Michael Watson v Jims Mowing T/A Jims Mowing

[2020] FWC 6713

[2020] FWC 6713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Michael Watson
v
Jims Mowing T/A Jims Mowing
(U2020/14369)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 16 DECEMBER 2020

Application for an unfair dismissal remedy - extension of time – alleged latent awareness of dismissal – length of delay - no exceptional circumstances - application dismissed

[1] On 3 November 2020 Michael Watson (Mr Watson or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by a Jim’s Mowing franchise (Jim’s Mowing Munno Para West) operated in Adelaide by Michael and Kristen Hill (Jim’s Mowing, the Respondent or the Employer).

[2] Mr Watson worked for Mr and Mrs Hill from around 20 January 2019 until 13 November 2019 as a casual gardener landscaper. It appears to be uncontested that he was dismissed on 13 November 2019, though the evidence in that regard is less clear.

[3] What is not in doubt is that Mr Watson’s application was filed well outside the statutory 21-day time limit. It is 334 days out of time. He seeks an extension of time. The Employer opposes that course.

[4] On 10 November 2020 the Respondent lodged a formal response opposing the application.

[5] In addition to relying on the out of time issue, the Employer’s response raised a second jurisdictional issue – that Mr Watson had not allegedly met the minimum employment period. The Respondent says that it was, at the relevant time, a small business and that Mr Watson had not worked for a minimum of twelve months prior to making the claim.

[6] The Commission issued directions on 17 November 2020. 1

[7] I did not receive material as directed or in a timely manner from Mr Watson. After communicating with the Commission by email on 10 November 2020, Mr Watson was then non-responsive for the following four weeks despite numerous emails and follow-up telephone calls by Commission staff. On 7 December 2020, three days before the scheduled hearing, the Employer made a strike-out application under section 399A of the FW Act. At 6.48am on the morning of the hearing, the Commission received a statement from Mr Watson on which he relied.

[8] I heard the matter by phone on 10 December 2020. Both parties were self-represented.

[9] Though the Employer pressed its section 399A application, in the exercise of my discretion (and for reasons given on the record) I adjourned the Employer’s strike-out application and dealt substantively with the out of time issue. I did not deal with the minimum employment period issue as it appears Mr Watson seeks to argue that as a franchisee, the Employer should include in the employee count not only its employees but employees of the broader Jim’s Mowing Group. Only if an extension of time were granted would that matter need be determined. In the interests of efficiency, I adjourned the minimum employment period issue pending this decision.

Facts

[10] I will limit recitation of the facts to only those necessary to determine the extension of time issue. Mr Watson and Mr and Mrs Hill have had a longstanding personal friendship. That provides context to the making of the claim and the strength of feeling on both sides. However, only matters relevant to the extension of time issue need be identified.

[11] Mr Watson became unhappy with the way Mr Hill dealt with aspects of his business, including safety issues, rostering and timeliness in getting home after work.

[12] On 13 November 2019 Mr Watson decided he’d had enough. He did not turn up to a job that he was scheduled to be working on with Mr Hill. That day, he made no contact with Mr Hill as to his whereabouts.

[13] That was Mr Watson’s last rostered day with the franchise. He did not work and was not rostered after 13 November 2019.

[14] That evening, at 8.47pm 13 November 2019, Mr Hill send Mr Watson the following text: 2

“Hey mate. I’ve dropped your bag and keys at your place. I’m not sure what happened this morning, but I was a little disappointed and hurt, in the way you left and were uncontactable today after leaving us in the middle of a job. I think unfortunately this day has shown me that you have probably had enough time working for, and with me. I have appreciated all the work and effort you have provided me this past year, and I really hope and pray, that maybe having some more time at home with your family with no need to stress about working for me, will give you some time to sort out where you want to take your career and life from here. Always here for you as a mate if you need to chat. I’ll send through your last pay on Friday.”

[15] The following morning, at 8.32am 14 November 2019, Mr Watson replied: 3

“I understand you are terminating my employment. Please forward me the contract of employment you have based my pay on over the past year. please provide a certificate of employment. The remainder of your equipment and property will be available for collection kerbside from my address 11am today 14th November.”

[16] Mr Watson left some of Mr Hill’s property on his nature strip, which Mr Hill collected without incident that day (and without communicating with Mr Watson).

[17] It is in dispute whether Mr Hill then sent Mr Watson a separation certificate. Mr Hill said he did, and produced it in evidence. Mr Watson said he did not receive one. Given that the certificate was produced at the hearing, given that Mr Watson’s evidence was that he asked for one, and given that Mr Hill’s evidence was generally reliable, I find that a certificate was sent to Mr Watson on or around 14 November 2019. The certificate read: 4

“14 November 2019

EMPLOYMENT CERTIFICATE

To whom it may concern.

This is to certify that Michael Watson has been employed by our business Jim’s Mowing Munno Para West from 20/1/2019 until 13/ 11 /2019.

The following are the details of employment of Mr Michael Watson with our business.

Employee: Michael Watson
Date of birth: XXXXX XXX
Address: XXXXX XXXXX XXXX
Employee ID: 1719312
Job Title: Casual Gardener
Start Date: 20/01/2019
End Date: 13/ 11/2019

Salary: XXXXX
XXXXX XXXXX X

This certificate is being issued upon the request of Mr Michael Watson for whatever reference purposes it may serve.

Given this day of 14th of November 2019

Certified by

Michael & Kristen Hill
Jim’s Mowing Munno Para West”

[18] No matters of relevance transpired over the next ten months. Mr Watson found some occasional alternate work.

[19] On 25 September 2020, in an unrelated court matter concerning Mr Watson, Mr Hill produced an affidavit in which he attested that Mr Watson had been terminated from Mr Hill’s employment on 13 November 2019.

[20] The court matter involving Mr Watson resolved in or around the last week of October 2020.

[21] Mr Watson filed these proceedings in the Commission on 3 November 2020. Amongst the remedies he seeks is that the alleged dismissal be recorded as a resignation.

Submissions

[22] Mr Watson says that although he believed he resigned at the time of ceasing work for the business and during the following ten months, he now believes he was dismissed because the employer says so.

[23] Mr Watson says he was offended by the claim of dismissal. He says that until reading Mr Hill’s September 2020 affidavit, he believed that he had resigned (walked off the job), and that he is now stuck with the stigma of having been told he was dismissed.

[24] He says that he always believed that Mr Hill had, in the final months of employment, acted unfairly towards him in an employment context and that he walked off the job for good reason. He says he was forced to do so because of unfair conduct by the Employer.

[25] He says that once his court matter was out of the way, he moved in a timely manner (about one week) to file the unfair dismissal claim on-line via the Commission web site.

[26] He says that his case against Mr Hill is legitimate and needs to be dealt with.

[27] The Respondent says that there are no exceptional circumstances warranting an extension of time.

[28] It says that even characterising the events of 13 November 2019 as a dismissal, Mr Watson did not pursue his grievances for almost a year. Mr Hill says that the claim is a form of retaliation for Mr Hill having supplied the court with an affidavit that was relevant to matters before the court. He says that even after that Mr Watson chose to delay, to suit his circumstances.

[29] It follows, according to the Respondent, that Mr Watson was able to lodge his claim within the 21-day time limit and did not need to wait for the events of almost a year later. It says that Mr Watson’s delay was of his own doing, and not exceptional.

Consideration

[30] Section 394(3) of the FW act provides:

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.”

[31] Mr Watson’s application can only proceed if he can establish that “exceptional circumstances” exist within the meaning of section 394(3).

[32] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.⁵

[33] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.⁶ A decision whether to extend time under section 394(3) involves the exercise of a discretion.⁷

[34] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

“[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.”8

[35] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.⁹

[36] I now consider each of the factors set out in section 394(3).

Reason for the delay (section 394(3)(a))

[37] The reason for the delay in lodging an application is a factor that must be considered. The absence of an explanation for any part of the delay will usually weigh against an applicant. 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.¹⁰ 

[38] However, 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.¹¹

[39] The period of the delay that requires 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 the explanation for the delay is acceptable or credible.¹²

[40] The 21-day statutory period after Mr Watson’s alleged dismissal expired on 4 December 2019. 13 Having filed his application on 3 November 2020, it is 334 days out of time.

[41] For the purposes of this decision I will deal with this matter on the basis there was a dismissal on 13 November 2019 that took effect that evening when Mr Hill sent Mr Watson a text message. I do so for two reasons. Firstly, both parties before me now say there was a dismissal which took effect on that or the following day. Secondly, the FW Act does provide that a resignation forced by the conduct of an employer is a dismissal. 14 Though the Commission would, in hearing the merits of an unfair dismissal claim, need to be objectively satisfied that such a conclusion is open on the evidence (and not just the say-so of the parties), it would not be efficient to delve further into that issue for present purposes.

[42] There are three periods of delay in this matter. The first is the ten month period 14 November 2019 to 25 September 2020 between Mr Watson ceasing work in the business (believing he had resigned) and learning that the Employer believed it had dismissed him. The second is the five week period between Mr Watson becoming aware of the Employer’s characterisation of him as having been dismissed and the court matter resolving. The third is an approximate one week period after the court matter resolved and the filing of the unfair dismissal claim.

[43] The explanation for the third period of delay is that it took this time for Mr Watson to get around to going onto the Commission web site and making his claim. Whilst a delay of a week to do so might not ordinarily be an unreasonable period for a dismissed employee to ascertain their rights and navigate an on-line lodgement, Mr Watson’s evidence was that he knew of an employee’s right to make an unfair dismissal claim whilst employed, having had some previous knowledge of these matters from former employment. He also says that he intended to make a claim once he saw Mr Hill’s affidavit on 25 September 2020. In these circumstances, given that he knew he was intending to litigate events of almost a year ago and knew of a right to sue, a week’s further delay was taking additional liberties with timeliness. However, given Mr Watson’s evidence that it was only when he was on the Commission’s web site that he specifically learned of the 21-day period, I will, for present purposes, regard the third period of delay as neutral in considering of this matter.

[44] However, for the following reasons I do not consider the explanation for the delay in either the first or the second periods to be convincing or to support a conclusion of exceptional circumstances.

[45] Mr Watson says that he did not make a claim during the ten month period 14 November 2019 to 25 September 2020 because he didn’t know that Mr Hill was claiming he had been dismissed. I do not accept this submission as an acceptable explanation for delay for three reasons.

[46] Firstly, Mr Watson’s text message of 14 November 2019 commences with the words “I understand you are terminating my employment”. Mr Watson says he wrote this in anger and didn’t really believe what he had written. Whatever Mr Watson’s view about the justification he had for walking off the job the previous day, and whether he sent the text in anger or not, nothing could be clearer as evidence of what he was intending to place on Mr Hill – an allegation that the Employer had terminated his employment.

[47] Secondly, Mr Hill sent Mr Watson, at Mr Watson’s request, an Employment Certificate that very week. Whilst the certificate did not refer to either a dismissal or a resignation, it was clear evidence that the employment had ceased on 13 November 2019.

[48] Thirdly, nothing employment-related occurred in the following ten months that created a sense of grievance in Mr Watson’s mind that was not there on 13 November 2019. The employment-related issues he seeks to litigate which he says caused him to walk off the job were known to him on 13 November 2019 and did not come to light at a later date.

[49] That on 25 September 2020 Mr Watson read in black and white a claim by the Employer that he had been dismissed the previous November is, given the above, not to the point. I accept that it may have been the first time Mr Watson had seen the Employer’s claim to this effect. Quite possibly, it offended him. However, the evidence suggests that the offence caused was more in the nature of Mr Watson taking offence that Mr Hill was involving himself in a sensitive and personal court matter rather than an out-of-the-blue claim that he had dismissed him ten months earlier.

[50] I now turn to the second period of delay. Mr Watson claims that he did not file the unfair dismissal application during the second period of delay between 25 September 2020 and the last week of October 2020 because he first wanted the court matter out of the way, before he commenced litigation of his own.

[51] I accept that the court matter was a sensitive and worrying personal matter for Mr Watson, and that defending a court matter whilst pursuing his own litigation against his former employer (with whom there had been a longstanding personal friendship, at least with Mrs Hill) would be distracting.

[52] Nonetheless, delay in filing a civil suit on an employment matter because seperate court proceedings arise in which the former employer has provided an affidavit is no basis for explaining away the statutory time limit in the FW Act. The FW Act provides a basis for applications to be filed and permits subsequent requests for adjournment having regard to circumstance. In some cases, adjournments are made pending resolution of separate court proceedings – at least where there is a sufficient connection to matters in issue and the interests of justice objectively warrant such a course. Mr Watson could have taken this course, but did not do so. He chose to suit his convenience – to wait until one court issue was resolved before opening up another front. Subjecting the statutory time limit to the subjective choice of a litigant is not consistent with the legislature’s intent to set a time limit and to only extend time in exceptional circumstances. Nor is it consistent with the concept of “exceptional circumstances” being a “high hurdle” and objectively assessed.

[53] In this matter, the explanations for delay do not weigh in favour of a finding of exceptional circumstances.

Awareness of the dismissal taking effect (section 394(3)(b))

[54] I have concluded that by at least 14 November 2019 Mr Watson had expressed the belief that his employment had been terminated by Mr Hill, even though he felt justified in having walked off the job the previous day.

[55] Whilst he also believed that he had in some sense resigned, he was fully aware that his employment had ceased from at least 14 November 2019.

[56] This weighs against granting an extension of time.

Action taken to dispute dismissal (section 394(3)(c))

[57] Mr Watson took no action to dispute the dismissal in advance of filing the application. I am however satisfied that in general terms he had let Mr Hill know, prior to dismissal, of some of his concerns about employment matters. However, in the almost one year that followed, Mr Watson did not seek to be re-employed or have his dismissal converted to a resignation until making this claim.

[58] This is at best a neutral factor and does not weigh in favour of granting an extension of time.

Prejudice to the employer (section 394(3)(d))

[59] The Employer would incur limited prejudice should an extension be granted. A claim would have to be responded to, involving time and cost. An owner-operated franchisee’s time represents a business cost as time involved in defending litigation means time not servicing customers.

[60] Further, as the events to be litigated occurred almost a year prior to filing, some prejudice may arise in recall or the availability of witnesses.

[61] These considerations, whilst real, should not be given disproportionate status. Whilst in a limited way they weigh against an extension of time, they would not, in their own right, constitute grounds to refuse the extension sought.

[62] However, even the absence of prejudice would not itself be a reason to grant an extension.¹⁵

Merits (section 394(3)(e))

[63] The merits of this application are likely to concern the reasons why Mr Watson left Mr Hill’s employment, and the alleged unfair employment-related conduct he says he was exposed to. I have not dealt with any evidence on these issues, and to that extent this is a neutral consideration.

[64] However, before dealing with the merits (and even assuming a finding of dismissal either directly or by way of forced resignation), Mr Watson would need to succeed in establishing his eligibility to make the claim having regard to the minimum employment period requirements of the FW Act. It is not in dispute that he had less than 12 months service. If his employer was a small business (as defined) he would not have served the minimum employment period required by law. If, conversely, his employer was not a small business as defined, he would be eligible to make the claim.

[65] It is not in dispute that at the time of alleged dismissal, Mr Hill employed two persons, plus he and (possibly) his wife worked in the business. Only if employees outside the business and from amongst the broader Jim’s Mowing franchise are included in the count could Mr Watson successfully submit that Mr Hill’s franchise was not a small business.

[66] Whilst the FW Act does define a small business as including employees of “associated entitles” 16, more than a mere connection of an independent franchisee with a broader franchise group is likely to be required.

[67] Whilst the task ahead for Mr Watson to succeeded on this point may be steep, I have not heard the evidence or submissions on this matter. The franchise agreement, and levels of business control or employee support (if any) from the franchisor’s corporate office may be relevant.

[68] In these circumstances, the merits of the application (both on the remaining jurisdictional issue and on merit) are neutral considerations.

Fairness between persons in similar position (section 394(f))

[69] This factor does not arise in this matter.

Conclusion

[70] No factor weighs in favour of Mr Watson’s request for an extension of time. Multiple factors weigh against granting an extension.

[71] In the context of a 21-day statutory time limit the period of delay is considerable (334 days). The explanations for both the first and second periods of delay are unconvincing individually, and also for the delay as a whole.

[72] There are no exceptional circumstances in this matter.

[73] That being so, it is not permissible to extend the time for lodgement. As the time for lodgement has not been extended, Mr Watson’s application is out of time and must be dismissed.

[74] An order 17 to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

M. Watson, on his own behalf
M. and K. Hill, for Jims Mowing T/A Jims Mowing

Hearing details:

2020.
Adelaide; telephone.
10 December.

Printed by authority of the Commonwealth Government Printer

<PR725390>

 1   Directions Hampton C 17 November 2020; the application was re-allocated to Anderson DP on 25 November 2020

 2 R1 left column

 3 R1 right column

 4 R2 (personal details redacted)

5 Smith v Canning Division of General Practice[2009] AIRC 959

6 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

7 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

8 [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

9 [2019] FWCFB 2384 at [16] – [20]

10 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]

11 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288

12 Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [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

 13   Or 5 December 2019 were I to have accepted Mr Watson’s claim that the dismissal took effect on 14 November 2019, not 13 November 2019

 14 Section 386(1)(b) FW Act

15 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 16 Section 23(3) FW Act

 17   PR725391