Mr Luke Ward v Rocky's Tree Service Pty Ltd

[2017] FWC 6426

[2017] FWC 6426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Luke Ward
v
Rocky’s Tree Service Pty Ltd
(C2017/6070)

COMMISSIONER HUNT BRISBANE, 21 DECEMBER 2017

Application to deal with contraventions involving dismissal – extension of time – no exceptional circumstances – extension of time not granted.

Introduction and Background

[1] Mr Luke Ward was employed by Rocky’s Tree Service Pty Ltd from May 2017 until his employment was terminated on 16 August 2017. Mr Ward has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed in contravention of the general protection provisions of the Act. Mr Ward claims he was dismissed due to exercise of a workplace right, specifically, while he was on leave under a WorkCover claim.

[2] Mr Ward made his application on 6 November 2017.

[3] Section 366 of the Act states:

‘366 Time for application

(1) 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).

(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.’

[4] For Mr Ward to have made his application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 6 September 2017. The application has been made 61 days out of time.

[5] Mr Ward seeks an extension of time within which to make his application. The basis of his claim for an extension of time is that he was unable to obtain advice in relation to his application for some time due to financial hardship and receiving incorrect information in the process of getting advice.

[6] The parties were directed to each provide an outline of argument in relation to the extension of time, which is to address the factors set out in s.366(2) (above). The views of both parties were sought as to the matter being determined on the papers. Mr Ward requested a hearing and accordingly the matter was heard before me by telephone on 13 December 2017.

Submissions and Evidence

Submissions of Mr Ward

[7] Mr Ward was employed as a climber for Rocky’s Tree Service commencing in May 2017. It was submitted by Mr Ward that he was dismissed after hurting his back while at work, due to which he made a claim for WorkCover. Mr Ward submitted that his employer initially denied that the incident occurred, but after he obtained support from a witness, the employer honoured the WorkCover claim. He further submitted that he was led to believe his annual leave had been paid prior to the WorkCover being approved, but was later advised by Rocky’s Tree Service that the funds were not annual leave but WorkCover excess. The employer denies that Mr Ward was employed as a permanent employee, and instead he was a casual employee.

[8] In his outline of submissions, Mr Ward stated that the employer said he was dismissed because he had failed a probation period. By way of response, Mr Ward says that he was unaware of being subject to a probation period and that he had not signed a ‘probation period contract’. Further, Mr Ward argued that the existence of a ‘probation period’ demonstrates his status as a permanent employee rather than a casual or temporary employee.

[9] Mr Ward submitted that he had questioned his dismissal by expressing concern to his employer that he had been terminated due to a workplace injury.

[10] As to why the application had not been made within 21 days of the dismissal, Mr Ward submitted in writing:

‘With financial hardship, I was without phone credit I made every attempt possible to persue [sic] this matter through all relevant avenues. It was a very drawn out procedure getting wrong advice and being given incorrect phone numbers initially I only perseveered [sic] because I was permenant [sic] and still don’t have pay slips or the annual leave they owe me. I will provide all relevant messages + letters.’

[11] Further, Mr Ward submitted:

‘I have been under severe financial hardship and have exhausted every possible avenue – have waited for phone appointments, some were almost 2 weeks wait I have had appointments with T.A.S.C rescheduled and then they informed me that they can’t help in this matter even thou [sic] I explained situation before making the appointment. (I use prepaid phone credit and have run out several times with no money to get more)’

[12] In support of his submissions, Mr Ward provided a copy of the Employment Law Advice given to him by Caxton Legal Centre dated 25 October 2017, and a copy of the termination letter of 16 August 2017. Caxton Legal Centre informed Mr Ward on 25 October 2017 that the 21 day time limit had expired.

[13] Caxton Legal Centre advised by email to the Commission dated 6 November 2017 that it does not act for Mr Ward in this matter. The Employment Law Advice dated 25 October appears to relate to a single appointment for legal advice.

[14] During the hearing Mr Ward explained that he does not have a computer, and at times had to visit upon friends to use their computer to bring his application to the Fair Work Commission (Commission) and to respond to emails as he was at times without credit on his phone. He stated that he spoke with the Commission on or around 2 November 2017, and also with the Fair Work Ombudsman (FWO).

Submissions of Rocky’s Tree Service

[15] It was submitted by Rocky’s Tree Service that Mr Ward was a casual employee who worked on a shift by shift basis, as work became available.

[16] The employer provided details of the circumstances leading up to the termination, specifically an incident that had occurred the day before on 15 August 2017, wherein Mr Ward had exchanged text messages with Ms Strain, Administrator that she regarded as ‘threatening and aggressive’. Ms Strain provided copies of screenshots taken of the messages with the Form F8A – Employer’s Response. Mr Ward had apparently been seeking more hours after being cleared by WorkCover and was dissatisfied with the response from Rocky’s Tree Service.

[17] This allegation of aggressive and threatening behaviour, as well as ‘not turning up to work and completing the set jobs which cost the business money and resulted in [Rocky’s Tree Service] losing a work contract’, were the employer’s reasons for dismissal after deeming Mr Ward’s probation unsuccessful.

[18] In the Form F8A Employer’s Response, it was stated that Mr Ward had withdrawn his WorkCover claim on 10 August 2017, and was not on WorkCover at the point when he was terminated. He later reopened his claim on 4 September 2017.

[19] In its submission, the employer stated that the ‘Ombudsman’ (presumably, the Fair Work Ombudsman) had made contact with the employer in early September in relation to Mr Ward’s claim for holiday pay. Ms Strain stated that she advised the Ombudsman that Mr Ward was a casual employee and was therefore not entitled to holiday pay. Ms Strain stated the person calling from the Ombudsman did not mention an allegation of unfair dismissal during the call.

[20] In respect of its submissions going to whether the Commission should exercise its discretion to grant an extension of time for Mr Ward to make his application, the employer submitted:

‘Luke has had since the 16^th August 2017 to lodge an application along with all his other applications to various organizations and I don’t believe there are any significant reasons he could not have done this with in [sic] the 21 day lodgment period.’

[21] The employer submitted that it will be prejudiced if the extension of time is granted, and as a small business the time spent in defending the claim has resulted in Ms Strain working on the administration and accounts of the business, resulting in delays in invoicing.

[22] Rocky’s Tree Service opposed an extension of time being granted to Mr Ward to allow him to make his application.

Applicable Case Law

[23] 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]

[24] For exceptional circumstances to arise as contemplated by s.366 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.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[25] The onus of establishing exceptional circumstances is on Mr Ward who needs to provide a credible reason for the whole of the period that the application was delayed. 2

[26] This point was emphasised by the Full Bench in the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

‘[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.’

Consideration

Subsection 366(2)(a) - The reason for the delay

[27] Mr Ward’s explanation as to the cause of his delay of 61 days is brief. Mr Ward relied on financial hardship, relevant to at times not having credit on his phone, and not having immediate access to a computer. Mr Ward also relied on being given the ‘run-around’ by various authorities, resulting in a difficulty in obtaining advice.

[28] Relevant to the advice Mr Ward received from the Caxton Legal Centre, to which Mr Ward has waived privilege, there is no explanation of the 13 day delay between receiving advice from Caxton and lodging his application. It is understood Mr Ward contacted the Commission on 2 November 2017 to discuss a waiver of the fee for bringing this application.

[29] I have had regard to the whole period between the date of the dismissal and the date the application was filed, and to Mr Ward’s conduct during this period. The entirety of the delay must be explained, according to the authority in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 4set out in [28].

[30] The delay of 61 days is not adequately explained by Mr Ward. On his own account Mr Ward visited upon friends to use their computer at times. If Mr Ward was troubled by not having credit on his phone, it was available to him to attend upon a public library to utilise computers for presumably a modest fee to peruse the Fair Work Commission website and bring his application.

[31] Further, Mr Ward had made contact with the FWO at or around early September 2017, within the 21 day time limit for bringing this application. Explanations of not having enough credit on his phone to contact the Commission do not then present when Mr Ward had credit to contact the FWO, whether within the 21 day time limit, or shortly thereafter.

[32] It is noted that information relating to making an application can be found on the Commission’s website, as well as through its Helpline. The Commission’s Helpline can also direct callers to community legal centres and services providing free legal and/or workplace advice. Mr Ward has not demonstrated that he was unable to contact the Commission’s Helpline, or any legal service, or access the Commission’s website. I cannot be satisfied that the reason for the delay was attributable to exceptional circumstances.

[33] This is a factor which weighs against the exercise of the discretion to grant an extension.

Subsection 366(2)(b) - Any action taken by the person to dispute the dismissal

[34] The following is a text sent from Mr Ward to the employer on 15 August 2017:

‘If im not sacked what am i? Im fit ready and able to work yet u wont provide the hours. As permanent u r required to give me work or pay me regardless. You have 48 hours to reply with your intentions. If I don’t hear from u I will take this matter further with the fair work commission. All communication will b kept I wont take a call from u reply in text.’ [unedited]

[35] Mr Ward said that after being dismissed he expressed concern to his employer that he had been terminated him due to a workplace injury. Although he alluded to subsequent provision of the entire message history between himself and Ms Strain, the message history was not provided with his submissions or with any material available to the Commission.

[36] In his material, Mr Ward mentions attempting to seek advice, and refers to an organisation named ‘T.A.S.C’ in his application. From a cursory Internet search, TASC refers to The Advocacy and Support Centre, which provides ‘Legal Disability and Advocacy Services to people who live in Toowoomba, Ipswich, and the whole South West Region’. Mr Ward submitted that despite making appointments, he was eventually unable to obtain advice from TASC. However, he does not provide any details as to when he first sought their advice or any other person or organisation from which he sought advice.

[37] Mr Ward apparently had knowledge one day prior to his dismissal that the Fair Work Commission was the place to bring his complaint. Throughout some part of the period between the dismissal and the date of the application, Mr Ward was seeking advice relevant to his concerns that he was a permanent employee, and not a casual employee.

[38] I am satisfied that Mr Ward took some action to dispute the dismissal, however he appears to have spent more of his energies on his other complaints against the employer. Mr Ward nominated one day prior to his dismissal that he would pursue an application in the Fair Work Commission, but did not do so for a period of 82 days after he was dismissed.

[39] This is a factor which weighs against the exercise of the discretion to grant an extension.

Subsection 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[40] Rocky’s Tree Service submitted that the impact of the application has been significant on their small business, causing stress, and consuming time that would otherwise be directed to the administration and account keeping for the business. It appears that Ms Strain is solely or largely responsible for these aspects of the business. On the basis of the correspondence sent and the material filed with the Commission, Ms Strain has been the sole contact person for the business regarding Mr Ward’s application.

[41] Mr Ward submitted that he does not accept that the employer has been prejudiced, on the basis that he had informed Ms Strain of his intent to pursue the unfair dismissal matter (although he in fact lodged a General Protections Application Involving a Dismissal), and because he believes he is owed annual leave and $5.00 per hour for the duration of his employment with Rocky’s Tree Service.

[42] It is not for this Commission to hear and determine allegations of underpayment, although substantiated allegations (such as those being prosecuted by the FWO) may be a factor in decision-making. In this case, there is no material to support the allegation of underpayment, or to demonstrate prosecution or action by the FWO against the employer. It is noted that Ms Strain referred in submissions to a single conversation with the Ombudsman in this respect, but that appears not to have gone beyond that conversation.

[43] On the material before the Commission, while the fact that litigation has commenced against a small business might weigh heavily on the employer, the amount of time and effort to complete the forms required to defend the application would not be extensive. There is no suggestion from the employer that any of the witnesses required to defend the litigation are not available.

[44] This criterion is a neutral factor when considering the discretion to grant an extension.

Subsection 366(2)(d) - The merits of the application

[45] It is well established that in considering whether to grant an extension of time, the Commission “should not embark on a detailed consideration of the substantive case”. 5 The Commission has further propounded this approach and the principles relating to the discretion to extend the time for making an application in Kornicki v Telstra-Network Technology Group,6 where it said:

‘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.’

[46] Having regard to the material filed by the parties in relation to both the jurisdictional and the substantive application, it is apparent there is a factual dispute between the parties as to the reason for dismissal. I do not consider Mr Ward’s case to be entirely without merit.

[47] This criterion is a neutral factor when considering the discretion to grant an extension.

Subsection 366(2)(e) - Fairness as between the person and other persons in a like position

[48] Neither party made submissions as to the relative fairness as between the applicant and other persons in a similar position. The employer submitted that it has not had any other employees in the same situation.

[49] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd: 7 

‘Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’

[50] Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time. 8 Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.

[51] I am not satisfied that the issue of fairness as between Mr Ward and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.

Conclusion

[52] Mr Ward did not adequately account for the delay in seeking advice between 16 August and 25 October 2017, nor in then making his application between 25 October and 6 November 2017 when it was within his knowledge that he could bring a complaint to the Fair Work Commission. This does not satisfy the test of exceptional circumstances.

[53] I have considered each of the criteria set out in s.366(2) of the Act. On the basis of the submissions of each party and the evidence available, I am not satisfied of the existence of exceptional circumstances which warrant the exercise of my discretion to extend the time for Mr Ward to make his application.

[54] Accordingly I order the application is dismissed.

COMMISSIONER

Appearances:

Mr L Ward for the Applicant

Ms S Strain for the Respondent

Hearing details:

13 December 2017

1 [2011] FWAFB 975.

 2   See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 3   [2016] FWCFB 349.

 4   [2016] FWCFB 349.

 5   Kyvelos v Champion Socks Pty Ltd [Print T2421, 10 November 2000] at [14].

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

 7   [2016] FWCFB 6963 at [41].

 8   See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O’Connor T/A Hair Republic[2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.

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