Mr Keith Hamilton v Sandyridge Holdings Pty Ltd
[2024] FWC 1606
•20 JUNE 2024
| [2024] FWC 1606 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Keith Hamilton
v
Sandyridge Holdings Pty Ltd
(C2024/2937)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 20 JUNE 2024 |
Application to deal with contraventions involving dismissal – late lodgement – unlawful termination application filed in error – self-representing employee at time of incorrect lodgement – exceptional circumstances – time for late lodgement extended
On 6 May 2024 Mr Keith Hamilton (Mr Hamilton or the applicant) made a general protections application under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions associated with his dismissal.
Mr Hamilton’s application is against his former employer Sandyridge Holdings Pty Ltd (Sandyridge Holdings, the respondent or the employer), which he alleges committed the contraventions. The respondent opposes the application.
It is not in dispute that the application is three days out of time. Mr Hamilton seeks an extension of time. This is opposed.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the out of time issue if Mr Hamilton’s application is to proceed further.
I conducted a directions hearing and issued directions on 4 June 2024. The parties agreed that the out of time issue be determined ‘on the papers’ after receipt of written submissions.
Facts
The facts are not in dispute.
Sandyridge Holdings is involved in the waste management and removal industry.
Mr Hamilton was dismissed on 12 April 2024. He lives and worked in south-east South Australia near the Victorian border.
Mr Hamilton believed that he had been dismissed because he exercised workplace rights concerning a work-related injury.
After being dismissed, Mr Hamilton sought to contact Victorian-based legal firms and paid agents. It was suggested to him that as his employment was based on the South Australian side of the border he should obtain advice from a South Australian firm.
On 18 April 2024 Mr Hamilton telephoned the Fair Work Ombudsman. He was unable to get through. He then left a message for a local South Australian law firm to contact him.
On 3 May 2024 Mr Hamilton received a return call from a law firm. He was advised that they could not assist him and that he was almost out of time as that day was the twenty-first day after dismissal. This was the first Mr Hamilton knew of a time limit.
Mr Hamilton decided to press ahead himself given the time limit.
On 3 May 2024 Mr Hamilton went online and via the Commission’s website completed a form F9 ‘Application for the Commission to deal with an unlawful termination dispute,’ It was an application under s 773 of the FW Act (unlawful termination application).
By covering email sent to the Commission at 4.36pm on Friday 3 May 2024 Mr Hamilton lodged his application.
Two hours later, at 6.41pm, the Commission sent Mr Hamilton by email a letter acknowledging receipt of the application and giving it a matter number.
One minute later, at 6.42pm on 3 May 2024 the Commission by email sent Mr Hamilton a further letter which indicated:
“You may not be eligible to make this application.
This is because Sandyridge Holdings Pty Ltd may be a national system employer and this would mean you could make a general protections application. If you can make a general protections application, then you can’t make an unlawful termination application.
There are strict time limits. You need to decide which application you want to make as soon as you can.
.……
Strict time limits apply
You only have 21 days from the date your dismissal took effect to withdraw your unlawful termination application and lodge a new application with us.
You need to decide which application you want to make as soon as you can.” (emphasis in original)
The employer was served with the application by email from the Commission sent two minutes later, at 6.44pm on 3 May 2024.
Mr Hamilton read the Commission’s email of 6.42pm on 3 May 2024 the following (Saturday) morning, 4 May. Mr Hamilton decided that he needed to get legal advice on what this all meant.
The weekend passed.
On Monday 6 May 2024 Mr Hamilton spoke to a different firm of solicitors.
At 6.51pm that day, 6 May 2024, Mahoney’s Solicitors acting on behalf of Mr Hamilton filed in the Commission a form F8 ‘General protections application involving dismissal’. This was an application made under s 365 of the FW Act (general protections dismissal application).
On 9 May 2024 Mr Hamilton confirmed by telephone to a Commission administrative officer that the general protections dismissal application was the application he was proceeding with, and that the unlawful termination application was to be discontinued.
On 9 May 2024 the Commission wrote to Mr Hamilton confirming that the unlawful termination application had been discontinued.
On 9 May 2024 the Commission served the general protections dismissal application on Sandyridge Holdings.
Submissions
Mr Hamilton
Mr Hamilton submits that time should be extended because the delay was caused by filing an incorrect application on 3 May 2024. Mr Hamilton submits that he is not versed in legal niceties and was left to lodge the application without legal support because he only found out about the 21-day time limit on the twenty-first day.
Mr Hamilton submits that time should be extended because he actively took steps following dismissal to seek legal and industrial assistance but was unsuccessful in doing so.
Mr Hamilton submits that time should be extended because he was not made aware of his error in filing the wrong application until the day after it was lodged and by then time had expired.
Mr Hamilton submits that time should be extended because he immediately sought legal advice on the first working day after being informed by the Commission he had made an error, and his solicitors acted quickly that day to file the correct application.
Mr Hamilton submits that time should be extended because the delay is short and there is no prejudice to the employer because they knew of the legal action on 3 May 2024 as both applications relate to the same set of allegations regarding his dismissal.
Sandyridge Holdings
Sandyridge Holdings submit that time should not be extended because the time limit is set for a reason and the application was made after the legally required timeframe.
Sandyridge Holdings submit that time should not be extended because the application is without merit and will be defended as the allegations advanced by Mr Hamilton are refuted.
Consideration
Section 366 provides:
“366 Time for application
An application under section 365 must be made:
(a)within 21 days after the dismissal took effect; or
(b)within such further period as the FWC allows under subsection (2).
The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a)the reason for the delay; and
(b)any action taken by the person to dispute the dismissal; and
(c)prejudice to the employer (including prejudice caused by the delay); and
(d)the merits of the application; and
(e)fairness as between the person and other persons in a like position.”
I now consider whether an extension of time should be granted for the late lodgement.
An applicant for an extension of time has an onus to adduce evidence in support of matters which they assert constitute exceptional circumstances.[2]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3] A decision whether to extend time under s 366(2) involves the exercise of a discretion.[4]
I apply s 366(2) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[5]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[6]
I now consider each of the factors in s 366(2).
Reason for delay (s 366(2)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[7] The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.[8]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all if the circumstances are otherwise exceptional.[9] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[10]
In this matter, the delay period is three days, 4 to 7 May 2024 inclusive.
In that period:
Mr Hamilton initially believed, erroneously, that he had filed the correct application the day prior and in-time;
Learnt that he had not done so on the morning of Saturday 4 May when he read an email sent to him by the Commission at 6.42pm the previous evening;
Spoke to the Commission’s administrative staff on the next business day (7 May) to confirm what their communication meant;
Immediately thereafter (on 7 May) contacted a firm of solicitors, took advice from them, and gave them instruction to file the correct application and seek an extension of time; and
Had his newly engaged firm of solicitors file the correct application later that same day (7 May).
It is evident from the above that Mr Hamilton was not inattentive to his interests during the delay period or immediately prior.
Counting somewhat against Mr Hamilton is the fact that he waited until the twenty-first day before filing the incorrect application. As has been widely observed in previously decided extension of time matters, an employee waiting until the twenty-first day leaves themselves no margin for error, and in doing so their conduct in filing on the last day (or what they believed to be the last day) counts somewhat against the reasonableness of their explanation.[11]
On the facts before me this consideration is somewhat mitigated by the fact that Mr Hamilton was not inattentive to his interests. In the relevant twenty-one day period he had sought to obtain legal advice and contract the Fair Work Ombudsman. Indeed, it was only a returned call from a legal firm on 7 May that alerted him to the statutory time limit yet that firm could not assist him.
Mr Hamilton was left to manage the lodgement of an application using only his own research and wherewithal in the space of a few hours. Not being a person familiar with the niceties of the FW Act, it is somewhat unsurprising that his unlawful termination application was made under s 773 and not s 365. In this short time frame Mr Hamilton could not have reasonably been expected to have understood that s 773 applications are restricted to claims against non-national system employers due to the differing constitutional underpinnings of certain parts of the FW Act.
Considered overall, the explanation for the delay is reasonable and weighs in favour of a finding of exceptional circumstances.
Action taken to dispute dismissal (s 366(2)(b))
Mr Hamilton sought to make inquiries of lawyers and paid agents about his industrial rights shortly after being dismissed. However, he did not put the employer on notice that he was contesting or intending to contest the lawfulness of his dismissal. The action Mr Hamilton took was somewhat sporadic and remained within his control.
However, the employer was put on notice by the Commission, on the evening of the twenty-first day, that Mr Hamilton had litigated the dismissal by filing an unlawful termination application that afternoon.
Relevantly, the application filed and of which the employer was given notice sought to litigate the same dismissal on the same grounds (alleged adverse action in the exercise of workplace rights) that is the subject of these proceedings.
This consideration weighs somewhat in favour of a finding of exceptional circumstances.
Prejudice to the employer (s 366(2)(c))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[12]
If time is extended, a claim would have to be further responded to by the employer, involving time and cost. The matter would, in the first instance, proceed to conciliation in the Commission. As a small business, the time of its owners is a valuable asset. However, that prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[13]
This is a neutral consideration.
Merits of the application (s 366(2)(d))
A court hearing would concern whether the employer dismissed Mr Hamilton for an unlawful reason.
Sandyridge Holdings have made it clear that the allegations are refuted and that proceedings will be contested.
It is not possible to express a view, even a preliminary one, on the merits without the full body of evidence before me.
This is a neutral consideration.
Fairness between persons in similar position (s 366(2)(e))
Whilst extensions of time have been granted in some matters before the Commission because an employee has filed the wrong application, or filed in the wrong jurisdiction or erroneously filed on the last day or what they believed to be the last day, in other cases dealing with the same issues extensions have been refused.[14] This is because whilst the same principles have been applied, each case turns on its own facts, as does this matter.
This is a neutral consideration.
Conclusion
The period of delay being three days, is not lengthy. Nonetheless, the circumstances must be exceptional for time to be extended, even by this amount.
The explanation for the delay weighs in favour of a finding of exceptional circumstances. That Mr Hamilton filed an in-time application raising a comparable legal challenge to his dismissal, and that this was made known to the employer at the very end of the twenty-one day period, also weighs in favour.
Considered overall, I find that the circumstances are exceptional. It is unusual that a dismissed employee makes an application to challenge the lawfulness of a dismissal but, through a lack of legal understanding, files an unlawful termination application rather than a general protections application after receiving very late contact from a firm of solicitors who then could not assist. That, together with the fact that Mr Hamilton was immediately attentive to his interests in the delay period to correct his error, are compelling considerations warranting the grant of an extension.
As the circumstances are out of the ordinary, and as there are no discretionary reasons not to grant an extension, it is appropriate to do so.
Disposition
Time for late lodgement has been extended. Accordingly, application C2024/2937 will proceed to conciliation and the Commission will exercise its powers under s 368 of the FW Act.
Sandyridge Holdings is directed to file a formal response to the application (form F8A) within seven (7) days of this decision.
The matter will be listed for conciliation.
An order giving effect to this decision will be issued in conjunction with its publication.[15]
DEPUTY PRESIDENT
Determined on the papers
Final written submissions:
Mr Keith Hamilton: 4 June 2024
Sandyridge Holdings Pty Ltd: 11 June 2024
[1] [2020] FCAFC 152
[2] Smith v Canning Division of General Practice[2009] AIRC 959
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[5] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[6] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[7] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[9] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[10] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[11] Shaw v Australia and New Zealand Banking Group Limited[2014] FWC 3903, [28]
[12] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[14] See for example Brahmbhatt v Sydney Tools Pty Ltd[2023] FWC 1874; Palmer v The Trustee for T & P Removals Unit Trust t/as Allied Business Relocations Adelaide[2024] FWC 707; Wei v Open Universities Australia Pty Ltd[2023] FWC 3402
[15] PR776207
Printed by authority of the Commonwealth Government Printer
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