Mark O'Shaughnessy v Peter Rowland Group Pty Ltd
[2023] FWC 507
•29 MARCH 2023
| [2023] FWC 507 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark O’Shaughnessy
v
Peter Rowland Group Pty Ltd
(U2023/619)
| COMMISSIONER WILSON | MELBOURNE, 29 MARCH 2023 |
Unfair dismissal application – applicant non-compliant with Directions relating to extension of time application – whether late filing to be accepted – submissions not accepted, though insufficient basis to dismiss application for want of prosecution – application filed out of time – circumstances not exceptional – application dismissed
This decision concerns an application made by Mr Mark O’Shaughnessy (the Applicant) alleging unfair dismissal against Peter Rowland Group Pty Ltd (the Respondent). Mr O’Shaughnessy was dismissed on Monday, 19 December 2022. Mr O’Shaughnessy’s application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on Wednesday, 25 January 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 O’Shaughnessy application was made outside of the statutory time limit, with it having been made 16 days after the expiry of the 21-day time period allowed for by the FW Act, which expired on Monday, 9 January 2023.
This decision deals both with the matter of whether an extension of time may be granted to Mr O’Shaughnessy as well as whether his late filing of material in support of an extension of time should be accepted.
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 O’Shaughnessy application. The Respondent objects to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.
Mr O’Shaughnessy appeared on his own behalf in a hearing convened on Monday, 27 March 2023 and Ms Michelle Biddle, Chief Executive Officer of the Peter Rowland Group Pty Ltd appeared for the Respondent.
The first matter to be determined is whether Mr O’Shaughnessy’s late filing in relation to Directions issued about the extension of time filing should be permitted. For the reasons set out below I do not accept or rely on the material he filed on Monday, 6 March 2023.
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 O’Shaughnessy case and that an extension of time should not be granted for the making of his unfair dismissal application.
BACKGROUND
There is disagreement between the Applicant and Respondent about Mr O’Shaughnessy’s work history. Mr O’Shaughnessy submits he was employed by the Respondent starting as a casual employee in November 2001 as a Food and Beverage staff member and was in full time employment from December 2021 until the termination of his employment on 19 December 2022.
The Respondent submits that Mr O’Shaughnessy was employed as a Full Time Catering and Events Coordinator on 14 February 2022 and was employed in the role of Account Manager – Sales (Events) on 14 March 2022 until the date of his termination of employment on 19 December 2022. It submits that Mr O’Shaughnessy’s employment prior to November 2021 included periods that broke his continuity of service on more than one occasion. While noting those submissions it is not necessary for me to determine the history of Mr O’Shaughnessy’s employment with the Respondent since I am satisfied that he has met the minimum employment period required by the FW Act with continuous service since at least 14 February 2022.
Both parties agree Mr O’Shaughnessy was notified of his dismissal on 19 December 2022 and that the dismissal took effect immediately. However, they disagree on the reason for his dismissal. Mr O’Shaughnessy submits that his dismissal was a result of several factors including him raising concerns on the Respondents pricing of deals and the potential loss of profit, and his mental health and periods of illness.[3] The Respondent submits that Mr O’Shaughnessy was dismissed in accordance with provisions of his employment contract for reason that he “acted repeatedly, despite attempts to seek performance improvement, in a manner that demonstrated persistent disregard of lawful direction and which in our reasonable opinion was likely to seriously injure the Company’s good standing, reputation and business”.[4]
NON-COMPLIANCE WITH DIRECTIONS
This matter was allocated to me on Friday, 27 January 2023. On the same day I issued Directions to the parties for the filing of material on the question of an extension of time which required Mr O’Shaughnessy to file submissions and other material in support of an extension of time by no later than 8 February 2023, which he did not do.
The Directions were sent to the email address provided on Mr O’Shaughnessy’s Form F2 application with Mr O’Shaughnessy arguing he did not receive them at that address, which was a “bigpond” account. This submission is consistent with an undeliverable notification received from Mr O’Shaughnessy’s email address on 30 January 2023. My Associate contacted Mr O’Shaughnessy by telephone the following day and was provided with an alternative email address to which correspondence should be sent. All correspondence on the file to that date sent by the Commission was forwarded to the alternative email address supplied by Mr O’Shaughnessy which was a “gmail” account. The Applicant however argues that he did not receive the Directions until they were resent on 14 February 2023.
On Tuesday, 14 February 2023, an email was sent to the alternative email address advising Mr O’Shaughnessy of his non-compliance with my Directions. Mr O’Shaughnessy was put on notice that his application was at risk of being listed for a non-compliance hearing and that he must urgently take steps to provide his materials. He was directed to file his materials that day and if that could not be done to contact the Commission to seek an extension. Information on how to request an extension was also included in the email. My Associate also contacted Mr O’Shaughnessy by telephone that same day to follow up his overdue submissions. Mr O’Shaughnessy advised that he had not received any correspondence from the Commission and that he had not checked his spam folders. He then requested the email be resent to his original email address. Following the telephone call my Associate forwarded all the correspondence sent from the Commission on the file to that date to Mr O’Shaughnessy’s original bigpond email address.
Mr Associate spoke with Mr O’Shaughnessy via telephone on Wednesday, 15 February 2023. Mr O’Shaughnessy confirmed that he had received the email to his original bigpond email address and that he would be able to file his materials by that night. Following that telephone call my Associate forwarded the employer’s response, the Form F3, to Mr O’Shaughnessy’s bigpond email address.
Also on Wednesday, 15 February 2023 I caused correspondence to be issued to the parties directing Mr O’Shaughnessy to file his materials by no later than 5.00pm 15 February 2023. He was put on notice that if his material was not received by the deadline specified, his application would be listed for a non-compliance hearing and was at risk of being dismissed. This email was sent to both of the Applicant’s email addresses.
On Wednesday, 22 February 2023 I cancelled the listing set for that day and my Associate wrote to Mr O’Shaughnessy advising he was non-compliant with the Commission’s Directions; that his application may be dismissed as a result; and seeking that he explain why he was non-compliant. My Associate contacted Mr O’Shaughnessy by telephone on Wednesday, 1 March 2023 to confirm he had received the email correspondence of 22 February 2023. While he had, Mr O’Shaughnessy explained he thought from the email that his application was actually dismissed and that he had not filed as requested on 15 February 2023 as the correspondence gave him too little time to do so.
On Monday, 6 March 2023 Mr O’Shaughnessy filed an outline of submissions ostensibly addressing the extension of time objection, as well as appearing to address the merits of his application, with him also providing a witness statement for himself and eight attachments.
Following the receipt of the submissions, I caused correspondence to be sent to the Respondent asking them to advise whether they objected to the late filing of the Applicant’s materials. The Respondent confirmed on Tuesday, 7 March 2023 that they objected to the late filing of the Applicant’s materials.
I determined that a hearing was required to determine two matters; whether the Applicant’s late filing of materials should be accepted, including for the purpose of extension of time considerations; and whether the Applicant should be granted an extension of time for the filing of his unfair dismissal application. At the hearing, on 27 March 2023, Mr O’Shaughnessy relied substantially as his explanation for the delay in filing his materials on the difficulties associated with his email addresses. I also discerned from some of his responses to the Commission that he seemed confused as to what material was required by which date.
Two observations should be made about these matters. It is up to an applicant to ensure their email service for the address they provide on their application form is working correctly and that they are able to discern legitimate correspondence from spam or advertising. It is also up to an applicant to ensure they understand the directions given by the Commission and are able to respond within the stipulated time frames.
A bounce-back email had been received from his bigpond email address on 30 January 2023 and Mr O’Shaughnessy was contacted the next day about the problem when he provided an alternative gmail email address after which the critical correspondence, including the Directions, was sent to his updated email addresses. There appears an implausibility to Mr O’Shaughnessy contention that he did not receive the Commission’s correspondence even at that time. The only time an undeliverable email was received from the Applicant’s nominated accounts was on 30 January 2023 and he was alerted to that fact, as well as its importance by no later than the next day. On 15 February 2023, when he was alerted to another email from the Commission about the need to file material he said he would file it by that night. He then formed the view that the time frame was insufficient.
Since I am satisfied that there is no apparent reason why the Commission’s communications with Directions were not received and available to be read by Mr O’Shaughnessy either on 27 January 2023 when they were sent to his bigpond address or 31 January 2023 when they were sent to his gmail address I do not admit into the material to be considered the submissions Mr O’Shaughnessy ultimately sent to the Commission on 6 March 2023. I find that he was likely aware of the need to file material in support of his case, but did not respond.
Such though does not entirely dispose of Mr O’Shaughnessy’s application and it is necessary for me to proceed to determine the matter of whether an extension of time should be granted for the making of his application. This is because dismissal of his substantive application can only occur under either s.399A or s.587 of the FW Act. There is no s.399A application before me, and I would not be satisfied at this time that the provisions of s.587 are sufficiently enlivened for Mr O’Shaughnessy's application to be dismissed.
The latter section does not limit the circumstances in which an application may be dismissed, however lays out that an application may be dismissed if it is not made in accordance with the Act; if it is frivolous or vexatious; of if it has no reasonable prospects of success. I am satisfied that the application was made in accordance with the Act and there is no material before me that would lead me to conclude the application is frivolous or vexatious. A finding by me that the application had no reasonable prospects of success would require a finding as well that the Applicant had failed to sufficiently prosecute his case. While I have found that his late-filed materials should not be admitted, that is short of finding that the application should be dismissed for want of prosecution. In this regard, the Full Bench has found that the “classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution were a failure, typically a repeated failure, by an applicant to comply with directions of the court or a prolonged period of inactivity on the part of the applicant.”[5] While case management is not an end in itself there may be two circumstances in which applications are dismissed for want of prosecution; “The first situation is one in which the appellant has a history of noncompliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period. The second situation is one in which continuing non-compliance is causing unnecessary delay, expense or other prejudice to the respondent”.[6]
Mr O’Shaughnessy has sufficiently engaged with these proceedings to avoid a finding of this type under either head referred to above.
LEGISLATION – EXTENSION OF TIME
Relevant to the Commission’s consideration of the matter of whether an extension of time should be granted to Mr O’Shaughnessy 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.” [7]
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.[8]
In considering whether an extension of time should be granted to Mr O’Shaughnessy, I am required to consider all of the criteria in s.394(3), which I now do.
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.[9] 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.[10] 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.[11] 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.[12]
The delay to be considered in matters such as these is the delay in making the application after the expiry of the statutory time limit. In Mr O’Shaughnessy’s case the relevant period to be considered is that after the last day for a lodgement to be within time, namely Monday, 9 January 2023.
The Applicant cited his health as the reason for the delay in lodging the application. He submits that he “was already ill when I returned to work on the 19th December, The dismissal caused my health to get worse and the stress pushed both my Diabetes and my ADHD. I struggled to get any support for either over the Christmas and New Year break.”[13] In the hearing Mr O’Shaughnessy put forward that he endeavoured to obtain legal advice in the early New Year and was unable to speak with a relevant person about his situation until after the statutory time limit had passed. He was told about the time limit by the person who spoke with him. Mr O’Shaughnessy was imprecise about who he spoke with, or when; however the discussion was after the time-limit expiry, 9 January 2023, but not long after. It took him until 25 January 2023 to lodge his application because of his health situation.
I do not consider this explanation, individually or together, to be an acceptable or reasonable explanation for the delay. The reason given for the delay is disputed by the Respondent and is not supported by any medical evidence.
The proposition that a medical illness caused a filing delay requires compelling medical evidence to that effect.[14] The absence of medical evidence, or “generalised” medical evidence, will typically be insufficient to establish a contention that the delay is occasioned by medical incapacity.[15] In order to accept evidence of a medical condition explaining a delay in lodging an unfair dismissal application, the Commission would expect to have an insight into the extent to which the Applicant was incapacitated during the whole of the period following termination of employment.[16] Medical evidence must be adduced which shows that the stress or other condition adversely affected a person’s cognitive functioning and that this caused, contributed, or at least explained the delay.[17] Medical evidence is relevant in the consideration of an applicant’s capacity to lodge an unfair dismissal application, as well as the assessment of other evidence which may otherwise undermine a contention that a person’s capacity provides a credible reason for the delay.[18]
There was no evidence before the Commission in relation to either of the health factors relied upon by Mr O’Shaughnessy, and as a result, consideration of these factors does not resolve in favour of Mr O’Shaughnessy. While I accept he may have been ill during some or all of the period of the delay, the absence of any medical evidence detailing the impact the illness had on the Applicant’s capacity to lodge the Application, leads me to not accept the explanation as preventing him from lodging the application on time or at a time earlier than the date on which this application was lodged.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.
Action taken 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 submitted that he disputed the dismissal during the termination meeting, as well as seeking legal assistance in the early new year. I do not consider these steps to constitute ‘action to dispute the dismissal’. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The delay in the filing of the application is 16 days.
The Respondent does not point to any prejudice that would arise to it if the Applicant were granted an extension of time for the filing of his application. While submitting that a relevant witness had left its employment after Mr O’Shaughnessy it accepts the witness is still available to it if need be.
As a result, consideration of this criterion is also a neutral factor in considering whether there were not exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.
Mr O’Shaughnessy's arguments on the merits of his case go to whether the Respondent’s performance concerns were reasonably held; inconsistencies in the Respondent’s approaches to him, which included praise even as his performance was being criticised; and elements of bullying. He also connects his termination of employment with a period of personal leave taken immediately before being dismissed. The Respondent’s case turns on its view that Mr O’Shaughnessy repeatedly disregarded its lawful directions which surrounded matters of regular absenteeism and lateness as well as a lack of performance improvement, despite counselling on the subject.
It is not possible at this time to make any firm or detailed assessment of the merits of the case. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.[21] 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.[22] In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues.[23]
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mr O’Shaughnessy, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
As a result, Mr O’Shaughnessy’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 M. O’Shaughnessy for himself
Ms M. Biddle for the Respondent
Hearing details:
Melbourne (via video conference);
27 March;
2023.
[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] Applicant Statement of Evidence, 6 March 2023.
[4] Form F3, Employer Response Form, item 3.1, filed 3 February 2023.
[5] Joseph Adams v Monadelphous Engineering Pty Ltd, [2013] FWCFB 1470, [10]; with reference to Chand v State Rail Authority of NSW, unreported, 19 December 2006, Print PR975108.
[6] Adnan Syed v BP Retail No. 1 Riverside Quay T/A BP Retail - BP Australia Pty Ltd[2014] FWC 1189. [12]; with reference to A. Ghalloub v Aon Risk Services Australia Limited, unreported, (2005) PR956665 at [25]-[27].
[7] Nulty v Blue Star Group, 2011, 203 IR 1, [13].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[10] 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].
[11] Ibid, [40].
[12] Ibid, [41].
[13] Applicant Outline of Submissions on the Extension of Time, 6 March 2023.
[14] Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu Duo (Lynda) - [2018] FWCFB 1643, [38], [67].
[15] Robertson v Bega Dairy & Drinks[2022] FWC 2636, [23].
[16] Ibid.
[17] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9]
[18] Robertson v Bega Dairy & Drinks [2022] FWC 2636, [23].
[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[20] Ibid.
[21] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[22] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
[23] Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].
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