Michael Kemp v Hardwicks Meat Works Pty Ltd atf Hardwicks Brothers Meatworks Trust
[2024] FWC 2242
•22 AUGUST 2024
| [2024] FWC 2242 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Kemp
v
Hardwicks Meat Works Pty Ltd atf Hardwicks Brothers Meatworks Trust
(U2024/7802)
| COMMISSIONER REDFORD | MELBOURNE, 22 AUGUST 2024 |
Unfair dismissal application filed out of time – no satisfactory reason for delay - no exceptional circumstances – application dismissed
Background
Michael Kemp (Kemp) has made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he was unfairly dismissed by Hardwicks Meat Works Pty Ltd atf the Hardwicks Brothers Meatworks Trust (Hardwicks).
Hardwicks is a livestock producer originating from West Central Victoria. It is part of the Kilcoy Global Foods Group.
From about the early 1990’s, Mr Kemp was engaged by Hardwicks as a livestock buyer – an engagement which extended for over 30 years. Mr Kemp is 75 years of age and has worked in the livestock industry for most of his life.
On 3 May 2024 Mr Kemp was visited at home by Mr Phil Conway from Hardwicks and told that his services were no longer required.
Mr Kemp filed a Form F2 Unfair Dismissal Application on 7 July 2024.
Hardwicks filed a Form F3 Employer Response on 20 July 2024. Two jurisdictional objections were raised in relation to Mr Kemp’s application. Firstly, Hardwicks submitted that Mr Kemp’s application was not filed within 21 days of his dismissal taking effect. Secondly, Hardwicks submitted that Mr Kemp was not a person protected from unfair dismissal because he was not an employee of Hardwicks – that he was an independent contractor.
I programmed the matter for a hearing or conference to determine whether to allow a further period for Mr Kemp’s unfair dismissal application to be made, after having first issued directions for the filing of material in relation to that matter. I also made an Order that Mr Kemp produce documents, which he complied with.
The matter was heard on 14 August 2024. At the start of the proceeding, I indicated my provisional view that it should be conducted as a determinative conference, taking into account that Mr Kemp was self-represented and so I could take a more active role in gathering evidence from the parties. There was no opposition by either party to this course and I conducted the proceeding as a determinative conference.
Mr Kemp represented himself at the determinative conference and was assisted in doing so by his daughter, Ms Danielle Gaskett. I granted permission to Hardwicks pursuant to s.596 of the FW Act to be represented by a lawyer or a paid agent, and Mr Cardell-Ree represented Hardwicks in the determinative conference.
During the conference, evidence was given by Mr Kemp and Ms Gaskett. A witness statement, which was uncontested, was also filed by Mr Peter McKnight for the Respondent.
A range of material relevant to Mr Kemp’s medical condition was produced by him and referred to by the Respondent. This material was organised in a Digital Hearing Book prepared by my chambers and marked during the determinative conference.
There was no objection raised to the evidence of Mr McKnight nor was he required to present for cross-examination. The Respondent submitted that no adverse finding of credit should be made in respect of any person who gave evidence during the determinative conference, and that it accepted what was said during the conference by Mr Kemp and Ms Gaskett in relation to their evidence.
Kemp’s recent medical history
It is convenient to separate Mr Kemp’s recent medical history into two periods.
Mr Kemp’s medical history between February and April 2024
Evidence was presented in relation to a period of Mr Kemp’s medical history beginning on about 3 February 2024, leading up to 1 May 2024. During this period, Mr Kemp experienced significant health challenges, and was admitted to hospital eight times, including:
A.On 28 February 2024 Mr Kemp was admitted to the intensive care unit at Sunshine Hospital with “dangerously low oxygen levels and an extremely fast heart rate”. He was resuscitated in an emergency setting and placed on non-invasive ventilation in the intensive care unit, where he remained for several days.
B.On 12 March 2024 Mr Kemp was admitted to Shepparton Hospital after passing out at the Shepparton Sale Yards due to an abnormal heart rhythm.
C.On 22 March 2024 Mr Kemp was admitted to the Epworth Freemasons Hospital as a result of suffering from orthostatic hypertension.
D.On 22 April 2024 Mr Kemp was admitted to Melbourne Private Hospital with “heart failure”. He was discharged on or about 30 April 2024. During this hospital stay he requested and was granted “day leave” to attend a cattle sale which he did.
E.During this period, Mr Kemp was required to attend dozens of medical appointments, including with respect to coronary care, with endocrinology, neurology, ophthalmology and diabetes specialists, and with his general practitioner.
Ms Gaskett, who was generally at bedside during parts of each of Mr Kemp’s hospital admissions and present at some of his medical appointments described Mr Kemp’s health issues as “very serious” and that he was “extremely unwell”. Mr Kemp described himself as “very ill through the time February, March and April”. It seems clear from the evidence this was the case.
Mr Kemp’s medical history between May and July 2024
From about 1 May 2024 up until July 2024, Mr Kemp’s recent medical history can be described by adopting a term he himself used in his evidence – a period of convalescence.
During this period Mr Kemp was not admitted to hospital, although he attended a number of medical appointments (some of which may have required him to attend at a hospital for those appointments). His driver’s license, previously suspended for medical reasons, was reinstated on 19 June 2024.
It is clear from the evidence that during this period Mr Kemp’s health was improving. Ms Gaskett said he was still in “significant recovery mode”, but by 20 May 2024 described him as not “100%” but “much better” and during May and June, “getting back to baseline”. There is no evidence that during the period between May and July 2024 Mr Kemp was suffering from any type of cognitive limitation.
On 1 May 2024 Mr Kemp facilitated the provision to Hardwicks of two invoices from a Company called Camwin Pty Ltd in respect of work performed during April 2024 involving cattle purchases.
On 20 May 2024 Mr Kemp visited Dr Adam Gay, Consultant Cardiologist, who said in a letter sent to Mr Kemp’s GP, Dr Zebic that Mr Kemp “has done well since I last saw him”, and that Mr Kemp had reported that “at this time he is back to his normal self”. After a subsequent consultation on 27 June 2024, Dr Gay advised Dr Zebic that Mr Kemp “has remained well since I last saw him”.
Ms Gaskett explained that the more positive language being used to describe the state of Mr Kemp’s health at around this time should be viewed in the context of how serious his health issues had been only a short time previously. She also described Mr Kemp as having a tendency to downplay his health issues, even when they were at their most serious – a trait she suggests is common to some of his generation.
Mr Kemp’s does appear to have stoic and resilient character. However, I do not consider his medical professionals would have used positive language to describe his improving state of health during this period of time simply because he urged them to. Their diagnosis is consistent with the general sense of the evidence that was presented about his health improvements during his convalescence period in medical statements and in his own evidence, and that of Ms Gaskett.
The effective date of dismissal
While Mr Kemp’s application for an unfair dismissal remedy suggests the date of the termination of Mr Kemp’s employment was 2 June 2024, Mr Kemp confirmed in evidence that this was a mistake, and that he was advised of the end of his engagement with Hardwicks on 3 May 2024. I find that 3 May 2024 was the effective date of dismissal for the purposes of s.394(2)(a) of the Act.
Extension of time
Section 394 of the FW Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are “exceptional circumstances”.
Mr Kemp’s unfair dismissal application should have been filed within 21 days of 3 May 2024, or before midnight, 24 May 2024. It was filed on 7 July 2024. It was filed 44 clear days late.
To determine whether “exceptional circumstances” exist warranting a further period for the application to be made (an “extension of time”) the FW Act requires that I must give several factors consideration, evaluating and giving each of them due weight[1]. The factors are:
A.the reason for the delay; and
B.whether Mr Kemp first became aware of the dismissal after it had taken effect; and
C.any action taken by Mr Kemp 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 Mr Kemp and other persons in a similar position.
The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a “high hurdle” for an application for an extension[2].
Reason for the delay
“The delay” is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. In this matter, the delay is the 44 day period between the end of 24 May 2024 and 7 July 2024.
This is the period of focus, although circumstances arising prior to that delay may often warrant consideration in assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. As a Full Bench of this Commission said:
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 out of time ...[3]
Mr Kemp does not need to provide a reason for the entire period of the delay. However, 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[4].
Mr Kemp said the reason for the delay was because of his health: that despite his “concerns” about the end of his engagement with Hardwicks, his greatest concern and focus was his health. In submissions, Ms Gaskett said that the unfair dismissal process is a “daunting process” and that it was not at the forefront of Mr Kemp’s mind during the relevant period.
It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay[5].
Hardwicks submits that the material submitted in support of Mr Kemp’s case that time should be extended in this matter does not suggest that his health issues prevented him from completing or impaired his capacity to complete an unfair dismissal application by the end of 24 May 2024 (and presumably, by implication, beyond that period). It submits that the medical evidence shows nothing “exceptional”, of a medical nature, during the period after 3 May 2024 up until 24 May 2024 and there was nothing stopping Mr Kemp from filing the application within time. In its submissions, Hardwicks referred in particular to letters from Dr Gay, on 20 May 2024 stating Mr Kemp “has done well since I last saw him”, and that Mr Kemp had reported that “at this time he is back to his normal self”, and on 27 June 2024, that Mr Kemp “has remained well since I last saw him”.
Given the seriousness of Mr Kemp’s medical issues during February, March and April 2024 it is not unreasonable to conclude that during his period of convalescence, his health issues impacted, to some extent, on his capacity to prioritise action he may have wished to take to contest the cessation of his engagement with Hardwicks. However, I am not convinced that those health issues, which had clearly diminished in severity during his period of convalescence, can be said to have been such that they prevented his ability to take the steps necessary to file his application if not before 24 May 2024, then sometime before 7 July 2024, or provide an adequate explanation for his failure to do so for this entire period of time.
In reaching this conclusion, I have taken into account the relative unfamiliarity of the process to file an unfair dismissal application compared with other activities that might be more familiar to Mr Kemp, such as attending a cattle sale. I am not convinced that this is an adequate explanation, particularly when eventually, Mr Kemp did succeed in filing his application. It is well established that ignorance of the Commission’s processes is not an exceptional circumstance[6].
I find Mr Kemp does not have a satisfactory reason for the delay of 44 days between the last day for him to file his application and the date he eventually did. This factor weighs against a finding of exceptional circumstances and the granting of an extension of time.
Whether the person first become aware of the dismissal after it had taken effect.
Mr Kemp accepted that he was told about the cessation of his engagement with Hardwicks on 3 May 2024. I consider this to be a neutral factor.
What action was taken by Mr Kemp to dispute the dismissal?
In deciding whether to grant an extension of time in this matter I am required by the statute to take into account whether what if any action was taken to dispute the termination of employment.
During the determinative conference, I asked Mr Kemp whether he did anything to dispute the cessation of his engagement with Hardwicks. He said he did not, until “close to the time” he filed his application, at which point he spoke to “Fair Work”.
I consider Mr Kemp did nothing to dispute his dismissal, until close to the end of the period of the delay. Given the length of the period between the effective date of dismissal and the filing of Mr Kemp’s application, I consider the absence of any action at all to dispute the dismissal during this time weighs against a finding of exceptional circumstances and the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
Hardwicks conceded that it has not suffered any particular loss and has not made hiring decisions on the basis of Mr Kemp not contesting the dismissal within time. I consider this to be a neutral factor.
The merits of the application.
Some of the material in evidence shows the relationship between Mr Kemp and Hardwicks had trappings consistent with an independent contractor relationship, not an employment relationship. In particular, Mr Kemp appears to have caused invoices for payment to be sent to Hardwicks by an entity which he is clearly associated with called Cawmin Pty Ltd, in respect of work he performed.
While it is not necessary or appropriate for me to attempt to resolve contested issues of fact going to the ultimate merits of this application, undoubtedly, the remuneration arrangement between Mr Kemp, Hardwicks and the corporate entity Camwin Pty Ltd is at the least, a matter of significant weight in favour of a finding of an independent contractor relationship[7]. This in turn suggests that Mr Kemp’s application is afflicted by a serious question as to whether he is a person protected by unfair dismissal, within the meaning of the FW Act.
Hardwicks submitted that the matter set out in s.394(3)(d) “does not weigh in favour of a finding that the FWC has a basis to exercise its discretion to extend the time for Mr Kemp to lodge the application”. I accept this submission.
Fairness as between Mr Kemp and other persons in a similar position
Hardwicks in its submissions set out a range of decisions of the Commission in which an extension of time was refused, where the length of the delay was between 1 day and 42 days (and less than 44 days). Undoubtedly, the Commission’s refusal in these decisions to exercise its discretion to extend time relates to the particular circumstances of each case, including circumstances where different issues are being agitated, or involving persons in dissimilar positions to that of Mr Kemp. The consideration in s.394(3)(f) is more concerned with “the importance of consistent principles in cases of this kind”, thus ensuring fairness between persons in similar positions[8]. I find this to be a neutral factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
After some 30 years of providing service, in some capacity, to Hardwicks, it is perhaps not unsurprising that Mr Kemp feels aggrieved at having been somewhat abruptly told his services were no longer required. It may have been possible for the Respondent to handle the matter with more regard for Mr Kemp’s dignity and many years of service. Be that as it may, the question I must determine is whether, having regard to the factors set out in s394(3) of the FW Act, there are exceptional circumstances justifying a further period of time for the application to be made.
I have not found that any of the relevant factors I am required to consider weigh in favour of an extension of time being granted to Mr Kemp. I have found Mr Kemp does not have a satisfactory explanation for the delay and took no action to dispute the dismissal (until very close to the end of the delay) and that these factors weigh against the granting of an extension of time. I also find that the merits of Mr Kemp’s application do not weigh in favour of the granting of an extension of time.
Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances:
Mr Kemp representing himself, assisted by Ms Gaskett
Mr Andrew Cardell-Ree for Hardwicks
Determinative conference details:
2024.
Melbourne (by video via Microsoft Teams).
14 August 2024
[1] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Stogiannidis)
[2] Abu Murad v Command51 Services Pty Limited[2024] FWCFB 307 [26].
[3] Laetisha Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [31]
[4] Stogiannidis [45].
[5] Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285 [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)[2018] FWCFB 1643 [38], [67].
[6] Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 [13], [14].
[7] Hendrik Van Der Sandt v Shahram Mehin & Shannon Group Services Pty Limited [2024] 2188 [39].
[8] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 [41].
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