Kyle McIntosh v Goodline Ribshire
[2021] FWC 2026
•14 APRIL 2021
| [2021] FWC 2026 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kyle McIntosh
v
Goodline Ribshire
(U2021/631)
DEPUTY PRESIDENT ASBURY | BRISBANE, 14 APRIL 2021 |
Application for an unfair dismissal remedy – Consideration of whether there are exceptional circumstances – Commission not satisfied that there were exceptional circumstances taking into account matters in s. 394(3) – Grant of further period refused.
Introduction
[1] This decision concerns an application by Mr Kyle McIntosh (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). The states that he was employed by an entity referred to in his Form F2 Application as Goodline Ribshire. The entity which responded to the application is Ribshire Pty Ltd t/a Goodline and permission was granted to the Applicant to amend the application to correctly name his former employer (the Respondent). It is not in dispute that the Applicant was notified of his dismissal on 6 November 2020 and that it took effect on that date.
[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3). The application was required to be filed by midnight on 27 November 2020. It was filed on 26 January 2021, 60 days outside the required time period. The Applicant seeks a further period in which to make his application.
[3] The Act allows the Commission to grant a further period in which to make an unfair dismissal application only if it is satisfied that there are “exceptional circumstances”. Briefly, 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 nor unprecedented, nor even very rare.1 Exceptional circumstances may 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 can be considered exceptional.2
[4] The requirement that there be exceptional circumstances before a further period can be granted under s. 394(3) of the Act contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
[5] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[6] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.
Consideration
Hearing
[7] The matter was allocated to me to determine whether a further period should be granted. I issued Directions requiring that the Applicant file and serve material in relation to whether a further period should be granted addressing the matters in s. 394(3) which were set out in the Directions. The Applicant did not file material responsive to the Directions. The matter was listed for hearing on 26 March 2021. At the hearing the Applicant made a number of assertions in relation to technical issues which had prevented his application being filed within the required time. The Applicant was granted a further opportunity to provide evidence, including documentary evidence, to support his assertions. That material was filed on 31 March 2021.
Reason for the delay
[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4
[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.5
[10] The Commission’s file and Case Management System indicates that on 26 November at 3.36 pm, Commission staff corresponded with the Applicant by email informing him correspondence had been received from him which contained attachments in a format not supported by the Commission’s information management systems, or which had security protections rendering it unable to be opened. The email advised that:
“As the attachments cannot be opened they have not been taken to have been lodged.
If the attachments contain an application then this application has not been taken to have been lodged.
Should you wish to lodge an application you should urgently contact the Commission or provide a copy of the completed application form you wish to lodge in accordance with Rule 14.
Please be aware that some applications must be lodged within specific timeframes. Applications lodged outside these time frames may be dismissed.” (emphasis in original).
[11] On 18 January 2021, some 53 day after receiving the email, the Applicant responded by email sent at 7.59 pm, stating that he still wished this matter to be investigated and alleging that he lodged the application and received a phone call from the Commission and then heard nothing over the holiday period. The Applicant also asserted in his email response that he did lodge within time and if there was a problem this should have been discussed when staff of the Commission telephoned him.
[12] The Form F2 Application was then filed on 26 January 2021, 8 days after the Applicant’s email communication. In response to the Directions issued by the Commission in relation to whether a further period in which to make the application should be granted, the Applicant’s mother, on his behalf, sent an email stating that the Form F2 had been completed on 25 November 2020 which was before the 21 day deadline, but that “due to circumstances out of our control, for example the Christmas closedown, this is where the delay has been.”
[13] At the hearing on 26 March 2021 the Applicant was unable to elaborate on these reasons for the delay in lodging his application or to confirm whether he received the email from the Commission on 26 November 2020. The Applicant was also unable to provide any information about other contact he may have had with staff of the Commission in relation to his application. A further opportunity was provided to the Applicant to provide evidence to the Commission in relation to his attempts to lodge the application within the required time or to communicate with the Commission and as to whether there are exceptional circumstances justifying the grant of a further period in which to make the application.
[14] On 31 March 2021, the Applicant provided further emails he had exchanged with staff of the Commission in relation to his application. The emails included an email from Commission staff sent to the Applicant on 19 January 2021 at 10.28 am, responding to his email on 18 January and pointing out that:
• The Commission was unable to speak to him as he had not provided a contact telephone number in his email of 18 January;
• If he wished to lodge an application he should urgently contact the Commission or provide a copy of the completed application;
• Information had been provided to the Applicant in the email of 26 November 2020 including that his email contained attachments which could not be opened;
• As the attachments to his email could not be opened they had been taken not have been lodged; and
• Reiterating that if the attachments contained an application it had not been taken to have been lodged.
[15] The Applicant also tendered an email sent by him to the Commission on 21 January 2021 at 11.03 am in which he alleged that he had already emailed, scanned and completed necessary information on line again and that the only option he could think of to file the documents was to take them to the post office and have them sent by facsimile. The Applicant also asserted that when he completed and submitted his application on 26 November 2020, he received a call from the Commission stating that “they would get to it after the Christmas break”. The Applicant also asserted that he had telephoned the Commission in response to every email he had received and had been told to “forget it” and “there’s nothing to do.” The Applicant went on in his email of 21 January 2021 to provide a telephone contact number and his mother’s email address, which is a different email address than the one from which the email on 18 January 2021 was sent.
[16] The Applicant tendered a further email from the Commission sent on 21 January 2021 confirming that a staff member of the Commission had spoken to him that day and that the Commission had not received an application from him in a format supported by the Commission’s information management systems. That email informed the Applicant of the steps he would need to take in order to file an application and that there was a 21 day period from the date the termination of his employment took effect in which such an application was required to be made.
[17] When all of the evidence provided by the Applicant is considered, I do not accept that he has provided a reasonable explanation for the delay in filing his application. When the Applicant attempted to file documents on 26 November 2020, he was promptly and clearly informed by the Commission that the documents had not been taken to have been lodged and if the documents included an application, then it had not been lodged. The Applicant has not provided evidence to establish that he made telephone contact with the Commission in response to the email. There is no file note in the Commission’s Case Management System to indicate telephone contact from the Applicant with the staff of the Commission and despite being granted an adjournment to provide evidence of such contact and details of the conversation he alleges occurred with Commission staff, the Applicant has failed to do so.
[18] The Applicant did not respond to the email sent to him on 26 November 2020, until 21 January 2021 – 53 days after he received it. The Applicant’s email response was sent at 7.59 pm on 21 November, outside office hours. There is no explanation for the Applicant’s delay in responding to the 26 November email. When the Applicant did respond, he did not provide a telephone contact number. Commission staff again responded promptly to the Applicant’s email by email sent at 10.28 am on 19 January 2021, pointing out that his application had not been lodged and that the Commission had no way of contacting the Applicant by telephone because he had not provided a contact telephone number. It took the Applicant until 11.03 am on 21 January 2021 – 2 days after the Commission’s email – to respond and to provide a contact telephone number. The Applicant also provided a different email address to the address he had been using to correspond with the Commission.
[19] Contrary to the Applicant’s statement in his email of 21 January, to the effect that Commission staff had not told him what to do, the Applicant had been clearly advised to file any application he wished to make as a matter of urgency and that previous material he claimed to have filed had not been taken to be lodged. It took the Applicant until 26 January – a further five days – to file an application he claimed to have already completed in November 2020. Finally, I do not accept that the Christmas period provides a reasonable explanation for the Applicant’s delay in filing, either considered in isolation or in combination with other matters upon which the Applicant relies to explain the delay. The 21 day period for the application to be filed within time had expired by 27 November 2020 and the Applicant had a further period of 27 days to file his application before the Christmas period commenced. The Applicant file his application electronically in any event, and there is no reasonable explanation for his failure to do so within time.
[20] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[21] The Applicant says he was notified of his dismissal on 6 November 2020 and that it took effect on that date. The Applicant had the period of 21 days from 6 November 2020 to lodge his unfair dismissal application. In all the circumstances, I consider this to weigh against a further period being granted.
Action taken to dispute the dismissal
[22] The Applicant took no action to dispute his dismissal, other than filing an unfair dismissal application. This circumstance weighs against a conclusion that there are exceptional circumstances.
Prejudice to the employer
[23] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[24] In the matter of Kornicki v Telstra-Network Technology Group6 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.”7
[25] After considering the material filed by the parties, it is clear that there are factual disputes between the parties which can only be resolved at a hearing. I do not consider that the application is totally without merit, although it is not possible to say that it has strong prospects of success. Accordingly, I am of the view that the merits are a neutral consideration.
Fairness as between the person and other persons in a similar position
[26] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration. I am also of the view that there are many applications where similar reasons are advanced in support of a further period being granted, and those reasons are found not to be exceptional. This is a neutral consideration in the present case.
Conclusion
[27] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow a further period for the application to be made. I decline to grant a further period under s 394(3) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order 8 to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
The Applicant on his own behalf.
Mr J Brewer for the Respondent.
Hearing details:
26 March.
2021.
By telephone.
Printed by authority of the Commonwealth Government Printer
<PR728604>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
2 Ibid.
3 Long v Keolis Downer[2018] FWCFB 4109 at [40]
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
7 Ibid.
8 PR728615.
0
5
0