Mr Jay Leung v ALH Group Ltd T/A Kawana Waters Hotel

[2013] FWC 7081

[2013] FWC 7081

FAIR WORK COMMISSION

DECISION

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

Mr Jay Leung
v
ALH Group Ltd T/A Kawana Waters Hotel
(U2013/10078)

COMMISSIONER SPENCER BRISBANE, 19 SEPTEMBER 2013

Application for relief from unfair dismissal - jurisdictional objection - extension of time.

Introduction

[1] This determination relates to an application made by Mr Jay Leung (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from the ALH Group Ltd T/A Kawana Waters Hotel (the Respondent/the Employer) was harsh, unjust and or unreasonable. The Respondent in this matter has raised a jurisdictional objection (the jurisdictional objection) to the application alleging that the application has not been filed within time. The Applicant now applies for an extension of time. This decision relates to the extension of time only.

[2] The Respondent requested that the jurisdictional objection be determined prior to conciliation of the substantive matter.

[3] The Fair Work Commission (the Commission) issued Directions for the filing of submissions and evidence in relation to the jurisdictional objection. The Applicant did not comply with Directions initially. Correspondence was sent from the Commission to the parties asking the Applicant to explain his non-compliance and reminding the Applicant of those matters stated in s.399A of the Act to his attention. This will be dealt with further in the consideration below.

[4] It is noted that while all of the evidence and submissions in this matter are not referred to all of such have been considered.

[5] The Directions to parties advised that the Commission would consider the further conduct of the matter after the filing of materials by the parties. The parties were further directed that they were each at liberty to request a hearing in the matter and that if no request for such was received the Commission would consider that neither party objected to the matter being determined on the papers. No request for a hearing was received.

Background

[6] It is necessary to briefly consider the factual timeline involved in this application prior to considering the substance of the jurisdictional objection.

[7] The Commission’s file reveals on 31 May 2013 a staff member of the Australian Industrial Registry (the Registry) took a telephone application from the Applicant. Rule 14 of the Fair Work Australia Rules 2010 provides for applications, pursuant to s.394 of the Act, to be made by telephone. That application was provided to the Registry in Brisbane for further processing into the Commission’s case management system. The application was entered and Commission matter number assigned to the application. The Applicant requested an application for waiver of the filing fee at this time.

[8] So that the Applicant could comply with Rule 14(b), which requires an Applicant who has applied by telephone to sign and return to the Commission a copy of the application, a copy of the telephone application was sent to the Applicant by email. This email was sent on 3 June 2013. The email was sent to the email address provided with the telephone application and it is noted that this is the email address that Chambers has used to correspondence with the Applicant and has received correspondence from the Applicant from that address.

[9] On 18 June 2013 a staff member of the Registry contacted the Applicant to query the status of his application as no completed application had been received in accordance with Rule 14(b). The file note of the Registry office records that the Applicant advised he did not receive any forms and now does not have access to the internet. A blank application form and application for waiver was sent to the Applicant by post.

[10] On 26 June 2013 the Registry received a handwritten application from the Applicant. Subsequently on this day the Applicant was contacted in relation to his application for waiver of the filing fee. The Registry has recorded in the case management system of the Commission that at this time the Applicant advised he had originally tried to make an application with the Commission on 8 May 2013. The Applicant advised that the phone call of 31 May 2013 was his attempt to check on the status of the application and that he was advised at this time that there was no record of it. The Applicant was advised to put this in writing to the Commission. He did not do so.

Relevant Provisions of the Legislation

[11] The substantive application has been made pursuant to s.394 of the Act. Section 394 provides as follows:

“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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[12] The relevant consideration in relation to the jurisdictional objection is s.394(3).

[13] The Respondent has also made an application, pursuant to s.399A of the Act, for the matter to be dismissed for an unreasonable failure to comply with a Direction of the Commission in a matter.

[14] Section 399A of the Act provides:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

Summary of the Applicant’s Submissions and Evidence

[15] Directions were issued to the parties on 30 July 2013 in relation to the extension of time only. Those Directions recited s.394 of the Act and directed the Applicant to file “[S]ubmissions and witness statements/affidavits in relation to the extension of time jurisdictional issue, specifically addressing the matters listed in s.394(3) of the Act.”.

[16] The Applicant was required to file his material in accordance with this Direction by close of business on 13 August 2013.

[17] On 31 July 2013 the Applicant contacted Chambers directly and confirmed that he had received the email Directions issued by the Commission. Chambers further referred the Applicant to the Directions which stipulated what the Applicant was required to do in his application for an extension of time. The Applicant was also at this time advised that he must file evidence in relation to any of his assertions.

[18] On 12 August 2013 the Respondent’s representative, Mr Andrew See of Counsel, corresponded with the Commission, and copied the Applicant to the correspondence, querying whether the Applicant had filed any material. On 13 August 2013 Chambers confirmed that the Commission had not received any further material or correspondence from the Applicant and confirmed that the Applicant had until 4pm on that day to file, and serve, his material. This correspondence was also copied to the Applicant.

[19] On 20 August 2013 the Commission sent correspondence to both parties referring the Applicant to the Directions of 30 July 2013 and to the fact that the Applicant was directed to file material by no later than 4pm on 13 August 2013. The correspondence confirmed that the Applicant contacted Chambers on 31 July 2013 in which the Applicant confirmed receipt of the Directions and that he was referred to Direction and the requirement for compliance with those Directions.

[20] The correspondence of 20 August also reminded the parties that the Directions referred both parties to s.399A of the Act.

[21] The Applicant was provided with an opportunity to explain his non-compliance.

[22] On 23 August 2013 the Applicant responded as follows:

“Hi sorry for the delay in my response. I have not had money or Internet to reply to this request how ever I have phoned up and spoke to fwc about my situation.  The reason my claim was out of the time frame is because the 1st day I phoned up the day after my dismissal a lady at fair work had not processed my claim I phoned up 2 weeks later to check on the progression and another lady told me that. I proceeded to file the claim again and requested the forms be mailed to my address as i had no internet avalibility. 1 week later I phoned up again and I was informed that only files I had been giving were emailed to me? The lady then sent the paper work to my address and informed me to email fairwork stating the reasons why my claim was handed in late in case of this situation.  I havnt worked much nor have I had much money to get Around to find work.”

[23] No further submissions or attachments were included in the email from the Applicant of 23 August 2013. This correspondence was provided to the Respondent’s representative by Chambers

[24] On 2 September 2013 the Respondent’s representative informally applied to have the matter struck out. The Commission requested the Respondent’s representative to particularise their application.

[25] Also on 2 September 2013 the Applicant corresponded as follows:

“Hi Unfortunatly I wont be with drawing my complaint as I have had legal advice from a family friend concerning this matter and it turns out as myself and everyone knew i have been unfairly dismissed and wrongly done by a huge corporation. I gave the Area manger Tony fitzgerald a chance to reverse the decision made by the Venue manager Louise who was bearly in her first week at the hotel. Louise's unfair decision and bully tactics in the office were uncalled for as well as Un professional.”

[26] No further submissions or correspondence was received from the Applicant.

Summary of the Respondent’s Submissions and Evidence

[27] The Respondent filed a brief submission of 17 September 2013 in relation to both the jurisdictional issue and the application for the matter to be struck out.

[28] The Respondent submitted that the Applicant was some 28 days out of time. The Respondent generally submitted that there was nothing in the Applicant’s correspondence which identified any exceptional circumstances such as to enliven the discretion of the Commission to extend time pursuant to s.394(3) of the Act.

[29] The Respondent submitted that it was difficult to ascertain what the Applicant alleged was the reason for delay. The Respondent submitted that, if the reason for delay was the Applicant’s reliance upon a lack of access to the internet, members of the public are able to access the internet at public libraries. This, in the Respondent’s submission, went to the genuineness of “intent” of the Applicant and the effort of the Applicant to actively pursue his claim.

[30] The Respondent submitted that the Applicant was aware of the termination at the time it occurred and that no delay can be aligned to a delay in notification regarding the dismissal.

[31] The Respondent submitted that the Applicant has not sought to otherwise challenge or dispute the dismissal.

[32] The Respondent submitted that the Respondent would be prejudiced by the delay and any subsequent extension of time for lack of certainty about the employment decisions of the Respondent.

[33] The Respondent submitted that the Applicant’s case is not a case with merit. The Respondent submitted that the Applicant was dismissed for breach of company policy including drinking alcohol while on duty and the theft of frozen cocktail drinks.

[34] The Respondent submitted that there was no justification for the delay, provided by the Applicant. In regards to the period occasioned by the delay in the application, being sent by the Commission to the Applicant, the Respondent submitted that there was no evidence of any follow-up on the part of the Applicant to his claim.

[35] In regards to the application for dismissal of the application, the Respondent submitted that the Applicant bears the onus of proof in proving exceptional circumstances in terms of s.394(3) of the Act. The Respondent submitted that the Applicant’s submissions, which amounted to 8 lines in an email, were not sufficient and he has not discharged the onus of proof.

Consideration

[36] It is agreed between the parties that the Applicant’s employment was terminated on 7 May 2013. The first record that the Commission have of the application being filed or any attempt of filing was on 31 May 2013.

[37] Pursuant to s.394(2)(a) the application must have been made by 28 May 2013. The earliest record of the application indicates that it was filed some 3 days out of time. It is noted however that the Applicant did not return a completed application to the Commission until 26 June 2013, almost a month after this original filing.

[38] The Act requires the Commission to be satisfied that there are exceptional circumstances in order to extend the period of time for a person to make an unfair dismissal application. 1 In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services2 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery)3 as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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.” 4

[39] In addition the Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers characterised exceptional circumstances as:

“[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.” 5

[40] In considering an application for an extension of time the Commission must be satisfied that there are “exceptional circumstances” taking into account those matters

s.394(3)(a) - reason for the delay

[41] The Applicant has not clearly articulated the reasons upon which he relies for the delay. Reading the Applicant’s correspondence generously there are two reasons which may arise.

[42] The first of the reasons is the Applicant’s intermittent, or lack of, access to the internet. The Respondent’s submission in this regard is preferable. If a person was diligently pursuing an application in the Commission there are steps that can easily be taken to access the internet. There are a range of options for accessing the internet, including public libraries or internet cafes etc. None of these steps is particularly onerous on a person genuinely trying to pursue their claim.

[43] The second reason which appears to arise in the Applicant’s submission is his reliance upon a phone call to the Commission on 8 May 2013. There is no record of this application being received nor has the Applicant provided any correspondence or evidence of this.

[44] In any event, a person who was advised that an application would be sent to them for their signature and completion would be diligent and follow-up with the Commission prior to the time period expiring. It is not reasonable that the Applicant sat on his hands and did not follow-up with the Commission prior to the time period expiring.

[45] The Commission is not satisfied that the Applicant did in fact contact the Commission and attempt to lodge an application on 8 May 2013. Even if there was evidence of such the Applicant took no steps to follow this up until 31 May 2013.

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

[46] It is not in dispute that the Applicant was aware of the dismissal on the day it took effect.

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

[47] The Applicant has provided no evidence or submissions concerning any attempt to dispute the dismissal other than the present application.

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

[48] Prejudice which has deprived the employer of access to evidence necessary to defend the case, such as the evidence of a key witness. 6

[49] The prejudice relied upon by the Respondent, being certainty in their legal and employment affairs, is taken into account.

s.394(3)(e) - the merits of the application

[50] In the matter of Kornicki v Telstra-Network Technology Group 7the Commission considered the principles applicable to the (merits of the application in an) extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. 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.” 8

[51] I adopt this reasoning of the Full Bench of the former Commission.

[52] On the very limited information on the originating application the Applicant identifies the reason for dismissal as “sampling a frozen cocktail drink”. As to why it was unfair the Applicant responded “Im (sic) on a Salary (sic) and had never had any Warnings (sic)”.

[53] It is noted that the Applicant has not disputed that he did in fact do what was alleged in the reasons for dismissal or that his action did not warrant dismissal, for instance by alleging that he was authorised to take such action.

[54] The merits of this application in relation to the further reasoning of the Respondent, in this regard do not appear to be strong.

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

[55] No person in a similar position has been identified as a reference for this consideration. The current balance of authority in relation to the consideration of an extension of time is that the Commission will strictly apply the timeframe and analyse the conduct and reasons of the Applicant as to whether they demonstrate ‘exceptional circumstances’. The Applicant has not diligently pursued his claim, which would have avoided this situation in it’s entirety, and has not adequately discharged the onus that he bears in proving his case for an extension.

Conclusion

[56] Where the Applicant applies for an extension of time in a matter, the onus is on the Applicant to satisfy the Tribunal of their case.

[57] The Applicant has not demonstrated that there are exceptional circumstances sufficient for me to exercise my discretion to extend time. He has failed to file adequate submissions and evidence to support his claims. In any event the claims of the Applicant are not strong and would not likely lead to the grant of an extension of time in any event. The Applicant has not diligently pursued his application, either at the time of filing, or subsequently in response to the Directions of the Commission.

[58] Therefore, for the aforementioned reasons I refuse the application for an extension of time. The Applicant has been filed outside of the time required by s.394(2)(a) of the Act, and ‘exceptional circumstances’ have not been demonstrated by the Applicant. The application must therefore be dismissed.

[59] I Order accordingly.

[60] It is noted for completeness that the Commission would in the alternative have been minded to dismiss the application pursuant to s.399A(b) of the Act. The Applicant has not complied with Directions until prompted to do so by the correspondence of the Commission. This is in circumstances where the Applicant confirmed receipt of the Directions with Chambers and was specifically referred to the Directions and compliance with the Directions by Chambers. The minimalist email sent by the Applicant in response to the Commission’s correspondence could clearly have been filed within the timeframe provided by the Commission. Again, even if the Applicant’s argument regarding access to the internet is accepted, which it is not, the Applicant at least had the telephone number of Chambers and it was open to him to, and a reasonable person would have considered it necessary to, contact Chambers again, advise of the situation and request an extension of time. The Applicant did not do this.

[61] The parties were also put on notice of the possible consequences of non-compliance with Directions and were referred to the full text of s.399A of the Act by the Directions. The Applicant’s non-compliance with this in mind, in the overall context, was unreasonable.

[62] The Applicant did not correspond with Chambers at any point to advise of a difficulty or confusion with the Directions and did not apply for an extension of time.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) s.394(3).

 2  Wheelan C, [2009] FWA 1638, [30] and [31].

 3   Lawler VP, [2010] FWA 1394.

 4   In this regard Wheelan C referred to Maan v Minister for Immigration and Citizenship [2009] FCAFC 150.

 5   Acton SDP, Cartwright SDP and Thatcher C, [2010] FWAFB 7251, at [5].

 6   Construction, Forestry, Mining and Energy Union v John Holland Group Pty Ltd and Others [2012] FWA 7711; Ms Jessie Mitchell v HWE Mining Pty Ltd [2012] FWA 2721.

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

 8   Ibid.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR541915>