Joshua Ward v Queensland Rail T/A Queensland Rail

[2022] FWC 2020

[2022] FWC 2020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Ward
v

Queensland Rail T/A Queensland Rail

(U2022/3872)

DEPUTY PRESIDENT LAKE BRISBANE, 29 JULY 2022

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

1. Mr Joshua Ward (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to his dismissal by Queensland Rail (the Respondent).

1. The Applicant was unable to attend the hearing as he is currently incarcerated. The Applicant’s father, Mr Jeff Ward was appointed as his representative.

1. The Applicant began his employment on 11 January 2016 as a Rail Traffic Guard. It is uncontentious that the Respondent terminated the Applicant’s employment on 8 March 2022 and his Application was lodged with the Commission on 4 April 2022.

Was the application lodged within time?

1. Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

1. The Applicant lodged his application on 1 April 2022. He accepts that his application was made some 3 days outside of the 21 days required under s.394(2) of the Act.

1. The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.

The Applicant’s submissions

1. The Applicant’s submissions may be summarised as follows.

1. The delay in lodging the claim was because the Applicant was sentenced to 5-months imprisonment on 23 February 2022. The Applicant’s representative was unable to contact the Applicant until 28 March 2022 due to correctional service requirements disallowing contact privileges to prisoners awaiting transfer.[1]

1. Queensland experienced a storm event which delayed the Applicant’s transfer.[2]

1. The Applicant was informed of his termination by his representative on 28 March 2022. The Applicant instructed his representative to seek legal advice. On 31 March 2022, a law firm advised that the representative should file a claim with the Queensland Industrial Relations Commission (QIRC) which he filed immediately. The QIRC contacted the representative and advised that an application be lodged with the Commission.[3]

1. Had the representative been advised correctly, he would have ensured the process was started earlier. The representative contends the Respondent’s view that the Applicant’s representative was lackadaisical. The Applicant and the Applicant’s representative have had to attend to family and financial difficulties due to the Applicant’s incarceration.[4]

1. The Applicant asserts that the Applicant contended his dismissal. The Applicant relies on correspondence between the representative and the Respondent from 4 March 2022 to 10 March 2022 regarding his likely dismissal and actual dismissal.[5]

1. The Applicant asserts that the lateness of the application would not disadvantage the employer.

1. The Applicant contests that there is disparity between this case and another where a Queensland Rail employee who has also been incarcerated is still an employee of Queensland Rail.

The Respondent’s submissions

1. The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions may be summarised as follows.

1. The Applicant and his representative were aware the Respondent was considering terminating his employment. Evidence of this can be seen in the Applicant’s Form F2.[6]

1. The Respondent took all reasonable measures to ensure the Applicant was made aware and notified of his dismissal. The Applicant’s termination letter was issued via registered post and the Applicant’s representative was emailed the termination letter. The Respondent concedes that the Applicant may not have received the termination letter due to the Applicant’s incarceration yet asserts that this is outside of the Respondent’s control.[7]

1. The Applicant’s representative made the admission that the Form F2 was filed late because of his unawareness of the time frames associated with the lodgement of the Application.[8]

1. The Respondent relies on Ho v Professional Services Review Committee No 295[9] and states that there were no exceptional circumstances in this case. The actions of the Applicant’s failure to provide clear instructions to his representative and his representative’s failure to understand the legislative time frames resulted in the Application being lodged out of time.[10]

1. The Respondent relies on the Form F2 as evidence that the Applicant became aware of his dismissal on 8 March 2022.[11]

1. The Applicant did not contest his dismissal at any point and had opportunity to in his show cause response.[12] The Applicant’s representative lodged an application in the QIRC, but this was 2 days late in relation to the Commission’s 21-day time limit.

1. The Respondent would be prejudiced by allowing the Application to proceed as there are no exceptional circumstances to the delay in lodgement.[13]

1. There would be a disparity between the Applicant and others in similar circumstances in relation to fairness as there are no exceptional circumstances.[14] The Respondent provided during cross-examination that the other employee mentioned in the Applicant’s submissions was dismissed.

Consideration of whether a further period should be granted

1. Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(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 like position.”

1. The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[15] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[16] the Full Bench of Fair Work Australia stated that:

“[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.”

1. Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

1. For the Applicant’s unfair dismissal application to proceed, it is necessary for her to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 394(3) of the Act.

1. Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.

Consideration

Reason for the delay (s.394(3)(a))

1. The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[17] or a reasonable explanation.[18] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[19] the Full Bench noted at [39]:

“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 reliant matters and the assignment of appropriate weight to each.”

1. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[20]

1. The Applicant states that delays experienced by the Applicant’s representative as a result of the incarceration of the Applicant and alleged incorrect legal advice meant that the application was made 3 days late. From 4 February 2022, the Applicant and his representative were on notice that the Applicant may be dismissed and go to gaol. The disciplinary process was one that had been on foot for a number of weeks prior to the decision to terminate. Furthermore, the Applicant could have apprehended that he may face incarceration because of the charges he was facing. In those circumstances, he and his representative should have had time to determine what the course of action should be once the termination decision had been made by the Respondent. By waiting until contact could be made between the representative and the Applicant, valuable time was lost. The alleged legal advice did not assist and wasted time. The Applicant’s representative did not provide evidence of the advice, leading me to be uncertain about whether the legal advice had specified whether the Application should be made to the QIRC, the Commission, or whether the Applicant’s representative made an error in selecting which body to file the Application. In any event the incarceration could and should have been factored into the Applicant’s thinking as well as the real and present issue of his possible termination. By waiting to determine what action to take, the Application was filed 3 days out of time.

1. The circumstances are not exceptional given the set of factors and facts leading to the termination event and the sentencing. I accept there were certainly difficulties in contact between the Applicant and his father. However, I do not find the circumstances exceptional. This factor weights against an extension of time.

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

1. The Applicant’s representative became aware of his dismissal on 8 March 2022, the same day as the termination by way of email from the Respondent. This consideration therefore does not weigh in favour of an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

1. The Applicant did not contest the dismissal generally with the Respondent.

1. This factor therefore does not weigh in favour of an extension of time.

Prejudice to the employer (s.394(3)(d))

1. The Applicant and the Respondent made no relevant submissions in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[21] I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group,[22] the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”

1. However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[23]

1. Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

1. The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[24]

1. The parties drew to my attention another matter where a person who was imprisoned for a similar offence was still employed by Queensland Rail. However, the Respondent confirmed that this person is no longer an employee. This is ultimately a neutral factor in my determination.

Conclusion

1. Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

1. I order that the application be dismissed.

DEPUTY PRESIDENT

[1] Joshua Ward, ‘Applicant’s Outline of Argument: Extension of time”, Submission in Ward v Queensland Rail T/A Queensland Rail, U2022/3872, 3.

[2] Ibid.

[3] Ibid.

[4] Ibid 4.

[5] Ibid 6-8.

[6] Queensland Rail, ‘Submissions of the Respondent in relation to an extension of time’, Submission in Ward v Queensland Rail T/A Queensland Rail, U2022/3872, [14].

[7] Queensland Rail (n 6) [15].

[8] Ibid [16].

[9] [2007] FCA 338.

[10] Queensland Rail (n 6) [17].

[11] Ibid [20]-[21].

[12] Ibid [22]-[26].

[13] Ibid [27].

[14] Ibid [35].

[15] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

[16] [2019] FWC 25.

[17] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

[18] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

[19] [2018] FWCFB 901.

[20] See: 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.

[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

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

[23] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

[24] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

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