Mr David (‘Dave') Stephens v Clover Pipelines Pty Ltd
[2022] FWC 3386
•30 DECEMBER 2022
[2022] FWC 3386
The attached document replaces the document previously issued with the above code on 30 December 2022.
Citation 2 has been amended
Associate to Deputy President Lake
Dated 3 January 2023
| [2022] FWC 3386 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David (‘Dave’) Stephens
v
Clover Pipelines Pty Ltd
(U2022/10764)
| DEPUTY PRESIDENT LAKE | BRISBANE, 30 DECEMBER 2022 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe- representative error – application for extension of time granted
Mr Dave Stephens (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Clover Pipelines Pty Ltd (the Respondent) on 17 October 2022. It was conceded the lodgement of the application was 23 days after the date of dismissal, being 2 days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension and a hearing was held before me on 21 December 2022.
Should a further period be granted?
Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it is satisfied that there are exceptional circumstances, taking into account:
(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; and
(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 like position.
The test of “exceptional circumstances” establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:
“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.” [2]
Although Nulty considered the expression “exceptional circumstances” in the context of s.365 of the Act, its reasoning applies to s.394(3).
Applicant’s submissions
The Applicant’s submissions were prepared by Just Relations – Consultants. The Applicant’s representative raise two submissions. One submission is disputing the effective date of termination and one submission is an argument in the alternative request for an extension of time because of representative error.
The Applicant’s representative state that the Applicant was paid in lieu of notice which he had not received until 22 November 2022. The Applicant’s representative submits there is a dispute about the effective date of termination.
The Applicant’s representative argues that the Respondent was not able to terminate the employee through payment in lieu of notice because of the wording of the employment contract. In the alternative, the Applicant’s representative relies on s 117(2)(b) of the Act arguing that it does not allow termination without notice or without pay in lieu of notice except when the dismissal is for serious misconduct.
The alternative argument raised by the Applicant’s representative is that they had lodged the application late because of the Applicant’s reliance on his representative to prepare the application with a reasonable prospect of success. In the Applicant’s witness statement, he states that he had contacted the Applicant’s representative Just Relations – Consultants on 18 October 2022 and received a call back from Mr Nicholas Dircks regarding his unfair dismissal claim.
The Applicant had numerous communications with Mr Dircks regarding lodging his applicant per his witness statement:
(a)On Wednesday, 19 October 2022, he sent Mr Dircks an email with some further information.
(b)On Friday, 21 October 2022 at 8.41am AEST, Mr Dircks called the Applicant, and they discussed Mr Mclellan’s response, lodging an unfair dismissal claim, and his Representative was engaged for this matter to lodge a claim on the Applicant’s behalf and represent him in the unfair dismissal claim. At 9.47am AEST on Friday, 21 October 2022, the Applicant’s representative emailed the Applicant a client file to complete.
(c)On Tuesday, 25 October 2022 at 6.48am AEST, the Applicant emailed Mr Dircks as his representative indicating that he intended to have the completed client file back to him that day and confirmed the basis for representation going forward.
(d)On Friday, 28 October 2022 at 6:46am AEST, the Applicant emailed his Representative the client file and included thorough (9 pages of) detail of what had occurred and three payslips.
(e)On Sunday, 30 October 2022 at 9.59am AEST, the Applicant’s representative emailed the Applicant requesting clarification regarding some of the information he had provided and asked for correspondence and documents relating to the information.
(f)On Tuesday, 1 November 2022 at 9:39am AEST, the Applicant sent his Representative a 37-page document containing information, correspondence and screenshots relating to the information requested.
(g)On, 2 November 2022 at 4:54am, the Applicant sent his representative an updated version of the document, with additional information which increased it to a 38-page document.
(h)On 2 November 2022 at 7:00am AEST, the Applicant’s representative emailed the Applicant, confirming that the information had been received. In this email he asked the Applicant to confirm whether his termination payments had been received at close of business on Friday, 4 November 2022.
(i)On 5 November 2022 at 7:09am AEST, the Applicant emailed his representative confirming that no termination payment had been paid by the Respondent by the previous evening. The Applicant returned from New Zealand to Australia on Saturday, 5 November 2022.
(j)On 6 November 2022 at 3.53pm AEST the Applicant’s representative emailed the Applicant a proposed Form F2 application, asking for him to ‘make sure it is correct to the best of your knowledge and make any changes that are necessary to make sure it represents your evidence on what occurred.’
(k)The Applicant updated the Form F2, signed the application and sent it to his representative on Monday, 7 November 2022 at 10:52am AEDT for lodgement, and he expected it to be lodged at that date.
(l)On 9 November 2022 at 8:07am AEST, the Applicant’s representative contacted me about the application, which he responded to at 10:03am AEST. There was further correspondence at 10.36am AEST, 11:13am AEST, 11:17am AEST and 11.26am AEST prior to his representative lodging the Form F2 Application at 12.55pm AEST on 9 November 2022. The Applicant’s representative did not indicate in any of the correspondence on Wednesday, 9 November 2022 that the application had not been lodged within time.
The Applicant states that his representative has indicated that lodging outside the 21-day timeframe was an error on his behalf, in that he believed that the application was going to be (and had been) lodged in time and it was an oversight that it wasn’t lodged prior to this. The Applicant has indicated that this error was in part because his representative was working on the file and preparing the application whilst caring for his unwell toddler.
The Applicant believes that he did what was necessary for lodging the unfair dismissal claim, including frequently contacting his Representative, providing the signed application prior to the 21-day time limit, and responding to his emails requesting clarification promptly.
Respondent’s submissions
The Respondent’s submissions were prepared by Kalus Kenny Intelex Lawyers. The Respondent’s representative submits that the application should not be granted an extension. The Respondent submits that the Applicant’s date of dismissal is 17 October 2022 and not 22 November 2022, being the date on which the Applicant was paid in lieu of notice.
The Respondent’s representative states the Applicant did not remain in the Respondent’s employ following 17 October 2022 per the Termination Letter stating the following:
“Regrettably, this means that your employment will terminate effective immediately.
Your employment will end today, 17th October, with this letter being your written notice.
You will be paid all accrued but unused entitlements and outstanding remuneration, including superannuation, up to and including the effective date of your termination.”
The Respondent’s representative cites Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 54 IR 185 at [23] stating that payment in lieu of notice will not alter the termination date of employment as ‘in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effective immediately…’.
The Respondent’s representative also cites Ayub v NSW Trains [2016] FWCFB 5500 in that dismissal cannot take effect until an employee knows, or at least has a reasonable opportunity to find out, that they have been dismissed. The Respondent argues that the Applicant was aware of his termination on 17 October 2022 and that it would be immediate per the termination letter.
Furthermore, the Respondent argues that payment of the notice in lieu was paid on 18 November 2022 because of their payroll processing system. They argue that delay in payment did not prejudice the Applicant and that there was an understanding between the Applicant and Respondent that the termination date was 17 October 2022.
Consideration
Reason for the delay (s.394(3)(a))
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, the Full Bench noted:
“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.” [5]
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
I am satisfied that the primary reason for the Applicant’s delay was representative error. It was reasonable for the Applicant to have relied on his representatives to ensuring that the application be lodged to the Commission within the prescribed statutory timeframe. The email correspondence between the Applicant and Mr Dircks demonstrates that the Applicant had heavily relied upon Mr Dircks expertise, followed his advice and acted upon his directions in a quick and timely manner. Mr Dircks had lodged the Application to Melbourne Registry 2 days late.
Based on the findings of Graham Jones v Holcim Australia Pty Ltd,[7] where it was held that the representatives error constituted exceptional circumstances for the granting of an extension, I find this factor weighs in favour for an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The termination letter on 17 October 2022 made it clear that the termination was effective immediately and there was no intention from the Respondent to continue the employment relationship beyond this date. Even with the doubts surrounding the effective date of termination and payment in lieu claimed by the Applicant and his representative, it was clear that Applicant was clearly aware of his dismissal by seeking a representative the next day on 18 October 2022. The Applicant’s representative was aware of the facts of this matter 1 day after the termination took place and should have known that the 21-day limit starts after the day of dismissal. I find this factor weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
I accept that from 18 October 2022, being one day after the dismissal, the Applicant has taken steps to commence proceedings for an unfair dismissal application within the 21-day time frame. This factor weighs in favour of an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[8] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[9] the 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.”
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
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.[10] The matter of Graham Jones v Holcim Australia involved a delay caused by a legal representative sending an application late. [11] It was determined that the failure of a representative to lodge an application in the statutory timeframe, notwithstanding the applicant contacting the representative in a timely manner, is not normally encountered and therefore satisfied exceptional circumstances. This factor weighs in favour of an extension of time.
Conclusion
Having regard to all the matters set out above, I am satisfied that exceptional circumstances exist in this matter.
I order that the application for an extension of time be granted. I will issue further directions in respect of the hearing of the merits.
DEPUTY PRESIDENT
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Graham Jones v Holcim Australia Pty Ltd[2010] FWA 3129, [40] and [41].
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818, [31].
[11] Graham Jones v Holcim Australia Pty Ltd[2010] FWA 3129.
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