Michael David Charles Denton v Breakspear Nominees Pty Ltd

[2020] FWC 780

[2020] FWC 780

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael David Charles Denton
v
Breakspear Nominees Pty Ltd
(U2019/12928)

DEPUTY PRESIDENT BEAUMONT PERTH, 28 FEBRUARY 2020

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – no exceptional circumstances – extension of time not granted.

[1] Mr Denton applied for an unfair dismissal remedy on 20 November 2019, having been dismissed from Breakspear Nominees Pty Ltd (Breakspear) on 26 October 2019. Breakspear objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.

[2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[3] It is not contested that Mr Denton’s application was made out of time. However, for his application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. 1

[4] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted. It should be noted that when the application was made the respondent employer was named as ‘Breakspear Trading as Grand Cru Wineshop’. I permitted a change to the name of the respondent employer under s 586 of the Act - to Breakspear Nominees Pty Ltd.

Background

[5] Breakspear employed Mr Denton as a Retail Assistant. 2 His position included the responsibilities of opening the ‘Grand Cru’ store in Mount Lawley, restocking the store and dealing with deliveries.3

[6] Following incidents on 20 October and 23 October 2019, where it is asserted that Mr Denton effectively displayed irascible and intimidating conduct, the Managing Director of Breakspear emailed Mr Denton on 26 October 2019; the email stated:

…[I]t has been reported to me (in writing) that once again you have blown up at a staff member. The particular staff member has had to seek counselling and has been particularly distressed by your behaviour. What’s even more disappointing is that part of your blowup was about Charlie, the one person in this business that has been in your corner. This latest incident comes on top of other recent behaviour all of which has been reported and documented.

Therefore you have left me with no alternatives in line with previous warnings both verbal and written, your employment with Grand Cru Wineshop & Cellar is terminated effective immediate [sic].

…

You are not required and or welcome to attend the workplace from this point forward. Your entitlements will be calculated and paid out by the close of business Wednesday 30^th October 2019… 4

[7] At the bottom of the email was a signature block that referred to ‘Grand Cru Wineshop & Cellar’.

[8] In his evidence Mr Denton refers to having received an email from the Manging Director of ‘Grand Cru’ on 26 October 2019 advising that his employment had been terminated. 5 Mr Denton confirmed that he received his final pay email on 29 October 2019.6 The pay email set out in the top right hand corner an ‘ABN’ – Australian Business Number. The ABN was 95 524 098 439.7 Mr Denton stated that he received the payment, as outlined in the final pay email, on 30 October 2019.8

[9] Mr Denton gave evidence that having received the final pay email on 29 October 2019, he believed that he would receive a further payslip outlining a payment in lieu of notice, leave loading and a pro rata long service leave payment. He wrote to the Managing Director on 31 October 2019, asking why his payment in lieu of notice, leave loading and pro rata long service leave entitlements had not been paid. 9 A reply was received on 8 November 2019, explaining that such entitlements would not be paid given that Mr Denton had been dismissed on the basis of serious misconduct, and that Breakspear disputed that leave loading was payable.10 However, while Breakspear disputed liability for leave loading, it nevertheless provided Mr Denton with an amount equivalent to the leave loading requested ($5,381.50 gross).11 The reply was presented on ‘Grand Cru Wineshop & Cellars’ letterhead.

[10] Having received the reply letter on 8 November 2019, Mr Denton stated that on 8 November 2019, he enquired with the Fair Work Ombudsmen (FWO) as to his situation. 12 Mr Denton’s evidence was that he was unable to speak to anyone via the landline and therefore lodged an online request.13

[11] Mr Denton gave evidence that on 11 November 2019 he received a response from the FWO, which informed him that he needed to contact the Department of Mines, Industry, Regulation, and Safety (FWO Response). 14

[12] The FWO Response 15 included detail of the advice or guidance that Mr Denton was seeking it read:

Status

Advice provided

You need information about

Ending employment (eg final pay, notice)

Final pay

Your other workplace issues or questions

I have worked for this company for over 7 years Do I receive payment in lieu of notice? Do I receive leave loading on annual leave? Do I receive pro rata long service leave? My final pay only had the hours I worked that week for the company and my annual leave of 608.61 hours.

The employer you are enquiring about

95524098439

The Trustee for Carmelo Salpietro Family Trust Grand Cru Wineshop …

…. [sections of table omitted]

Response

Hi Michael, Based on the information provided your employment was covered by the General Retail Industry Award 2010. Under this award if you were an ongoing part-time employee for more than 5 continuous years you are entitled to 4 weeks notice of termination, (unless terminated for serious misconduct). The employer can either ask you to work out the notice period or offer you payment in lieu of notice. This award does provide for a 17.5% annual leave loading in Clause 32.3 however, your pay rate appears to be substantially above the minimum rates so may be deemed to already be absorbed into your over award payment. To find out about your long service leave entitlements, please contact the long service leave agency in your state or territory. WA – Department of Mines, Industry Regulation and Safety…

[13] Mr Denton stated that he called Wageline on 11 November 2019 (the contact point for the Department of Mines, Industry Regulation and Safety) and was advised that he should not be lodging an unfair dismissal claim with the Commission but should be lodging the claim with the Western Australian Industrial Relations Commission (WAIRC). 16

[14] On 18 November 2019, Mr Denton filed an unfair dismissal claim with the WAIRC. 17 On 20 November 2019 he received a phone call from the WAIRC informing him that he had filed his application in the wrong jurisdiction.18 Subsequently, he filed a Form F2 – Application for Unfair Dismissal Remedy on 20 November 2019. This was filed outside of the statutory period set by the Act.

Consideration

[15] There is of course discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 19

[16] In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) 20 the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.21 Whilst Nulty considered the general protections provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[17] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 22 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 can be considered exceptional.23

[18] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 24 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains pertinent:

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. 25

[19] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’.

Reasons for the delay in filing the application

[20] Consideration turns to whether Mr Denton has provided a credible reason for the whole of the period that his application was delayed. 26 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.27 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 are considered in order to determine whether there is a reason for the delay beyond the 21-day period, and ultimately whether that reason constitutes exceptional circumstances.28

Delayed notice of termination and an error in advice given

[21] It has been expressed previously that where representative error is a factor said to have contributed to the delay in making the application, it is accepted that the conduct of the applicant nevertheless is to be examined. 29 While in this case Mr Denton was not represented by a paid agent or legal representative, he purports to have been, in effect, misdirected by advice given – whether through the Fair Work Ombudsman, and thereafter the Department of Mines, Industry Regulation and Safety.

[22] While the decision of the Full Bench of the Commission in Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service 30 (Fornataro) considers representational error in the context of an out of time application under s 365 of the Act, I consider it provides guidance in the circumstances of the application before me. In Fornataro the majority stated:

Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

[23] While Mr Denton agitated Breakspear had waited fourteen days following his dismissal to notify him that his employment was being terminated for serious misconduct, such a finding was not open on Mr Denton’s evidence or that of Breakspear. The email dated 26 October 2019 is unequivocal in its terms, informing Mr Denton ‘your employment with Grand Cru Wineshop & Cellar is terminated effective immediate [sic]’. There was no evidence presented to suggest that Mr Denton had not received the email.

[24] Although notified of his dismissal on 26 October 2019, it was not until 8 November 2019 that Mr Denton made enquiries regarding the end of his employment with the FWO. Further, it is evident that the motivation for Mr Denton’s enquiry was not that he had been unfairly dismissed, but rather he was dissatisfied about a lack of payment for his notice period, long service leave and leave loading. So much is shown in the FWO Response, where the workplace issues Mr Denton identified all pertained to payment of entitlements. While the FWO Response reveals that Mr Denton was referred to the Department of Mines, Industry Regulation and Safety, such referral appears to have been premised on an enquiry about his entitlement to long service leave – and therefore the referral appears to have constituted reasonable and pragmatic guidance.

[25] There is no direct evidence of the information Mr Denton provided to the Department of Mines, Industry Regulation and Safety via its Wageline service, or the advice or response received. Mr Denton purports that Wageline advised that his claim for unfair dismissal should be lodged in the WAIRC. However, there is insufficient evidence before me to conclude that Mr Denton was incorrectly advised based upon the information he provided. Further, while Mr Denton stated he received advice from Wageline to make an unfair dismissal application in the WAIRC on 11 November 2019, he did not do so until 18 November 2019.

[26] Mr Denton did not contend that he was unsure of the entity who employed him and that this was the reason he filed his application in the wrong forum. Should he have done so, it is observed that the pay email set out in the top right hand corner an ABN. The ABN can be used to search for the name of a business and there after the organisational representative. 31

[27] In the decision of Welthy v J Factor Holdings Pty Ltd t/as South Beach Hotel 32 (Welthy), the applicant gave evidence that he was unsure who employed him. However, the applicant accepted his employment contract was between him and his employer and that he had been provided with a copy of the National Employment Standards fact sheet. In this case, no employment contract was tendered into evidence, and it is observed that the letters and correspondence provided to Mr Denton by Breakspear referred only to ‘Grand Crus’.

[28] Yet it was the case that Mr Denton had access to the ABN, had been informed that he was covered by a modern award by the FWO, and had made no enquiry with the FWO with regard to the lodgement of an unfair dismissal application – which was open to him to do. Further, Mr Denton had made enquiries with his former employer about entitlements, and could have equally checked that he had identified correctly the name of the employer (should that have been the issue).

[29] I have concluded that Mr Denton’s own conduct contributed to the delay in lodgement of the application. Understandably, Mr Denton was perplexed about certain entitlements not having been paid. That consternation led him to make enquiries relevant to seeking redress for unpaid entitlements, and as such the guidance provided was accordingly tailored. However, Mr Denton only made those enquiries some 13 days after having been notified of his dismissal.

[30] In light of the evidence, it cannot be said that Mr Denton was provided with incorrect guidance or that there was an error made by those that provided guidance or advice. Further, it was at all times open to Mr Denton to make enquiries specific to the making of an unfair dismissal application – whereby the issue concerning jurisdiction may have been raised prior to the WAIRC alerting him.

[31] As the Deputy President stated in Welthy, ‘[I]t is not unusual for employees in Western Australia to confuse the WAIRC and Fair Work Commission’. 33 I have considered that when notified by the WAIRC that the claim or application had been brought in the wrong jurisdiction, Mr Denton acted promptly in filing the relevant application with this Commission. However, I am not satisfied that Mr Denton had a reasonable explanation for the whole of the relevant delay period in light of the aforementioned reasons. This weighs against a finding that there are exceptional circumstances.

Whether Mr Denton became aware of the dismissal after it took effect

[32] At all material times from the time Mr Denton was dismissed on 26 October 2019 until the date the unfair dismissal application was made, Mr Denton knew he had been dismissed. I consider this to be a neutral factor.

Action taken to dispute the dismissal

[33] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 34 I have considered all the evidence in this respect. First, seeking guidance or advice on what action to take to dispute a dismissal does not constitute disputing the dismissal.

[34] Second, Mr Denton submitted his application for an unfair dismissal remedy in the WAIRC on 18 November 2019. While it evidently was the wrong jurisdiction, Mr Denton was in effect attempting to lodge what he thought was the ‘appropriate’ unfair dismissal application – it was not action taken to dispute the dismissal, such as that which the Act contemplates under s 394(3)(c). Therefore, I do not consider that such action constitutes action to contest the dismissal.

[35] Having considered the evidence and submissions of both parties, I consider it to be a neutral factor.

Prejudice to the employer

[36] I cannot identify any particular prejudice that Breakspear would accrue if an extension of time were to be granted. In its submissions, Breakspear spoke of prejudice in the form of the effect the application had on its witness who was involved in the incidents. It submitted that the witness had received counselling as a result of the incidents and to therefore give evidence in the proceedings would require the witness to relive the trauma. However, I remain unpersuaded, based on the evidence before me, that Breakspear would suffer prejudice and therefore I consider this to be a neutral factor in the present case.

Merits of the application

[37] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[38] In Kornicki v Telstra-Network Technology Group,  35 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:

If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 36

[39] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application. 37

[40] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. I note that Breakspear has alleged Mr Denton engaged in serious misconduct and evidence of the misconduct is provided through its one witness. Mr Denton disputes various parts of the evidence of that witness. It is therefore the case that I am unable to assess in detail the merits, given the disparate factual accounts. It follows that I consider this criterion to be neutral.

Fairness between the person and other persons in a similar position

[41] The Deputy President in Morphett v Pearcedale Egg Farm, 38 considered this criterion and said:

[C]ases 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. 39

[42] Neither party drew my attention to any relevant matter previously decided by the Commission. However, having considered authorities that had relevance regarding those circumstances before me, I am satisfied that the issue of fairness as between Mr Denton and other persons in a similar position, is a neutral factor in determining whether to grant an extension of time.

Conclusion

[43] The criteria in s 394(3) of the Act have been carefully considered. Based on the material provided, I am not persuaded that there was a satisfactory reason advanced as to why the application was not lodged within the statutory time limit. Further, having regard to the other relevant criteria in addition to that of s 394(3)(a), I have concluded that Mr Dentons’s circumstances were not out of the ordinary course, unusual, special or uncommon. On balance, I am not satisfied there are exceptional circumstances warranting an extension of time for Mr Denton’s application to be made. Accordingly, I decline to grant Mr Denton an extension of time and therefore his application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:
M Denton, Applicant
T Seymour, of Lavan Legal, for the Respondent

Hearing details:
2020.
Perth by telephone:
February 13.

Printed by authority of the Commonwealth Government Printer

<PR716719>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Witness Statement of Ms Mason [14] (‘Mason Statement’).

 3 Ibid [14].

 4   Exhibit R2.

 5   Exhibit A2 pg.1.

 6   Ibid pg.1.

 7   Ibid Appendix B.

 8   Ibid pg.1.

 9   Ibid pg.2.

 10   Ibid Appendix D.

 11   Ibid Appendix D.

 12   Ibid pg.2.

 13   Ibid pg.2.

 14   Ibid pg.2.

 15   Ibid Appendix E.

 16   Ibid p.2, Appendix F.

 17   Ibid p.2, Appendix G.

 18   Ibid p.2, Appendix I.

 19   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].

 20   [2011] FWAFB 975.

 21 Ibid [15].

 22 Ibid [13].

 23   Ibid.

 24   [2018] FWCFB 901.

 25 Ibid [38].

 26   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 27   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041, [10].

 28   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349, [29] – [31].

 29   Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466.

 30   Ibid.

 31   Exhibit A2, Appendix B.

 32   Welthy v J Factor Holdings Pty Ltd t/as South Beach Hotel[2016] FWC 1978.

 33 Ibid [15].

 34   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 35   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 36   Ibid.

 37   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 38   [2015] FWC 8885.

 39 Ibid [29].