Joshua Stephen Luke Tremaine v Olssons Administration Pty Ltd
[2023] FWC 3479
•28 DECEMBER 2023
| [2023] FWC 3479 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joshua Stephen Luke Tremaine
v
Olssons Administration Pty Ltd
(U2023/11010)
| COMMISSIONER CRAWFORD | SYDNEY, 28 DECEMBER 2023 |
Unfair dismissal application filed out of time – extension granted
Background
Joshua Tremaine (Mr Tremaine) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Olssons Administration Pty Ltd (Olssons).
Mr Tremaine commenced casual employment with Olssons on 31 May 2022. Olssons manufactures sea salt.
Mr Tremaine’s Form F2 application indicates he was dismissed on 4 August 2023. The Form F2 was received by the Commission on 8 November 2023.
On 28 November 2023, Olssons filed a Form F3 employer response. The Form F3 identified the following jurisdictional objections to Mr Tremaine’s application: it was filed out of time, Mr Tremaine does not meet the minimum employment period, and the application names the incorrect employer.
Before considering the merits of the application, the Commission must determine the jurisdictional issues identified in s.396 of the FW Act, one of which is whether the application was made out of time.[1]
On 27 November 2023, I issued directions for the filing of material and listed a hearing/determinative conference regarding the extension of time issue for 21 December 2023 via video. Both parties filed brief material in accordance with the directions.
Mr Tremaine represented himself at the determinative conference/hearing on 21 December 2023 and was assisted by his father. Olssons sought permission to be represented by Greg McKinnon from JKR Lawyers & Mediators. Mr Tremaine opposed me granting permission for Olssons to be represented. I decided to grant permission because I was satisfied the case gives rise to complexities associated with counting casual service and related matters. I was satisfied granting permission would enable the matter to be dealt with more efficiently. Mr McKinnon was assisted by an Olssons’ manager, Mr Dwyer during the proceeding.
At the commencement of the determinative conference/hearing on 21 December 2023, I indicated my provisional view was that it was appropriate to conduct a determinative conference rather than a hearing,[2] given Mr Tremaine was not represented and he is not familiar with the Commission’s processes. Neither party opposed this. I determined to conduct a determinative conference.
Correct employer
Mr Tremaine’s Form F2 application identified the respondents as Pacific Salt Pty Ltd and Olsson Industries Pty Ltd. Olssons’ Form F3 and accompanying submission indicated the correct employer was Olssons.
I expressed a provisional view that I thought it was appropriate to exercise my discretion to amend Mr Tremaine’s application to identify the respondent as Olssons. Mr McKinnon opposed this and indicated it was one of a range of deficiencies with the application and that when considered collectively, the deficiencies were too great to justify an amendment. I decided to amend the application to name Olssons as the respondent. Mr Tremaine was understandably confused about the employing entity and identified other associated entities of Olssons. I consider it would be not fair all round for the application to fail because Mr Tremaine had mistakenly named the wrong associated entities.
When did the dismissal take effect?
I next raised the issue of what date Mr Tremaine’s dismissal took effect. I did this because the Form F2 application identified a dismissal date of 4 August 2023 and the Form F3 identified a dismissal date of June 2023.
I sought submissions from both parties on this issue. None of the submissions were particularly clear and there does not appear to be a termination letter or separation certificate that can be relied upon. The evidence and submissions suggest Mr Tremaine was off work injured and receiving workers’ compensation payments from around 14 July 2022 until late May 2023. Mr Tremaine recovered and was certified fit to return to work. Mr Tremaine started sending messages to Robert Logan (Manager – Pacific Salt Port Alma) requesting to return to work. Mr Logan initially responded there was no work. This continued for a period and then Mr Tremaine was unavailable for work due to a trip to Victoria. Upon his return to Queensland, Mr Tremaine again was told there was no work and eventually on 4 August 2023 he was told there would be no further work. Mr Dwyer confirmed Olssons considered Mr Tremaine was no longer an employee but did not have material before him to confirm the dismissal date.
After hearing from both parties, I determined the dismissal date was 4 August 2023.
When was the application made?
Although Mr Tremaine signed the Form F2 application on 6 October 2023, it was sent by post and received by the Commission on 8 November 2023. I consider the latter date to be the relevant filing date for the application.
Time limit for an unfair dismissal application
Section 394(2) of the FW Act provides that an unfair dismissal application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[3]
Given Mr Tremaine was dismissed on 4 August 2023, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 25 August 2023. The application was filed on 8 November 2023. That means the application was filed 75 days outside the 21-day period. As a result, Mr Tremaine needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.
Was the application made within such further period as the Commission allows?
Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether Mr Tremaine first became aware of the dismissal after it had taken effect; and
(c) any action taken by Mr Tremaine 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 Mr Tremaine and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[4]
Material filed
Mr Tremaine’s Form F2 identified the reason for his late filing as being told by a Fair Work Commission staff member on 4 August 2023 that he had 21 days from the date he receives a separation certificate to file the unfair dismissal application. The Form F2 also referred to a conversation with a Commission staff member on 28 September 2023 which clarified that he did not need a separation certificate to commence an application.
Given these statements, my chambers secured permission from Mr Tremaine to access and listen to recordings of the phone calls on 4 August 2023 and 28 September 2023. The recordings were also provided with Mr Tremaine’s consent to Olssons. I marked the recording of the phone call on 4 August as Exhibit A1 and the recording of the phone call on 28 September 2023 as Exhibit A2.
Mr Tremaine relied on the following material in support of his request for an extension of time to file an unfair dismissal application:
· Form F2 application dated 6 October 2023.
· Screenshots of Mr Tremaine asking an Olssons representative “Rossco” for work on 6 June 2023. Rossco replied that Mr Tremaine needed to call Mr Logan first. Mr Tremaine asked for a new number because the calls were going straight to voicemail. No new number was provided. I marked the screenshots Exhibit A3.
· Screenshots of messages between Mr Tremaine and Rossco to the same effect concerning contact with Mr Logan on 11 June 2023. I marked the screenshots Exhibit A4.
· Screenshots of text messages from Mr Logan to Mr Tremaine on 11 and 12 June 2023. The first message from Mr Logan states: “No work tomorrow.” The second message states: “No work this week”. I marked these screenshots Exhibit A5.
Mr Tremaine was not cross-examined on his evidence. Mr Tremaine and his father also provided oral closing submissions at the end of the determinative conference.
Olssons relied on the following material in opposition to the granting of an extension of time:
· Form F3 employer response date 28 November 2023.
· An outline of submissions regarding whether an extension of time should be granted which was attached to the Form F3.
· A table containing the number of days worked by Mr Tremaine in fortnights during June and July 2022. The table indicates Mr worked varying numbers of shifts during the four identified fortnights. I marked the table Exhibit R1. Mr Tremaine did not dispute the accuracy of the table.
Mr McKinnon and Mr Dwyer also made oral submissions during the determinative conference.
Consideration
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 25 August 2023. The delay is the period commencing immediately after that time until 8 November 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[5]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6]
Mr Tremaine does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Tremaine has not provided any reason for any part of the delay.[7]
Mr Tremaine has submitted the reason for his delayed filing was that he was told by a Commission staff member on 4 August 2023 that he could not file an unfair dismissal application until he had received a separation certificate. After awaiting a separation certificate for nearly two months, and after seeking advice from a community centre about how to get a separation certificate, Mr Tremaine called the Commission again on 28 September 2023. Mr Tremaine says this call clarified that he did not need a separation certificate to file an unfair dismissal application. The Commission then posted an application form to Mr Tremaine. Mr Tremaine completed the form and posted it back to the Commission.
Having listened to the phone calls on 4 August 2023 and 28 September 2023 between Mr Tremaine and Commission staff members, there is absolutely no substance to his suggestion that he was provided incorrect advice during either phone call. The Commission staff members provided accurate advice in a very professional and patient manner during both calls and could only be commended, as opposed to criticised, for the assistance provided to Mr Tremaine. At no stage during the call on 4 August 2023 was Mr Tremaine told he needed to get a separation certificate before he could file an unfair dismissal claim. Mr Tremaine was clearly informed he needed to file an unfair dismissal application within 21 days of the dismissal taking effect.
However, after listening to the calls and listening to Mr Tremaine and his father during the determinative conference on 21 December 2023, I do not consider Mr Tremaine was being dishonest regarding his understanding of the advice he was given on 4 August 2023. Rather, I consider Mr Tremaine completely misunderstood what he was told and for some unknown reason became fixated on a separation certificate. Mr Tremaine’s father provided evidence to clarify that Mr Tremaine was genuinely waiting for a separation certificate and that they both understood this to be required before an application could be filed. It is also apparent Mr Tremaine does not have ready access to a computer and that his technical skills are reasonably limited. This appears to be why he ultimately needed to be posted an application form and returned it via post.
In any event, I do not consider Mr Tremaine has an adequate reason for what was a lengthy delay in filing his application and this weighs strongly against the granting of an extension of time.
Did Mr Tremaine first become aware of the dismissal after it had taken effect?
Given I determined Mr Tremaine was dismissed on 4 August 2023, I find Mr Tremaine was aware of the dismissal on the same date. This is a neutral factor.
What action was taken by Mr Tremaine to dispute the dismissal?
Contrary to Olssons’ submissions, I do consider Mr Tremaine took actions to dispute his dismissal, both before and after it took effect.
It is clear from the messages provided by Mr Tremaine that he was requesting shifts from Olssons and that they were refusing to offer any. Mr Tremaine’s father gave evidence that his son was dressed ready to go to work on several mornings, only to be unable to contact any representative of Olssons to confirm his work arrangements.
In addition, Mr Tremaine took the steps of contacting the Commission on 4 August 2023 and 28 September 2023 to seek information about an unfair dismissal application and related matters. It is clear from the calls that Mr Tremaine was adamant he had been treated unfairly by Olssons and wanted to contest his dismissal.
Although I accept Mr McKinnon’s submission that Mr Tremaine took no formal steps to contest the dismissal until he filed the application, I do not consider this factor is confined to formal steps.
I find this factor weighs in favour of a finding of exceptional circumstances.
What is the prejudice to the employer (including prejudice caused by the delay)?
The length of the delay was 75 days and I accept there is a presumption of prejudice to an employer where the delay is this period of length.[8]
I do not consider there to be any other specific prejudice caused to Olssons from the delay in terms of gathering evidence or other matters.
I consider this factor weighs against granting an extension of time.
What are the merits of the application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[9]
On the reasonably limited material before me, I consider there is significant merit to Mr Tremaine’s application.
I consider it is likely Mr Tremaine had completed the minimum employment period given his period of absence when receiving workers’ compensation payments is not an excluded period of service under s.22 of the FW Act.[10] It is likely Mr Tremaine has continuous service from around 31 May 2022 to 4 August 2023, but his period of time visiting relatives in Victoria is likely to be an excluded authorised period of unpaid leave. Olssons’ has more than 15 employees, so Mr Tremaine’s qualifying period will be six months. It appears to me Mr Tremaine had completed the minimum employment period.
I also consider it is unlikely Olssons’ arguments concerning a lack of regular and systematic employment are likely to succeed, given Mr Tremaine’s evidence about the working arrangements at the relevant site. In particular, Mr Tremaine stated it was assumed casual employees would work five shifts per week and it was assumed they would attend work each day unless they applied for leave. Mr Tremaine also indicated he was paid around $800 per week in workers’ compensation payments during his lengthy absence. This indicates whatever calculation was relied upon by the insurer to determine his average weekly payments must have proceeded on the basis he was working a significant number of hours each week. I do not consider the table relied upon by Olssons is overly persuasive given it only includes data about selected periods.
If Olssons fails with its jurisdictional objections, I consider it is highly likely Mr Tremaine will succeed in establishing he was unfairly dismissed. The evidence raised thus far indicates Mr Tremaine was treated quite unfairly by Olssons. It appears Mr Tremaine was given false information about there being no work available when the reality was there was work available, just not for Mr Tremaine. Mr Tremaine was never told why he would not be offered any further work and it appears arguable his previous injury was a factor. In any event, Olssons should have been upfront with Mr Tremaine about its decisions concerning his employment rather than giving him false information and making it difficult for him to speak with anyone.
I consider the merits of the application weigh significantly in favour of granting an extension of time.
Fairness as between Mr Tremaine and other persons in a similar position
I consider this to be a neutral factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[11] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[12] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[13]
Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied very marginally that there are exceptional circumstances.
While I consider Mr Tremaine’s explanation for the delay to be completely inadequate, I do accept he was genuinely confused and that he faces technical limitations most other applicants would not face. I also consider there is considerable merit to Mr Tremaine’s application, and that he took steps to dispute the dismissal via his two phone calls to the Commission, the first on the day of his dismissal. On balance, I find there are exceptional circumstances despite the lengthy delay and lack of an adequate explanation.
Conclusion
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.
Having regard to those exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded, I am satisfied that it is appropriate to extend the period for the application to be made to 8 November 2023.
The application will proceed for conciliation in accordance with the Commission’s normal processes.
COMMISSIONER
Appearances:
Mr Tremaine representing himself, with his father as a support person.
Mr McKinnon and Mr Dwyer for the Respondent.
Determinative conference details:
2023.
Via video.
21 December 2023.
[1] Section 396 of the FW Act.
[2]Section 399 restricts the Commission’s ability to conduct hearings for unfair dismissal applications.
[3] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[5] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[8] Mr Evan Skinner v The Hospitals Contribution Fund of Australia Ltd T/A HCF [2020] FWCFB 6882 at [33].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] WorkPac Pty Ltd v M Bambach [2012] FWAFB 3206, [67]
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
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