Matt Stephen Jury v My Online Adviser Pty Ltd
[2023] FWC 1951
•1 SEPTEMBER 2023
| [2023] FWC 1951 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Matt Stephen Jury
v
My Online Adviser Pty Ltd
(C2023/2816)
| COMMISSIONER HUNT | BRISBANE, 1 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection – application made out of time – no exceptional circumstances – application dismissed.
On 16 May 2023, Mr Matt Jury made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by My Online Advisor Pty Ltd (the Respondent) in contravention of the general protection provisions of the Act.
Mr Jury was dismissed on 1 March 2023.
Section 366 of the Act states:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
For Mr Jury to have made his application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 22 March 2023. The application has been made 55 days out of time.
Mr Jury seeks an extension of time within which to make his application.
Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing by Microsoft Teams was convened on 7 August 2023. Mr Jury appeared and gave evidence. Mr Timothy Borham of Sajen Legal was granted leave to appear for the Respondent, together with Mr Ryan Elliot, the Director of the Respondent.
Evidence of Mr Jury
In his Form F8 Application, Mr Jury apologised for the late application. He explained that he has been involved in a “very messy lawsuit” with the Respondent, constituting commercial litigation on account of his ownership, he claims, of 22% of the Respondent.
Mr Jury stated that he had been in touch with an employment law specialist who informed him that he had a “slam dunk case”, and they workshopped the best way to approach the matters. He was made aware that he had 21 days to lodge an unfair or wrongful dismissal case.
Initially Mr Jury stated that he had been told a 21-day time limit did not apply to general protections applications, however in his witness statement to the Fair work Commission (the Commission) dated 10 July 2023, Mr Jury stated the following:
“After reviewing my communications, it shows that I have not received negligent advice. I have found that on March 22nd I was told we could not open this case after that time. At the time I was and am still under a lot of stress. I knew full well we could not pursue an unfair dismissal through FairWork but amidst all the mess and stress of this situation I had it in my head we were able to pursue the general protections claim at any time, this was my mistake. However, I sincerely believe this case should still be allowed to proceed or to be heard….”
In oral evidence, Mr Jury stated that he filed a Supreme Court application in respect of the commercial litigation almost immediately, as it was necessary to have the value of the Respondent determined.
He stated that it was his plan to lodge some sort of application in respect of his dismissal. He acknowledged that his legal representative did talk to him about a general protections claim and the 21-day time limit, however in his mind, he was sure he could bring the application at any time.
He stated that he originally attempted to lodge a claim in the small claims division of a relevant court, but realised that he was pursuing the incorrect application.
Once he discovered the Form F8 to bring this application, he filed his application that same day.
Mr Jury stated that since the date of the dismissal, he has barely slept a full night. He is gravely concerned as to how he will pay his mortgage after recently declaring financial hardship and having his mortgage payments temporarily paused.
He has been strictly held to a trade restraint that prevents him from working in the financial planning industry. Every offer of settlement between the parties has included a trade restraint within the industry. Mr Jury stated he is on the brink of a major nervous breakdown and is struggling to handle matters.
With respect to taking action to dispute the dismissal, Mr Jury referred to two emails he sent on 1 March 2023 titled “query about my instant dismissal”. I have had regard to those emails.
Respondent’s submissions
The Respondent submitted that Mr Jury was prevented from bringing an unfair dismissal claim on account of his high income, and he would have been aware, within time, of his ability to bring a general protections application.
The Respondent suggested that Mr Jury realised how expensive his commercial litigation was before changing tactic and bringing a late general protections application.
The Respondent stated that it had made certain concessions in respect of the shareholder dispute which it would not have done if it had known Mr Jury would seek to bring a general protections application.
Applicable case law
The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[1] where the Full Bench said:
“[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.” [Endnotes not reproduced]
For exceptional circumstances to arise, as contemplated by s.366(2) of the Act, it is not necessary that the applicant, for that extension of time, be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[2]
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an application seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[3] A decision whether to extend time under s.366(2) involves the exercise of a discretion.[4]
I now consider these matters in the context of the application.
The reason for delay – s.366(2)(a)
The reason for the delay in lodging an application is a factor that must be considered. The Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[5] The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.[6]
A reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[7] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[8]
In this matter, the delay is the period from 23 March 2023 until when the application was made on 16 May 2023.
Mr Jury has been providing instructions to his legal representatives in respect of the commercial litigation commenced by him. His evidence is that he was informed of the 21-day time limit in which to bring this application, but in his mind he was sure he could bring the application at any time. The two do not accord, to Mr Jury’s detriment.
It is noted that Mr Jury has been under considerable stress, however he has not provided any medical evidence of any incapacity. He has been involved in litigation in the Supreme Court and in a lower court during this stressful period. He has not provided an explanation as to why he could not have commenced an application in the Commission.
The reasons for the delay provided are not, in my view, reasons that are supportive of an extension of time being granted.
Any action taken by the person to dispute the dismissal – s.366(2)(b)
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[9]
On the day of the dismissal, Mr Jury sent to Mr Elliott two emails rejecting the reasons for the dismissal. The strongest words used by Mr Jury to dispute the dismissal were:
“Therefore your instant termination of my employment is gross misconduct as a managing director.
The wilful misconduct towards me as an employee is grossly unfair and unwarranted. You are directly affecting my life and my livelihood.”
Mr Jury informed Mr Elliott that he disagreed with the reasons for the dismissal and considered Mr Elliott had engaged in misconduct by dismissing him.
Mr Jury’s emails didn’t threaten the commencement of legal proceedings, but can be taken, to some degree to be an action disputing the dismissal.
Regrettably, Mr Jury did not then take any action beyond 1 March 2023 until 16 May 2023. I consider that Mr Jury’s emails of 1 March 2023 marginally support an extension of time being granted.
Prejudice to the employer (including prejudice caused by the delay) – s.366(2)(c)
The Respondent contended that it has made concessions in respect of the commercial litigation commenced by Mr Jury with awareness that this application was not to be pursued on account of the lapse of time.
Mr Jury responded that he considers that it was his action of spending tens of thousands of dollars in legal representation that has resulted in some co-operation from the Respondent.
It would appear that the Respondent has been somewhat co-operative in the commercial litigation, not disputed by Mr Jury, and understandably not to Mr Jury’s full satisfaction. The Respondent states that it did so in reliance of there not being this kind of application running concurrently.
The Respondent was entitled to respond to the commercial litigation following the 21-day expiration in a robust manner, with some assurance that this application would not be made. I consider there is some prejudice to the Respondent if the time limit is extended. This does not support an extension of time being granted.
The merits of the application – s.366(2)(d)
It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[10]
For the purpose of this application, I consider that the merits of the claim is a matter to be treated neutrally.
Fairness as between the person and other persons in a like position – s.366(2)(e)
The criterion of “fairness as between the person and other persons in a similar position”, was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm,[11] where it was said:
“…cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”
I am not satisfied that the criterion of fairness between Mr Jury and other persons in a similar position weigh strongly in favour of either party, as such, I consider it a neutral consideration.
Conclusion
Having taken into account each of the factors referred to in s.366(2)(a) to (e) of the Act, I am not persuaded that there are exceptional circumstances warranting consideration of whether I should exercise my discretion to allow a further period within which an application may be lodged by Mr Jury.
Accordingly, the application for an extension of time is refused and the substantive application is dismissed.
An order giving effect to this decision will be issued separately [PR765755].
COMMISSIONER
Appearances:
M Jury on his own behalf.
T Borham of Sajen Legal, with permission, with R Elliot of My Online Advisor Pty Ltd for the Respondent.
Hearing details:
2023
Brisbane
By Video
7 August
[1] [2011] FWAFB 975.
[2] Smith v Canning Division of General Practice [2009] AIRC 959.
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288at [21].
[4] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316.
[5] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988 at [30] and [36].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [35]-[45].
[7] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288.
[8] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] –[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149.
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [36].
[11] [2015] FWC 8885 at [29].
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