Mr Corey Carter v 1234 Star Pty Ltd

[2016] FWC 1358

[2016] FWC 1358

FAIR WORK COMMISSION

DECISION

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

Mr Corey Carter
v
1234 Star Pty Ltd
(U2016/3843)

COMMISSIONER SAUNDERS NEWCASTLE, 10 MARCH 2016

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

Introduction

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

[2] This decision concerns whether I should exercise my discretion to allow Mr Corey Carter (the applicant) a further period for his unfair dismissal application (the Application) to be made in circumstances where:

(a) his dismissal by 1234 Star Pty Ltd (the respondent) took effect on Sunday, 20 December 2015;

(b) the Application was made on Thursday, 14 January 2016; and

(c) the 21 day period for the Application to be made expired on Monday, 11 January 2016.

The jurisdictional objection

[3] The matter proceeded by way of a jurisdictional hearing because the Application was made three days late.

[4] A determinative conference in relation to the extension of time issue took place on 10 March 2016.

[5] The applicant gave evidence, as did Mr Filip Popovic, Manager Operations, on behalf of the respondent.

Legislative scheme

[6] 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 five 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.”

[7] 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. 3 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4

[9] A dismissal can be communicated orally. 5

[10] Where payment in lieu of notice is made the dismissal usually takes effect immediately. 6

[11] There must be an acceptable reason for the delay in making the unfair dismissal application. 7

[12] The applicant must provide a credible reason for the whole of the period that the application was delayed. 8

[13] The delay required to be considered is the period beyond the prescribed 21 day period for lodging 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 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. 9 The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic:10

“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.”

[14] The Fair Work Commission Rules 2013 11 expressly permit applications to be lodged by ordinary post. An applicant can reasonably expect Australia Post to deliver their mail by ordinary post in accordance with Australia Post’s standard timeframes.12 However, failure to post an application to the Commission in sufficient time for it to arrive within Australia Post’s standard timeframes is not, of itself, an exceptional circumstance.13

[15] The applicant was notified of his dismissal by the respondent by Facebook on 20 December 2015. He completed his Application on 8 January 2016 and posted it (using ordinary mail) on the same day to the Newcastle registry of the Commission. It arrived in the Newcastle registry of the Commission on 14 January 2016.

[16] The applicant agreed that the problems he had with his home computer on and after about 9 January 2016 were not relevant to the fact that he did not make his Application within the 21 day timeframe.

[17] The applicant gave evidence to the effect that his Application was made outside the 21 day time period because:

(a) he posted his Application to the Commission on 8 January 2016 and believed that it would arrive at the Commission within the 21 day timeframe;

(b) at the time he prepared and posted the Application to the Commission it was Christmas time and there were a lot of public holidays; and

(c) at the time of his dismissal, the applicant did not know how the unfair dismissal system worked.

[18] I make the following findings in relation to the reasons for the applicant’s delay in making his Application:

(a) ignorance of the process or timeframe for making an unfair dismissal application is not an exceptional circumstance; 14

(b) the fact that the dismissal took place shortly before Christmas and there were a number of public holidays around that time is not an exceptional circumstance; 15 and

(c) Australia Post’s standard timeframes for delivering mail by ordinary post from the applicant’s home on the Central Coast to the Commission in Newcastle are between two and six business days. 16 Because the applicant posted his application on Friday, 8 January 2016, he was entitled to expect the Application to be delivered to the Commission between Monday, 11 January 2016 and Friday, 15 January 2016. The Application was delivered (on 14 January 2016) to the Commission within that timeframe. However, that was three days too late. Failure to post an application to the Commission in sufficient time for it to arrive within Australia Post’s standard timeframes is not, of itself, an exceptional circumstance.17

[19] For the reasons set out above, this factor weighs against a finding of exceptional circumstances.

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

[20] The applicant first became aware of the dismissal on 20 December 2015 by reading a post from the respondent on Facebook. It follows the applicant was notified of his dismissal on the day it took effect (20 December 2015). He had the full 21 days to make his Application. This weighs against a finding that there are exceptional circumstances.

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

[21] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 18

[22] On 20 December 2015, the applicant sent text messages to Mr Popovic disputing his dismissal and stating that he would be taking his dismissal to court.

[23] The applicant clearly disputed the fairness of his dismissal and put the respondent on notice after the dismissal that he would challenge his termination. This weighs in favour of a finding that there are exceptional circumstances.

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

[24] Prejudice to the employer will weigh against granting an extension of time. 19 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.20

[25] A long delay gives rise “to a general presumption of prejudice”. 21

[26] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice. 22

[27] Noting that the delay in the present case was only three days, I am satisfied that there would be no greater prejudice to the respondent caused by the Application being dealt with now than there would have been had it been made within the 21 day time period. Accordingly, prejudice to the respondent is a neutral consideration.

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

[28] In Kornicki v Telstra-Network Technology Group 23the Commission considered the principles applicable to the extension of time discretion under the former section 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 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.” 24

[29] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 25 for the purpose of determining whether to grant an extension of time to the applicant to make his Application.

[30] I adopt this reasoning in relation to my consideration of the merits of the Application.

[31] The respondent submits that it had a valid reason for the termination of the applicant’s employment on the basis that the applicant was intoxicated whilst driving a work vehicle and he failed to turn up to work on the following day. The applicant denies these allegations and claims that it was unfair for the respondent to dismiss him for failing to turn up for work in circumstances where the applicant says he did not receive a text message or other request to attend work on the day in question.

[32] I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

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

[33] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 26 considered this criterion and said (at [29]) “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”.

[34] There was no submission that there were other persons in a similar position to the applicant. I find this criterion to be neutral.

Conclusion

[35] Having taken into account the matters referred to in paragraphs [8] to [34] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[36] 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.

COMMISSIONER

Appearances:

Mr C Carter on his own behalf;

Mr F Popovic on behalf of the respondent.

Hearing details:

2016.

Newcastle:

March, 10.

 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 [2011] 203 IR 1

 4   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 5   Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 6   Siagian v Sanel Pty Ltd(1994) 122 ALR 333 at 355.

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

 8   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 9   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]

 10   [2016] FWCFB 349 at [31]

 11   Rule 13(2)(b)

 12   Ceres Agricultural Company Pty Ltd v Regan[2016] FWCFB 371 at [12]

 13   Ceres Agricultural Company Pty Ltd v Regan[2016] FWCFB 371 at [15]

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

 15   Smith v KJM Contractors Pty Ltd (2010) 201 IR 356

 16   This information is readily available on Australia Post’s internet site. In addition to these standard timeframes being published on Australia Post’s internet site, that site includes a facility whereby the user of the site may include details of the location from which the mail will be sent and the location at which the mail will be delivered, in which case the site will “calculate” the expected delivery times. In the case of mail sent from the Gwandalan post office near the applicant’s home (postcode 2259) to the Commission in Newcastle (postcode 2300), the estimate given on the Australia Post website for ordinary mail is between 2 and 6 business days. The applicant gave evidence that he is now aware of these timeframes, but was not aware of them at the time he posted his Application to the Commission.

 17   Ceres Agricultural Company Pty Ltd v Regan[2016] FWCFB 371 at [15]

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

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

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

 21   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 22   Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]

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

 24   Ibid.

 25   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

 26   [2015] FWC 8885

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