Mr Matthew Roderick v Cropping Solutions (Aust) Pty Ltd

[2017] FWC 4698

[2017] FWC 4698

FAIR WORK COMMISSION

DECISION

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

Mr Matthew Roderick
v
Cropping Solutions (Aust) Pty Ltd
(U2017/8148)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 11 SEPTEMBER 2017

Application for an unfair dismissal remedy – whether extension of time should be granted – exceptional circumstances not present – extension not granted – application dismissed

[1] Mr Matthew Roderick has lodged an application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by Cropping Solutions (Australia) Pty Ltd (Cropping Solutions).

[2] Mr Roderick had been employed as a Business Development Manager for approximately three years before being terminated on 16 June 2017. His employment ceased on the ground of redundancy. He disputes the genuineness of the redundancy. The termination took immediate effect. He was paid five weeks in lieu of notice. Payment was made some weeks later. He believes he is still owed unpaid wages and superannuation.

[3] Cropping Solutions is a South Australian business in the agricultural industry. It is a small employer within the meaning of the Small Business Fair Dismissal Code.

[4] Mr Roderick’s application was lodged with the Fair Work Commission (the Commission) on 27 July 2017. This is 41 days after his dismissal took effect. Applications under section 394 of the FW Act must be made within 21 days from the day a dismissal takes effect. Mr Roderick had until 7 July to lodge his application. It is 20 days late. The merits of Mr Roderick’s application cannot be heard and determined unless the Commission grants an extension of time for the application to be made.

[5] Cropping Solutions response to the application confirmed that the termination of Mr Roderick’s employment took effect on 16 June 2017. It opposed an extension of time.

[6] On 22 August 2017 my Associate corresponded with both Mr Roderick and Cropping Solutions and advised that the extension of time issue would be considered at a telephone hearing on 7 September 2017. Information about an extension of time under the FW Act was provided to the parties. Mr Roderick was directed to provide a statement and a copy of any document relied upon relevant to the extension of time issue by 1 September, which he did. The employer was given an opportunity to file written material in response by 5 September, which it did.

[7] Mr Roderick was self-represented at the telephone hearing. Cropping Solutions were represented by a legal practitioner and by a director, Mr Geoff Stamoulis. Mr Roderick opposed permission being granted for the employer to be legally represented. I granted conditional permission under section 596 of the FW Act on the ground that the efficiency of proceedings would be assisted by the employer’s objection to the extension of time being prosecuted by their legal representative. The conditions I imposed were threefold: firstly, I would take a more interventionist approach than normal to ensure Mr Roderick fully presented his case, within the constraints of my independent and impartial role; secondly, I would exercise my right at any stage of proceedings to seek a response directly from an officer of the employer without that response being filtered or shielded by its legal representative; and thirdly, I would withdraw permission if at any stage of proceedings I considered that the legal representative was no longer contributing to the efficient conduct of proceedings or was otherwise compromising fairness between the parties.

[8] I note that a sound file record of the telephone hearing was made by the Commission.

[9] Mr Roderick gave evidence in support of his application for an extension of time. No witnesses were called by Cropping Solutions. I found Mr Roderick to be a reliable witness, within the bounds of his recall.

[10] This decision about the extension of time issue is reached on the basis of all of the documentary material, submissions and oral evidence placed before me.

The Legal Principles

[11] Section 394 of the FW Act relevantly states:

“394 Application for unfair dismissal remedy

…

(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] Mr Roderick’s application can only proceed to a full hearing and determination if he can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 which stated:

“[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 section 366(2) is in relevantly identical terms to section 394(3), this statement of principle is equally applicable to section 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 section 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 section 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.”

Consideration

[13] I now consider each of the factors set out in section 394(3) of the FW Act.

Reason for the delay (section 394(3)(a))

[14] Mr Roderick advanced the following reasons for the delay:

1. His priority was to get his notice in lieu paid in order to secure income for his family and alleviate a dire financial situation;
2. His was preoccupied with making a time consuming application with Centrelink for a Newstart benefit;
3. He was confused about his rights under the fair work laws and in particular whether a redundancy was a dismissal; and
4. He made a general protections claim which he aborted when he became aware that he could lodge an unfair dismissal claim.

[15] I deal with the first three of these reasons under this subsection. I deal with the fourth under subsection 394(3)(c).

Payment of Notice in Lieu

[16] Mr Roderick has three dependent children. His wife works part time. I accept his evidence that the absence of his continuing income after he was made redundant placed immediate and severe pressure on his family in terms of meeting their financial commitments. It is reasonable that he pursued his employer in the days and weeks after his redundancy for the payment of notice.

[17] Mr Roderick’s evidence was that he believed, from the moment he was made redundant, that the termination of his employment was unfair and that the redundancy was, in his opinion, not genuine. Although in the immediate shock of being made redundant he did not tell his employer of his real feelings, I accept that he held this view from the outset.

[18] Mr Roderick also gave evidence that he knew from his on-line searches during the first week after his dismissal and before he sought external advice that a challenge to a dismissal under the fair work system needed to be made within 21 days of the dismissal taking effect. He did not however know, at that time, whether he had a right to make a challenge.

[19] It was understandable that Mr Roderick gave immediate priority to securing payment into his bank account of monies promised and owed. However, seeking to secure entitlements owed is not, in itself, a sufficient reason to grant an extension of time. The fact that a dismissed employee gives priority to making inquiries of a former employer about why payments have not been made and seeks assurances about when payments owed will be made is no adequate explanation as to why that employee cannot, in parallel, inform themselves of their rights to challenge their dismissal and, if they wish, lodge proceedings.

[20] In these circumstances where a strong view was held by Mr Roderick about the unfairness of having lost his job, his priority of securing payments owed was not so all-consuming that he could not have reasonably pursued a related priority of challenging the loss of his job.

[21] In any event, the evidence of Mr Roderick was that at least four weeks of the five weeks of notice owed was paid on or just prior to 30 June and the further week in early July. Although he believes that he is still owed some unpaid wages and superannuation, the payment on or prior to 30 June alleviated somewhat immediate financial pressures.

[22] To the extent that Mr Roderick was giving priority to securing monies owed by his former employer immediately after his termination, the payment made by Cropping Services on or prior to 30 June was a payment made inside the 21 day period. Mr Roderick had adequate time both before and after payment to turn his attention to his termination rights before the 21 day period expired on 10 July, especially since he knew a time limit existed.

Applying to Centrelink

[23] Mr Roderick’s evidence was that aside from giving priority to securing monies owed from his former employer, he was preoccupied in the weeks following his termination with trying to secure income from Centrelink. His evidence was that it took eight to ten days to successfully lodge an application with Centerelink for a Newstart allowance. He said this length of time was a result of burdensome Centrelink requirements, documents he needed to acquire concerning his trust and private company, and some IT problems with the Centrelink system.

[24] While it was also understandable that Mr Roderick placed importance on applying for Centrelink benefits, it is not unusual or exceptional that a dismissed employee would do so. Taking this step, howsoever labourious, is no adequate explanation as to why that employee cannot, in parallel, inform themselves of their rights to challenge their dismissal and, if they wish, lodge proceedings. In any event, in Mr Roderick’s case it was a task capable of being undertaken inside the 21 days and a task that was completed well prior to 27 July.

Confusion of Legal Rights

[25] The most substantive explanation for delay presented by Mr Roderick was that he was confused about his legal rights under the fair work system, and his associated claims that his confusion was compounded rather than allayed by what he believes was a lack of clear direction by administrative staff of the Fair Work Ombudsman and the Fair Work Commission.

[26] Mr Roderick’s evidence was that in the week after his termination, he searched on-line about his legal rights to pursue monies owed and to challenge his termination. Through these searches he identified that a 21 day limit for claims concerning termination applied, but did not know if he was entitled to make a claim. He saw references to dismissal, but was unsure whether he had been dismissed. In layman’s terms, he thought a dismissal to be a sacking for performance or conduct, not a redundancy.

[27] A week after his dismissal, on or about 23 June, Mr Roderick said he telephoned the Fair Work Ombudsman. His evidence was they informed him that the Fair Work Commission was the authority to deal with dismissal issues. He said he rang the Commission on that day. He said the first call was very brief and got him nowhere. He said during the second call that day the officer listened to his story but told him that the Commission did not provide advice. He said it was suggested that he could contact the Legal Services Commission, which he did. His evidence was that the Legal Services Commission provided him no assistance or clarity.

[28] He said he continued to examine web-sites but remained confused and unsure of his rights until he again spoke to a Commission employee on or about 18 July about a general protections application. At or around this time he also contacted a Victorian based lawyer who was a family friend. Thinking a general protections application was a good idea he completed an on-line application on 20 July and lodged it with the Commission on 21 July.

[29] Mr Roderick’s further evidence was that on or around 25 July he was telephoned by a Commission employee who, he says, suggested to him that he might take advice on whether his general protections application was more in the nature of an unfair dismissal claim. Mr Broderick subsequently called back indicating that he would discontinue the general protections application and lodge an unfair dismissal application in lieu. He says that he expressed frustration to the Commission employee that, in his view, the Commission web-site did not clearly provide information about the rights of redundant employees to make unfair dismissal claims if they believed the redundancy non-genuine. His unfair dismissal claim was lodged on 27 July.

[30] It is not unusual that persons dismissed are unsure about their legal rights. However, it is a dismissed employee’s responsibility to ascertain for themselves their legal rights. It is not the role of an independent authority such as the Commission to provide advice as the exercise of rights by a dismissed employee any more than it is the role of the Commission to provide advice to persons who were their employers.

[31] I accept that Mr Roderick was confused about his rights. That confusion stemmed from his early assumption that a redundancy was not a dismissal.

[32] Whether that assumption was reasonably or unreasonably made, Mr Roderick had ample time and capacity to inform himself of his rights. If he was not getting satisfaction from government or statutory authorities he had the opportunity to seek private information or advice. He spoke to a lawyer who was a family friend. He could have spoken to other legal or industrial advisers.

[33] Mr Roderick was not misled about his legal rights. It was Mr Roderick’s responsibility to allay whatever confusion about his legal rights that he held. His confusion about legal rights is not an acceptable explanation for the delay.

[34] On the facts in this case, the reasons for delay are real but not compelling. I consider these to be factors that weigh against the granting of an extension.

Awareness of the dismissal taking effect (section 394(3)(b))

[35] Mr Roderick’s dismissal, with five weeks in lieu of notice, took effect on 16 June. Even though he did not start to receive these payments until around 30 June, he was under no misunderstanding that his employment had ceased on 16 June. This was advised to him in writing on that day. He was fully aware of his dismissal taking effect from that time.

[36] On the facts in this case, I consider this to be a factor that weighs against the granting of an extension.

Action taken to dispute dismissal (section 394(3)(c))

[37] I have referred to the circumstances whereby Mr Roderick came to file a general protections application with the Commission on 21 July. When served with that application, this was the first that Cropping Solutions knew about Mr Roderick challenging his dismissal. As mentioned, Mr Roderick did not tell the employer that he disputed their decision when he was first informed of it. His evidence was that he may have mentioned this to an administrative employee when following up his unpaid monies, but could not be certain of that fact.

[38] Although Mr Roderick did take action to challenge his dismissal through a general protections application before lodging his unfair dismissal claim, the general protections application was made some 35 days after his dismissal took effect. It too was beyond its own statutory 21 day requirement, and would have required an extension of time to be heard had it not been discontinued.

[39] Given that the general protections application was not lodged until 21 July and given that no earlier action was taken by Mr Roderick to put the employer on notice that the dismissal was in dispute and was to be challenged, on the facts of this case, I consider this to be a factor that weighs against granting an extension.

Prejudice to the employer (section 394(3)(d))

[40] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the statutory lodgement period, except in exceptional circumstances. This employer is a small business. In Mr Roderick’s case, it acknowledges that no particular prejudice arises should an extension be granted. However, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension. 2

[41] On the facts in this case, I consider this a neutral factor.

Merits of the Application (section 394(3)(e))

[42] Mr Roderick confidently asserts that his alleged redundancy was not genuine. Cropping Solutions equally confidently asserts that his position was made redundant. I note that the FW Act specifically provides that a genuine redundancy, as defined, is not an unfair dismissal. Conversely, it provides that if a redundancy is not genuine (as defined) then the dismissal may be an unfair dismissal.

[43] I have not conducted an inquiry into these claims and counterclaims. At this stage of proceedings I form no view, preliminary or otherwise, whether the said redundancy was genuine or whether the employer complied with its obligations under the Small Business Fair Dismissal Code.

[44] In this case, this is a neutral factor.

Fairness between persons in similar position (section 394(f))

[45] No other persons were made redundant in conjunction with Mr Roderick. No evidence or submissions from Mr Roderick or Cropping Solutions raise issues of fairness with and between other persons.

[46] On the facts in this case, this is not a relevant factor.

Conclusion

[47] Having regard to the 21 day statutory time limit, the delay in lodgement is significant.

[48] In considering whether exceptional circumstances exist, the conduct of the applicant throughout the whole period after dismissal is relevant to whether an extension of time should be granted. 3

[49] I find that Mr Roderick had adequate opportunity to inform himself of his rights and exercise rights within 21 days of his dismissal. He knew within days of his termination that a 21 day limit applied to Commission proceedings. He allowed that period to elapse without having resolved his confusion about his rights.

[50] I find the reasons for delay more in the category of regular and routine rather than unusual. It is not unusual that a dismissed employee is, at the time of dismissal, unsure about their rights and has to acquire knowledge about their rights in the days that follow. 4 It is not unusual that a dismissed employee follows up monies owed. It is not unusual that a dismissed employee applies for Centrelink benefits. It is not unusual a dismissal imposes financial hardship on family incomes.

[51] I further find that the reasons for delay do not adequately explain inaction across the whole period of the delay. For significant periods of time the factors Mr Roderick relies on had been ameliorated or could have been ameliorated. For example, immediate financial pressure had been eased somewhat by 30 June when a payment of monies owed was made. His Centrelink application had been made before he commenced Commission proceedings. He had spoken to a lawyer who was a friend of the family well before 27 July.

[52] Having regard to the length of the delay and the conclusions I have reached, I am not satisfied that exceptional circumstances exist so as to warrant an extension of time. The application will not proceed to a hearing on the merits.

[53] Mr Roderick’s application is dismissed. An Order giving effect to this decision will be issued.

DEPUTY PRESIDENT

Appearances:

Mr M. Roderick, on his own behalf.

Ms H. Gardner, with permission, and Mr G. Stamoulis, for the Respondent.

Hearing details:

2017.

Adelaide.

7 September.

 1   [2011] FWAFB 975

 2 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 3   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at 408-409

 4   Du v University of Ballarat[2011] FWAFB 5225 at [31]

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