Mr John Payne v NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors ("STARTTS")
[2024] FWC 2075
•8 AUGUST 2024
| [2024] FWC 2075 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Payne
v
NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors ("STARTTS")
(U2024/6673)
| DEPUTY PRESIDENT CROSS | SYDNEY, 8 AUGUST 2024 |
Application for an unfair dismissal remedy
On 9 June 2024, Mr John Payne (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant claimed he was employed, by NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS or the Respondent). The Applicant commenced his employment with the Respondent on 22 July 2009.
The Respondent claims the Applicant’s employment relationship ended by way of the expiration of an extended one month fixed-term employment contract (the Extended Contract) on 31 July 2023. The Applicant asserts that he was not dismissed until 29 September 2023. The discrepancy between those two dates arose because after 31 July 2023 there were negotiations regarding the resolution of the Applicant’s employment. The competing positions of the parties were crystalised in an email from the Respondent to the Applicant on 29 September 2023, wherein the Applicant was advised:
Dear John,
The period that has been allotted to conclude this matter was until 31 July 2023.
STARTTS provided you with a contract extension until 31 July 2023 that was accepted. STARTTS did not provide you with an extension of your employment contract beyond that date.
…
I do not consider that the non-extension of any contract beyond 31 July 2023, would have clearly indicated to the Applicant that his employment was terminated, particularly where negotiations about that employment continued until 29 September 2023. It was not until 29 September 2023 that the Applicant was advised that his employment would not be extended, indicating to him that he had been dismissed.
Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. Taking as the point of calculation from the date when the dismissal took effect, being 29 September 2023, an application for a remedy should have been lodged by 20 October 2023. The Application was therefore lodged outside of the time prescribed and was lodged 233 days after the last day on which such an application could have been made.
On 4 July 2024, the matter was allocated to my Chambers and on that same day Directions were issued to determine the programming of the matter. The Directions were:
[1] By no later than 4:00PM on 11 July 2024, the Applicant is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
· The reason(s) for the delay;
· Whether the Applicant first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position.
[2] By no later than 4:00PM on 18 July 2024, the Respondent is directed to prepare a signed witness statement in response to the Applicants to the Jurisdictional Issue, which includes everything they seek to rely on in opposition to the Applicants Application.
[3] By no later than 4:00PM on 25 July 2024, the Applicant is directed to prepare a signed witness statement in reply to the Respondents material. Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.
All Directions were complied with. The Applicant filed a Statement with multiple attachments as well as a statement in reply. The Respondent filed an outline of submissions and a statement from Mr Murdoch.
The Hearing of the Out of Time issue took place on 6 August 2024 over Microsoft Teams.
Relevant Background
In or around November / December 2022, the Applicant lodged a Complaint at the Australian Human Rights Commission (the AHRC Application) related to alleged workplace discrimination on the basis that the Applicant had chosen not to be vaccinated. The Respondent did not receive a copy of the AHRC Application, and at no stage did a member from the Australian Human Rights Commission contact the Respondent regarding the AHRC Application
In or around March 2023, the Applicant verbally informed the Respondent that the AHRC Application was dismissed without the involvement of the Respondent because of jurisdictional issues.
On 30 January 2023, the Applicant lodged a General Protections Application Not Involving Dismissal (the General Protections Application).[1] The General Protections Application alleged that the Respondent took adverse action against the Applicant on the basis that he was not vaccinated for Covid-19.
On 8 February 2023, the Respondent attended a conciliation at the Commission with the Applicant via telephone before the Commissioner McKenna, where the matter was unresolved.
On 18 October 2023, the Applicant lodged an Unfair Dismissal Application with the Industrial Relations Commission of NSW (the IRC Application) claiming that the Respondent allegedly failed to renew the Applicant’s fixed-term employment contract because he refused to be vaccinated for Covid-19.
On 20 October 2023, the Respondent sent the Applicant an email that outlined that his employment was subject to the Named Declared NSW (Non-Declared) Affiliated Health Organisations’ Professional and Associated Staff Agreement 2022 (the Federal Agreement). That email was as follows:
Dear John,
I will keep a look out for any correspondence to STARTTS from the NSW Industrial Relations Commission.
Your employment at STARTTS was subject to ‘the Named NSW (non-Declared) Affiliated Health Organisations’ Professional and Associated Staff Agreement 2022’ registered with the Fair Work Commission.
This is the reason that when you raised matters in a General Protections application, STARTTS and yourself participated in a General Protections Conference with Commissioner McKenna of the Fair Work Commission on February 2023.
The IRC Application was listed before Chief Commissioner Constant on 1 November 2023 for Conciliation and Directions. On this date, the legal representative for STARTTS submitted that the Commission did not have jurisdiction to deal with the IRC Application as STARTTS was a “national system employer”. Chief Commissioner Constant issued directions for STARTTS to file and serve a notice of motion setting out its jurisdictional objection by 10 November 2023 and re-listed the matter for Directions on 15 November 2023.[2]
On 10 November 2023, STARRTS filed a notice of motion seeking the Industrial Relations Commission of NSW dismiss the matter “for want of jurisdiction on the ground that the Application has been wrongly commenced against a national system employer and/or is otherwise vexatious and/or without reasonable cause”.[3]
On 22 February 2024, the IRC Application was subject of a one day hearing before Chief Commissioner Constant of the IRC.
On 21 May 2024, Chief Commissioner Constant published her Judgement Decision (the IRC Decision). While the Chief Commissioner was, on the basis of the evidence before the Commission, prepared to accept that STARTTS took an equivocal position at the Conciliation before Commissioner McKenna regarding whether the Applicant was a national system employee, the Chief Commissioner found:[4]
I have decided that, in addition to considering the existence of the 2022 Professional Agreement [the Federal Agreement] and other relevant enterprise agreements as strongly indicative that this Commission does not have jurisdiction, I will set out my reasoning as to whether Mr Payne is a national system employee as defined in s 13 of the FW Act.
[Emphasis added]
The Chief Commissioner found that the Applicant was employed as a National System Employee and ordered the IRC Application be dismissed.
On 9 June 2024, the Applicant lodged his current Application, being made 233 days out of time.
Consideration
Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:
“(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).”
As the Application was lodged outside of the 21-day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:
“(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.”
It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.
(a)Reason for the Delay
When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 stated at [30]:
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
[Emphasis added]
A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:
“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 relevant matters and the assignment of appropriate weight to each.”
Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.
In Robertson v Zeugma Electrical and Communications Services Pty Ltd,[5] the Commission found:
“The provisions of s.394(4) of the FW Act make it mandatory to lodge matters of this type within 14 days. That obligation is not absolute and may be altered if exceptional circumstances exist. The FW Act does not provide for an application to be allowed if there has been inadvertence or accident by the Applicant. If it had been intended that inadvertence or accident to allow applications to be made beyond the 14 days provided then the legislation would have reflected that intention. Those issues, i.e. accident and inadvertence, are matters that may influence whether exceptional circumstances exist but without more than is provided here it is unlikely it would constitute anything exceptional.”
In the Applicants submission, in summarising his reasons for the significant delay in filing the Application, he submitted the following:
1. The matter initially went to the NSW Industrial Relations Commission (IRC) in October 2023 and was not finalised until May 2024. I believed this was the correct jurisdiction for several reasons, as outlined below.
2. At a Feb 8th 2023 case conference in the Fair Work Commission for a General Protections Application (not involving dismissal), my understanding from Commissioner McKenna was that the FWC could not make a decision on the matter and that I should bring any further claim to the IRC.
…
11. From the perspective of a layperson, it is difficult to discern a significant difference between the Respondents “duty to conform and enforce (the Order/Directive) in accordance with the advice from the Secretary of NSW Health Minister” and being “subject to control or direction by a Minister of the State.”
I find that the Applicant failed to adequately explain the significant delay in filing the Application. Far from being misled by anything said in the Conciliation before Commissioner McKenna, that occurred approximately 8 months before the dismissal, on 20 October 2023, which was coincidentally the date by which an application had to be filed, the Respondent had clearly and succinctly advised the Applicant that his employment was subject to the Federal Agreement.
That position of the Respondent was clearly confirmed:
(a) In the Conciliation and Directions before Chief Commissioner Constant on 1 November 2023, where the legal representative for STARTTS submitted STARTTS was a “national system employer”;
(b) In the Notice of Motion filed by STARRTS on 10 November 2023; and
(c) In the IRC Hearing on 22 February 2024.
The Applicant was clearly on notice from 20 October 2023, which was the date by which the Application had to be filed, that his employment was subject to the Federal Agreement. Why he chose to persist with the course in the IRC is a matter for which only the Applicant can be responsible.
I also note that, while the IRC Decision was issued on 21 May 2024, the Applicant took a further 19 days to lodge the Application. When questioned as to that further delay, the Applicant asserted that he believed the filing time “reset” upon publication of the IRC Decision. I find the Applicant’s expressed belief to be fanciful because in the Application the Applicant stated his application was out of time, and from my observation of the Applicant it appeared he had not considered the issue of the delay from receipt of the IRC Decision until questioned about it at the Hearing.
I find that there was no acceptable explanation for the Applicant’s delay in filing the Application and that factor weighs in the Respondent’s favour.
(b)Whether the person first became aware of the dismissal after it had taken effect
This is not a relevant factor in this matter. The Applicant was aware of his dismissal as soon as it had taken effect on 29 September 2023.
(c)Action taken to dispute the dismissal
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. The Applicant makes it clear in his submission that he lodged a dispute with the NSW IRC on 18 October 2023, to resolve the dispute the subject of the Application.
While the Respondent was therefore aware from 18 October 2023, 19 days after his dismissal, that the Applicant was taking action to dispute his dismissal, the impact of that notified action was tempered by the Applicant persisting with the IRC Application notwithstanding the clear notification by the Respondent of the jurisdictional objection.
In all the circumstances, while I find that the Applicant took action to dispute the dismissal after it occurred, that notification is counterbalanced by the Applicant persisting with the IRC Application. I consider this factor is a neutral consideration.
(d)Prejudice to the employer
The Respondent asserted the following with respect to this limb:
22. From 30 January 2023 to the present date, the Respondent has incurred costs for legal representation in defending their claim against the Applicant in the four (4) Applications set out in the paragraphs in paragraph 4 in multiple jurisdictions, amounting to approximately $22,500.00 exclusive of GST, notwithstanding the upcoming costs for the current Application.
23. We note, the abovementioned cost does not include the pending Hearing date for the Out-of-time Jurisdictional Objection and/or any upcoming Unfair Dismissal conciliation with the FW Commission for this Application.
24. In addition, the reason for the delay (being the lodgement of multiple Applications in different jurisdictions within a period of 2 years) has caused prejudice to the Respondent by causing significant disruptions and delays to the Respondent’s normal business operation, in accordance with section 394(3)(1)(d) of the FW Act.
I find that given the multiplicity of Applications lodged against the Respondent, any further extension of time would involve further prejudice. The Respondent has been involved in protracted proceedings for almost a year. I have no doubt that the Respondent would have incurred legal and administrative costs, and that an extension of the time within which to file the Application would involve further prejudice to the Respondent.
I therefore find that there has been prejudice to the Respondent and should the extension of time be granted, this prejudice will be further exacerbated. This factor weighs in the Respondent’s favour.
(e)Merits of application
Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[6]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd:[7]
“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”
In the circumstances, I find that it is not possible to make an assessment of the merits of the Application. I therefore do not consider this factor relevant to my determination.
(f)Fairness between the person and other persons in a similar position
Neither party made any material submissions on this issue. Consequently, no weight can be given to this consideration.
Conclusion
As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any weight were the absence of any acceptable reason for the significant delay, and prejudice to the Respondent. Those factors both weighed in the Respondent’s favour.
I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Payne the Applicant.
Mr N Stevens on behalf of the Respondent.
Hearing details:
11:00AM (Sydney time)
6 August 2024.
Microsoft Teams.
[1] C2023/425.
[2] [2024] NSWIRCOMM 1031, at [2].
[3] [2024] NSWIRCOMM 1031, at [3].
[4] [2024] NSWIRCOMM 1031, at [21].
[5] [2010] FWA 4525, at [13].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Print T2421, at [14].
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