Mitchell Prentice v Ashfield Soccer & Sports Club Inc

[2020] FWC 5523

[2020] FWC 5523

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Prentice
v
Ashfield Soccer & Sports Club Inc
(U2020/10983)

DEPUTY PRESIDENT BEAUMONT PERTH, 22 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] Mr Prentice applied for an unfair dismissal remedy after the arrangement he had entered into with Ashfield Soccer & Sports Club Inc (the Respondent) had come to an end. The application was filed with the Commission on 12 August 2020, whilst the Respondent states it terminated the contractual relationship with Mr Prentice on 18 July 2020. Mr Prentice argued that his dismissal took effect on 21 July 2020 rendering his application one day late rather than three, as asserted by the Respondent. The Respondent 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).

[2] It should be noted that the Respondent’s objections were not limited to the one objection. The Respondent contended that Mr Prentice was not an employee - he was a contractor; he had not been dismissed and he had not satisfied the minimum employment period.

[3] 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.

[4] It is not contested that Mr Prentice’s application was made out of time. However, for Mr Prentice’s unfair dismissal 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

[5] The issues before me are whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.

[6] Mr Prentice advanced several reasons why I should find that there were exceptional circumstances. In short, however, I am unpersuaded that such circumstances are exceptional, and I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed. My reasons follow.

BACKGROUND

[7] Mr Prentice commenced his position as a Technical Director and Head Coach with the Respondent in or around September to November 2019.

[8] The Respondent asserts that Mr Prentice was not an employee and was, at all material times, a contactor. It notes that it does not have any employees and it is a club that is run by volunteers. The Respondent is not registered for ‘PAYG tax’, it has a turnover of $200,000.00 per annum and does generate a profit (the amount of profit was not detailed).

[9] It understood that it had engaged the services of a company referred to as Perth FA and referred to having made payment to that same company. The Respondent referred to a series of invoices which in the top left corner stated, ‘Perth FA ABN 64 919 132 801’.

[10] Mr Prentice gave evidence that he had initially commenced with the Respondent as an employee but at a later point in the relationship had become a contractor. Initially, there was a verbal agreement (employment contract) and he was to be paid $80,000.00 per annum. Mr Prentice said that he was receiving a salary. However, he gave evidence that later in the relationship he started to invoice the Respondent for tax purposes. Mr Prentice acknowledged that Ms Smyth, the treasurer for the club, and others were all volunteers and he wanted to, in effect, alleviate them of the workload arising from his employment. The evidence was such that there had been approximately thirteen invoices issued by Perth FA to the Respondent over a period from November 2019 until June 2020. Mr Prentice asserted that seventeen invoices had been issued.

[11] It appears that the relationship between the Respondent and Mr Prentice had broken down come July 2020. By letter dated 18 July 2020, the President of the Ashfield Sports Club advised Mr Prentice ‘[W]e cannot and never will be able to meet your demands. As such we regretfully accept your offer to withdraw your coaching services from the Academy with immediate effect’. The letter continued, ‘[A]s you are currently prevented from attending the club due to a court order. We are happy for you to arrange drop off at …’. The sentence apparently referring to the return of the Respondent’s property.

[12] Included in Mr Prentice’s documents attached to his application, was a document signed off by the ‘Ashfield Sports Club Board’. It read, ‘I refer to the letter sent on behalf of the board and that was sent to you via email Sunday 19^th July 2020 at 14:13 … Whether you believe you resigned or not the club considers its relationship with you to be terminated’. Ms Smyth submitted that the Respondent maintained that it terminated Mr Prentice’s services on 18 July 2020.

[13] Concerning the application having been filed late, Mr Prentice gave evidence that he was under extreme pressure and stress due to the circumstances with the Respondent, the pressure of Covid-19, and the financial stress he was placed under. In this respect, he noted that the Respondent had outstanding invoices and his expenses were also owed. Mr Prentice in addition noted that under the Respondent’s Constitution it was obliged to engage in mediation with him to resolve the dispute but failed to do so. He said that waiting to undertake the mediation process had further contributed to the delay in making his application.

EXTENSION OF THE 21-DAY PERIOD

[14] Consideration turns to whether to extend the 21-day period within which Mr Prentice’s unfair dismissal application was to be brought. 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. 2

[15] In decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty), 3 the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time.4 Whilst it considered the general protection provisions of the Act, the reasoning in Nulty 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.

[16] 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. 5 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.6

[17] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, the Full Bench provided clarification regarding the assessment of exceptional circumstances. 7 While the Full Bench considered s 366(1), the observation remains relevant here:

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. 8

[18] 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.

The reason for the delay

[19] The Commission takes into account whether Mr Prentice has provided a credible reason for the whole of the period that his application was delayed. 9 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.10 It does not include the period from the date of the dismissal to the end of the 21-day period. However, importantly 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.11

[20] In Pottenger v Department of Caffeine T/A Two Feet First, 12 the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,13 or a reasonable explanation.14 It is not the case that the applicant ‘needs to provide’ an acceptable, reasonable or for that matter credible explanation.15

[21] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 16 Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight.17

[22] I have found that the arrangement between Mr Prentice and the Respondent terminated effective as of 19 July 2020. No evidence was adduced to contradict that which was detailed in the document stating that the letter of 18 July 2020 had been sent to Mr Prentice on 19 July 2020. I do however acknowledge that the evidence before me is limited and unexplained for the most part. The Respondent declined to cross-examine Mr Prentice and had little to say in the way of submissions. It remains unclear who was the author of the document. Nevertheless, I am persuaded that this is the date that the Respondent terminated its relationship with Mr Prentice and/or Perth FA.

[23] Turning to the reasons provided by Mr Prentice for the delay in filing the unfair dismissal application, I do not find these to be acceptable or reasonable explanations for the delay.

[24] First, Mr Prentice did not provide any details of his stress or explain how it prevented or impeded him from lodging his application.

[25] Second, while Covid-19 may have contributed to Mr Prentice’s stress there was no evidence to suggest that any government restriction, or implication arising from Covid-19, prevented Mr Prentice from seeking relevant assistance online or over the telephone to make his application.

[26] Third, waiting for a mediation to occur pursuant to the Respondent’s constitution does not preclude Mr Prentice from making an unfair dismissal application. No evidence was adduced concerning this requirement under the Respondent’s constitution. It was always open to Mr Prentice to have pursued the mediation referred to in concert with making an unfair dismissal application. To conclude, Mr Prentice has not made out an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

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

[27] It was evident that come 19 July 2020, Mr Prentice knew that the relationship between him and the Respondent had ended.

Action taken to dispute the dismissal

[28] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 18 Mr Prentice appeared to have provided to the Respondent a document titled ‘Ashfield Academy Proposal’. The document was dated 31 July 2020 and its purpose was set out as ‘[A] proposal to proceed with an MOU for engagement between Ashfield Sports Club and Ashfield Academy’. The document further referred to establishing a ‘contractual working and commercial relationship between Ashfield Sports Club, and Ashfield Academy, Mitchell Prentice and the players and parent members’. From all accounts, I am unpersuaded that the correct characterisation of this document is that it was action taken to dispute the ‘dismissal’. Instead, it appeared to be a genuine attempt on Mr Prentice’s behalf to re-establish a relationship with the Respondent on a commercial basis.

[29] While there was discord between the parties as to whether Mr Prentice resigned or whether his services (or that of Perth FA) were terminated, I do not consider Mr Prentice’s agitation that he did not resign constituted action taken to dispute his dismissal. While Mr Prentice asserted, he was in some way forced to resign, he did not thereafter dispute this. Instead the abovementioned proposal was forthcoming.

[30] I do not consider the evidence supports a finding that action was taken to dispute the ‘dismissal’ and therefore this does not weigh in favour of concluding that there are exceptional circumstances.

Prejudice to the employer

[31] I cannot identify any particular prejudice that the Respondent would accrue if an extension of time were to be granted, and the Respondent did not refer to one in hearing. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

[32] 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.

[33] In Kornicki v Telstra-Network Technology Group, 19 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. 20

[34] Concerning the application, there are several threshold conditions that Mr Prentice would need to address to show he was protected from unfair dismissal.

[35] Premised on his own evidence, and the submissions of his unpaid representative, it was far from clear that Mr Prentice was an employee. If anything, the evidence adduced supported a finding that he was not. This included Mr Prentice’s own admission that he commenced work as an employee but later became a contractor to alleviate some of the volunteers’ workload for the Respondent. Further, for the predominate part of the relationship between Mr Prentice and the Respondent, it would appear that invoices had been issued for payment and such invoices referenced the name Perth FA and an Australian Business Number. The relationship between Mr Prentice and the Respondent did not create exclusivity. Mr Prentice gave evidence that he worked part-time for another employer whilst providing services to the Respondent. While there was mention of Mr Prentice wearing a coaching uniform, there was no evidence before me to suggest that this was a requirement.

[36] In respect of 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. However, whether Mr Prentice was protected from unfair dismissal is a relevant and preliminary consideration. The parties were resoundingly unfamiliar with what was required of them from an evidential perspective. This is notwithstanding the detailed information which was provided concerning resources that would assist. As a consequence, the evidence was at times unexplained and scant. However, I have no reason to disbelieve the evidence of Mr Prentice or that adduced by the Respondent. In culmination that evidence is highly probative of a conclusion that Mr Prentice was not an employee, but a contractor.

[37] While I have not embarked on considering the merits of the application, suffice to say I have duly considered the preliminary factor as to whether Mr Prentice was protected from unfair dismissal for the purpose of determining whether an extension of time should be granted. I am unable to conclude that Mr Prentice was an employee and am satisfied that there is sufficient evidence before me to arrive at that conclusion.

[38] I consider this criterion to be persuasive in finding that there were not exceptional circumstances.

Fairness between the person and other persons in a similar position

[39] Morphett v Pearcedale Egg Farm, 21 considered this criterion and said:

cases 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. 22

[40] My attention has not been drawn to other persons in a position similar to that of Mr Prentice. I am satisfied that the issue of fairness as between him and other persons in a similar position is not a relevant consideration in this matter, and is therefore a neutral factor in
determining whether to grant an extension of time.

Conclusion

[41] Having considered the matters referred to in paragraphs [19] – [40] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Prentice’s application to be made.

[42] This is particularly the case when there is no satisfactory explanation for the delay in making the application. In this respect, the totality of the evidence is insufficient to ground a finding that Mr Prentice’s circumstances were out of the ordinary course, unusual, special or uncommon. I have not concluded that it is fair and equitable that an extension should be granted.

[43] The application for unfair dismissal is therefore filed outside the time allowed by the Act and is dismissed. An Order 23 will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr. Mitchel Prentice, Applicant
Mr. Glen Warry of Football Coaches Australia for the Applicant
Ms. Tess Smyth of Ashfield Soccer & Sporting Club for the Respondent
Mr. Phil Kelly of Ashfield Soccer & Sporting Club for the Respondent

Hearing details:

2020;
Perth (by telephone):
October 20.

Printed by authority of the Commonwealth Government Printer

<PR723611>

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

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

 3   [2011] FWAFB 975.

 4 Ibid [15].

 5 Ibid [13].

 6   Ibid.

 7   [2018] FWFB 901.

 8   Ibid.

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

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

 11   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].

 12   [2018] FWC 3403.

 13   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 [9].

 14   Roberts v Greystanes Disability Services; Community Living [2018] FWC [16].

 15   Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWFB 901.

 16 Ibid [39].

 17   Ibid.

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

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

 20   Ibid.

 21   [2015] FWC 8885.

 22 Ibid [29].

 23   PR723756.