Kyle Cook v Universal Logistics Management Pty Ltd
[2023] FWC 2631
•18 OCTOBER 2023
| [2023] FWC 2631 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kyle Cook
v
Universal Logistics Management Pty Ltd
(U2023/8900)
| COMMISSIONER WILSON | MELBOURNE, 18 OCTOBER 2023 |
Application for an unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed
This decision concerns an application made by Kyle Cook alleging unfair dismissal against Universal Logistics Management Pty Ltd (Universal Logistics or the Respondent). Mr Cook’s employment ended on Friday 7 July 2023. Mr Cook’s application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on Friday 15 September 2023.
Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates referred to above, Mr Cook’s application was made 49 days outside of the statutory time limit which ended on Friday 28 July 2023.
Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Cook’s application. Universal Logistics object to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.
On 12 October 2023, a hearing was conducted in respect of a purported request to extend time for the filing of the application. Evidence was received from Mr Cook on his own behalf and the Respondent was represented by Mr Daniel Ferlazzo, paid agent, of Employsure Law. Permission for Universal Logistics to be represented by a paid agent was granted by me pursuant to s.596(2)(a) of the FW Act, with me being satisfied that such representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. As Mr Cook did not object to the Respondent’s representation, I considered it appropriate to exercise my discretion on the subject. Mr Andrew Cook, Universal Logistics Managing Director, who is also Kyle Cook’s father, provided a witness statement which was admitted without the need for oral evidence.
Where I refer to “Mr Cook” in this decision, I mean to refer to Kyle, unless the context allows otherwise.
In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion[1] and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[2]
I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Mr Cook’s case and that an extension of time should not be granted for the making of his unfair dismissal application.
BACKGROUND
Universal Logistics is a family run small business that operates a warehousing and logistics business for food products.[3]
Mr Cook is 20 years of age and is autistic with some processing difficulties. Questions to him needed to be short and without complexity and sometimes needed to be repeated. His answers were sometimes very short, which may have either been nervousness about the hearing or not understanding the question asked. Despite these matters Mr Cook appeared to me to be able to understand the proceedings and why they had to be held.
Mr Cook worked for his father’s business for almost two years, commencing on 30 August 2021. He was engaged as a casual employee and his duties involved assisting with picking and packing customer orders to be dispatched with the couriers.[4]
On 7 July 2023 Universal Logistics dismissed Mr Cook for serious misconduct[5] as he engaged in repeated instances of unauthorised absence without reasonable explanation.[6] The dismissal was communicated by text message. The Applicant received and responded to the text message on the same day.[7]
The text exchanges appear to be part of a broader family dispute between Mr Cook and his parents, with him living at home at the time. Sadly, that is no longer the case with the text exchanges leading to him not only losing his job but having to move out of home.
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria.
Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
“[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 time limit in s.366(1)(a) is not an exceptional circumstance.” [8]
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 extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[9]
In considering whether an extension of time should be granted to Mr Cook, I am required to consider all of the criteria in s.394(3), which I now do.
1. The reason for the delay
The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[10] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[11] An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[12] While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[13]
Mr Cook accepts the date of his dismissal as being 7 July 2023, being the date set out in the Respondent’s material, whereas his own refers to the dismissal date as being 30 June 2023. The text messages provided by the Respondent in its material corroborate 7 July 2023 as being the dismissal date.
In Mr Cook’s case the relevant period for consideration of an extension of time is that after the last day for a lodgement to be within time, namely Friday 28 July 2023. The Respondent submits that the last day for filing was by midnight on 29 July 2023 and the application is 49 days out of time.[14]
Mr Cook provides the reason for the delay in filing his application as “[d]idn’t knew [sic] who to contact about my dismissal”.[15] He elaborated on the situation in his oral evidence and written material by saying that the dispute that led to his dismissal came about because he wanted to spend time with his partner for her birthday. After he was dismissed he talked with his partner’s parents about what he could do and they suggested to him at some point that he could make an unfair dismissal application. Mr Cook first learned about the 21-day time limit when he read the application form. He started to fill in the application form only very close to the date it was actually lodged, Friday 15 September 2023.
The Respondent’s agent, Mr Ferlazzo put to Mr Cook, as he was required in order to follow his client’s instructions, that Mr Cook was distracted from making an unfair dismissal application as he was in the process of setting up a lawn-mowing business. In support of that contention Mr Ferlazzo asked Mr Cook about several Instagram posts for a business named KC Lawn Care and whether setting up the business was his priority. The Instagram posts are dated 28 August 2023.
Initially Mr Cook said the business was not his, which was not correct. After several further questions he accepted that in fact it was his business, however it had only taken him a day to prepare the graphic and posts and he had not been distracted in setting up the business.
I said to Mr Cook in the hearing, and repeat here, that I do not criticise him for setting up a business which is an admirable thing to do for someone who has lost their job. I also do not criticise him for his initial answers about the business as he accepted after being reminded that he should be truthful.
Nonetheless, Universal Logistics’ contention about establishment of the business as being a factor to be taken into account in this decision requires consideration.
The statutory deadline requires active engagement with the making of an unfair dismissal application, personally or through one’s representative which in this jurisdiction does not have to be a lawyer, union or even paid agent. The lack of active engagement with the deadline, and a consequential late lodgement means an inevitable retrospective examination of an applicant’s circumstances to ascertain whether there was an acceptable explanation for the delay. Ignorance of the timeframe for lodgement is not an exceptional circumstance.[16]
In this case, I am not satisfied that Mr Cook has provided the Commission with an acceptable explanation for the delay in making his unfair dismissal application. I make this finding even after making allowances for Mr Cook’s disability. A delay of 49 days beyond the statutory time-limit is too long to be explained by any difficulties Mr Cook may have had in actioning an unfair dismissal. I mean him and his partner’s parents no disrespect through that comment, merely that an unfair dismissal application needs to be actioned as soon as possible and in any case within 21 days after the dismissal takes effect. Mr Cook presented to me as someone who is able not only to process things about his situation but has sufficient skills to be able to make an in-time application if that is what he wanted to do.
In finality, Mr Cook’s explanation about a late lodgement is that he did not start making an application until very close to the date on which it was actually lodged, Friday 15 September 2023. Initially he did not know who to contact about his dismissal, and at some time discussed the matter with his partner’s family. These matters in combination or singularly are not an acceptable explanation.
I have considered but do not accept the Respondent’s contention that this was because Mr Cook was distracted by setting up a business. Mr Cook’s evidence is that the Instagram post did not take him long, and in any event the date of the posts is more than two weeks before the application was lodged.
Accordingly, consideration of this criterion does not resolve in favour of Mr Cook for the granting of an extension of time for the making of his application.
2. Whether the person first became aware of the dismissal after it had taken effect
The Respondent submits that the Applicant was immediately aware of his dismissal on 7 July 2023.[17] The dismissal was communicated by text message and the Applicant responded to the text message the same day.
A termination of employment on the employer’s initiative does not take effect unless and until it is communicated to the employee whose employment is being terminated.[18]
As the termination of employment was communicated to Mr Cook on the same day it took effect, this factor weighs against an extension of time being granted for the making of the application.
3. Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[19]
The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time”[20] (underlining added).
The Applicant has not taken any action to dispute his dismissal with the Respondent during the 21 days after 7 July 2023.[21]
Consideration of this factor weighs against an extension of time being granted to him.
4. Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 49 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.[22]
While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.[23]
In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter is a neutral factor in my consideration.
5. The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[24] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[25]
The Applicant submits “I was going to the city for my girlfriends birthday and my employer texted me I was dismissal for not [sic] reason”.[26]
The Respondent submits that the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code[27] and at the time of dismissal the Respondent employed three employees including the Applicant and was therefore a small business employer within the meaning of the FW Act.[28] Further, the Respondent alleges that the repeated unauthorised absences of the Applicant “caused significant operational issues which prevented the Respondent from effectively fulfilling and dispatching orders. These failures led to certain losses and strained relations with customers.”[29] The Respondent therefore viewed the Applicant as having engaged in serious misconduct and the Applicant was summarily dismissed.
As a result, it is the case in this matter, as with most extension of time matters, that the uncertainties about each party’s case and each parties evidence on the merits is yet to be tested lead me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of Mr Cook’s unfair dismissal application.
6. Fairness as between the person and other persons in a similar position
This consideration is concerned with the consistent application of principles in applications of this kind, ensuring fairness between an applicant and other persons in a similar position, noting that applications for an extension of time generally turn on their own facts.[30] This may require consideration of applicants whose applications are either currently before the Commission, or have been decided in the past.[31] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[32]
No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances.
CONCLUSION
Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Cook.
As a result, Mr Cook’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.
COMMISSIONER
Appearances:
Mr K. Cook for himself
Mr D. Ferlazzo for the Respondent
Hearing details:
2023.
Melbourne (via video conference);
12 October.
[1] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[3] Respondent Outline of Submissions: Extension of Time, filed 10 October 2023, [6] – [7].
[4] Exhibit R1, Witness Statement of Andrew Cook, filed 10 October 2023, [11].
[5] Form F3, Employer Response Form, filed 2 October 2023, item 3.1.
[6] Respondent Outline of Submissions: Extension of Time, filed 10 October 2023, [8].
[7] Respondent Witness Statement of Andrew Cook, filed 10 October 2023, [24].
[8] Nulty v Blue Star Group, 2011, 203 IR 1, [13].
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].
[12] Ibid, [40].
[13] Ibid, [41].
[14] Respondent Outline of Submissions: Extension of Time, filed 10 October 2023, [17] – [18].
[15] Form F2, Unfair Dismissal Application, filed 15 September 2023.
[16] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14].
[17] Respondent Outline of Submissions: Extension of Time, filed 10 October 2023, [35].
[18] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496.
[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[20] Ibid.
[21] Respondent Outline of Submissions: Extension of Time, filed 10 October 2023, [37].
[22] Ibid, [39].
[23] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].
[24] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[25] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[26] Form F2, Unfair Dismissal Application, filed 15 September 2023.
[27] Respondent Outline of Submissions: Extension of Time, filed 10 October 2023, [42].
[28] Ibid, [45].
[29] Ibid, [47].
[30] GHD Pty Ltd v Kevin Alan Black[2023] FWCFB 38, [94].
[31] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[32] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
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