Kayne Johnson v Wilson & Co Enterprises Pty Ltd T/A Wilson & Co Landscaping

[2019] FWC 5398

[2019] FWC 5398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kayne Johnson
v
Wilson & Co Enterprises Pty Ltd T/A Wilson & Co Landscaping
(U2019/5945)

COMMISSIONER PLATT ADELAIDE, 5 AUGUST 2019

Application for an unfair dismissal remedy – extension of time – representative error.

Summary

[1] Mr Kayne Johnson has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Wilson and Co. Enterprises T/A Wilson and Co. Landscaping (Wilson) which his form F2 Unfair Dismissal Application advised took effect on 25 March 2019.

[2] Mr Johnson filed his unfair dismissal application in the Commission on 29 May 2019. The application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“I was dismissed, without warning, from my employment, after 13 years of service in circumstances where I had suffered an injury at work to my left leg on or about 11 March 2019. I left work early on 21 March 2019 to undergo an MRI scan. I was unable to work on Friday 22 March 2019 and was dismissed on Monday 25 March 2019 without being paid any wage or entitlements. I was left destitute, homeless, without any income, without any transport and incapacitated due to my leg injury. On 2 May 2019 I secured legal representation and they assisted me lodge a WorkCover claim on 7 May 2019 and an unfair dismissal claim with SAET on 8 May 2019. I have now been advised that that claim ought to have been filed in this Tribunal and I propose discontinuing the SAET application and seek an extension of time to make this application. The employer has been on notice of my intention to bring an unfair dismissal application since 8 May 2019. They did not pay me for my last few weeks at work and then dismissed me leaving me unable to gain assistance as I had no money or transport. I did not qualify for Centrelink benefit until 30 April 2019 and did not get a WorkCover interim payment until 27 May 2019. I had to walk to appointments notwithstanding my injury as I had no money for transport. I am dyslexic and was left without means to get advice, pay for advice or travel to get advice. I did not know where to turn to or where to go. I was suffering anxiety, depression and suicidal ideation.”

[3] On 12 June 2019, Wilson lodged a form F3 Employer Response which indicated that the dismissal occurred on 25 March 2019 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[4] On 17 July 2019 Directions were issued that the extension of time issue would be considered at a hearing on 30 July 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Johnson was directed to provide a statement concerning the extension of time and any documents to be relied upon by 24 July 2019. Wilson was invited to file any material in reply by 29 July 2019.

[5] The parties complied with the Directions.

[6] A hearing was conducted by way of telephone conference on 30 July 2019. Mr Phillip Gallasch represented Mr Johnson and Mr Ben Duggan represented Wilson, permission being granted pursuant to s.596 of the Act.

[7] Mr Johnson provided a statutory declaration, copies of medical certificates, submissions and gave evidence.

[8] Mr Johnson’s position is summarised as follows:

•  On 18 March 2019 he was working and drove a work motor vehicle not withstanding an injury to his lower leg which required him to wear a ‘moon boot’.

•  Whilst driving the work vehicle home he was involved in a minor motor vehicle accident which he attributed to the impact of wearing the ‘moon boot’. The accident was not reported to the police, but the employer was advised and he suggested that Mr Johnson take the following day off.

•  On Sunday 24 March Mr Johnson advised his employer he intended to come to work the next day but was advised by text message that he was not to return to work at all. In a subsequent phone call Mr Johnson was advised to attend at work to collect his separation papers and pay.

•  On 25 March 2019 Mr Johnson attended the workplace and was told there were no papers available.

•  On 29 March 2019 Mr Johnson received a Separation Certificate by post which reported that the reason for separation as ‘due to his inability to conduct his duties correctly….’ The date of dismissal was recorded as 25 March 2019.

•  After his dismissal Mr Johnson was ‘kicked out’ of his ‘home’ by the person he was living with. Over the next few weeks Mr Johnston resided at a number of places in the northern and north eastern suburbs and was at times sleeping rough. He was transported by his ex-girlfriend and friends from place to place and to some appointments. Mr Johnson had difficulty walking which is supported by the medical evidence submitted. Mr Johnson states he contemplated suicide.

•  During this period Mr Johnson asserts he was impecunious, in cross examination he advised he sold a motor vehicle and gave his ex-girlfriend $5,000 from the proceeds so she could pay her mortgage.

•  Mr Johnson spoke to a counsellor on 6 April 2019 who raised the prospect of submitting an unfair dismissal claim. Mr Johnson did not pursue this avenue at the time as he had no car, no money, and ex-girlfriend issues.

•  Mr Johnson sought free legal advice on 29 April 2019 but was advised they could not assist.

•  Mr Johnson attended at Dixon Gallasch on 2 May and returned for an appointment on 7 May 2019.

•  An application for unfair dismissal was filed in the South Australian jurisdiction on 8 May 2019.

•  On 22 May 2019 the employer raised the question of the correct jurisdiction. Mr Gallasch discussed the jurisdictional issue with Mr Johnson, researched the topic and had a verbal discussion with Wilsons’s representative - Mr Duggan on 29 May 2019.

•  On 29 May 2019 an application in this jurisdiction was filed.

•  Mr Johnson supplied a referral 1 from Dr Hay dated 9 July 2019 which indicated that Mr Johnson had recently had issues with depression.

•  Mr Johnson contends that;

•  Part of the delay (8 May to 29 May) was due to representative error.

•  Part of the delay arose from Mr Johnson being prevented from ascertaining the law and accessing legal advice as a result of his personal circumstances and mobility issues.

•  Mr Johnson did not receive written confirmation of his dismissal until 29 March.

•  No prejudice fell upon the employer.

•  The merits of the application fell strongly in Mr Johnson’s favour as a result of a denial of procedural fairness, the summary nature of the dismissal and that it was harsh, unjust or unreasonable. Mr Gallasch contended that there was an inconsistency between the account given by the employer and with wording of the separation certificate.

•  Mr Johnson did not contend that there were similar cases to compare against, but suggested that Ovenden v Fortezza Pty Ltd was the closest comparison.

•  Mr Johnson accepted that Wilson was a small business employer, but contended they did not comply with the code.

•  The circumstances warrant a finding that ‘exceptional circumstances’ exist and an extension of time should be granted.

[9] Wilson filed a submission and made oral submissions which are summarised as follows;

•  The dismissal occurred on 25 March 2019.

•  The reasons for the dismissal were Mr Johnson’s inability to comply with the motor vehicle policy, his failure to take responsibility for the company issued vehicle including after it was involved in incidents.

•  Wilson disputed Mr Johnson’s version of the events which related to the merits of the dismissal.

•  Wilson acknowledged that Mr Johnston had a long standing foot injury which affected his ability to work.

•  On 25 March 2019 Wilson confirmed the dismissal at which time Mr Johnston advised he would be taking the matter to the Commission.

•  Mr Johnson’s lack of knowledge (including about the time limit) and inability to receive correct legal advice does not constitute exceptional circumstances.

•  Mr Johnston commenced receiving Centrelink payments on 16 April thus addressing his impecunity.

•  Wilson will suffer prejudice as it has replaced Mr Johnson.

•  Mr Johnson’s evidence indicated he was made aware of the unfair dismissal process on 6 April and he did not act upon that advice.

•  Mr Johnston has not discharged his ouns in demonstrating exceptional circumstances exist.

Applicable Law

[10] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[11] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd²which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

Consideration

[12] There is no dispute that the dismissal occurred on 25 March 2019.

[13] This unfair dismissal application by Mr Johnson was made 44 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[14] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[15] Mr Johnson contends that his personal circumstances and mobility issues explain the delay between 29 March (when he formally became aware of the dismissal) until 2 May 2019 when he visited the office of Dixon Gallasch. At the outset Mr Johnson indicated he was not aware of his ability to challenge the dismissal until he received legal advice. Under cross examination Mr Johnson advised that he was advised of the ability to challenge his dismissal by his counsellor on 6 April 2018. Mr Johnson did not pursue this option due to his personal circumstances and ex-girlfriend issues. Mr Johnston started receiving Centrelink payments from 16 April 2019. I do not accept that it was not possible for Mr Johnson to take steps to contest his dismissal in that period. The fact that he was able to sell a motor vehicle and dispose of the proceeds indicates a capacity to engage in legal transactions. In my view Mr Johnson has not provided a satisfactory explanation for the delay in the period between 6 April and 29 April 2019.

[16] On 29 April 2019 Mr Johnson visited the Northern Community Legal Service who advised they could not assist him.

[17] On 2 May 2019 Mr Johnson attended at Dixon Gallasch. The delay between 2 May and 7 May 2019 was due to the availability of Mr Gallasch.

[18] The delay in the period between 8 May and 29 May 2019 was due to ‘representative error’ by Mr Gallasch in filing the application in the wrong jurisdiction.

[19] I accept that Mr Johnston has explained the delay between 29 April and 29 May 2019.

[20] Mr Johnson’s medical condition (as to his mobility) does not appear to be in dispute. The information as to his depression is scant and does not persuade me that his condition was beyond the shock and trauma as a result of dismissal from employment - Rose v BMD Constructions Pty Ltd. 3

[21] If there is a credible explanation for the entirety of the delay then this weighs more heavily in favour of a finding that there are exceptional circumstances. A failure to provide a credible explanation for parts of the delay (as in this case) tends to weigh against a finding of exceptional circumstances  4

Whether the person first became aware of the dismissal after it had taken effect

[22] Despite Mr Johnson not receiving formal advice of his dismissal until 29 March, he was aware of the dismissal on the day that it occurred.

Any action taken by the person to dispute the dismissal

[23] Mr Johnson’s action in lodging the SAET claim was an action to contest the dismissal.

[24] This factor weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[25] Prejudice to the employer will weigh against granting an extension of time. 5 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.6 A long delay gives rise “to a general presumption of prejudice”.7

[26] The delay in this matter lengthy. Wilson is prejudiced as a result of its decision to engage another employee to perform Mr Johnson’s role. I accept this and therefore this is a factor which weighs against the granting of the application.

The merits of the application

[27] The perceived merits of the application are a relevant consideration, 8 as explained in the joint judgment of the Federal Court in Haining v Deputy President Drake (1998) 87 FCR 248:

“If a case seems highly meritorious, [it] might legitimately persuade the decision maker to accept the adequacy of an explanation (for the delay) that would not pass muster in a case of little apparent merit.” 9

[28] However, the Commission ‘should not embark on a detailed consideration of the substantive case’,  10 nor is it open to make any findings on contested matters of fact. 11 The task at hand is to take the Applicant’s case at face value, and assess the appearance of the merits of their claim. “It would be sufficient for the applicant to establish that the substantive application was not without merit.”12

[29] Mr Johnson alleges the reason provided for his dismissal was stated as:

“Due to his inability to conduct his duties correctly owing to his separation from his wife’’. 13

[30] At face value, such a reason lacks precision in that it does not describe any instance of misconduct, and it takes into account an irrelevant consideration, being Mr Johnson’s separation.

[31] However, this reason is set against the backdrop of a factual dispute about the car crash as previously described. Mr Johnson seeks to characterise the crash as minor, whereas Wilson says it was major, and an instance of serious misconduct.

[32] Mr Johnson further alleges that the process was procedurally unfair, and that summary dismissal was unnecessarily harsh in the circumstances; Wilson disputes both points.

[33] It is not open to the Commission to take Mr Johnson’s application at its highest in ignorance of the factual dispute. The evidence does not ‘speak for itself’; a hearing would be required to settle the factual disputes as outlined above. As such, there is insufficient evidence before me to make a determination and accordingly I have regarded the merits as a neutral factor.

Fairness as between the person and other persons in a similar position

[34] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 14 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[35] It was put to me that Mr Johnston’s circumstances were a unique combination, I accept this submission and treat this consideration as a neutral consideration in determining whether to grant an extension of time.

Conclusion

[36] Having considered and weighed each of the factors under s 394 of the Act, I am not satisfied that Mr Johnson’s circumstances can be regarded as exceptional so as to support an extension of time. The application will be dismissed. An Order¹⁵ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr P Gallasch (of counsel) on behalf of Mr Johnson.

Mr B Duggan (of counsel) on behalf of Wilson and Co. Enterprises T/A Wilson and Co. Landscaping.

Hearing (Conference) details:

2019.

Adelaide:

July 30.

Printed by authority of the Commonwealth Government Printer

<PR710977>

 1   Exhibit A2.

2 [2011] FWAFB 975.

 3   [2011] FWA 673.

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 6   Ibid.

 7   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

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

 9   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

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

 11   Ibid.

 12   Kornicki v Telstra-Network Technology Group, Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay.

 13   Form F2.

 14   [2016] FWCFB 6963.

15 PR710978.