Mark Harford v Team Civil Pty Ltd T/A Team Civil

[2020] FWC 4628

[2020] FWC 4628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Harford
v
Team Civil Pty Ltd T/A Team Civil
(U2020/10779)

COMMISSIONER PLATT ADELAIDE, 9 SEPTEMBER 2020

Application for an unfair dismissal remedy – request for an extension of time – application refused.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.¹ However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.²

[2] This decision concerns whether I should exercise my discretion to allow Mr Mark Harford a further period for his unfair dismissal application (Application) to be made against Team Civil Pty Ltd T/A Team Civil (Team Civil).

Background

[3] Mr Harford lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Team Civil on 9 August 2020.

[4] There was no dispute that the dismissal occurred on 11 June 2020.

[5] The application identified that it was late and provided the following explanation:

“I was told that my position was being made redundant because the director had concerns he may be trading insolvent. He told me i was not going to be the only one. He said he was going to the banks to try and get additional funding. He said how sorry he was. I offered to take some time off and even reduce my wage during the current time.

I have since found out that he replaced my position within a week. I have made contact with Team civil and was told it wasn't redundancy and that he no longer wanted me working there. I said that is grounds for unfair dismissal He said to bad you have been timed out.”

[6] On 14 August 2020, Team Civil lodged a form F3 Employer Response which raised a jurisdictional objection on the basis that the application was lodged out of time, that Mr Harford was not protected from unfair dismissal as his earnings exceeded the high income threshold and that the dismissal was a genuine redundancy. This decision only deals with the extension of time issue, although the other jurisdictional objections are relevant to the merit consideration.

[7] On 13 August 2020, directions were issued advising that the extension of time issue would be considered at a telephone conference on 4 September 2020. 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 Harford was directed to provide a statement concerning the extension of time and any documents to be relied upon by 27 August 2020.

[8] Submissions were made by Mr Harford and Team Civil.

[9] The hearing was originally listed before Commissioner Hampton but was reallocated to my Chambers the day prior to the hearing.

Hearing

[10] A hearing was conducted by way of telephone conference on 4 September 2020. A sound file record of the telephone conference was kept. Mr Harford represented himself. Mr Earls (of counsel) represented Team Civil with permission being granted pursuant to s.596(2)(a) of the Act. Mr Harford did not oppose representation and the hearing was conducted as a determinative conference to mitigate any disadvantage to Mr Harford.

[11] Mr Harford’s position is summarised as follows:

•  He was employed as Project Manager.

•  At the time of his dismissal he was owed monies by Team Civil and he thought that the lodgement of an unfair dismissal claim would impede him being paid.

•  On 9 July 2020, he understood that his role had been replaced but chose not to lodge his claim as he had not yet been paid all of his entitlements.

•  On 9 August 2020, he received payment and submitted the unfair dismissal application.

•  His wage was increased from $100K p.a. to $150K p.a. on October 2019.

•  He had not received wages higher than the high income threshold in the 12 months prior to his dismissal.

•  He did not assert that he was covered by an Agreement or that an Award applied to him at the time of his dismissal.

•  His circumstances were exceptional such that the Commission should grant an extension of time.

[12] Team Civil relied on their written submissions which are summarised as follows:

•  Mr Harford was a Project Manager and not covered by an Agreement and no Award applied to him.

•  Mr Harford’s most recent payslips supported its contention he was paid at least $150K p.a. in excess of the applicable high income threshold.

•  Mr Harford had made a conscious choice not to lodge his claim until his dispute in relation to his entitlements was concluded and that this was not an exceptional circumstance.

•  As to the merits, Team Civil accepted the ‘genuine redundancy’ jurisdictional objection was in contest and that this should be a neutral consideration, however the evidence indicated that Mr Harford’s earnings were higher than the high income threshold and that no Agreement or Award coverage existed and thus he was not protected from unfair dismissal – this was a significant factor which weighed against the granting of an extension of time.

•  Mr Hartford was aware of the dismissal on the day it occurred.

•  No other action was taken to contest the dismissal.

•  There was no submission that Team Civil suffered prejudice.

•  Fairness between Mr Harford and others was not a consideration.

•  Considered overall, the application should be rejected.

Applicable Law

[13] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

[14] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.³

[15] 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 Ltd⁴ which 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

[16] This unfair dismissal application by Mr Harford was made 38 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

Paragraph 394(3)(a) - reason for the delay

[17] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.⁵ In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,⁶the Full Bench explained the correct approach by reference to the following example:

“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[18] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:⁷

“[38] As we have mentioned, 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 enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[19] Mr Harford made a deliberate decision to delay the making of his claim until he had received additional payments in respect of his claimed entitlements. This, of itself, is not an exceptional circumstance. 8

[20] In my view, Mr Harford has not provided a credible reason for the delay in filing his Application, this factor weighs against the granting of an extension of time.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[21] Mr Harford was aware of the dismissal on the date it occurred.

[22] This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[23] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.⁹

[24] No action (other than the lodgement of the claim) was taken to dispute the dismissal. This factor is a consideration against the granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[25] There is no submission that the granting of an extension of time represents prejudice to Team Civil.

Paragraph 394(3)(e) - merits of the application

[26] In terms of the merits of the application, there are two considerations.

[27] In respect of the contention that the dismissal was a ‘genuine redundancy’ there is insufficient evidence before me to make an assessment and, accordingly, I have regarded this component as a neutral factor.

[28] In respect of the contention that Mr Harford is not protected from unfair dismissal by virtue of him earning more than the high income threshold, there is ample undisputed evidence to support this contention, which would result in their being no prospects of success. Accordingly, this component of the merits weighs heavily against the granting of an extension of time.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[29] I am satisfied that the issue of fairness as between the Mr Harford and other persons in a similar position is not a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[30] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant. The jurisdictional objection is upheld and the application is dismissed.

[31] An Order¹⁰ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr M Harford on his own behalf.

Mr T Earls (of counsel) on behalf of Team Civil.

Hearing (Conference) details:

2020.
Adelaide:
September 4.

Printed by authority of the Commonwealth Government Printer

<PR722331>

1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

2 Section 394(3) of the Act

3 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

4 [2011] FWAFB 975

5 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]

6 [2016] FWCFB 349

7 [2018] FWCFB 3288 at [35]-[45]

 8   Smith v Express Excavation QLD Pty Ltd [2015] FWC 2436

9 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

10 PR722627