Mr Jairo Castro v Campbell Arnott's
[2016] FWC 2700
•23 JUNE 2016
| [2016] FWC 2700 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jairo Castro
v
Campbell Arnott's
(U2016/1403)
COMMISSIONER HUNT | BRISBANE, 23 JUNE 2016 |
Application for relief from unfair dismissal - whether to extend time for lodging the application – extension of time not granted.
[1] On 26 March 2016, Mr Jairo Castro filed an application (Application) pursuant to subsection 394(1) of the Fair Work Act 2009 (the Act) claiming he was unfairly dismissed by Arnott’s Biscuits Limited (Arnott’s Biscuits).
[2] Arnott’s Biscuitshave objected to the Fair Work Commission (the Commission) exercising its jurisdiction to deal with the application because it was lodged more than 21 days after the dismissal took effect. Accordingly the matter was allocated to me for determination of the jurisdictional objection.
Relevant Statutory Provisions
[3] Section 394 states:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
[4] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd1 where the Full Bench said:
“[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).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”
[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.” [Endnotes not reproduced]
[5] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
Background
[6] Between 16 March 2015 and 18 November 2015 Mr Castro was absent from his employment for varying amounts of time with medical certificates from his general practitioner which stated he was incapacitated for work due to a neck and left shoulder injury.
[7] On 27 October 2015 Arnott’s Biscuits sent correspondence to the Applicant advising, amongst other things:
(a) that the company had become aware that Mr Castro may have been engaging in other work whilst on leave, and may not be genuinely incapacitated;
(b) the company had engaged the services of a surveillance business to investigate this issue;
(c) The surveillance business had allegedly obtained evidence to suggest Mr Castro was functioning in a capacity which was inconsistent with his advice to the company that he was totally incapacitated for work. In particular, he was performing manual labour and was not incapacitated as indicated by the medical certificates supplied to Arnott’s Biscuits;
(d) Arnott’s Biscuits was making an allegation that Mr Castro had not acted in good faith, and was providing an opportunity for him to respond to the allegation.
[8] Mr Castro was asked to respond to the allegations either verbally or in writing. Mr Castro was invited to attend a meeting on 5 November 2015, or alternatively provide a written response by this date.
[9] Mr Castro did not attend the meeting on 5 November 2015, nor did he provide a response to the written allegations. On 6 November 2015, Arnott’s Biscuits posted and emailed correspondence to Mr Castro and to his legal representative a letter advising no response had been received. The communication advised that Mr Castro was afforded up until 13 November 2015 to provide a response.
[10] On 11 November, Mr Castro’s legal representative informed Arnott’s Biscuits that Mr Castro would be attending on an employment lawyer; and this lawyer would respond to the show cause notice of 27 October 2015.
[11] On 18 November 2015 Arnott’s Biscuits sent to Mr Castro a termination letter, having not received a response from Mr Castro or from an employment lawyer who might be representing Mr Castro. The termination letter informed Mr Castro that Arnott’s Biscuits had formed the view that he had not acted in good faith towards the company, and that it considered his actions as gross misconduct justifying dismissal.
[12] Mr Castro disputes the allegations made by Arnott’s Biscuits in relation to his actions during the period covered by his medical certificates. Mr Castro asserts that his incapacity to work is supported by medical evidence, being the certificates supplied by his General Practitioner.
[13] Mr Castro alleges that the basis of his termination is closely linked with the workers’ compensation claim he made in relation to his incapacity.
Facts
[14] The following facts were not contested:
(a) Mr Castro made an application for workers’ compensation with Arnott’s (a Queensland self-insurer) on 18 February 2015;
(b) The application for workers’ compensation was rejected by Arnott’s on 13 August 2015;
(c) Mr Castro sought a review of the decision with the Workers’ Compensation Regulator on 11 November 2015;
(d) On 18 November 2015, prior to receiving the decision from the Workers’ Compensation Regulator with respect to the review, a written letter of termination was received by Mr Castro;
(e) On 11 February 2016, the Workers’ Compensation Regulator set aside the decision of the Arnott’s self-insurer and replaced it with a decision to accept Mr Castro’s workers’ compensation application;
(f) On 24 February 2016, Mr Castro’s legal representative wrote to Arnott’s Biscuits requesting Mr Castro’s be reinstated to his employment on the basis that his workers’ compensation application had now been accepted;
(g) On 7 March 2016, Arnott’s Biscuits replied to Mr Castro’s legal representative declining the request to reinstate Mr Castro to his earlier employment;
(h) Subsequent to the decision of the Workers’ Compensation Regulator to accept Mr Castro’s claim, the self-insurer has now ceased Mr Castro’s claim. Mr Castro is seeking a review of the decision of the self-insurer to cease his claim;
(i) Mr Castro filed the Unfair Dismissal Application on 26 March 2016; and
(j) The Application was not filed within the statutory 21 day time limit.
[15] Accordingly, Mr Castro’s application is out of time by 129 days. It is necessary for me to determine if there are exceptional circumstances for the delay.
Submissions
[16] Mr Castro filed submissions in support of out of time lodgement on 14 April 2016.
[17] On 28 April 2016 I advised the parties that I intended to deal with the matter on the papers, and invited the parties to request a hearing in the matter by 10 May 2016. No requests for a hearing were received by the Commission.
[18] Arnott’s Biscuits filed submissions in reply to the Applicant’s submissions on 5 May 2016.
[19] On 16 May 2016 Mr Castro’s representative sought leave for and was granted permission to file submissions in reply to Arnott’s Biscuits submissions.
[20] On 17 May 2016 I again invited both parties to request a hearing in the matter and advised that if no response was given by 19 May 2016 the matter would be determined on the papers. Again, the parties did not request a hearing in the matter, and accordingly I have determined the application on the papers.
Consideration
Paragraph 394(3)(a) - The reason for the delay
[21] Mr Castro states in his submissions in support of an extension of time application:
“18. When I was terminated, I did not consider that there was any benefit in making an application for unfair dismissal until after the decision of my workers compensation review was made as they were very closely linked and somewhat reliant upon each other.
….
21. I thought that any unfair dismissal application would need the decision of the workers compensation Regulator first to provide some context and perspective.
22. More than that, I thought that if my workers compensation claim was successful I would be reinstated.
23. Once this decision was received and it was seen that I did sustain an injury I enquired with the employer regarding the status of my employment.
24. I genuinely considered that now that my application was successful and it was seen that I did have a workplace injury I would be reinstated.
25. I enquired about my employment status but they still decided that I deceived the company. Within 21 days after receiving this response I filed this Unfair Dismissal Application.”
[22] Mr Castro submits that it was “…only when the employer decided to maintain their decision to terminate my employment, despite my accepted workplace injury claim did I need to make this application.”
[23] Mr Castro’s evidence is that he believed that once his workers’ compensation claim was accepted he would be reinstated.
[24] In Mr Castro’s submissions in reply, his evidence is that at the time of his dismissal he was not working and was in the process of reviewing the decision of Arnott’s Biscuits self-insurer to reject his application for workers’ compensation.
[25] It is submitted by Mr Castro’s representative that “…an Application for Unfair Dismissal would have been a pointless exercise at that time as he was not working and until his Application for Workers Compensation was accepted, he would have been making an Application for Unfair Dismissal with no reasonable remedy, or backdated pay to be provided to him.”
[26] In Mr Castro’s submissions in reply, his representative further states “…It was only when an Application for Workers Compensation was accepted by the Workers Compensation Regulator that an Application for Unfair Dismissal would have provided any kind of outcome… Again, it is noted that this Application was made within 21 days of this accepted Workers Compensation claim and only after enquiries were made with the Employer regarding whether the Applicant will be reinstated by default of this decision.”
[27] Mr Castro does not cite representative error as to the reason for not bringing his application in time, that is, within 21 days of receipt of the letter dated 18 November 2015. In fact, Mr Castro’s evidence in paragraph [21] is a strong, affirmative statement that he considered that he should await the outcome of the other proceedings. Accordingly, I cannot find that representative error caused Mr Castro to bring his application out of time.
[28] Having considered Mr Castro’s submissions, I consider an acceptable reason has not been given for the delay. Accordingly, this criterion does not resolve in Mr Castro’s favour in my consideration of whether an extension of time for filing should be granted.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[29] It is not contested that Mr Castro became aware of the dismissal on 18 November 2015; at the time it had taken effect. This is therefore not a circumstance where Mr Castro only became aware of his termination at some point after the time that it did. Accordingly, this is a neutral factor in my consideration.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[30] Mr Castro submits that he acted diligently with the employer in making enquiries in respect of his employment after the decision to accept his workers’ compensation claim was made.
[31] Mr Castro states in his Form F2 – Unfair Dismissal Application, that once he received the decision by the Workers’ Compensation Regulator on 11 February 2016 to set aside the decision of the Arnott’s Biscuits self-insurer and replace it with a decision to accept his application for workers’ compensation, his representative made written inquiries with Arnott’s Biscuits on 24 February 2016, requesting Mr Castro be reinstated.
[32] It is Mr Castro’s evidence that he received a response on 7 March 2016 from the employer advising that despite the workers’ compensation claim now being one for acceptance, they maintained the decision to terminate his employment.
[33] In Mr Castro’s submissions he states that within 21 days after receiving this response regarding his employment status he filed the unfair dismissal application.
[34] It is the submission of Arnott’s Biscuits that neither Mr Castro nor his representative undertook any relevant action to dispute the dismissal within the required timeframe which can be identified as the reason for the delay of the application.
[35] The termination letter dated 18 November 2015 invited Mr Castro to contact the author of the letter if he had any questions regarding the letter or the process undertaken in reaching the decision that was reached. No action was taken by Mr Castro.
[36] In consideration of Mr Castro’s position; that he should await the outcome of his workers’ compensation claim review, I consider that Mr Castro did not take appropriate action to dispute the dismissal. Mr Castro did not correspond with Arnott’s Biscuits at all until February 2016. Had Mr Castro informed Arnott’s Biscuits that he had made a decision to await the outcome of the workers’ compensation claim review to dispute the dismissal, he might be in a stronger position with respect to this criterion.
[37] Accordingly, this criterion does not resolve in Mr Castro’s favour in my consideration of whether an extension of time for filing should be granted.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[38] In relation to any prejudice to Arnott’s Biscuits, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.
Paragraph 394(3)(e) - The merits of the application
[39] 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"2 for the purpose of determining whether to grant an extension of time to an applicant to make their Application.
[40] In the matter of Kornicki v Telstra-Network Technology Group3 the Commission considered the principles applicable to the extension of time discretion under subsection 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench 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."
[41] To require an applicant to establish more than that the substantive application was not without merit would, as noted by the Full Bench in Kyvelos v Champion Socks Pty Ltd4:
“… serve as an encouragement to other applicants for late acceptance pursuant to subsection 170CE(8) to put the whole of their evidentiary case and seek to cross examine the respondent’s witnesses to reduce the possibility of an adverse finding on the merits. This would lead to unjustifiable delay and expense.”
[42] On the evidence as to the circumstances of the termination I am unable to conclude that Mr Castro’s Application is totally without merit, and it is therefore a neutral consideration.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[43] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 5
[44] In applying Mr Castro’s factual circumstances to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that to delay the lodgement of an unfair dismissal application until the determination of a workers’ compensation claim could constitute an exceptional circumstance.
[45] I do not consider Mr Castro’s decision to learn the result of his workers’ compensation claim review before making an application to the Commission as satisfactory. Accordingly, this criterion does not resolve in Mr Castro’s favour in my consideration of whether an extension of time for filing should be granted.
Conclusion
[46] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied there are exceptional circumstances which would warrant granting an exception to the statutory time limit.
[47] There is nothing exceptional in the circumstances that applied to Mr Castro. It is not unusual for a person whose employment is terminated to pursue or continue with a workers’ compensation claim where an alleged workplace injury or illness has occurred. Furthermore, the fact that Mr Castro had an ongoing workers’ compensation claim did not prevent or inhibit his ability to make an application for unfair dismissal.
[48] Mr Castro was dismissed from his employment on 18 November 2015. The action he took which he submits constitutes an attempt to dispute the dismissal was to enquire as to whether the employer had changed its position on his termination once the workers’ compensation claim was accepted. I find that he took no meaningful action to dispute the dismissal until he lodged this application on 26 March 2016.
[49] Mr Castro’s circumstances are not out of the ordinary course, unusual, special or uncommon.
[50] As Mr Castro has not demonstrated that there are exceptional circumstances sufficient for me to exercise my discretion to extend time, I refuse the application for an extension of time. The application has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed.
[51] I order that the Application be dismissed.
COMMISSIONER
1 [2011] FWAFB 975.
2 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].
3 Kornicki v Telstra Network Technology Group [Print 3168, 22 July 1997] at page 8.
4 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [15].
5 Wilson v Woolworths [2010] FWA 2480, at [24]‒[29].
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