Mr John Cotterill v Abax Contracting Pty Ltd T/A Abax Contracting Pty Ltd
[2018] FWC 2310
•23 APRIL 2018
| [2018] FWC 2310 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Cotterill
v
Abax Contracting Pty Ltd T/A Abax Contracting Pty Ltd
(U2017/13443)
COMMISSIONER JOHNS | SYDNEY, 23 APRIL 2018 |
Application for relief from unfair dismissal - whether to extend time for lodging the application.
Introduction
[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2
[2] This decision is about whether the Commission should allow John Cotterill (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 18 December 2017, that being 28 days after his employment was terminated by Abax Contracting Pty Ltd (Respondent) on 20 November 2018 and, consequently, 7 days after the 21 day time limit provided for in the FW Act.
[3] In his F2 Application the Applicant acknowledged that his application was out of time. He explained the delay as follows, 3
“The Applicant was suffering from [medical condition] prior to the dismissal, due to a [reason provided]. The dismissal blindsided the Applicant, which exacerbated the [medical condition] furthering his [difficulties].
The Applicant took initiative to make the claim prior to the 21 day limit by calling his representatives to lodge the F2 application within the 21 day timeframe. The Applicant inadvertently provided [his representative] with the wrong dates, out by a week, due to his confusion and stress at the time. The wrong date was only noticed after the 21 day limit when more information was provided by the Applicant.
It is clear that the Applicant has taken steps to dispute the dismissal within the 21 calendar day requirement, however, an oversight due to [medical condition] at [event] has called his application to be submitted out of time.”
The Jurisdictional Objection
[4] On 19 March 2018 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect.
[5] On 14 March 2018 the Commission (as constituted by her Honour Deputy President Dean) wrote to the Applicant requesting further information about the exceptional circumstances giving rise to the late filing of the application.
[6] On 26 March 2018 the Applicant’s solicitor wrote to the Commission. In the interests of privacy and having regard to the personal information provided to the Commission about the Applicant I do not repeat here the contents of that correspondence. Save to say, in more detail, it expanded upon the explanation provided in the F2 application.
[7] On 5 April 2018 the matter was allocated to me. The same day I issued directions including a direction that,
“Any party wanting to file any evidence (with a statement), submissions or documents in support of their position addressing each subsection in section 394(3) of the Fair Work Act 2009 (Cth) (attached) must do so by 4pm on Thursday, 19 April 2018.
[8] By 19 April 2018:
a) the Applicant had filed nothing. No explanation was provided for not having done so.
b) the Respondent filed submissions addressing each subsection in section 394(3) of the FW Act.
[9] The matter was listed for hearing today. At the hearing:
a) the Applicant was represented by Mr G Baldwin, special counsel with Stacks Champion, solicitors.
b) the Respondent was represented by Mr P McGirr, principal with McGirr Lawyers.
[10] The Applicant did not attend the hearing. It was explained that he could not do so because of a medical condition. However, no medical evidence was submitted. Nonetheless I was satisfied that, in the circumstances, the Applicant was unable to represent himself and allowed Mr Baldwin permission to represent him pursuant to s.596(2)(b) of the FW Act. Having allowed the Applicant permission to be represented the Respondent was allowed permission to be represented pursuant to s.596(2)(c) of the FW Act: Warrell v FWC. 4
Legislative Scheme
[11] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:
(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] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. 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. 5 In that matter the Full Bench held the following in relation to “exceptional circumstances”:
“[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. 6
Facts leading up to and relating to the dismissal
[13] No party filed any evidence in the matter. However, from the materials filed, it seems that the following events likely occurred:
a) The Applicant commenced employment with the Respondent on 2 February 2017. The Respondent is not a small business.
b) The Applicant worked six days per week. He earned $33 per hour and was employed under the Building and Construction General On-site Award 2010.
c) The Applicant experienced an adverse life event. It affected his well-being.
d) The Applicant did not attend work for a three day period between 10 and 13 November 2017.
e) On 14 November 2017, the Respondent’s Director, Tom Baxter, spoke to the applicant about his non-attendance. Subsequently the Applicant was given a written warning about the absence. The written warning also dealt with issues of being late for work and the non-performance of tasks required of the Applicant.
f) The Applicant did not attend work on Friday, 17 October or Saturday, 18 October 2017. There is a dispute about whether the Respondent was notified in advance of this absence.
g) On 19 and, the morning of, 20 November 2017 there were text messages exchanged between the Applicant and Mr Baxter, about some of the circumstances the Applicant had been experiencing.
h) The employment of the Applicant was terminated by the Respondent on 20 November 2017.
i) In the Employment Separation Certificate the Respondent identified that the “employment [was] terminated due to unsatisfactory work performance.”
j) The F2 application was filed on 28 December 2017 (i.e. 28 days after the termination of employment).
Consideration of s.394 Criteria
Paragraph 394(3)(a) - The reason for the delay
[14] It is a fact that there were 28 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.
[15] The Applicant says the reasons for the delay were:
a) a medical condition; and
b) having incorrectly instructed his solicitors about the date of dismissal.
[16] Either reason, if properly supported by evidence, may have constituted exceptional circumstances.
[17] The onus was on the Applicant to establish the reasons for delay. Notwithstanding the direction to do so issued on 5 April 2018 the Applicant did not “file any evidence (witness statement), submissions or documents in support of [his]” application for an extension of time.
[18] In circumstances where the Applicant alleged that the reasons for delay related to a medical condition and having incorrectly instructed his solicitors (albeit, it was said, within the 21 day timeframe) the Applicant could have filed evidence from:
a) himself about the circumstances which led to his medical condition;
b) his treating medical practitioner about his medical condition in the 21 day period following the termination of his employment; and
c) his solicitor about the instructions he received (including when they were received).
[19] No such evidence was filed. Further, no explanation was provided for the failure to file evidence in compliance with the directions issued on 5 April 2018.
[20] At the hearing today:
a) no medical certificate was provided to explain the non-attendance of the Applicant; and
b) no application was made to adjourn the hearing.
[21] In all the circumstances, where no evidence has been filed, I am not satisfied about the veracity of the reasons for the delay advanced on behalf of the Applicant.
[22] Therefore, this factor weighs against of granting the Applicant a further period to make his application.
Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[23] It is uncontested that the Applicant first became aware of the dismissal on 20 November 2017.
[24] Therefore, this factor weighs against of granting the Applicant a further period to make his application.
Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal
[25] The only action taken by the Applicant to dispute the dismissal that the Commission can be certain of is the filing of the F2 application on 18 December 2017.
[26] The Applicant’s solicitor submitted that he had received instructions to file the F2 application within the 21 day time period but that “the Applicant inadvertently provided [his solicitor] with the wrong dates, out by a week, due to his [medical condition].”
[27] No evidence (for example, a file note of the conversation between the Applicant and his solicitor which included the instructions received by the solicitor and the date upon which those instructions were received) was filed.
[28] Consequently, the only evidence before me is an out of time application for an unfair dismissal remedy.
[29] Therefore, this factor weighs against of granting the Applicant a further period to make his application.
Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[30] The F2 application was only seven days out of time.
[31] In its submission the Respondent claimed it was,
“…prejudiced due to the delay in time, the additional expense including caused by the recent adjournment of which no notice was given. If the extension is given the employer has suffered by the uncertainty caused to the law in granting an extension in such a situation.”
[32] Having regard to all the circumstances in the present matter, other than the usual prejudice associated with delay, I am not satisfied that the Respondent will occur any exceptional prejudice.
[33] The prejudice asserted by the Respondent is a neutral consideration in relation to granting the Applicant a further period to make his application.
Paragraph 394(3)(e) - The merits of the application
[34] In the matter of Kornicki v Telstra-Network Technology Group, 7the Commission considered the principles applicable to the 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
[35] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.
[36] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.
[37] The substantive factual contest between the Applicant and the Respondent is whether the Applicant gave the Respondent advance notice of his absence from work on 17 and 18 November 2017. The Applicant says he did and that the absence was authorised. The Respondent denies the same. This is not a factual dispute that can be resolved at a jurisdictional hearing noting, in particular, that neither the Applicant nor the Respondent filed any evidence.
[38] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance. However, noting that, it seems likely that, the Applicant had been warned about non-attendance and other work-related issues and that he had worked for the Respondent for relatively short period of time, his case may not be the strongest.
[39] Notwithstanding, if the Applicant can establish to the satisfaction of the Commission that he gave notice of his intended absence and that the absence was authorised he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.
[40] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.
Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position
[41] No party made a submission about s.394(3)(f). Therefore, it is neutral factor.
Conclusion
[42] Noting that the Applicant did not file any evidence I’m not satisfied that any of the reasons advanced by on his behalf were out of the ordinary course, or unusual, or special, or uncommon. Without evidence to substantiate the same, the matters advanced appeared to be regularly, or routinely, or normally encountered.
[43] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).
[44] An Order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr Geoff Baldwin, Stacks Champion for the Applicant
Mr Paul McGirr, McGirr Lawyers for the Respondent
Hearing details:
9:30AM by Telephone
23 April 2018
Printed by authority of the Commonwealth Government Printer
<PR602215>
1 Section 394(2)(a) FW 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) FW Act.
3 In the interest of the Applicant's privacy I have replaced some of the information provided in the F2 as per the [square] brackets above
4 [2013] FCA 291
5 [2011] 203 IR 1
6 Ibid [13].
7 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
8 Ibid.
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