Mr Colin John Hartford v Cater Care
[2023] FWC 1744
•18 JULY 2023
| [2023] FWC 1744 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Colin John Hartford
v
Cater Care
(U2023/5855)
| COMMISSIONER PLATT | ADELAIDE, 18 JULY 2023 |
Application for an unfair dismissal remedy
On 28 June 2023 Mr Hartford lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Cater Care which took effect on 30 May 2023.
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
The application by Mr Hartford was lodged 8 days beyond the time permitted.
The application recognised that it was made more than 21 days from the date of dismissal as provided by the following explanation;
“I emaild fair work for legal advice on the 20 June I spoke to a lawyer and told I have ground for unfair dismissel I lodge a form on line on the 20th June but I relized latter I had not completed form propley as I was n ot charged a fee so I call.” (sic)
On 6 July 2023, Cater Care Australia Operations Pty Ltd lodged a form F3 Employer Response which indicated that the dismissal took effect on 30 May 2023 and raised the jurisdictional objection on the basis that the application was lodged out of time.
On 4 July 2023, I issued Directions and advised that the extension of time issue would be considered at a telephone conference on 17 July 2023. Mr Hartford was directed to provide the material he sought to rely upon by 4:00pm (SA) on 11 July 2023. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties.
No information was submitted by Mr Hartford despite follow up emails by my Associate. No material was submitted by the Respondent.
On 17 July 2023 the parties were provided with a report that I commissioned from the Commission’s IT Department, in respect of communications between Mr Hartford and the Commission. The report indicates that the only email received from Mr Hartford’s email address was the Form F2 Application on 28 June 2023. There was no record of any attempt to lodge an online unfair dismissal application.
Hearing
A hearing was conducted by way of telephone conference on 17 July 2023. A recording of the telephone conference was made.
Mr Hartford represented himself. Mr Grantham represented the Respondent. Mr Grantham advised that the correct name of the Respondent was Cater Care Australia Operations Pty Ltd. Mr Hartford did not oppose the amendment of the Respondent’s name. Pursuant to s.586 of the Act I have amended the name of the Respondent with the consent of the Applicant.
Mr Hartford gave evidence at the hearing, his position is summarised as follows:
· He was dismissed on 30 May 2023 and was aware of his dismissal on the same date.
· On 16 June 2023 he completed an online form seeking assistance from the Workplace Advisory Service (WAS).
· On the same day he received and auto-reply from the WAS which advised him of the 21 days time limit for the filing of unfair dismissal claims.
· On 27 June 2023 Mr. Hartford contacted the Adelaide Registry by telephone. Later that day, he was sent an email containing the Form F2 Unfair Dismissal Application to complete and return.
· On 28 June 2023, Mr Hartford sent back the completed Form F2.
Mr Hartford was given an opportunity to provide any further documentary evidence of his communications concerning this matter by 12:00pm (SA) on 18 July 2023. No material was provided.
The Hearing was adjourned until 2.00pm (SA) on 18 July 2023. Prior to the hearing, Mr Hartford indicated in somewhat ambivalent terms he would not continue with the matter.
Mr Hartford did not attend the hearing on 18 July 2023 and thus could not be cross examined by the Respondent.
The Respondent did not present any evidence but submitted that the Applicant’s evidence was inconsistent and I should not be persuaded to extend the time for the filing of his application.
I had the opportunity to observe the manner in which the Applicant gave his evidence. I accept there are inconsistencies in his evidence. I have determined to treat the Applicant’s evidence with caution except where it is corroborated.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(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.”
Consideration
Paragraph 394(3)(a) - reason for the delay
There is no dispute that the dismissal occurred on 30 May 2023 and that the Application was filed on 28 June 2023.
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[5] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[6] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[7]
“[38] 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.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
The Applicant contends he emailed the FWC on 20 June 2023 seeking legal advice. It appears he is confusing his online application for assistance by the Workplace Advisory Service (WAS) as a communication with the FWC. The automatic response from the WAS should have alerted the Applicant to the time limit. There is no evidence to support the Applicant’s contention that he unsuccessfully made an online lodgement prior to the expiration of the time limit. The only definitive evidence is his communication with the Adelaide Registry on 27 June 2023 and the filing of the Form F2 Application the following day.
In my view, the Mr Hartford has not provided a credible reason for the delay in filing the application. This factor weighs against of the granting an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Mr Hartford was aware of the dismissal on the date it occurred.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[8]
It appears that no action was taken to contest the dismissal.
This factor is a consideration against the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[9] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[10]
There is no submission that the granting of an extension of time represents prejudice to the Respondent.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[11] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
An Order[12] reflecting this decision will be issued.
COMMISSIONER
[1] Section 394(2)(a) of the 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) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[6] [2016] FWCFB 349
[7] [2018] FWCFB 3288 at [35]-[45]
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[9] Ibid
[10] Ibid
[11] [2016] FWCFB 6963
[12] PR764401
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