Mark Phillip Hoffman v North Queensland Youth Rehab Education Equine Centre Aboriginal and Torres Strait Islander Corporation
[2022] FWC 11
•6 JANUARY 2022
| [2022] FWC 11 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Phillip Hoffman
v
North Queensland Youth Rehab Education Equine Centre Aboriginal And Torres Strait Islander Corporation
(U2021/10379)
| COMMISSIONER P RYAN | SYDNEY, 6 JANUARY 2022 |
Application for an unfair dismissal remedy – unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Introduction
This decision concerns an application by Mr Mark Hoffman (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) lodged on 16 November 2021 (Application).
The Applicant’s employment with North Queensland Youth Rehab Education Equine Centre Aboriginal and Torres Strait Islander Corporation (Respondent) was terminated with effect from 5 October 2021.
Section 394(2) of the FW 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 period of 21 days ended at midnight on 26 October 2021. The Application was therefore filed 21 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.394(3).
The matter was heard together with the unfair dismissal application made by Ms Samantha Williams[1] (Ms Williams), the Applicant’s partner, as a determinative conference via Microsoft Teams on 23 December 2021, with the evidence in one proceeding being evidence in the other.
In accordance with directions issued by my chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time. The Respondent did not file any materials in accordance with the directions issued. The materials filed by the Applicant and Ms Williams were consolidated by my chambers into a Digital Hearing Book.
I exercised my discretion to grant permission to the Applicant to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was represented by Mr D. Harris. There was no appearance for the Respondent.
For the reasons that follow, I decline to grant an extension of time under s.394(3).
Exceptional Circumstances
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made 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.[2] 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.[3]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) 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.
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.
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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[4]
I now consider these matters in the context of the application.
Reason for the delay
The FW 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 an applicant’s favour, however all of the circumstances must be considered.[5]
By way of background, the Applicant and Ms Williams were both employed by, and were directors of, the Respondent.[6]
On 27 September 2021, their daughter reported to them an incident involving another director of the Respondent, which the Applicant and Ms Williams reported to the police. Sometime later on 27 September 2021, and following an incident of self-harm, their daughter was admitted to hospital overnight.[7]
On 5 October 2021, the Respondent sent correspondence by email to the Applicant terminating his employment and removing him as director.[8] Similar correspondence was sent to Ms. Williams.[9] The Applicant submits the Respondent did this because the Applicant and Ms Williams had reported the incident involving their daughter and the other director to the police.[10]
On 5 October 2021 (day of dismissal), the Applicant sent correspondence by email to the Respondent challenging his removal as a director and stating, “I will also be following up with the commonwealth ombudsman [sic] on the unfair dismissal I now have.”[11]
On 13 October 2021 (8 days after dismissal), the Applicant sent correspondence by email in reply to correspondence from the Respondent challenging the basis for his removal as a director.[12]
On 25 October 2021 (20 days after dismissal), the Applicant sent further correspondence by email to the Respondent and its directors on behalf of Ms Williams and himself challenging the basis for their removal as directors and seeking payment for monies owed.[13]
On 16 November 2021 (42 days after dismissal), the Applicant lodged the Application with the Commission.
The Applicant submits the following as reasons for the delay:
(a) He believed submitting a complaint to the Office of the Registrar of Indigenous Corporations (ORIC) was his only recourse;[14]
(b) He was not aware, and no-one informed him, that he could apply to the Commission for an unfair dismissal remedy;[15]
(c) He was unable to find suitable legal representation;[16] and
(d) That he and Ms Williams were absorbed with supporting their daughter during a distressing period which included the hospitalisation of their daughter.[17]
Complaint to the ORIC / Applicant not aware of Commission process
It is convenient to deal with these reasons together. I do not accept the Applicant’s belief that he could only apply to the ORIC and/or was not aware that he could apply to the Commission to be an acceptable explanation for two reasons. First, the Applicant advised the Respondent “immediately”[18] after receiving the letter of termination that he would be “following up with the…unfair dismissal I now have”[19]. A simple internet search would have pointed the Applicant to the Commission as the appropriate body to lodge the Application.
Second, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[20]
Could not find suitable legal representation
I do not accept the Applicant not finding suitable legal representation to be an acceptable explanation for the delay. In Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, Beaumont DP stated:
[26] The Form F2 Unfair Dismissal Application has been developed with the self-represented applicant in mind. It is not a complex document; it is not in the nature of a formal pleading; it is designed so that it may be completed by a layperson and may be lodged by a number of methods including online lodgement. Further, it does not require an applicant to attach certain documents.
I agree with the Deputy President’s observation and note the Commission’s website has a range of resources to assist self-represented litigants.
Furthermore, the above is also consistent with the Explanatory Memorandum to the Fair Work Bill 2008 (Cth):
2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.
2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission. (Emphasis added)
Daughter’s hospitalisation and ongoing care and support
I do not accept the incident relating to the Applicant’s daughter, her admission to hospital, and her ongoing care and support to be an acceptable explanation for the following reasons.
First, the reporting of the incident and the period of hospitalisation occurred on 27 September 2021, approximately one week prior to the termination of the Applicant’s employment.
Second, and while I do not doubt the period of time following 27 September 2021 and ongoing has been distressing for the Applicant and his family, the Applicant wrote to the Respondent on three occasions agitating issues largely related to his removal as a director with the Respondent.
The Applicant has not explained how impact of the incident involving his daughter prevented him filing the Application within the 21 day period but did not prevent him from corresponding with the Respondent on other issues in that period.
Reason for the delay - conclusion
For the reasons set out above, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. 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
It is not in dispute, and I so find, that 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 circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
The only action taken by the Applicant to contest the termination of his employment was the email sent to the Respondent on 5 October 2021, immediately after receiving the letter of termination. As noted above, other correspondence was sent by the Applicant to the Respondent on 13 October and 25 October, but on a fair reading, the focus of this correspondence related to his removal as a director with the Respondent. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
There is no evidence of any prejudice to the Respondent if the Applicant is granted an extension of time. I consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the application in considering whether to grant a further period for the application to be made under s.394(3).
The letter of termination states the Applicant’s employment was terminated for a breach of the confidentiality provisions in his contract of employment.[21] The Applicant denies this, and submits his employment was terminated for reporting the incident involving his daughter.
It is clear to me that the merits of the Application will 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.
In the absence of these matters being tested, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
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.
Conclusion
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, 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 an extension of time. I decline to grant an extension of time under s.394(3).
Accordingly, the Application must be dismissed. An order to that effect will issue with this decision.
COMMISSIONER
Appearances:
Mr D Harris, solicitor of the Applicant
Hearing details:
2021.
Sydney (via Microsoft Teams video-link):
23 December.
[1] Samantha Williams v North Queensland Youth Rehab Education Equine Centre Aboriginal and Torres Strait
Islander Corporation (U2021/10381).
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Exhibit A1 at [3], [7]; Exhibit A2 at [4], [8].
[7] Transcript of proceedings 23 December 2021.
[8] Exhibit A1 at [3].
[9] Exhibit A2 at [4].
[10] Exhibit A1 at [12].
[11] Exhibit A1 at [4].
[12] Exhibit A1 at [6]-[7].
[13] Exhibit A1 at [8].
[14] Exhibit A1 at [14(a)].
[15] Exhibit A1 at [14(b)].
[16] Exhibit A1 at [14(c)].
[17] Exhibit A1 at [14(d)].
[18] Exhibit A1 at [4].
[19] Ibid.
[20] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[21] Exhibit A1 at [3].
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