Mitchell Bailey v St John of God Health Care Inc
[2023] FWC 1611
•3 JULY 2023
| [2023] FWC 1611 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mitchell Bailey
v
St John of God Health Care Inc
(U2023/3073)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 3 JULY 2023 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.
Mitchell Bailey (Applicant) made an application to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with St John of God Health Care Inc (Respondent).
The Respondent has objected to the application on the following grounds:
(a) that the application was lodged outside of the time period allowed under the FW Act;
(b) that the Applicant was not dismissed; and
(c) that the Applicant did not meet the required minimum employment period.
Before the FWC can deal with objections (b) and (c) or consider the merits of the application, it must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The hearing
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After giving the Applicant and the Respondent an opportunity to make submissions as to whether a hearing or conference would be the most effective and efficient way to resolve the matter, and considering the submissions made, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).
Permission to appear
The Applicant sought leave to be represented at hearing and I heard from both parties on the question of representation.
Having considered the submissions of the Applicant and the Respondent on the matter of representation, I determined that it would be unfair not to allow the Applicant to be represented taking into account fairness between the Applicant and the Respondent in this matter.
Witnesses
The Applicant gave evidence on his own behalf.
Mr Brett Sutton gave evidence on behalf of the Respondent.
Submissions
The Respondent filed submissions in the FWC on 9 June 2023. The Applicant filed submissions in the FWC on 16 June 2023.
The Respondent filed submissions in reply on 23 June 2023.
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect.
Submissions and Evidence
The Respondent submits that the dismissal took effect on 14 March 2023, being the day on which the Applicant was sent an email by the Respondent in which the Respondent submits the Applicant was advised that his employment was terminated. Mr Sutton, the witness for the Respondent gave evidence that it was his intention to terminate the Applicant’s employment effective immediately in that email. The Applicant concedes the email was received and read on that day.
The Applicant initially submitted that the email sent on 14 March 2023 and received by him on that day did not, at least in terms which were sufficiently clear to him, advise him that he was terminated or, at best, was simply notifying of an intent to terminate at a later time. The Applicant submitted that it was not until he received another email on 27 March 2023 that the termination of his employment was properly conveyed to him.
However, under cross examination by Mr Fulford, the Applicant conceded that in fact, he did understand the email of the 14 March 2023 to be a termination of his employment to take effect at that time. I note that Mr Fulford put this to the Applicant on at least three occasions and on each occasion the Applicant conceded that he understood the email of 14 March 2023 had notified him of termination of his employment.
Notwithstanding that the fact of his termination was made clear to him on 14 March 2023, the Applicant submits that the actual date of termination was 22 April 2023. This is because a subsequent email to him from the Respondent dated 27 March 2023 stated, in part, “…your position…has ended on 22/04/2023…” Given the use of past tense, the Applicant submits that it was potentially open for him to conclude that the email meant 22 March 2023. In such case, the Applicant contends that if he was advised on 27 March 2023 that his employment has ended on 22 March 2023 then his application under s394 was within the time limit imposed by the FW Act.
Nevertheless, the Applicant further contends that the actual intention of the Respondent, as evidenced by the email dated 27 March 2023, was that his employment would end on 22 April 2023. The Applicant submitted that this contention was supported by the change log on an internal form tendered in evidence by the Respondent, which shows that an amendment was made to his termination date. The Applicant claimed this change was, consistent with the note in the change log itself, to reflect the provision in his casual contract to the effect that he will be removed from the roster of casuals if he does not work for a period of more than three months. Mr Sutton, under cross-examination by Mr Mullally, conceded that the internal form was an official Company document. The Respondent does not dispute that the email of the 27 March 2023 was sent, and does not dispute its contents, but asserted that it was an automatically generated email that was sent in error. However, there was no documentary evidence submitted by the Respondent to support this assertion, and the author of the change, Mr Adam Johnson, was not called to give evidence.
Consideration
Given the conflicting claims by the parties, the task for the FWC is to determine the actual effective termination date of Mr Bailey’s employment. By the completion of the hearing, it was not in contention that the email of 14 March 2023 advised Mr Bailey that his employment was terminated. What remained in contention was whether this email had severed the employment relationship at that point, as contended by the Respondent, or whether in fact as per the Applicant’s contention the employment relationship came to an end on 22 April 2023, being the date advised to the Applicant in a subsequent email received on 27 March 2023.
The Applicant conceded under cross examination that as a casual employee, he was only entitled to one hours’ notice of termination. On this basis, having been advised of his termination by email on 14 March 2023, his termination took effect one hour later on that day. As such, when he received the subsequent email on 27 March 2023, his termination had already been in effect for thirteen days. This being the case, I need to consider the impact of the email on 27 March 2023, wherein he is advised that his final day of employment is 22 April 2023.
To accept the Applicant’s submission that 22 April 2023 was the effective termination date, I would have to conclude that this later email either gave effect to the termination the Applicant suggests was foreshadowed by the email of 14 March 2023, or had the effect of somehow reinstating the Applicant’s employment and extending it, presumably as a period of notice, to the date of 22 April 2023. As to the first notion, it is clear that the Applicant accepted that the 14 March 2023 email terminated his employment at that point. Thus, in terms of the second notion, irrespective of whether it is accepted that the email of 27 March 2023 was sent in error, it is a stretch indeed to conclude that it reinstated the Applicant’s employment in circumstances where:
(a) it expresses no intention to reinstate the employment relationship;
(b) it is clear from the uncontested evidence of Mr Sutton that there would be no further shifts provided; and
(c) the Respondent had already complied with the termination notice requirements as per the Applicant’s employment contract.
While I concede that the email of 27 March 2023 is an element which creates some confusion and may have created some uncertainty for the Applicant as to exactly what the Respondent was doing, I cannot accept that it reinstated an employment relationship that had previously been terminated.
Findings
For the reasons set out above, I do not accept that the email of 27 March 2023 had the effect of reinstating the Applicant’s employment and extending him a period of notice to 22 April 2023. I therefore find that the date his termination took effect was 14 March 2023.
When was the application made?
It is not in dispute, and I so find, that the application was made on 11 April 2023.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 14 March 2023. The final day of the 21 day period was therefore 4 April 2023 and ended at midnight on that day. As I found above, the application was made on 11 April 2023.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 4 April 2023. The delay is the period commencing immediately after that time until 11 April 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Submissions
The Applicant’s written submissions, made on the basis of his submissions on s394(2)(a) being incorrect, say that the delay was due to two factors. The first was that he was not aware that the 14 March 2023 email terminated his employment with immediate effect. The second was representative error, in that his representative has filed his application late.
In relation to the reason for the delay, the Respondent submitted that it had made out its argument that the actual date on which the Applicant understood he was terminated was 14 March 2023, and as such there should be no allowance made on the basis that there was confusion in the mind of the Applicant regarding his termination date. On the issue of representative error, the Respondent did not make any specific submissions which are relevant to this consideration.
Evidence
The Applicant’s evidence given under cross-examination was that having received the email, he understood his employment to have been terminated. He further conceded that he had contacted his father for advice about the termination, and once he had returned to Australia on 20 March 2023, he began looking for an advocate to pursue an unfair dismissal claim on his behalf. I note this search took place prior to him receiving the email of 27 March 2023. This search resulted in him speaking with Mr Mullally, who subsequently represented him in this matter. As such, I cannot accept that the reason for the delay was that the Applicant was not aware of his termination on 14 March 2023. He conceded he was aware, and his actions in searching for an advocate on his return to Australia support this conclusion.
The other reason given for the delay is representative error. This issue has been the subject of consideration in many previous cases.
The Full Bench in Robinson v Interstate Transport Pty Ltd[6] summarises the overall approach as follows:
“The approach to representative error as an acceptable explanation for late lodgement has been considered by Full Benches of Fair Work Australia and its predecessors in the context of various Acts. The approach followed was first set out by a Full Bench in Clark’s Case in the context of the exercise of a discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (the WR Act). It was followed by a Full Bench in Davidson’s Case in relation to s.170CFA(8) of the WR Act. More recently, a majority of the Full Bench in McConnell’s Case found that the approach remained apposite to the exercise of the discretion in s.366(2) of the Act. We too think that the approach in Clark’s Case provides appropriate guidance for consideration of representative error in the context of the exercise of the discretion within s.366(2) of the Act. We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s.366(2), subject to consideration of the statutory considerations in ss.366(2)(b) to (e) of the Act.
The approach in Clark’s Case was summarised in Davidson’s Case as follows: “In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(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 exists 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.”
The Full Bench in Todd Perry v Rio Tinto Shipping Pty Ltd[7] made the following observations:
“There seems little doubt, based on the Appellant’s evidence before us, that the delay during the period between 27 October 2015 and the date on which the application was ultimately lodged was occasioned by representative error. In and of itself representative error will not provide an acceptable explanation for a delay. A person relying upon representative error must also show that the person was blameless and did not by act or omission cause or contribute to the error.”
In Diotti v Lenswood Cold Stores Co-Op Society [8], Deputy President O’Callaghan explored representative error as a reason for the delay in a situation in which the Applicant did nothing to challenge her dismissal for 17 days before contacting her union. I find the Deputy President’s discussion of representative error to be particularly relevant to the situation in this present case. Deputy President O’Callaghan said as follows:
“The long standing approach of the Commission is that representative error may represent an acceptable reason for the delay and, hence in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant. There is no coherent explanation for the delay, of some 17 days before Ms Diotti indicated concern to her union relative to the termination of her employment. In these circumstances, I am not satisfied that Ms Diotti’s circumstances mean that the relatively minimal effect of that representative error favour a finding of an exceptional circumstance and hence, an extension of time. Whilst I have accepted an element of representative error associated with Mr Blewett’s inaction in processing the matter between 19 October 2015 and 22 October 2015, any such representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. Consequently, all of the actions, or in this case, lack of action on the part of Ms Diotti are central to the question of whether there is an acceptable reason for the delay. The circumstances here are simply not properly characterised as fairly explaining the delay on the basis of representative error. The delay here was fundamentally caused by lack of action on the part of Ms Diotti even though she was aware of the 21 day time limit. She simply left it too late to request the assistance of her union.”
Findings
Having considered the evidence given by the Applicant and the principles set out in the cases above, I find that the delay was caused by the inaction of the Applicant, who became aware of his dismissal on 14 March 2023 but did not speak to an advocate until 30 March 2023. As in the Diotti case above, perhaps some blame ought to go to the Applicant’s representative for not processing the application more quickly. However, such blame as may be so apportioned does not support an extension of time. As such, I find that this factor weighs against granting an extension.
Did the Applicant first become aware of the dismissal after it had taken effect?
Following the cross-examination of Mr Bailey, it was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. The Applicant did contend in evidence that he was overseas at the time he received the email of 14 March 2023 and claimed that internet connection issues hampered his ability to deal with the matter. However, of his own admission he received the email while overseas and was able to make contact with his father in Australia to seek advice on how he should proceed. In such circumstances I am not persuaded that the Applicant did not have the benefit of the full period of 21 days. In these circumstances, I regard this factor as neutral in deciding whether there are exceptional circumstances.
What action was taken by the Applicant to dispute the dismissal?
The Applicant contends that he took action to dispute the dismissal.
Submissions
The Applicant submitted that as he filed his application on 11 April 2023, he took action to dispute the dismissal.
The Respondent drew my attention to three cases submitted to be relevant to this consideration. In Tahlia Papaklonaris v Soma Lasers Australia T/A The Melbourne Laser Derm[9] Deputy President Mansini observed as follows:
“The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future. The Commission may also have regard to whether such action constitutes a genuine effort to resolve the dispute.”
There is no evidence that the Applicant in any way attempted to put the employer on notice that he was going to dispute the termination.
In Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd[10] Deputy President Colman said:
“The consideration in s 394(3)(c) is whether the applicant took any action to dispute the dismissal. In my view this is primarily concerned with action taken by the applicant to dispute the dismissal directly with the former employer, such as telling the employer that the dismissal was unfair or would not be accepted by the applicant, rather than action of which the employer is unaware. Although Mr Curtin told his mother that he wanted to do something, and Ms Mullins sought advice, this was action that was taken to consider whether and how to dispute the dismissal.”
Although the Applicant’s evidence given under cross-examination was that he consulted his father for advice, he did not raise the issue directly with the Respondent.
Finally, in Michael Stokes v Horgans Pty Ltd T/A Horgans[11], Commissioner Johns made the following comments:
“Mr Stokes disputed his dismissal by lodging this application, albeit late.
The action taken by the Applicant weighs against granting him a further period to make his application.”
Findings
Having regard to the submissions, evidence and cases I have referred to above, I find that the Applicant did not take any reasonable steps to dispute his termination. This finding weighs against the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time were granted.
Submissions
Specifically, the Respondent submits that if an extension of time were granted, it would mean that its officer Mr Fulford, who had dealt with this matter to the point of the jurisdictional hearing, would no longer be able to handle the matter, as he has tendered his resignation. As such, the Respondent would have a reduced capacity due to a reduced historical understanding of the issues, and a reduction in resources within the Respondent’s Human Resources department.
The Applicant submits that there was no evidence before the FWC that Mr Fulford had tendered his resignation save for an assertion from the bar table, but that in any case given the size of the Respondent’s operation and Human Resources function, it would suffer no serious disadvantage.
Findings
I am persuaded by the submissions of the Applicant on this issue, and I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. As such, this is a neutral factor in deciding if exceptional circumstances exist.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
The Applicant submits that he was denied procedural fairness, in that he was not given an opportunity to respond to any reason for dismissal and terminated without a valid reason.
The Respondent drew attention to its remaining two jurisdictional objections and claimed that the Applicant’s reduced availability was a major factor in him not being given further shifts.
The submissions above would need to be tested with evidence in a merits hearing. In the circumstances, I find that it is not possible to make an assessment of the merits of the application. As such, this is a neutral factor in considering whether exceptional circumstances exist.
Fairness as between the Applicant and other persons in a similar position
Both parties submitted that this issue was a neutral factor in considering exceptional circumstances. I am not aware of any relevant issues and as such I accept that this issue is a neutral factor in my consideration.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reason for the delay, being the inaction of the Applicant; and
(b) the Applicant being aware of the dismissal at the time that it took effect; and
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application; and
(d) the absence of any prejudice to the employer; and
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[12] Exceptional circumstances may 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.[13]
In considering my findings in relation to the items listed in (a) to (f) above, I note that other than items (a) and (c), my findings are that they are neutral factors. However, both item (a) and item (c) weigh against a finding of exceptional circumstances.
Accordingly, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Mr Patrick Mullally on behalf of the Applicant
Mr Tom Fulford on behalf of the Respondent
Hearing details:
Held in person at the Fair Work Commission in Perth, on 28 June 2023.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347 [24-25].
[7] Todd Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 [30].
[8] Diotti v Lenswood Cold Stores Co-Op Society [2015] FWC 7659 [14].
[9] Tahlia Papaklonaris v Soma Lasers Australia T/A The Melbourne Laser Derm [2020] FWC 5103 [17].
[10] Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd [2022] FWC 2916 [10].
[11] Michael Stokes v Horgans Pty Ltd T/A Horgans [2015] FWC 7470 [16-17].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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