Mark Raymond Hughes v Australian Bureau Monitoring Pty Ltd
[2022] FWC 2749
•14 OCTOBER 2022
| [2022] FWC 2749 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Raymond Hughes
v
Australian Bureau Monitoring Pty Ltd
(U2022/8772)
| COMMISSIONER PLATT | ADELAIDE, 14 OCTOBER 2022 |
Application for an unfair dismissal remedy – request for an extension of time – application granted.
Introduction
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]
At the conclusion of the hearing on 14 October 2022, I execised my discretion to allow Mr Mark Hughes a further period for his unfair dismissal application (Application) to be made against Australian Bureau Monitoring Pty Ltd (ABM). The reasons for this decision are set out below.
Background
Mr Hughes has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with ABM which his form F2 unfair dismissal application advised took effect on 29 July 2022.
The application was lodged on 28 August 2022, and as such is nine days out of time.
On 14 September 2022, the Applicant sent an email to Vice President Catanzariti’s Chambers with reasons as to why his application was lodged out of time.
On 15 September 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal occurred on 29 July 2022 and pressed the jurisdictional objection on the basis that the application was lodged out of time, as well as objecting to the application on the basis that the Respondent is a small business employer who complied with the Small Business Fair Dismissal Code. This decision only deals with the extension of time issue.
On 20 September 2022, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 14 October 2022. 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.
Neither party filed any further material. The Applicant chose to rely on the email he sent on 14 September 2022, whilst the Respondent chose to rely on the submissions included in its form F3 Response. All materials filed were compiled into a Digital Court Book which was distributed to the parties prior to the hearing. I received the entirety of the Digital Court Book into evidence, giving appropriate weight to any evidence tainted by irrelevance, hearsay or opinion.
Hearing
A hearing was conducted by way of telephone conference on 14 October 2022. A sound file record of the telephone conference was kept. Mr Hughes represented himself at the hearing, whilst the Respondent was represented by Mr Matthew Williams.
Mr Hughes gave evidence at the hearing. His position is summarised as follows:
· The Applicant was summarily dismissed on 29 July 2022.
· The Applicant stated that he delayed filing an unfair dismissal application for the first two weeks after his dismissal as he was waiting for the Respondent to return a Bluetooth headset to him.
· The Applicant gave evidence that from 17-18 August 2022, he was impacted by a medical condition which impaired him from lodging his application.
· The Applicant attempted to lodge his unfair dismissal application on 18 August 2022, but mistakenly filed a form F1 application (unspecific application form) rather than a form F2 application (unfair dismissal application). When the Applicant filed the form F1, he was within the 21-day time limit.
· On 19 August 2022, the Applicant missed two calls from the Commission.
· On 19 August 2022, the Applicant received an email from the Commission noting that he may have lodged the wrong application.
· In the days after he received an email from the Commission which put him on notice that he may have lodged the wrong application, the Applicant struggled to get in contact with the Commission as he had begun the induction process for his new employment and was unable to use his phone during work hours.
· The application (using the correct form) was eventually lodged at 11.13pm on 28 August 2022.
The Respondent relied on the material contained in its form F3 response. The Respondent’s position is that Applicant’s incorrect filing of the form F1 application merely shows the Applicant’s lack of attention to detail and does not give rise to exceptional circumstances.
Applicable Law
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.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
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 Ltd[4] 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.”
…
[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
Paragraph 394(3)(a) - reason for the delay
There is no dispute that the form F2 application was lodged nine days out of time, and therefore requires an extension of time to be granted for it to proceed. The Applicant did not seek to amend the form F1 application.
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 vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[6] the 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.”
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.”
The reason for the delay was the Applicant’s filing of the incorrect form. Prior to the hearing, I contacted the Commission’s Client Services Team and received copies of the correspondence between the Client Services Team and the Applicant, including the form F1 lodged by the Applicant on 18 August 2022. The form F1 was titled “unfair dismissal.docx”, and whilst the content of the form F1 does not specifically address any of the elements of unfair dismissal, the Applicant’s intention is clear from the title of the document. I accept that the lodgement of the form F1 was a genuine attempt by the Applicant to file an unfair dismissal application within the timeframe, and if it had been made on the correct form, there would be no need for any extension of time.
Where there were attempts at communication between the Commission and the Applicant around 19 and 20 August 2022, I accept that these communications were made more difficult by the Applicant’s engagement at his new employment during working hours.
In my view, the Applicant has provided a credible reason for the delay in filing the Application. This factor weighs in favour of 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
Mr Hughes was aware of the dismissal on the date it occurred.
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
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[8]
I accept that the lodgement of the form F1 was action taken to dispute the dismissal. This is a significant factor in favour of a finding of exceptional circumstances.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[9] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[10]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[11]
There is no submission that the granting of an extension of time represents prejudice to ABM. This factor is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[12] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is 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
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am 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.
An Order[13] reflecting this decision will be issued.
At the conclusion of the hearing, the parties were offered an opportunity to conciliate the matter, but one of the parties declined. Accordingly, the matter will be re-allocated to a different Member of the Commission for determination of the merits of the application.
COMMISSIONER
Appearances:
M Hughes, the Applicant.
M Williams for the Respondent.
Hearing details:
2022.
Adelaide (by telephone):
October 14.
[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] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[9] Ibid
[10] Ibid
[11] Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
[12] [2016] FWCFB 6963
[13] PR746823
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