Max Fletcher Horner v Scully Enterprises Pty Ltd
[2022] FWC 1017
•16 MAY 2022
| [2022] FWC 1017 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Max Fletcher Horner
v
Scully Enterprises Pty Ltd
(U2022/759)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 16 MAY 2022 |
Application for an unfair dismissal remedy – Application filed outside time required in s. 34(2) – Whether further period to make application should be granted – No exceptional circumstances – Further period refused – Application dismissed.
Background
Mr Max Fletcher Horner (the Applicant) has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the FW Act). His employment with Scully Enterprises Pty Ltd (the Respondent) was terminated on 23 December 2021.
Section 394(2) of the FW Act states that an unfair dismissal application 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 21 – day period ended at midnight on 13 January 2022. The application was made on 14 January 2022, when it was filed in the Commission, one day outside the required period.
The FW Act allows the Commission to extend the period for an unfair dismissal application to be made, only if it is satisfied that there are “exceptional circumstances” taking into account matters set out in s. 394(3) of the FW Act. 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.[1] Exceptional circumstances may include a single exceptional factor, 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.[2]
The requirement that there be exceptional circumstances before a further period can be granted 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 application for approval of an enterprise agreement must be made, 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 a further period for an application to be made, 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. I now consider these matters in the context of the Application.
On 2 February 2022, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that he provide reasons as to why an extension should be granted having regard to the matters in s.394(2) of the FW Act. The matter was subsequently allocated to me for determination and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted.
A hearing was listed by telephone at 10.00am on Friday 18 February 2022. The Applicant filed a written response on 25 January and 4 February 2022 in response to the correspondence from Vice President Catanzariti. The Applicant also filed a further material in response to my Directions on 8 February 2022 and gave further evidence at the hearing. At the hearing the Applicant was represented by his father, Mr Doug Horner who also gave evidence at the hearing. Ms E Kirkby of the Master Builders Association appeared for the Respondent as of right.
Consideration
The Applicant relies on the following reasons for the delay. Firstly, the Applicant says that he was on a pre-planned holiday on North Stradbroke Island, from the period between 25 December 2021 until 13 January 2022. During this time, the Applicant could not access the internet as the camp site had unreliable telephone and internet access. The Applicant also said that he was able to contact an organisation called “Fair Work Claims” on 11 January 2022 in an attempt to seek legal advice, but after being kept on hold for over an hour, the Applicant decided to hang up and lodge an online request for a call back because he knew time was of the essence.
Secondly, the Applicant states that he did not have knowledge of unfair dismissal applications for the 21 day timeframe until he was on holiday, and that he also believed the 21st day for filing was on 14 January 2022. Further, the Applicant states he filed the application on 14 January as soon as he was able to after returning home from his holiday. Thirdly, the Applicant also relies on a further reason being that his mother was required to isolate from 30 December 2021 as a close contact to a COVID-19 case at her workplace, which also meant the whole family had to get tested. Fourthly, the Applicant also says the public holidays that occurring during the 21 day period contributed to the delay.
At the hearing, the Applicant clarified that he was on Stradbroke Island at the time his mother was notified she was a close contact of a confirmed COVID-19 case and accordingly was not required to isolate. The Applicant also stated he was joined on the holiday by his family on 3 January 2022, at which point his mother had received a negative result to a rapid antigen test. Mr Doug Horner also gave evidence that he was assisting the Applicant with his application and that Mr Horner was not aware that he could make an unfair dismissal application before he joined the Applicant on holiday on 3 January 2022, and only learned of an unfair dismissal application and the 21-day timeframe when he received a phone call from Melbourne Eastern Group Training (MEGT) who managed the Applicant’s apprenticeship. Mr Doug Horner stated he received this telephone call while he was on Stradbroke Island between 3 January and 13 January but could not identify the precise date. Mr Doug Horner also gave evidence that he calculated the date on their return home and had mistakenly believed the last day that the application could be filed, was 14 January 2022. Mr Doug Horner further stated that the only device they had to use was their smartphones and that this seemed difficult, and it was best to wait until they returned home to file the application.
I am not satisfied that the Applicant has provided an acceptable or reasonable explanation for the delay. Firstly, ignorance of the existence of an unfair dismissal application or the 21-day timeframe in which such application must be filed, is not, of itself, an unusual or abnormal circumstance which would justify an extension of time. Secondly, there is nothing exceptional about the Christmas period or the Public Holidays falling within the period. Thidly there is nothing exceptional about a person who has been dismissed being on a pre-planned holiday.
While the Applicant is 17 years of age, he had the assistance of his father, who also states that he was unaware of the existence of an unfair dismissal application or the 21-day timeframe until he was contacted by MEGT at some point between 3 January 2022 and 13 January 2022 when both the Applicant and Mr Horner were on holiday on Stradbroke. I do not accept that there is anything exceptional about the fact that the Applicant in this case is 17 years of age. Many applicants of the same or similar age manage to file unfair dismissal applications within the required time. There is no evidence that the Applicant was incapable of filing within the required time due to some reason associated with his age or his capacity.
To the extent that the evidence given for the Applicant essentially attempts to establish representative error on the part of Mr Doug Horner, I do not accept that the Applicant can rely on the established principles of representative error as a basis for contending that there are exceptional circumstances justifying the grant of a further period to make his application. Generally, representative error as an acceptable explanation for delay is founded upon an assumption that there is an obligation on the part of the person considered to be a representative which is more than voluntarism.
A necessary pre-requisite for the Commission to accept representative error as a reasonable explanation for delay weighing in favour of a finding that there are exceptional circumstances, is that the person raising the argument has engaged (or engaged with) a representative in a sense that creates an obligation which gives rise to a legitimate and reasonable expectation that the representative will exercise appropriate care and diligence on behalf of that person. The negligence relied on must also be encompassed by the obligation. Further, the Applicant must be blameless in the error. The error in the present case was made by the Applicant’s Father Mr Doug Horner who was not acting as a representative in the sense that founds an exceptional circumstance on the basis of representative error. Further, the evidence establishes that the Applicant had gone on holiday with friends from 25 December and instead left it to his father to continue making enquiries about alleged non-payment of wages.
The provisions in s. 394(3) present a high bar for late applications. If error or oversight on the part of a representative was an automatic basis for a finding that there are exceptional circumstances justifying the grant of a further period, the purpose of the time limit in s. 394(2) and the bar in s. 394(3) would be subverted. That purpose would be further subverted if error on the part of a person who was not a representative, but simply assisting a person to make an application for an unfair dismissal application, was given the same, or similar weight as representative error.
The FW Act recognises various categories of representatives, including organisations, paid agents and lawyers. Section 596 provides that paid agents and lawyers may appear in matters before the Commission only with permission and prescribes the grounds upon which the Commission may decide to grant permission. It is common for persons to be assisted or supported by other persons – friends or family members with varying qualifications – in making or advancing applications to the Commission. However, such assistance or support will not necessarily, or of itself, result in the provider of assistance or support being considered a representative. The Form F2 Application has a section of an applicant to nominate a representative by including details of the person who is acting in that capacity. The coversheet for the Form F2 also states:
“Legal or other representation
Representation is where another person (such as a lawyer or paid agent, union official, family member or friend) speaks or acts on your behalf, or assists you in certain other ways in relation to your matter. There is no requirement for you to be represented at the Commission.
You will need permission from the Commission Member dealing with your matter if you wish to be represented by a lawyer or paid agent at a conference conducted by the Commission Member or a hearing, unless the lawyer or paid agent is an employee or officer of a union or a peak union body that is representing you. If you want to seek permission, you must lodge a Form F53 – Notice that a person: (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing.
You do not need permission to have a lawyer or paid agent prepare and lodge this application with the Commission.”
There may be cases where a person who seeks to make an unfair dismissal application is impacted by circumstances that are exceptional and for that reason entrusts another person to file an application on his or her behalf. In such a case, an error by the person entrusted to file the application may be considered, with other factors, to explain a delay and to weigh in favour of a finding of exceptional circumstances. However, the mere fact that a person relies on another person to file an application, and the latter person fails to do so in the required time, is not of itself, a reasonable explanation for delay constituting an exceptional circumstance.
It is also the case that Applicant, and Mr Horner, learned that an unfair dismissal application could be made and that there was a 21-day timeframe in which to do so, when Mr Horner was contacted by MEGT at some point between 3 and 13 January 2022 – at or before the date the 21 day period elapsed. There is also nothing exceptional about the fact that the Applicant and Mr Horner only had smartphones and did not have reliable internet access at their campsite. Mr Horner accepted at the hearing that he did not attempt to find an internet on the island for the purpose of lodging an unfair dismissal application or consider returning home earlier to lodge the application.
I am not satisfied that any of the reasons given by the Applicant individually, or considered together, constitute exceptional circumstances. This weighs against the grant of a further period in which to make the application.
The following matters are in my view neutral considerations. Firstly, the Applicant does not dispute that he was notified of his dismissal on 9 December 2021, prior to the dismissal taking effect on 23 December 2021 (s 394(3)(b)). A copy of the termination letter dated 9 December 2021 was annexed to the Applicant’s unfair dismissal application and it is clear from this letter that the Applicant’s employment was going to be terminated with effect from 23 December 2021. The Applicant therefore had the benefit of the full 21 – day period to lodge his application. Secondly, there is no evidence of prejudice to the employer (s 394(3)(d)) beyond being required to defend an unfair dismissal application.
In relation to steps taken to dispute the dismissal (s 394(3)(c)) there is evidence the Applicant had been in communication with the Respondent after being notified on 9 December 2021 that his employment was going to be terminated and that efforts to negotiate a return to work had failed and accordingly the Applicant’s employment was terminated on 23 December 2021. Apart from this the Applicant did not take any steps to dispute the dismissal other than to file an unfair dismissal application. I found this to weigh in favour of the grant of a further period, albeit only slightly, on the basis that the Respondent would have been aware that the dismissal was not accepted.
As to the merits (s 394(3)(e)), the Applicant said in his unfair dismissal application that the Respondent did not provide reasons for his termination and that Mr Scully had stated in the termination letter that there was not much more he could teach the Applicant and that his maths and writing skills needed to improve. The Applicant also alleges on his application that because the letter did not contain much detail, Mr Scully advised the Applicant verbally after the Applicant had read the letter that he could not put up with his mistakes any longer and that the Applicant never listens, had a lack of common sense and that Mr Scully felt he had to repeat himself often when he asked the Applicant to do things. Further, the Applicant alleges Mr Scully told him work was slowing down and he may not have enough scope of work for the Applicant’s training.
An application to extend time is in the nature of an interlocutory application (see s 396). It is neither possible nor appropriate for the Commission to form any concluded view about the merits. In this case, the merits turn on disputed points that would need to be tested if an extension of time were granted.
On 14 February 2022, prior to the hearing, the Respondent filed a Form F4 objection to unfair dismissal application raising a jurisdictional objection to the application that as the Respondent was a Small Business Employer, the Applicant had not met the Minimum Employment Period of 12 months service. Based on the information in the Applicant’s form F2 application, the Applicant does not appear to dispute that he commenced employment with the Respondent on 8 March 2021. As previously noted, there is no dispute that the termination of the Applicant’s employment took effect on 8 March 2021.
The Respondent’s Form F4 also states the Applicant was a sole employee of the Respondent. On the material currently before me I can see no basis to dispute that the Respondent is a Small Business Employer and prima facie it appears that even if the Applicant was granted a further period to make this application, he would not be a person protected from unfair dismissal pursuant to s.382(2) of the FW Act because he has not served the minimum employment period.
On this basis, I consider the merits of the application to be a factor that weighs against a further period being granted, although only slightly given that these matters have not been tested at a hearing.
Having regard to the matters in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together, such that I should exercise the discretion in s.394(3) to grant a further period for the application to be made. Accordingly, I am required to dismiss the application in U2022/759. An Order to that effect will issue with this decision.
DEPUTY PRESIDENT
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Ibid
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