Mr Benjamin Dickens v Georob Smash Repairs Pty Ltd T/A G&R Body Fabrication

[2018] FWC 3049

[2018] FWC 3049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Benjamin Dickens
v
Georob Smash Repairs Pty Ltd T/A G&R Body Fabrication
(U2018/3813)

COMMISSIONER JOHNS SYDNEY, 29 MAY 2018

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an Applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Mr Benjamin Dickens (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 11 April 2018, that being 40 days after his employment was terminated by Georob Smash Repairs Pty Ltd (trading as G&R Body Foundation) (Respondent) on 2 March 2018 and, consequently, 19 days after the 21 day time limit provided for in the FW Act. The timeline and timeframe were agreed between the parties. 3

The jurisdictional objection

[3] On 19 April 2018 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.

[4] On 10 May 2018 the Commission issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection.

[5] On 14 May 2018 the Applicant sent an email to the Commission providing a further explanation and timeline following the termination of his employment.

Hearing

[6] I conducted an extension of time hearing on 25 May 2018. At the hearing:

a) the Applicant represented himself.

b) the Respondent was represented by Mr George Abdulnour, the Manager of the Respondent. 4

Legislative scheme

[7] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[8] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 5 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  6

Consideration of s.394 criteria

Paragraph 394(3)(a) - The reason for the delay

[9] It is undisputable that there were 40 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[10] In his F2 Application the Applicant explained the delay as follows:

“I was very distress because my employment ended on the same day I was given notice, this maybe think about my bills as from that day on I was not going to receive any income in being 73 years old I was thinking that no one would employ me. The first thing I did was to apply for pension as I was worried being behind my bills.

The second step I did was to find information about fair trading as I started to realise that I was unfairly dismissed because I reported my employer to ATO on 15 February 2018 for not paying my super about 4 ½ years and I was terminated on 2 March 2010.

I then called the office of fair trading and was told to visit one of their agent which was my service NSW Hurstville office. I attended the my service NSW Hurstville office with my son-in-law on 27 March 2018. I explained my situation to a customer service person on arrival and asked her for what I needed to do but she just grabbed a form and handed it to me without explaining to fair trading office Parramatta office.

I took the form to my wife who helped me filling it and I sent that form to fair trading office Parramatta PO Box 972 on the 2 April 2018 and I received a phone call from Parramatta office few days after telling me that I filled a wrong application and she provided me with the right information that led me to fair work commission and realised that I required to lodge this claim within 21 days. I have a copy of the first form that I submitted to Parramatta office. I believe if I had the right information I would have lodged this claim in time. I appreciate your understanding and hope my application will be considered and accepted thank you.”

[11] The further explanation and timeline submitted on 14 May 2018 provided as follows:

“The following set of circumstances are the cause of the lodgement outside the 21day time frame.

Week 1 -5th/9th March

• On the 2/3/2018 I received a termination of employment letter from Robert Abbdelnour

• The reason cited was a major restructure for the business operation. The letter indicated that there would be a new business operation model

Impact

• For the first week following my termination, I was highly agitated, deeply distressed and confused as I had just spent a week panelling the roof, fitting out the inside and sheeting the sides of a huge truck. Rob was in frequent conversation with me while I did this work and at no time did he talk about the forthcoming restructure and that it would impact the workers’ employment. Hence my confusion when I was handed the letter on Friday 2/3 2018

• I spent the rest of week 1 in total shock unaware that the reason for termination was a not true

Week 2 -12th/16th March

• On the 11th March, Rob called me to ask me to pick up my hammer which he had found

• On the 14th March, I went to the workshop and found that nothing had changed in terms of the operation of the business. In fact, there was a new employee working there.

• When I came home, I read the letter from the ATO informing me that they had contacted Rob about my having reported them about their non-payment of my superannuation. I realised that 9 days after he received the letter from ATO. He sacked me. It was then that I realised he had terminated me because I had reported their non –payment of my super. The ATO informed me that I am owed $13000

• I then recalled a conversation with Rob’s brother George who said “Somebody reported us to the ATO. You would know who it is.” I was then able to connect the dots as to the real reason that I was terminated.

Week 3 19TH/23RD March

• I then decided to appeal to the Fair Work Commission for unfair dismissal.

• I then presented to the Fair work office in Queen Street Hurstville

• A lady in attendance at the service desk informed me that I was at the wrong office and that complaints had to be submitted either on- line or by completing the relevant form which she could give me as they had the forms

Week 4 -26th /30th March

• Aware that I was now out of the time- period I made enquiries about whether I could still submit a claim given that I only realised the connection between my termination and my ATO complaint late in the process

• I spent days trying to get telephonic access for advice

• After 2 days of having my “call in a queue and being assured that my call is important and that I will be answered”, Joanne from Law Access 1300888529 advised me that I was now out of the 21day period but given the journey, as I have described, I should complete the form and present my case in the hope that I would be given a hearing.

• I even attended 3A Stapleton Street offices in Sutherland seeking advice re the out of 3week time frame.

• The advice was to complete the form and put my case if I was asked to

• Both sources of advice indicated that Fair Work Commission was very fair and treated each case with ethical compassion and respect

• I then decided to lodge the complaint

Week 4 –April

• I lodged the form and was outraged by the reasons Rob gave for terminating my employment one of which was the outrageous allegations about sexual abuse perpetrated by me This is so unjust that I sincerely hope I will be able to address thus as further proof of unfair dismissal

• I completed the form and posted it

• At the end of this week Parramatta rang and told me that I had been misdirected and misinformed.

• She directed me to the Fair Work Commission website and informed me that it had to be completed on line

• I completed the on-line application and submitted it.”

[12] During the hearing before me the Applicant accepted that, in summary, the reasons for the delay in filing his application for an unfair dismissal remedy were:

a) the distress he felt following the termination of his employment, 7

b) the prioritising of sourcing a new income stream,

c) his lack of awareness of the 21 day timeframe; 8 and

d) misinformation given to him by NSW Fair Trading.

[13] While sympathetic to the Applicant having regard to the unexpected circumstances that he found himself in when his employment was terminated, distress occasioned by the termination of someone’s employment is regularly or normally encountered. So too the need to search for a means to pay the bills.

[14] In so far as the Applicant claims to have been unaware of the 21 day timeframe that reason also is not out of the ordinary course, or unusual, or special, or uncommon. It is also well established that ignorance of the timeframe for lodgment is not an exceptional circumstance.  9

[15] In so far as the Applicant points to the information that was given to him by NSW Fair Trading he had to concede that:

a) when he attended the NSW Fair Trading office on 27 March 2018 that was already 25 days after the termination of his employment. Consequently, his application was already out of time by 4 days. 10

b) When he filed his form with NSW Fair Trading on 2 April 2018 31 days had passed since the termination of his employment and had he lodged a valid unfair dismissal application on that date it would have already been 10 days out of time.

[16] Having regard to the timeline provided by the Applicant it is clear that, while the information given to him by NSW Fair Trading resulted in a further delay, it was not the cause of his failure to file an unfair dismissal application within the 21 day timeframe. He was already out of time when he attended the NSW Fair Trading office. Consequently, the substantive and operative reasons for the delay are his distress and ignorance of the 21 day timeframe. Neither constitutes an exceptional circumstance.

[17] Therefore this factor weighs against of granting him a further period to make his application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[18] It is uncontested that the Applicant first became aware of the dismissal on 2 March 2018. 11

[19] Therefore this factor weighs against of granting him a further period to make his application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[20] The Applicant took the following action to dispute the dismissal:

a) he attended the NSW Fair Trading Office.

b) on advice from NSW Fair Trading Office he filed an incorrect “General Complaint Form”.

c) he filed the present application.

[21] Noting that all of the above actions were taken after the 21 day timeframe, this factor weighs against of granting him a further period to make his application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[22] Before me the Respondent submitted that, in addition to the usual prejudice associated with delay, exceptional prejudice arose in this matter because:

a) one employee who would be witness for the respondent has left, and

b) he has replaced the Applicant with a contractor.

[23] I am not satisfied that exceptional prejudice arises because:

a) the recent ex-employee could be the subject of an Order to Attend, and

b) the contractor issue seems to go to the question of remedy (if any), rather than prejudice in the defence of the unfair dismissal application.

[24] I have decided that the prejudice asserted by the Respondent weighs is neutral in relation to granting the Applicant a further period to make his application.

Paragraph 394(3)(e) - The merits of the application

[25] In the matter of Kornicki v Telstra-Network Technology Group 12the 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 Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.” 13

[26] The Commission, as presently constituted, adopts this reasoning of the Full Bench in Kornicki in relation to the consideration of the merits of the application.

[27] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not, in this decision, embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[28] The substantive factual contest between the Applicant and the Respondent is whether there was a valid reason for the termination (the Respondent contends it was a genuine redundancy) and the procedural fairness of the same. Having reviewed the material filed to date, it seems to me that all of the elements of section 387 of the FW Act are contested. These are not factual disputes that can be resolved at a jurisdictional hearing.

[29] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[30] If the Applicant can establish to the satisfaction of the Commission that, as he asserts, there was a sinister reason for the termination of his employment (namely that he reported the Respondent to the ATO for failing to make superannuation contributions) then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[31] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[32] The parties agreed that this factor is not relevant. 14

Conclusion

[33] For the reasons set out above, having considered all the circumstances, on balance, the Commission, as presently constituted, is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application). Whether the circumstances advanced by the Applicant are considered individually or in combination, they do not rise to the level of being exceptional.

[34] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr B Dickens for himself.

Mr G Abdulnour for the Respondent.

Hearing details:

25 May 2018

Sydney

Printed by authority of the Commonwealth Government Printer

<PR607529>

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3   Transcript PN29 – 38.

 4 Prior the commencement of the hearing I had denied the Respondent permission to be represented. The application for representation having been advanced solely on the basis of section 596(2)(a) of the FW Act (see Transcript PN16), I was not satisfied that the matter was invested with any complexity such I would be assisted in the efficient conduct of the matter if I allowed the Respondent to be represented (see Transcript PN23 – 25).

 5 [2011] 203 IR 1

 6 Ibid [13].

 7   Transcript PN39.

 8   Transcript PN41.

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [14].

 10   Transcript PN49.

 11   Transcript PN76.

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

 13   Ibid.

 14   Transcript PN135 – 142.