Mr James Trigg v Savvy Business Solutions and Sales Reps
[2016] FWC 3577
•1 JUNE 2016
| [2016] FWC 3577 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr James Trigg
v
Savvy Business Solutions and Sales Reps
(U2015/15676)
COMMISSIONER HUNT | BRISBANE, 1 JUNE 2016 |
Application for relief from unfair dismissal - whether to extend time for lodging the application – extension of time not granted.
Introduction
[1] On 19 December 2015, Mr James Trigg filed an application (Application) pursuant to subsection 394(1) of the Fair Work Act 2009 (the Act) claiming he was unfairly dismissed by Savvy Business Solutions and Sales Reps (Savvy Business Solutions).
[2] Savvy Business Solutionshave 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 jurisdictional objection was allocated to me for hearing and determination.
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.
The Jurisdictional Hearing
[6] I listed the matter for jurisdictional hearing on 22 April 2016. At the hearing Mr Trigg represented himself. Mr Jonathan Kirkpatrick, Director appeared for Savvy Business Solutions.
[7] Mr Trigg gave evidence on his behalf and cross-examined the witnesses for Savvy Business Solutions. Evidence for Savvy Business Solutions was given by:
- Mr Jonathon Kirkpatrick, Director;
- Mr Brian Salvage, Director; and
- Mr Luke Nelson, Sales Representative.
Facts
[8] The following facts were agreed or not contested:
(a) Savvy Business Solutions employed 14 employees at the time of Mr Trigg’s dismissal;
(b) Mr Trigg had been employed for at least 12 months, and therefore had the requisite period of service to make application for unfair dismissal pursuant to the Small Business Fair Dismissal Code;
(c) On 23 November 2015, Mr Trigg sent to Mr Kirkpatrick a text message containing a number of workplace concerns;
(d) Later that evening, Mr Kirkpatrick emailed Mr Trigg and Mr Nelson informing Mr Trigg he wished to meet with him on Friday, 27 November 2015;
(e) On 26 November 2015, Mr Trigg sent to Mr Kirkpatrick a letter detailing a number of concerns he had with the business. Mr Trigg informed Mr Kirkpatrick that Mr Nelson would also attend;
(f) On 27 November 2015, a meeting was held in a coffee shop and attended by Mr Trigg, Mr Nelson, Mr Kirkpatrick and Mr Salvage;
(g) Mr Triggs’ work issues were discussed and disagreement ensued as to work practices to be followed. At the conclusion of the meeting, Mr Kirkpatrick had informed Mr Trigg that his employment was terminated. Mr Trigg did not perform any duties following being informed that his employment was terminated;
(h) A written letter of termination was received by Mr Trigg on Saturday, 28 November 2015 informing him that he was to be paid two weeks’ wages in lieu of notice;
(i) Mr Trigg has been involved in theatrical performances for a period of time, as both an actor and director (or co-director). Mr Trigg continued his involvement as a co-director and actor in various performances between the relevant period between 27 November 2015 and 19 December 2015;
(j) Mr Trigg filed the Application on 19 December 2015.
Has the Application been filed within the statutory 21 day time limit?
[9] Mr Trigg confirmed at hearing that he had been informed by Mr Kirkpatrick on 27 November 2015 that his employment had been terminated. Mr Trigg’s submission is that he was informed by Mr Kirkpatrick that his termination took effect with two weeks’ notice. It is Mr Trigg’s contention that because he was under the impression on 27 November 2015 that he would be required to work the next two weeks, his termination had not taken effect.
[10] Mr Trigg submits that when he was informed in writing the following day that the termination was effective immediately on 27 November 2015, only at that point has the termination become effective. Mr Trigg’s submission is that the date of termination should be considered to be Saturday, 28 November 2015, when he received the written communication informing him that he no longer needed to attend for work.
[11] If Mr Trigg is correct, the Application will have been filed on the 21st day, and will be within the prescribed time limit.
[12] If Mr Trigg is incorrect, and the termination was effective on 27 November 2015 when he was so verbally informed of the termination at the coffee shop meeting, the Application is one day out of time.
Consideration
[13] The 21 day period for lodgement is calculated on the basis that the first day of the period is the day after the date that the dismissal took effect.2 If the final day of the 21 day period falls on a weekend or a national public holiday (where the Commission is closed) the timeframe will be extended to the next business day.3
[14] A dismissal can be communicated orally.4
[15] I am satisfied that the dismissal took effect on 27 November 2015 at the coffee shop. Mr Kirkpatrick’s evidence is that he said to Mr Trigg, “James as you cannot commit to work to our contract and with this behaviour that we have spoken about before I am terminating your contract now.”
[16] Mr Trigg’s submission is that he understood that following the termination conversation in the coffee shop, he would continue to work through his notice period, which he understood to be two weeks. Mr Kirkpatrick’s submission is that he informed Mr Trigg that he would be paid two weeks in lieu of notice. Mr Trigg has confirmed in cross-examination that Mr Kirkpatrick suggested that if he was unhappy he could contact Fair Work Australia.5
[17] In all of the circumstances, I do not accept that Mr Trigg would reasonably consider that he would continue to work throughout his notice period, and therefore the first time he became aware of the actual termination date was when he received notification in writing on Saturday, 28 November 2015. Notwithstanding Mr Trigg had in his possession a company vehicle used to perform his duties, I find that Mr Trigg became aware of the dismissal on 27 November 2015.
[18] Accordingly, Mr Trigg’s application is out of time by one day. It is necessary for me to determine if there are exceptional circumstances for the delay.
Paragraph 394(3)(a) - The reason for the delay
[19] Mr Trigg submits that in the days following his dismissal, he was in shock and awe.6 He submits that while he attended the theatre (including on the night of 27 November 2015) in his capacity as co-director of the production, “…..it would have been nothing more than attending the theatre to watch the show. The days surrounding that were spent very much being unable to drag myself from my bed to perform normal daily duties and caring for myself much less thinking about trying to plan a submission to the Fair Work Commission.”
[20] Mr Trigg’s evidence is that he attended upon a new Doctor on 3 December 2015, claiming that he was not coping and had been suffering from depression for some time and had been on medication since 2012. It is Mr Trigg’s evidence that the new Doctor prescribed increased medication for Mr Trigg to allow him to cope better with his depression.
[21] Mr Trigg agreed that during the period 3-12 December 2015, he performed in a theatre production in a theatre in Ipswich. It is Mr Trigg’s evidence that he had committed to the show and had rehearsed the show for a considerable period of time. Despite how poorly he was feeling he didn’t want to let the production company, audiences or his fellow actors down.7
[22] Mr Trigg agreed that he had participated in a questions and answers forum from the audience of the show on 3 December 2015. Mr Trigg agreed that he was able to answer questions put by members of the audience to him.
[23] Mr Trigg agreed that during the show’s production between 3-12 December 2015, he had been using social media to promote the show.
[24] After the theatre production concluded on 12 December 2015, it is Mr Trigg’s evidence that only at this point in time did he find the energy, stamina and the mental ability to prepare his application. Mr Trigg is not sure as to the first date he accessed the Fair Work Commission web site.8
[25] I asked Mr Trigg this question and he answered9:
Commissioner: Are you putting to the Commission that you were so unwell that you couldn’t complete the workplace dismissal documentation within that period?
Mr Trigg: Correct.
[26] In cross-examination, it was put to Mr Trigg by Mr Kirkpatrick that he had been photographed at the opening night of the theatrical performance on 3 December 2015 drinking alcohol. Mr Trigg agreed that he had been drinking alcohol at the opening night celebrations, and was not aware of any advice not to drink alcohol while taking medication for depression.10
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[27] I have determined above in paragraph [17] that Mr Trigg became aware of the dismissal on 27 November 2015; at the time it had taken effect.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[28] Mr Trigg’s evidence is that he looked up information relating to unfair dismissal on the Commission’s website and made a phone call to the Commission. Mr Trigg does not recall when he did this.11 In any event, Mr Trigg did not take any further action it seems until 19 December 2015 when he filed the Application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[29] Mr Kirkpatrick submitted that the act of defending the Application has caused considerable stress to the respondent, including time taken away from what is a small business.
Paragraph 394(3)(e) - The merits of the application
[30] 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"12 for the purpose of determining whether to grant an extension of time to an applicant to make their Application.
[31] In the matter of Kornicki v Telstra-Network Technology Group13 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."
[32] 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 Ltd14:
“… 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.”
[33] A considerable amount of time during the jurisdictional hearing was taken traversing merit arguments. I put to Savvy Business Solutions whether it could concede that Mr Trigg’s Application, if it had been made within the statutory time limit, had at least some merit. Mr Kirkpatrick conceded this point, notwithstanding relevant consideration would need to be given to the application of the Small Business Fair Dismissal Code.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[34] Mr Trigg submitted that I should give consideration to his mental illness, and how close in proximity the dismissal was to Christmas. Mr Trigg stated that it was a stressful time.
Conclusion
[35] 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.
[36] While I am sympathetic to Mr Trigg suffering from a mental illness, I do not consider that it prevented him from making earlier contact with the Commission to inquire how to bring about a claim for unfair dismissal.
[37] Mr Trigg properly communicated with representatives of Savvy Business Solutions in relation to the return of the company vehicle. He continued in his vocational pursuits of co-directing a play in the days following the dismissal, and was an actor in a production in Ipswich for a period of between one and two weeks.
[38] Mr Trigg was capable to perform in this production; travelling by public transport; participating in a questions and answers session with the audience; and attending the first night after-party.
[39] Mr Trigg’s circumstances are not out of the ordinary course, unusual, special or uncommon.
[40] As Mr Trigg 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.
[41] I order that the Application be dismissed.
COMMISSIONER
1 [2011] FWAFB 975
2 Acts Interpretation Act 1901 (Cth) s.36(1) (Item 6)
3 Ibid s.36(2); See Hemi v BMD Constructions Pty Ltd [2013] FWC 3593
4 Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
5 PN120
6 PN182
7 PN184
8 PN191
9 PN167
10 PN200
11 PN126
12 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14]
13 Kornicki v Telstra Network Technology Group [Print 3168, 22 July 1997] at page 8
14 Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [15].
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