Mitchell Smithers v The Trustee for Roadway Haulage Trust
[2024] FWC 1919
•31 JULY 2024
| [2024] FWC 1919 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mitchell Smithers
v
The Trustee for Roadway Haulage Trust
(U2024/6101)
| COMMISSIONER FOX | MELBOURNE, 31 JULY 2024 |
Application for an unfair dismissal remedy – no exceptional circumstances demonstrated – extension of time not granted – application dismissed.
On 28 May 2024, Mr Mitchell Smithers made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Smithers’ application is The Trustee for Roadway Haulage Trust (the Respondent).
Mr Smithers alleged that his dismissal took effect on 5 May 2024. The application made by Mr Smithers was filed on 28 May 2024, the twenty-third day after his dismissal. As the twenty-first day fell on a Sunday, Mr Smithers had until Monday, 27 May 2024 to file his application. Mr Smithers therefore filed his application one day outside the relevant period required to make an application for an unfair dismissal remedy.[1]
For Mr Smithers to proceed with his remedy for unfair dismissal application, it is necessary that time be extended until 28 May 2024, pursuant to s.394(2)(b) of the Act. The Commission can only consider an extension of time if exceptional circumstances exist, taking into consideration the factors outlined in s. s.394(3) of the Act.
For the reasons given below, in considering these factors, I am not satisfied that Mr Smithers has demonstrated that there are exceptional circumstances and as such, do not extend time for Mr Smithers to make his application.
Things I Must Consider
The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.
Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
a)the reason for the delay;
b)whether the person first became aware of the dismissal after it had taken effect;
c)any action taken by the person to dispute the dismissal;
d)prejudice to the employer (including prejudice caused by the delay);
e)the merits of the application; and
f)Fairness as between the person and other persons in a similar position.
The meaning of “exceptional circumstances” was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]
“[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.”
Background
In his Statement of Evidence, Mr Smithers says he was advised of his impending termination on or around 14 April 2024.[3] In the weeks leading up to the termination some conversations had occurred between the parties about potential redundancies. Mr Smithers was verbally advised of his termination, effective 5 May 2024, and the termination was confirmed in a letter dated 7 May 2024.[4] The termination letter outlined the reason for the termination was that the Respondent could no longer continue to operate its interstate transport services due to increasing fuel and running costs.
Mr Smithers gave evidence that approximately ten to fourteen days after the termination, he became aware that interstate operations were continuing to occur and were being undertaken by new and re-hired drivers. Mr Smithers said this development led him to believe his dismissal did not meet the requirements of a genuine redundancy and that it was therefore unfair.[5]
The matter was listed for Hearing/ Determinative Conference on Tuesday, 23 July 2024. The parties were consulted on their preference for a Determinative Conference or a Hearing and taking into account the parties’ preference for a Hearing, the matter proceeded by Hearing, in view that it would be the most effective and efficient way to resolve the matter.[6]
The Respondent sought permission to be represented under s.596 of the Act. Mr Smithers did not object and I granted permission to appear.
The parties filed submissions and witness statements in accordance with Directions issued on 26 June 2024. My Chambers compiled this material into a ‘Digital Court Book’ which was distributed to the parties prior to the Hearing. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Court Book.
Evidence
At the Hearing, Mr Smithers gave the following evidence:
a.It was about ten to fourteen days after his termination that he became aware of other drivers continuing to do intestate runs. This made him question whether his termination was really a genuine redundancy and whether he had been unfairly dismissed.
b.Following his termination, he was unmotivated and depressed.
c.He was especially upset when he discovered that others had been re-hired back to drive the trucks. He hadn't been asked back and felt that this was unfair.
d.When he became aware of other drivers continuing to work on interstate runs, he did not take any steps to contact the employer, Mr Hudson.
e.He sought medical advice for his depression.
f.His mother helped him prepare the unfair dismissal application.
g.He became aware of the 21-day timeframe for lodging an unfair dismissal around day 17 or 18 after the termination took place.
h.He confirmed that he became aware of the 21-day time frame when he looked at the Fair Work Commission website and upon the advice of his mother.
Mr Smithers called his mother, Ms Deanne Mathews, as a witness and she gave the following evidence at the Hearing:
a.Her son, Mr Smithers, was depressed, mentally struggling and sought medical advice.
b.Her son was confused and found it difficult to deal with the termination because he was the longest serving driver with the Respondent at the time of the termination and believed he had done a good job for the company.
c.She became aware of the 21-day timeframe to lodge an application when she checked the Fair Work Commission’s website.
d.She checked the Fair Work Commission’s website approximately ten days after the termination. She recalls that she checked the website on a weekend after the termination and approximately a week and half before it was required to be lodged.
e.She prepared the unfair dismissal application which took some time put together – to understand it, write it and get it lodged.
Mr Michael Hudson, Director of the Respondent, gave the following evidence at the Hearing:
a.He was now undertaking some of the interstate driving runs himself.
b.He had advertised the Respondent’s assets for sale and had received interest from one prospective buyer but that this sale had fallen through.
c.Another driver had been rehired to undertake driving duties.
d.The B-Double trailer trucks are parked and have not been driven since 5 May 2024.
Section 394(3) Considerations
Reason for the delay
In considering the materials there were three reasons given by Mr Smithers for the one day delay.
The first reason given was that Mr Smithers was feeling unmotivated and depressed, for which he sought medical advice. However, no medical evidence was provided by Mr Smithers. When a person loses their job, it is natural to feel stressed, upset and confused, but to make a finding of ‘exceptional circumstances’ something more needs to be evidenced. As per the Full Bench decision in Becke v Edenvale Manor Aged Care, ‘the stress that results from a loss of employment, without more, will not provide for an acceptable explanation for delay. Medical evidence must be adduced which shows that the stress or other condition adversely affected a person’s cognitive functioning and that this caused, contributed, or at least explained the delay’.[7]There is no medical evidence before me which shows that the lack of motivation and depression meant the application could not be filed by the required date and why it was instead filed one day late.
Therefore, I do not consider this reason for the delay to be an exceptional circumstance.
The second reason given for the delay is that it took some time to put the application together.
From the evidence given by Mr Smithers and Ms Matthews (who was assisting her son with the unfair dismissal application), both were aware of the 21-day timeframe. Mr Smithers was aware three to four days before, and Ms Matthews was aware approximately a week and a half before the 21-day timeframe ended. It is worth noting that had Mr Smithers not been aware of the 21-day time frame, that in and of itself, would not be an exceptional circumstance: '[i]t is well established that ignorance of an available remedy or of the time limits which attach to an application for a remedy will not provide an acceptable explanation for a delay.’[8]
However, on Ms Matthews’ own evidence, she became aware of the timeframe in which to lodge the application and had approximately eleven days in which to assist her son in lodging the application. Mr Smithers himself gave no evidence as to what occurred between the day the application was required to be filed and the twenty-third day which points to there being any exceptional circumstances to explain the delay itself. In effect, no reasons were given as to why the application could not have been filed within time and why it was instead filed one day late. Mr Smithers had both knowledge of the timeframe and sufficient time to lodge the application.
Therefore, I do not consider this reason for the delay to be an exceptional circumstance.
The third reason given for the late application was that Mr Smithers only became aware that the termination may not have been a genuine redundancy ten to fourteen days after the termination took effect.
Mr Smithers’ was verbally advised of his termination with the effective date of dismissal being 5 May 2024.
The reason given in the termination letter, dated 7 May 2024, was that because of increasing fuel and running costs, the business could no longer continue to operate its interstate transport services. References were also made in the letter to vehicles being sold or sent to auction and the inability to continue to absorb ongoing debts.
Mr Smithers submits it was around ten to fourteen days after the termination took effect that he became aware, by way of social media posts, of drivers still doing interstate runs for the Respondent. Mr. Smithers’ evidence was that this information made him question whether the termination was because of genuine redundancy. Mr Smithers did not provide any evidence of these social media posts. The Respondent did not challenge Mr. Smithers’ evidence regarding these social media posts or that the interstate runs continued to operate. Mr Hudson gave evidence that he himself was now undertaking more of the driving work and that another driver had been rehired to undertake driving work.
There have been similar matters considered by the Commission where an applicant files a remedy for unfair dismissal application, after becoming aware of new information, which leads them to question the genuineness of the redundancy. In the decision of Byrnes v Rexel Electrical Supplies[9] (‘Byrnes’) there was a delay in filing an application on time. The Applicant argued that the cause of that delay was due to a job advertisement being posted following what appeared to be a genuine redundancy. Commissioner Bissett found this to be a satisfactory explanation for a delay in lodging the unfair dismissal application. However, in Byrnes, the Applicant filed an application the very next day upon becoming aware of the job advertisement. This is not the circumstance here. Mr Smithers had at least seven days to make an application upon becoming aware of other drivers still undertaking the interstate run. I do not consider that a reasonable explanation has been given as to why the application was filed one day late.
I do not consider this reason for the delay to be an exceptional circumstance.
Whether aware of the dismissal after it had taken effect
It is not disputed that Mr Smithers was aware of his dismissal on 5 May 2024.
I consider this a neutral factor.
Action taken to dispute the dismissal
Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time.
Evidence was given by Mr Smithers and Mr Hudson at the Hearing as to the long-standing and close relationship between the two. Mr Smithers had worked on and off for Mr Hudson over several years. Mr Hudson referred to their relationship as having a closeness like that of a father and son.
When Mr Smithers became aware that other drivers were undertaking the interstate run, he did not speak with, or contact Mr Hudson to make enquiries as to what was going on, or request driving work.
In relation to whether Mr Smithers took any action to dispute the dismissal directly with Mr Hudson, Mr Smithers gave evidence that he didn't believe that contacting Mr Hudson would make any difference to the outcome.
I consider that the lack of action taken to dispute the dismissal weighs against a finding that there are exceptional circumstances.
Prejudice to the Respondent
The Respondent submitted that were the extension to be granted, it would suffer economic hardship and would be unfairly prejudiced as a result.[10]
I consider that any prejudice suffered to the Respondent would be no more than if the application had been made within time. I therefore consider this to be a neutral consideration.
Merits of the application
In its Form F3 – Employer Response to Unfair Dismissal Application, the Respondent has raised the jurisdictional objection of genuine redundancy.[11] Mr Smithers submits that the termination was not a genuine redundancy because the interstate runs continued with other drivers. The Small Business Fair Dismissal Code may also be a consideration in this matter. Given the contested facts of the dispute I am unable to make a full assessment on the merits of the case without hearing the full evidence.
Given this, I consider the merits of the application to be a neutral factor.
Fairness as between the person and other persons in a similar position
As the Full Bench in Perry v Rio Tinto Shipping Pty Ltd noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[12]
Neither party made any substantiative submissions, nor did they direct me to cases involving other persons in similar positions to that of Mr Smithers.
I consider this to be a neutral consideration.
Conclusion
In view of all the matters set out in s.394(3) of the Act, and considered above, there are two factors which weigh against, four factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.
Having weighed each of these factors, and having considered them collectively I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Mr Smithers’ application for an unfair dismissal remedy is therefore dismissed, and an Order[13] to this effect will be issued with this Decision.
COMMISSIONER
Appearances:
Mr Smithers on his own behalf.
Ms Mansour for the Respondent.
Hearing details:
2024.
Melbourne (Video using Microsoft Teams):
July 23.
[1] Acts Interpretation Act 1901 (Cth) s.36(2); Mr Gregory Stedman v Transdev NSW Pty Ltd T/A Transdev Buses[2015] FWCFB 1877.
[2] [2011] FWAFB 975.
[3] Digital Court Book (DCB) p 29.
[4] DBC page 9.
[5] Ibid page 20.
[6] S.399(1) of the Act.
[7] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809 [9].
[8] Ibid.
[9] [2015] FWC 5776.
[10] DCB page 61.
[11] Ibid page 42.
[12] [2016] FWCFB 6963 [41].
[13] PR777687.
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