Joshua Tomac v River Road Mechanical Pty Ltd

[2021] FWC 4918

[2021] FWC 4918

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Joshua Tomac
v
River Road Mechanical Pty Ltd
(C2021/2913)

DEPUTY PRESIDENT BOYCE SYDNEY, 13 AUGUST 2021

Application to deal with contraventions involving dismissal – request for extension of time to file application outside of 21-day time period – no exceptional circumstances – request for extension of time refused - application dismissed.

Introduction

[1] This Decision was originally made on an ex-tempore basis on transcript. In publishing these Reasons, I have taken the opportunity to revise same in accordance with the principles stated by Kirby J in Ex Tempore Judgments - Reasons on the Run (1995) 25 UWALRev 213 (at 229-230, including the authorities cited therein), and the New South Wales Court of Appeal in Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 (at [193]-[195], including the authorities cited therein).

[2] On 22 May 2021, Mr Joshua Tomac (Applicant) filed an application concerning general protections involving dismissal (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that he was dismissed by River Road Mechanical Pty Ltd (Respondent) for making a Workers’ Compensation Claim in contravention of Part 3-1 of the Act.

[3] Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to “exceptional circumstances (s.366(2) of the Act).

[4] There is no question that the Applicant was dismissed from his employment by the Respondent. However, the parties are in dispute as to the date of the Applicant’s dismissal. The Respondent claims that the Applicant was dismissed on 23 March 2021, whilst the Applicant says that the first time he became aware of his dismissal was via a text message from Mr Mark Eastwell, Manager of the Respondent, on 28 April 2021.

[5] Given that the Applicant filed his Application on 22 May 2021, it has been filed outside of the 21-day time limit (i.e. no matter whether one takes the date of 23 March 2021, or the date of 28 April 2021).

[6] At the hearing, the Applicant appeared for himself, and Mr Eastwell, appeared for the Respondent.

Date of Dismissal

[7] Commencing at 2.00pm on 28 April 2021, the Applicant and Mr Eastwell had the following text message exchange:

Applicant: “If I am no longer employed by you, can you please email me my separation certificate, thank you? Or can we have a talk about what's happening as I haven’t heard anything from you regarding my employment.”

Mr Eastwell: “You committed fraud regarding WorkCover, which is also the same as stealing from me, which means no job, as I did say this to you.”

Applicant: “I'm sorry, but I have not committed fraud in any way. I injured myself at work and that's why my doctor sent me for workers' compensation in the first place. My injury, which had been seen on the CT scans and X-rays is not from slipping on the one step at my house, it's from a higher fall. As it was two weeks after I injured myself at work, which is according to WorkCover, and funny how that Troy has said it happened on that day but I already had my scans.”

[8] Whilst the Form F3 filed by the Respondent states that the Applicant’s date of dismissal was 23 March 2021, and Mr Eastwell stated at the hearing (by way of oral submission) that the Applicant was aware well before 28 April 2021 that he had been dismissed, the evidence before me does not support either of these contentions. Rather, based upon the evidence, I accept the Applicant’s position that he was not aware that he had been dismissed from his employment with the Respondent until the afternoon of 28 April 2021. Further, there is no evidence, in documentary form or otherwise, to indicate that the Applicant was actually (as a matter of fact) dismissed by the Respondent prior to 28 April 2021.

[9] Given my finding that the Applicant was dismissed on 28 April 2021, he has filed his Application three days outside of the 21-day time limit. The Applicant should have filed his Application by 19 May 2021 (to be within the 21-day time period).

Legal principles

[10] Section 366(2) of the Act reads:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[11] Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd (Nulty), in relation to the term “exceptional circumstances”,has stated:

“[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.

[14] Mere ignorance of the statutory [21-day] time limit in s.366(1)(a) is not an exceptional circumstance…” 1

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 2

(emphasis added)

[12] The matters under s.366(2)(a)-(e) need to be considered separately, and in combination. In this regard, I refer to the decision of the Full Bench of this Commission in Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters 3:

“[17] Generally, the assessment of whether exceptional circumstances exist will require consideration of all the relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

..

[19] To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend sense of matters which the decision maker is bound to take into account. The obligation to take into account the matters set out at s.366(2)(a)-(e) means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:

‘To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant’.

…

[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.” 4

Reason for delay 5

[13] On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group 6 (Bianco Mamo), as follows:

“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).

[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”

[14] The Applicant’s reasons for delay are set out in an email from the Applicant to the Commission dated 12 July 2021. The Applicant also made oral submissions as to his reasons for delay at the hearing. In summary, the Applicant’s reasons for delay are:

(a) he was not aware of the 21-day time limit;

(b) he was otherwise occupied in communications and other engagements with WorkCover about his Workers’ Compensation Claim, which meant he did not have time to file his Application within time; and

(c) he was seeking legal advice as to making a claim in relation to his dismissal with Legal Aid and/or other lawyers.

[15] Prima face, none of the reasons identified by the Applicant, having regard to the case law, are special, unusual, or uncommon. Further, the Applicant has not particularised, by way of submissions, or based upon cogent evidence, how any of the matters identified specifically account for the delay in filing his Application on time, i.e. they are general reasons that do not account for any day or days during or after the 21-day time period.

[16] In his oral submissions before the Commission, the Applicant asserts that because he filed his Application only three days outside of the 21-day time limit (being a very short delay), and because he was dismissed for making a Workers’ Compensation Claim, justice is served by granting him an extension of time. The difficulty with this submission is that it is not the test at law to be applied.

[17] Dealing with each of the reasons advanced by the Applicant for his delay, I make the following conclusions:

(a) As the Full Bench of the Commission in Nulty identifies, unawareness of the 21-day time period is not an exceptional circumstance and is quite commonly encountered by other Applicants before the Commission. 7

(b) On the issue of communications and other engagement with WorkCover causing delay, it is not apparent on any of the evidence before me that that engagement resulted in the Applicant being incapacitated or otherwise unable to file his Application.

(c) On the issue of seeking legal advice, there's no evidence before me as to when that legal advice was sought by the Applicant, or how the seeking of that legal advice resulted in any delay in the Applicant filing his Application. Whilst I accept that it may well take time to seek or obtain legal advice, without specifics as to what has actually occurred, and why it caused a delay, the submission takes the Applicant’s reasons for delay nowhere.

[18] All in all, I find that the evidence before me, as to the reasons that the Applicant advances as to his failure to file his Application within the 21-day time period, weighs against any finding (or satisfaction) as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute his dismissal 8

[19] There is no evidence before me, beyond the filing of the Application, as to the Applicant taking any action to dispute his dismissal. In my view, this criteria is not one that weighs in favour of a finding as to exceptional circumstances, and I treat it as a neutral consideration.

Prejudice 9

[20] In relation to prejudice to the Respondent, I am not aware of any. Nor did the Respondent submit otherwise. I therefore treat this criterion as a neutral consideration. 10

Merits 11

[21] The principles stated Kyvelos v Champion Socks Pty Ltd 12 (Kyvelos) albeit in relation to a predecessor of the Act, still remain good law and are worth noting and setting out here:

“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”. 13

[22] The Applicant says that he was terminated for a prohibited reason, being that he filed a claim for Workers’ Compensation, and took a temporary absence from work. The Applicant rightly points out that whether that claim was valid or invalid, or accepted or rejected, is not a basis upon which he should have been terminated. So much is clear from the legislation, and the provisions under the general protections provisions of the Act.

[23] For the Respondent’s part, Mr Eastwell has makes assertions as to the Applicant committing fraud. He says that the Applicant’s Workers’ Compensation Claim was made fraudulently, in that the injury did not occur at work, and that the Applicant was not dismissed for temporary absence or the making of a Workers’ Compensation Claim, but for committing fraud (which he says is akin to stealing from the Respondent). Mr Eastwell also made submissions, which cannot be accepted as evidence in these proceedings, going to another employee giving a statement to the Workers’ Compensation Commission about an admission by the Applicant (to that employee) that his injury did not occur at work. Mr Eastwell says that in relation to the investigation, hearing and/or findings of the Workers’ Compensation Commission, they all confirm the Respondent’s position that the Applicant lodged a fraudulent Workers’ Compensation Claim.

[24] In applications for an extension of time, such as this one, the merits of an application, in the ordinary course, will be weighed as neutral considerations.

[25] In this case, the differing assertions of the parties about whether the general protections provisions of the Act have or have not been breached are not able to be fully tested, as each party has not put on all of their evidence, and there has not been any cross-examination as to that evidence.

[26] If the Applicant’s contentions in this matter are correct, then it seems likely that the Respondent would have breached the general protections provisions of the Act. However, equally, if the Respondent’s assertions are correct, and the claim was in fact fraudulent, then that would be a reason that is not a prohibited reason, because the reason for the termination is fraud, as opposed to the filing of the Workers’ Compensation claim or a temporary absence due to illness.

[27] All in all, as I have already said, I am not in a position to determine who is correct. I therefore weigh the merits of this Application as a neutral consideration.

Fairness as between the Applicant and other persons in a similar position 14

[28] I am required to consider fairness as between the Applicant and other persons in a similar position. There were no submissions made as to this criterion, and I am not otherwise aware of any person in a similar position to the Applicant in the employ of the Respondent. I therefore treat this criterion as a neutral consideration.

Conclusion

[29] I have taken into account and considered individually and collectively the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant of an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. two criteria weigh against a finding as to the existence of exceptional circumstances, and three criteria are neutral). 15

[30] On the basis of my reasons set out in this decision and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence exceptional circumstances warranting the grant of an extension of time for the Applicant to file his Application. In view of this finding, there is no basis at law for me to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 22 May 2021 is dismissed by way of Order [PR732467]. 16

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR732694>

 1   [2011] FWAFB 975.

 2   Ibid.

 3   [2018] FWCFB 901.

 4   Ibid, at [17], [19], [38]-[39].

 5   Section 366(2)(a).

 6   [2021] FWC 3903.

 7   [2011] FWAFB 975.

 8   Section 366(2)(b)

 9   Section 366(2)(c).

 10   Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149at [38]).

 11   Section 366(2)(d).

 12 (1995) 67 IR 298.

 13   Ibid at 299 to 300.

 14   Section 366(2)(e).

 15   See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.

 16   This matter was initially heard on 4 August 2021, at the conclusion of which I issued an ex-tempore Decision on transcript to refuse the extension of time and dismiss the Application. Shortly thereafter, prior to formally publishing and issuing Order to dismiss the Application, I was made aware that I had proceeded (in that hearing) on the mistaken belief that the Applicant had filed his Application on 1 June 2021 (rather than 22 May 2021). I therefore urgently relisted the matter again on 5 August 2021 and gave both parties the opportunity to make further submissions as to the Applicant’s request for an extension of time based upon the correct filing date of 22 May 2021. Given the submissions of the parties did not change from those previously made on 4 August 2021, I determined the proceedings on the same basis as I had on 4 August 2021.