Logan Marshall v Flamestop Corporate Services Pty Ltd

[2022] FWC 652

[2022] FWC 652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections   

Logan Marshall
v

Flamestop Corporate Services Pty Ltd

(C2021/6947)

DEPUTY PRESIDENT YOUNG MELBOURNE, 24 MARCH 2022

Application to deal with contraventions involving dismissal – extension of time – circumstances not exceptional – application dismissed.

1. This decision concerns an application by Mr Logan Marshall under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

1. It is uncontested that Mr Marshall’s employment with the Respondent ended on 11 August 2021. The GP Application was lodged on 11 October 2021. The period of 21 days ended at midnight on 1 September 2021 and the GP Application was therefore lodged 40 days out of time. Mr Marshall seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent company opposes the grant of an extension of time.

1. On 10 March 2022 I conducted the proceedings by way of determinative conference by telephone. Mr Scott Dickson appeared on behalf of Mr Marshall. Mr Dickson is a family friend of Mr Marshall. Mr Marshall gave evidence on his own behalf. Ms Brooke Gilmour, Group Financial Officer of the Respondent, appeared on behalf of the Respondent.

Background

1. The Respondent is a manufacturer and wholesaler of fire equipment. Mr Marshall was employed by the Respondent in the role of Warehouse Assistant from 31 May 2021 until 11 August 2021. Mr Marshall is 19 years old and the position with the Respondent was his first employment.

1. On 4 September 2021 Mr Marshall lodged an application for the Commission to deal with an unlawful termination dispute pursuant to section 773 of the Act (Unlawful Termination Application). On 10 October 2021 Mr Marshall discontinued the Unlawful Termination Application. As already set out, Mr Marshall lodged the GP Application on 11 October 2021.

Consideration

1. The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[1]

1. The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[2] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.[3]

1. Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 to be made, if it is satisfied that there are exceptional circumstances, taking into account the following:

(a)         the reason for the delay; and

(b)         any action taken by the person to dispute the dismissal; and

(c)         prejudice to the employer (including prejudice caused by the delay); and

(d)         the merits of the application; and

(e)         fairness as between the person and other persons in a like position.

Reason for delay

1. The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[6] the Full Bench noted that the absence of an 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 the circumstances must be considered.[7] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[8]

1. As to the reason for delay, in his Outline of Argument Mr Marshall submits that he was seeking that the dispute be resolved by the Respondent prior to lodging an application with the Commission.[9] Mr Marshall says that he was “confused about Unfair Dismissal, Unlawful Dismissal and General Protections”.[10] At the determinative conference Mr Marshall said that he “didn’t understand how it worked” or “what he was looking for”. Mr Marshall concedes that the Unlawful Termination Application was lodged “3 or days late”[sic] and that he “made the wrong application.”[11] He further says that he was “unwell after termination” and “was having trouble concentrating on tasks and dealing with complex information due to anxiety and depression.” [12]

1. The Respondent submits that there is no reasonable or acceptable explanation for the delay. It says that on the day of his dismissal Mr Marshall sent an email to Mr Christopher Kirk of the Respondent (11 August Email) identifying his concerns and said that he would raise those concerns with the Commission.[13] Secondly, it says that the content of the Unlawful Termination Application was a “cut and paste” of the 11 August Email and as such could not explain the late filing of the Unlawful Termination Application.[14]

1. Firstly, as to Mr Marshall’s assertion that he was waiting on a response from the Respondent, it is uncontested that Mr Marshall sent the 11 August Email identifying a number of concerns which he “will be raising with the Fair work commission”. [15] In the 11 August Email Mr Marshall requests that his termination be reviewed by “someone other than Geoff, and certainly not Colin” and states that he “will be prepared to take this to Fair Work if necessary for them to handle.” [16]

1. As set out at paragraph [9] above, although the circumstances following dismissal must be considered in assessing the explanation for the delay, the period of the delay to be considered is the period immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. Accordingly, the steps taken by Mr Marshall between the 11 August 2021 and 1 September 2021 cannot provide an acceptable or reasonable explanation for the delay between the period of 2 September 2021 and the time of lodgement. Further, a review of the 11 August Email does not support an assertion that Mr Marshall was waiting for a response from the Respondent. Mr Marshall states in the opening sentence of the 11 August Email that “I am just writing as I wish to advise that I will be lodging a claim for unfair dismissal with the Fair work Commission.”[17] I consider it clear from this that although Mr Marshall may have preferred to resolve his dispute with the Respondent directly, he was not going to wait to do so before lodging an application with the Commission.

1. Secondly, as to Mr Marshall being “confused about” being able to lodge a general protections application, it is well established that ignorance of one’s rights is not an acceptable explanation for late lodgement.[18] The Commission’s website provides clear information regarding the accessibility of the unlawful termination laws. Under the heading “When you can and cannot apply for unlawful termination” the website provides as follows:

“You can make an unlawful termination application if:

•     you are dismissed from your job AND

•     your employer dismisses you because, or for reasons which include a prohibited reason AND

•     you are not a national systems employee OR you are a national system employee and you are not entitled to make a general protections dismissal application because the reason or reasons for the dismissal are not prohibited reasons under the Fair Work Act.”

1. Accordingly, there is readily available information on the Commission’s website regarding eligibility to lodge dismissal applications. A preliminary perusal of that information demonstrates that Mr Marshall is ineligible to make the Unlawful Termination Application.

1. The prior lodgement of an erroneous application to the Commission has been considered an acceptable reason for the delay in lodgement of a second application.[19]

1. In Hambridge v Spotless Facilities Services Pty Ltd[20] the Full Bench of the Commission said:

“… A mistake in using a wrong form by a self-represented applicant should not lead to an outcome which is fatal to the applicant’s access to the Commission’s jurisdiction.”

1. However, upon realising that an incorrect application has been made it is incumbent on an applicant to act swiftly in making the correct application.[21]

1. A search of the Commission’s file confirms that Mr Marshall initially lodged the Unlawful Termination Application on 4 September 2021, being 24 days after the day his employment was ended. Accordingly, that application, should it have been available to Mr Marshall, was filed out of time. Mr Marshall concedes this. Further, following a review of the Unlawful Termination Application, I accept the submissions of the Respondent that it is a cut and paste of the content of the 11 August Email. As such, it is difficult to see why the Unlawful Termination Application was lodged out of time as Mr Marshall had formulated his concerns some 24 days earlier.

1. On 6 September 2021 the Commission sent email correspondence to Mr Marshall advising him that the Commission had received the Unlawful Termination Application and that he “may need to submit a different application.” It further stated that Mr Marshall may not be eligible to make the Unlawful Termination Application as the employer may be a national system employer and “this would mean that you could make a general protections application”. That correspondence advised that there were strict 21 day time limits that applied to such applications and provided a link to the Form F8 general protections application.

1. On 7 September 2021 Mr Marshall sent an email to the Commission saying:

“I don’t believe I qualify for unfair dismissal as I was an employee less than 6 months and didn’t think I could apply for a general protection order as I am no longer there. So I would like to continue with my current application please.”

1. Notwithstanding the above, the Commission sent further email correspondence to Mr Marshall on 7 September 2021 again advising him that he may not be eligible to make the Unlawful Termination Application and that he may need to submit a different application. That correspondence also provided information regarding a general protections application and again provided a link to a Form F8 general protections application. The Commission further contacted Mr Marshall by telephone about his eligibility to lodge the Unlawful Termination Application on 8 and 21 September 2021 and left voice to audio messages. The file note of the call of 8 September 2021 provides that the message left for Mr Marshall, amongst other things, encouraged him to read information regarding general protections applications and to read a Form F8. The file note for the call on 21 September 2021 provides that the message left for Mr Marshall asked him to contact the Commission about the Unlawful Termination Application by 22 September 2021 at the latest. Mr Marshall did not respond to the further correspondence of 7 September 2021 or the subsequent telephone calls. Accordingly, the Unlawful Termination Application was allocated to Commissioner Johns to determine whether to grant a further period of time for the filing of the Unlawful Termination Application and to determine Mr Marshall’s eligibility to lodge the Unlawful Termination Application.

1. The Commissioner held a mention by telephone in relation to the Unlawful Termination Application on 1 October 2021 (Mention). The Mention was recorded and a copy of the recording was provided to the parties prior to the determinative conference. Mr Marshall was represented by Mr Dickson at the Mention. At the Mention the Commissioner informed Mr Marshall that it appeared that he was eligible to make an general protections application and, as such, it appeared he was ineligible to make an unlawful termination application. Further, the Commissioner advised Mr Marshall that he was out of time to file a general protections application and noted that the Unlawful Termination Application had been lodged out of time. In addition, at the Mention the Commissioner confirmed that the minimum employment period qualification applied to unfair dismissal applications only and not general protections applications. It is to be noted that the Commissioner also had private discussions with Mr Marshall at the conclusion of the Mention, which were not recorded. In his witness statement Mr Marshall concedes that at the Mention “The Commissioner also stated that the matter should have been filed as a General Protections claim and should be discontinued.”[22] Following the Mention, the Commissioner issued the following Directions:

“Further to the conference in this matter conducted this afternoon by the Fair Work Commission (Commission), the Commission directs that, by 5 pm on Friday, 8 October 2021 the Applicant’s representative must contact chambers (with a cc to the Respondent’s representative) and either:

•     ask that the matter be programmed for hearing in relation to the out of time issue and the jurisdictional issue; or

•     file a Notice of Discontinuance.”

1. Mr Marshall did not comply with those Directions but lodged a Form F50 Notice of Discontinuance on 10 October 2021 and lodged the GP Application the following day on 11 October 2021.

1. Accordingly, Mr Marshall lodged the Unlawful Termination Application out of time. He was informed on 6 September 2021, 7 September 2021, 8 September 2021, 21 September 2021 and again at the Mention on 1 October 2021 of his ability to lodge a general protections application and of the accessibility of the Unlawful Termination Application. Mr Marshall did not lodge a general protections application on any of those days. At the determinative conference, in response to a question from the bench, Mr Marshall said that notwithstanding the communications to him of 6, 7, 8 and 21 September 2021 he was still confused about which application to make. Further, at the determinative conference Mr Marshall said that he was still confused following the Mention. Notwithstanding Mr Marshall’s mental health concerns, which are addressed below, I am unable to see how that could be that case, given the number of times the issue of the correct application was raised with Mr Marshall and, most particularly, following the Mention on 1 October 2021 where he was clearly informed verbally by a member of the Commission of the difficulties with the Unlawful Termination Application and, on his own evidence, that the Unlawful Termination Application ought be discontinued and a general protections application should have been filed. In addition, Mr Dickson attended the Mention and the recording does not indicate that Mr Dickson had any confusion about the matter. Finally, following the Mention Mr Marshall did not act expeditiously to discontinue the Unlawful Termination Application and lodge the GP Application. Rather, he waited a further 10 days before doing so and in so doing also failed to comply with the directions issued by the Commission for the filing of the Notice of Discontinuance. At the determinative conference Mr Dickson said that the Notice of Discontinuance and the GP Application were filed as soon as he could manage, given other commitments and further, the GP Application was only filed some 5 business days after the Mention. Whilst I accept that Mr Dickson may indeed have filed the Notice of Discontinuance and lodged the GP Application on Mr Marshall’s behalf as soon as he could manage, this does not provide a reasonable or acceptable explanation for the delay in lodgement. Having other commitments that require attendance is not uncommon or unusual. Further, the distinction sought to be drawn as between calendar days and business days is of no assistance. This does not provide a reasonable or acceptable explanation for the delay in lodgement.

1. Thirdly, in his Outline of Argument Mr Marshall says that he was “unwell after the termination” and was “suffering from anxiety and depression”.[23] At the determinative conference Mr Marshall said that due to his mental health concerns it was “difficult to try and do that sort of stuff” and that he struggled to undertake tasks. Mr Marshall says his mental health difficulties contributed to his confusion around the correct application to make and that he “didn’t understand what he was looking for”. He said that he was taking anti-depressant medication, was under the care of a psychiatrist, had poor sleep and concentration and difficulty in focus. He said that he had mental health issues when he was employed by the Respondent and that those issues were exacerbated by the conduct he was exposed to during his employment and his termination.

1. Mr Marshall filed a letter of referral (Letter) from Dr Joyce Beardsell to Vanessa Wadih “for on going psychological management of anxiety, depression, panic disorder and ehot use”.[24] Mr Marshall’s evidence at the determinative conference was that Dr Beardsell is his GP and Ms Wadih is a psychologist. The Letter also states that Mr Marshall is seeing a psychiatrist, taking anti-depressant medication and considering attending AA meetings following the ending of lockdown. The Letter further provides that Dr Beardsell is referring Mr Marshall for 6 sessions with Ms Wadih. The Letter is dated 23 July 2021.

1. I accept Mr Marshall’s evidence that he has mental health concerns. I also accept his evidence that he is taking medication for depression. However, there is no evidence that he was incapacitated such that it could be said that he was precluded from lodging the application in time. Further, Mr Marshall had the capacity to send the 11 August Email to the Respondent, which is of some length and detail and foreshadows an application being made to the Commission, and he also had capacity to lodge the Unlawful Termination Application on 4 September 2021. In those circumstances, it is difficult to see how he did not also have capacity to lodge the GP Application. As to Mr Marshall’s mental health issues contributing to his confusion as to the correct application to be made, even assuming that was the case notwithstanding the multiple communications made to him regarding this matter, at best Mr Marshall’s mental health issues could only provide an acceptable explanation for the delay until the end of September 2021. They cannot provide an explanation for the delay after 1 October 2021. Mr Marshall’s own evidence is that on that date the Commissioner told him that he ought have made a general protections application.[25] He did not do so however for a further 10 days. Further, from 1 October 2021 he had the assistance of Mr Dickson, who attended the Mention as his representative. Accordingly, I do not consider that Mr Marshall’s capacity provides a reasonable or acceptable explanation for the delay.

1. In light of all of the above, I do not consider that Mr Marshall has provided a reasonable or acceptable explanation for the delay in lodgement. This weights against the grant of an extension of time.

Action taken by the person to dispute the dismissal

1. As set out above, Mr Marshall raised concerns regarding his dismissal in the 11 August Email. Further, it is uncontested that the Applicant lodged the Unlawful Termination Application. The Respondent concedes, correctly in my view, that by doing so Mr Marshall disputed his dismissal.[26] This weighs in favour of granting an extension of time.

Prejudice to the employer

1. The Respondent does not contend that it would suffer any prejudice[27] and I cannot identify any particular prejudice that would accrue to it were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

1. An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

1. Mr Marshall asserts that he was dismissed because of his “temporary absence of work due to illness” and because he “complained of the conduct of a senior employee toward [Mr Marshall].”[28] At the determinative conference Mr Marshall said that the conduct of the senior employee involved swearing, shouting and physical contact. He relies upon on section 340 and 352 of the Act.

1. It is uncontested that Mr Marshall was dismissed by the Respondent. Accordingly, adverse action as defined in section 342 of the Act was taken against Mr Marshall. At the determinative conference the Respondent conceded that there was an incident between Mr Marshall and another employee but says that matter was addressed at the time. The Respondent says that the Applicant was dismissed due to “breaching company policy for absences” and “poor punctuality and reporting of absences.”[29] The Respondent filed a document entitled “Overview of facts/timeline of events” (Document) which sets out what it says occurred during Mr Marshall’s employment and details instances of when it says Mr Marshall was absent, failed to notify the Respondent of absences and was issued with verbal and written warnings. However, the Respondent did not file any witness statements or other evidence in support of the matters contained in the Document. I interpose at this point to note that Ms Gilmour appeared to fail to understand that section 366(2)(d) requires the Commission to consider the merits of Mr Marshall’s general protection application, as opposed to the merits of his asserted reasons for the delay in lodging the application and engaged with the Commission in a most unacceptable manner on this point.

1. Mr Marshall disputes that he did not comply with the Respondent’s requirements regarding absences or that he had poor punctuality. He also disputes that the Document is an accurate record of what occurred during his employment. He disputes that he was issued with a warning or made the statements attributed to him in the Document. Prior to the determinative conference Mr Marshall objected to the Document being relied upon in the absence of any supporting witness material[30] and was advised by my associate that the matter would be addressed at the determinative conference. At the determinative conference Mr Marshall submitted that given the failure of the Respondent to call any witness evidence I ought infer that the evidence of those witnesses would not have assisted the Respondent. Given the nature of these proceedings, their interlocutory nature and the absence of any legal representation on behalf of the Respondent, I decline to draw that inference. Mr Marshall also sought to file a witness statement on behalf of Mr Kirk at 10.02 am on the morning of the determinative conference (which was listed to commence at 10.00 am). Mr Marshall says that the statement goes to and refutes the matters asserted in the Document. Given that the further statement was filed following the listing time for the commencement of the determinative conference, the absence of an opportunity for the Respondent to consider that statement, the matters the statement was said to go to, the interlocutory nature of these proceedings and that Mr Marshall had been in receipt of the Respondent’s material for five days prior to the determinative conference, I determined to proceed without Mr Kirk being called and have not had regard to his statement. Further, I do not consider that Mr Marshall was prejudiced by Mr Kirk not being called to give evidence. It is clear that there is a significant factual dispute between the parties as to what occurred during Mr Marshall’s employment and the reasons for his dismissal. Even if Mr Kirks’ evidence was consistent with that of Mr Marshall, I do not consider that those factual disputes could have been conclusively determined at the determinative conference. Firstly, Mr Kirk is Mr Marshall’s step-father. His evidence would need to be fully tested under oath by way of cross-examination. Secondly, it is clear that evidence from a number of other persons would also need to be called including, but not limited to, the decision maker as to Mr Marshall’s termination. Thirdly, a range of other evidence would also need to be produced, such as timesheets, log in data, the asserted written warning, details regarding Mr Marshalls’ absences due to illness and evidence of his medical attendances.

1. Accordingly, it is not currently possible to form a concluded view as to those factual disputes and whether adverse action was taken against Mr Marshall in breach of section 340 and/or 351 of the Act. Nor would it have been so had Mr Kirk given evidence. The evidence of both parties would need to be considerably more fulsome and fully tested under oath. In those circumstances, I consider the merits of Mr Marshall’s application to be a neutral consideration.

Fairness as between the person and another person in a like position

1. Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[31] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[32] Mr Marshall’s oral submissions at the determinative conference as to this matter were of no assistance. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mr Marshall and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

1. The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

1. Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mr Marshall’s application.

1. Accordingly, I decline to grant an extension of time under section 366(2). Mr Marshall’s application under section 365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

S Dickson for the Applicant
B Gilmour for the Respondent

Hearing details:

2022
Melbourne (by telephone)
10 March 2022

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

[2] [2011] FWAFB 975

[3] Ibid at [13]

[4] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

[5] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

[6] [2018] FWCFB 901

[7] Ibid at [39]

[8] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v   Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

[9] Applicant’s Outline of Arguments at q.1c

[10] Applicant’s Outline of Arguments at q.1d

[11] Ibid

[12] Ibid

[13] Applicant’s Outline of Arguments at q.1e, Applicant’s witness statement, Appendix B

[14] Respondent’s Outline of Argument at q.1f

[15] Applicant’s witness statement, Appendix B

[16] Ibid

[17] Ibid

[18] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975

[19] Lane v Kangaroo Island Drive & Adventures Pty Ltd[2010] FWA 3939; Nash v Discovery Holiday Parks Barossa – Tanunda[2015] FWC 380; Green v Bilco Group Pty Ltd[2018] FWC 6818

[20] [2017] FWCFB 2811 at [41]

[21] Kelly v The Alphabet Academy Sydney Pty Ltd T/A The Alphabet Academy[2017] FWC 3090 at [15]

[22] Applicant’s witness statement at [24]

[23] Applicant’s Outline of Arguments at q.1d

[24] Applicant’s witness statement, Appendix A

[25] Applicant’s witness statement at [24]

[26] Respondent’s Outline of Arguments at q.1e at [19]

[27] Ibid at [20]

[28] Form F8, q. 3.3

[29] Respondent’s Outline of Arguments at q.1h

[30] Email from S.Dickson to chambers, dated 4 March 2022

[31] Wilson v Woolworths [2010] WA 2480 at [24-29]

[32] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]

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