Keith Tatley v Rapid Response Revival Research Limited

[2020] FWC 4906

[2020] FWC 4906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Keith Tatley
v
Rapid Response Revival Research Limited
(U2020/10557)

DEPUTY PRESIDENT BULL SYDNEY, 11 SEPTEMBER 2020

Application for an unfair dismissal remedy - jurisdiction - out of time application - whether exceptional circumstances exist - alleged issue with lodgement - extension of time not granted.

[1] In this matter, Mr Keith Tatley has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Tatley states that he was employed with Rapid Response Revival Research Limited (the respondent) from 29 July 2019 as the Chief Financial Officer.

[3] Mr Tatley has stated in his Form F2 – Application that he was dismissed on 13 July 2020 and that his dismissal took effect on the same day.

[4] On 27 August 2020, a Form F3 – Employer Response was filed and raised four jurisdictional grounds opposing Mr Tatley’s application. The jurisdictional grounds were stated as being that the:

1. application was filed out of time

2. applicant was not an employee

3. applicant’s employment does not meet the minimum employment period

4. employer is a small business employer and complied with the Small Business Fair Dismissal Code

[5] This decision deals only with the jurisdictional ground that the application was filed out of time.

[6] The matter proceeded by telephone, with Mr Tatley representing himself. The respondent advised that it maintained its jurisdictional objections, but it would not attend the hearing and relied on the Form F3 it had filed.

Application filed outside the statutory timeframe

[7] The Act requires unfair dismissal applications to be filed within 21 days of a dismissal taking effect. Section 394(2) of the Act states as follows:

“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 Fair Work Commission allows under subsection (3).

[8] Calculating 21 days from the date of the dismissal, 13 July 2020, Mr Tatley had until 3 August 2020 to file his application, which was not filed until 4 August 2020, and was therefore one day outside of the prescribed period.

[9] The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[10] Mr Tatley’s Form F2 at 1.4 stated that the application had been made within the 21 days from the date of dismissal.

[11] On 12 August 2020, the Commission wrote to Mr Tatley, advising that his application appeared to be one day late and asked for Mr Tatley to provide reasons why his application would meet the definition of ‘exceptional circumstances’ to enable the time for filing to be extended. Mr Tatley forwarded written reasons in support of his application seeking an extension of time on 17 August 2020.

Ability to extend time for filing

[12] In respect to the Commission's ability to extend time for filing, sub-s.394(3) of the Act sets out the circumstances that provide for the Commission to grant an extension of time for an applicant to file their unfair dismissal claim.

[13] Section 394(3) of the Act is in the following terms:

“(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.”

(My underline)

[14] Each of these matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight. Individual matters might not, viewed in isolation, be particularly significant, so it is necessary to also consider the matters collectively and to ask whether, collectively, the matters demonstrate exceptional circumstances.

[15] A Full Bench of this Commission in Lombardo v Commonwealth of Australia 1 described the Commission's decision-making process under s.394(3) of the Act as follows:

“The test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances.”

[16] In the Full Bench decision of Mohammed Ayub v NSW Trains 2 the Full Bench described ‘exception circumstances’ in the context of s.394(3) as being a ‘very high bar’ and “strictly limited’.

[17] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 3 (Nulty) where the Full Bench stated:

“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.”

[18] As can be seen, 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 or unprecedented, nor do they need to be very rare. The Commission must be satisfied that, taking into account all these factors, there are exceptional circumstances.

Reason for delay

[19] In considering the matters that the Commission must take into account, the first issue to be addressed is the reason for the delay.

[20] On 21 August 2020, the matter was listed for hearing and Mr Tatley was directed to file and serve on the respondent any written submissions and witness statements by 4 September 2020.

[21] On 8 September 2020, the respondent wrote to the Commission enquiring as to whether Mr Tatley had provided any further information as they had not been served with any documentation. On 9 September 2020, the Commission advised the respondent that no further documentation had been received and copied the response to Mr Tatley.

[22] On the following day, 10 September 2020, Mr Tatley requested an extension of time, from 4 September to 10 September 2020, to file a witness statement. The delay in filing was said to be related to ‘moving house’.

[23] The Commission has determined that it will have regard to Mr Tatley’s witness statement of 10 September despite its late filing.

.

[24] As stated above, Mr Tatley’s application indicated he was of the belief that his application had been filed within the prescribed 21 day period and his written submissions of 17 August 2020, maintained this position with the following statement:

“the 21 days does not include the day that the termination was made”.

[25] At the hearing on 11 September 2020, Mr Tatley advised that he was no longer submitting that his application had been filed within the 21 day period.

[26] Mr Tatley stated that the late filing of his application was due to an inability to upload his application on the evening of the 21^st day to the Commission’s web site.

[27] Mr Tatley states that he attempted to upload his application to the Commission web site on 3 August 2020. Although he could not recall the exact time; it would have been between 7pm and 10pm, but the Commission website did not accept his application.

[28] Although Mr Tatley was able to upload his application the following day, he attached a copy of a Commission document headed ‘Lodgement details’ which was produced when he downloaded ‘summary print’. As the document did not contain any of the information he had inputted, Mr Tatley stated that this was evidence of ‘technical issues’ with the Commission’s website. This document was produced at 5:01pm on 4 August 2020. Mr Tatley’s successfully filed his application according to the Commission records, 11 minutes later at 5:12pm the same day, 4 August 2020.

[29] Mr Tatley was unable to produce a copy of such a document for 3 August 2020, which he states he received but did not keep.

[30] Mr Tatley was informed that the Commission’s Information Technology personnel had advised that there was no known issue with the Commission’s website on 3 August or 4 August 2020 and that Commission records indicated that other applications were uploaded to the Commission website at the time Mr Tatley states he experienced difficulties on 3 August 2020.

[31] Mr Tatley accepted that there may have been computer issues at his end.

[32] Mr Tatley opined that his application was ‘very long’ and he was concerned that the Commission system did not allow for the amount of information to be loaded. The completed unfair dismissal application form was 8 pages.

[33] Other than Mr Tatley’s assertion, there is no other evidence that he attempted to file an unfair dismissal application with the Fair Work Commission on 3 August 2020.

[34] In a decision of the Commission in Jason Varcoe v Leo Fardell Pty Ltd 4, an extension of time application was refused where the application was received one day after the time limit expired. The applicant had posted his application one day before the statutory time limit for lodgement expired.

[35] Where only ‘exceptional circumstances’ allow the Commission to exercise its discretion to extend the time for filing an unfair dismissal, an applicant needs to be vigilant to possible difficulties which that may be encountered when leaving it to the 21^st day to, in this case, upload their application.

[36] Other than a landlord inspection on 3 August 2020, Mr Tatley did not point to any factor that explained why he waited until the 21^st day to file his application, although he erroneously thought he had until 4 August to file his application.

[37] The Commission records indicate that there was no known or demonstrated fault with the Commission’s website on 3 or 4 August 2020.

[38] On what has been put by Mr Tatley, I am not satisfied that he has provided an explanation for the delay that, on its own, establishes exceptional circumstances.

Whether applicant first became aware of the dismissal after the date it took effect

[39] In respect to whether Mr Tatley first became aware of the dismissal after the date it took effect, Mr Tatley states that he was notified of his dismissal on the same day that it took effect, therefore he had the full period of 21 days to lodge his unfair dismissal application.

Action taken to dispute the termination

[40] Mr Tatley states that as he was unfamiliar with his rights he discussed with and sought advice from others.

Prejudice to the employer

[41] The respondent has made no submissions on this issue, however, there is nothing to suggest that the granting of a further period in which to file the application would result in any prejudice to the respondent, accepting Mr Tatley’s submission that they were his employer.

Merits of the application

[42] As to the merits of the application, Mr Tatley states that he was engaged under a sham contracting arrangement which has denied him rights and entitlements as an employee. Mr Tatley acknowledged that he had accepted his engagement with the respondent as an independent contractor and was paid on the presentation of a monthly invoice.

[43] The respondent states that it relies on government funding and grants to continue to operate and that the next round of funding has not been approved. If after argument, the Commission was to accept that Mr Tatley was an employee and not an independent contractor, matters relating to the respondent’s finances would need to be dealt with by way of a hearing where the evidence of both parties can be tested under oath, including whether the respondent was a small business employer. As such, this is a neutral factor in considering whether exceptional circumstances exist in this case.

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

[44] As to fairness between the applicant and other persons in a similar position the Commission has not been made aware of any persons or cases that are relevant to the question of fairness between Mr Tatley and other persons in a similar position. I consider this also to be a neutral consideration in the present matter.

Conclusion

[45] It is noted that the statutory time limit applicable to the exercise of an employee's right to bring an unfair dismissal application is an expression of parliament's intention that this right should be exercised promptly so as to bring about certainty. The time limit seeks to balance the right to bring an action against the desirability of prompt action and certainty. The reason for the time limit is that parties should be able to know that if there is a question about a dismissal, the right to question that action will be exercised promptly and, unless exceptional circumstances exist, the right to bring that action will be lost.

[46] The High Court in Brisbane South Regional Health Authority v Taylor 5McHugh J (with whom Dawson J agreed) after reviewing the rationale for limitation periods said at:

“A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. A limitation period is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”

[47] In the same decision, Toohey & Gummow JJ stated that the ultimate onus of satisfying the court that time should be extended remains on the applicant. 6

[48] All the factors outlined in s.394(3) of the Act, which I have now gone through, must be considered when deciding whether or not exceptional circumstances have been established to warrant the exercise of the Commission's discretion to extend the time for the filing of an out of time unfair dismissal application.

[49] I have considered all of the matters which the Commission is required to take into account and, while acknowledging that the delay is limited to one day, I am not satisfied that there exist any factors in isolation or in combination that justify a finding of exceptional circumstances which would warrant the Commission granting an extension to the statutory time limit for the lodgement of Mr Tatley's unfair dismissal application.

[50] The circumstances as disclosed by the material and submissions advanced by Mr Tatley are not ‘out of the ordinary course, unusual, special or uncommon’ and, therefore, there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for filing the application.

[51] I decline to grant an extension of time under s.394(3) of the Act and the application for an unfair dismissal remedy must, therefore, be dismissed as having been filed outside the prescribed legislative period.

[52] Despite this finding, Mr Tatley is able to proceed with any of the claims he has alluded to in his application relating to the existence of an alleged sham contract and entitlements he believes are due to him as an employee in a court of competent jurisdiction.

DEPUTY PRESIDENT

Appearances:

Mr Tatley for himself

No appearance for the Respondent

Hearing details:

Sydney

(By Microsoft Teams Teleconference)

2020

11 September

Printed by authority of the Commonwealth Government Printer

<PR722737>

 1   [2014] FWCFB 2288 at [21]

 2   [2016] FWCFB 5500 at [36]

 3   [2011] FWAFB 975 at [13]

 4   [2010] FWA 6025

 5 (1996) 186 CLR 541 at[553]

 6   Ibid at [547]