 274

 9   Form F2 – Unfair Dismissal Application, attachment 3

 10   Respondent’s Closing Submissions dated 27 October 2016

 11   Exhibit R2

 12   Attachment 6(i) to Exhibit A1, the Applicant’s Outline of Submissions

 13   See further Transcript PN190 - PN218

 14   Applicant’s Closing Submissions dated 28 October 2016

 15   Gilda Cohen-Shapira v The Scots College [2014] FWC 953 at [48]

 16   Transcript PN414 – PN422

 17   Transcript PN451

 18   Form F3 – Employer Response, attachment 4

 19   Ibid

 20   Transcript PN408

 21   Exhibit R2 – attachment PKC 1

 22   Transcript PN414 - PN417

 23   Form F2 – Unfair Dismissal Application, attachment 4 – Mr Whybrow was informed by email from Mr Mulry that for every shift Mr Whybrow was placed on, Mr Mulry was told to replace him. The applicant emailed Mr Mulry requesting if he can know who gave these instructions, to which Mr Mulry responded “Praveen”.

 24   Service of WA (AIRCFB) PRT3496 at [24]

 25   Applicant’s Closing Submissions dated 28 October 2016

 26   Transcript PN237-238

 27   Respondent’s Closing Submissions dated 27 October 2016

 28   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 29   Wemyss v Mission Australia Employment Services[2010] FWA 1798.

 30   Belford v Swan Transit Services Pty Ltd [2016] FWC 5201 at [47]

 31   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 32   Ibid.

 33   Transcript PN49 & PN238

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