Mr Adam William Steer v Cogstate Limited

[2020] FWC 2076

[2020] FWC 2076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Adam William Steer
v
Cogstate Limited
(C2020/459)

DEPUTY PRESIDENT LAKE BRISBANE, 22 APRIL 2020

Application to deal with contravention involving dismissal – application made outside of statutory timeframe – extension of time.

[1] On 24 January 2020, Mr Adam Steer (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to his dismissal by Cogstate Limited (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Melbourne. The Applicant’s employment commenced with the Respondent on 1 July 2019 and his employment was terminated on 11 December 2019.

[2] By virtue of s. 366(1) of the Act, an application under s. 365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s. 366(2) of the Act. The Applicant acknowledged that he lodged his application 23 days outside the statutory time limit. To be within time, the Application should have lodged his application on or before 2 January 2020, the day after the public holiday that was on 1 January 2020.

[3] The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s. 366(2) of the Act for the application to be made.

[4] On 18 March 2020, I convened a hearing by telephone to determine whether to allow the Applicant an additional period within which to lodge his application.

Consideration of whether a further period should be granted

[5] As noted above, s. 366 of the Act requires that a general protections application under s. 365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 3662(2) of the Act.

[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[7] The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 The Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd extensively canvassed the meaning of ‘exceptional circumstances’, concluding:

“[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] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR. 2

[9] In order for the Applicant’s general protection application to proceed, it is necessary for him to obtain an extension of time under s. 366(2) of the Act. In considering an application for an extension of time, I must be satisfied there are “exceptional circumstances” taking into account each of the matters in s. 366(2) of the Act. I now turn to address the particular matters to which regard must be had.

Consideration

Section 366(2)(a) – The reason for the delay

[10] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,5 the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

[11] The Applicant’s application was made 23 days after his dismissal. The Applicant provided the following reasons for the delay in the filing of his application.

[12] The Applicant contended that 31 December 2019 was the date his employment was terminated. In advancing his argument, the Applicant submitted he sent an email to Mr Keith Hawkins, Manager on 11 December 2019 at 11:12 am titled “Adam’s professional qualification and resignation/re-employment email”. In this email, the Applicant stated:

“I would like to start by terminating my employment with Cogstate with an effective end date of 31st December 2019, this way any pre-existing expectations from both parties, Cogstate and myself, will be resolved now and not carried forward into 2020.”

[13] It is not in dispute that the Respondent responded in an email to the Applicant on the same date, notifying the Applicant that his last day of work would be 11 December 2019. The Respondent submitted that the Applicant did not attend, nor perform any, work post 11 December 2019.

[14] The Applicant stated that he received an email on 11 December 2019 that included his final payslip. The document tendered by the Applicant outlines that he was paid an employment termination package and stated as follows:

“Adam Steer employment termination date 31.12.2020”. 6

[15] The Respondent maintained that the date the Applicant’s employment was terminated was 11 December 2019. The Respondent submitted that if there was an arrangement to pay him to 31 December 2019, any such arrangement would take the form of a pay in lieu of notice arrangement whereby the date that the dismissal takes effect is the last day that the Applicant worked.

[16] The Respondent submitted that even if the date of termination was in fact 31 December 2019, the application made by the Applicant was still filed outside the 21 day prescribed timeframe.

[17] The Applicant tendered email correspondence between himself and the Respondent dated between 19 December 2019 to 23 January 2020 to demonstrate that he had sought clarification from the Respondent regarding his final pay and that there was an agreement to pay him to the 31 December 2019. The Applicant relies on this material to demonstrate that the delay in filing his application is a direct result of him being misled by the Respondent into believing the Applicant and Respondent had come to a termination agreement.

[18] The Applicant did not respond to the Respondent’s email dated 30 December 2019 until 14 January 2020. The Applicant submitted that the delay between receiving the Respondent’s email dated 30 December 2019 and his response sent on 14 January 2020 was due to his mother sustaining a head injury. The Applicant submitted that he was required to stay in Perth a week longer than he intended to care for her and was required to amend his return flights to the 4 January 2020.

[19] The Applicant submitted a medical certificate, which states that his mother was unfit for work or study between 11 February 2020 to 11 June 2020; an email from ANZ Customer Connect dated 14 January 2020, which states “some from our dedicated hardship team, Customer Connect, will contact you to discuss your application within one business day”; and an electronic Virgin E-Ticket.

[20] I do not consider any of these exceptional circumstances which warrant me exercising my discretion to allow an extension of time.

[21] It is clear, based on the evidence before me, that the Applicant’s resignation was accepted on 11 December 2019 and his employment was terminated on the same day. While I accept that his final payslip indicated otherwise, the Respondent did not alter its position regarding the date of the Applicant’s last day of work. In Siagian v Sanel Pty Ltd, 7 Wilcox CJ relevantly said that:

“It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately.  This conclusion not only reflects the more accurate meaning of the phrase "payment in lieu of notice"; it accords with common sense.  An employer who wishes to terminate an employee's services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately.”

[22] Further, even if the Applicant’s employment was terminated on 31 December 2019 (which I do not accept) his application would still be outside the prescribed timeframe.

[23] I do not consider how the argument that he was misled by the Respondent into believing a termination agreement had been reached directly resulted in the delay in filing his application. It may be the case that applicants and respondents attempt to resolve matters following a dismissal without the involvement of the Commission, but this cannot be a legislative exceptional circumstance to say that a member of the Commission should exercise their discretion to allow an extension of time if negotiations fall through. Further, the Applicant did not need to wait for there to be a termination agreement to be reached between him and the Respondent to lodge his application.

[24] Whilst sympathetic to the Applicant’s mother’s medical condition and noting that the Commission is in receipt of medical and other documentation which confirms the Applicant’s mother has been diagnosed with health issues, this cannot explain the length of the delay, nor does it necessarily prescribe an inability to submit his completed application. The Applicant was required to attend to his mother sometime prior to Christmas and until 4 January 2020. The Applicant’s employment was terminated on 11 December 2019, two weeks prior to Christmas. I do not view how his mother’s medical condition, in light of the period of time between his dismissal and Christmas, prohibited the Applicant from filing a complete application within the prescribed time.

[25] The absence of an acceptable or reasonable explanation for the delay in lodging a completed application weights strongly against the Applicant’s request for an extension of time.

Section 366(2)(b) - Action taken to dispute the dismissal

[26] An action taken by an employee to content the dismissal, other than lodging an application, can be treated as favouring the granting of an extension of time. 8

[27] The Applicant demonstrated, through correspondence tendered and discussed above, that during the 21 day days he sought clarification regarding his final termination package. However, on review of the evidence before me, I cannot identify that the Applicant took any steps to contest the dismissal; in fact, I note that the Applicant tendered his resignation on the 11 December 2019.

[28] Accordingly, I do not accept that the Applicant took steps to contest his dismissal, and only took steps to negotiate a termination package. This consideration weighs against the Applicant’s request for an extension of time.

Section 366(2)(c) - Prejudice to the employer

[29] In considering this factor, the employer must produce evidence to demonstrate prejudice. It is then a matter for the applicant to show the facts do not amount to prejudice. 9

[30] The Respondents made no submission in relation to this factor and presented no evidence of any prejudice.

[31] The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 10 I consider this factor to be neutral.

Section 366(2)(d) - Merits of the Application

[32] In Kornicki v Telstra-Network Technology Group, 11the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). In that case the Commission 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.”

[33] Without a proper assessment of all the evidence in this matter, this is a neutral determination.

Section 366(2)(e) - Fairness as between the Applicant and other persons in a like position
[34] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 12

[35] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

[36] Having regard to all of the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that the requisite exceptional circumstances exist in this matter.

[37] Pursuant to section 366(2) of the Act, the extension of time is denied, and the section 365 application is dismissed. I Order accordingly.

DEPUTY PRESIDENT

Appearances:

For the Applicant: A. Steer
For the Respondent: M.Dawson of DWF Law on behalf of the Respondent

Hearing details:

18 March 2020
By telephone.

Printed by authority of the Commonwealth Government Printer

<PR718445>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14]

 2   [2019] FWC 25

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9]

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16]

 5   [2018] FWCFB 901

 6   Form F8 – Page 13

 7 [1994] IRCA 1; 122 ALR 333

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

 9   Cowie v State Electricity Commission of Victoria [1964] VR 788

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

 11   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C

 12   Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31]