Mr Matthew Swarbrick v W J Wood Pty Ltd
[2021] FWC 3129
•1 JUNE 2021
| [2021] FWC 3129 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Matthew Swarbrick
v
W J Wood Pty Ltd
(U2021/2317)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 1 JUNE 2021 |
Application for an unfair dismissal remedy – extension of time – delay prior to incomplete application – discretionary considerations – no exceptional circumstances – application dismissed
[1] On 22 March 2021 Matthew Swarbrick (Mr Swarbrick) attempted to make an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to an alleged dismissal by WJ Wood Pty Ltd trading as Woody’s Custom Power Coating (Woody’s or the employer) which took effect on 22 January 2021.
[2] The attempted application was by telephone to an officer of the Commission. It was not until 29 April 2021 that the Commission received a completed application in the proper form.
[3] Mr Swarbrick’s attempted application was made fifty-nine days after the alleged dismissal took effect, being thirty-eight days beyond the statutory time-limit. The complete application was made ninety-seven days after the alleged dismissal took effect, being seventy-six days beyond the statutory time-limit.
[4] For Mr Swarbrick’s application to proceed it would require the Commission to grant an extension of time.
[5] Mr Swarbrick seeks that extension.
[6] Woody’s oppose the application for an extension. It also opposes the application on jurisdiction and merit grounds. It claims that Mr Swarbrick was not dismissed.
[7] The matter was allocated to me to determine whether an extension of time should be granted. This decision deals only with that issue.
[8] I issued directions on 4 May 2021. Information about an extension of time and the factors the Commission is required to take into account were provided to the parties.
[9] Mr Swarbrick filed materials in advance of the hearing and the employer filed an amended F3. The materials filed are largely unhelpful – they deal with merits rather than the extension of time issue.
[10] I heard the matter by telephone on 31 May 2021. Both parties were self-represented, with support persons.
[11] Mr Swarbrick gave evidence.
[12] There are no material factual disputes.
[13] Following the hearing I reserved my decision.
Facts
Mr Swarbrick’s employment
[14] Mr Swarbrick worked for Woody’s as a casual labourer from 31 October 2019 until 22 January 2021.
[15] After what the employer claims to be a pattern of non-attendance, Mr Swarbrick did not attend for work on 22 January 2021 and, in the absence of an explanation or hearing from Mr Swarbrick, the employer considered his employment to have ended. It did not further roster Mr Swarbrick.
[16] Though Woody’s waited until 25 January 2021 to see if Mr Swarbrick would contact, and followed up with a further telephone call on 27 January 2021, it considered his employment to have ended when Mr Swarbrick had failed to turn up on the previous Friday.
Mr Swarbrick’s conduct post-notice
[17] Mr Swarbrick did not work between 22 January 2021 and 22 March 2021. He obtained limited casual work helping out as a removalist later in April and May 2021.
[18] Whilst employed by Woody’s and since, Mr Swarbrick has been dealing with a legal issue between him, his former partner and authorities concerning custody of a child.
[19] Mr Swarbrick telephoned the Commission on 22 March 2021. According to the Commission’s records, he claimed that he had lodged an unfair dismissal application three weeks after dismissal. The Commission officer was unable to find any record of an application having been made on-line, by post or by phone. In his evidence before the Commission, Mr Swarbrick corrected that he had made no application prior to 22 March 2021.
[20] In the telephone call on 22 March 2021, Mr Swarbrick advised the Commission officer that he had only limited access to the internet and no funds. The Commission officer advised Mr Swarbrick that he could make the application by telephone so long as he completed and returned a written application by post. The Commission officer took details from Mr Swarbrick over the telephone as best Mr Swarbrick could provide but the application was incomplete. The Commission officer sent Mr Swarbrick the partially completed written application (F2) that day (22 March).
[21] On 6 April 2021 the Commission officer telephoned Mr Swarbrick as the Commission had not received his returned written application. Mr Swarbrick undertook to return the written application by post that week.
[22] On 19 April 2021 Mr Swarbrick completed and dated an F2 application and posted it back to the Commission.
[23] On 20 April 2021 the Commission officer again telephoned Mr Swarbrick as the Commission had still not received the written application. Mr Swarbrick said that he had sent it “around Easter”. Mr Swarbrick was told that it had not been received. At the Commission’s request, Mr Swarbrick agreed to telephone the Commission on 27 April 2021 to see whether his application had been received.
[24] Mr Swarbrick did not call the Commission on 27 April 2021 as he was working near Whyalla.
[25] A completed written application was received from Mr Swarbrick by post on 29 April 2021.
Consideration
[26] Section 394(3) of the FW Act provides:
“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.”
[27] Mr Swarbrick’s application can only proceed if he can establish that “exceptional circumstances” exist within the meaning of section 394(3).
[28] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.1
[29] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.2 A decision whether to extend time under section 394(3) involves the exercise of a discretion.3
[30] I apply section 394(3) 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.”4
[31] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.
Status of the application
[32] It is not in dispute that Mr Swarbrick’s unfair dismissal application is out of time and can only proceed if an extension of time is granted.
[33] An application under the FW Act is only “made” when it is filed in accordance with the FW Act 5. An incomplete application not made in accordance with the procedural rules is not a valid application.
[34] Whilst Mr Swarbrick’s completed application was not filed until 29 April 2021 (the date of its receipt), in the exercise of discretion I consider it to be in the interests of justice for the date of making this application (albeit incomplete) to be 22 March 2021 – being the date Mr Swarbrick was advised by an officer of the Commission that his telephone application would be received. I do so on the basis that whilst Mr Swarbrick took a further three weeks to complete and then return the F2 (a period beyond the 14 days required by the Fair Work Rules for a telephone application to be returned 6), he has some difficulty completing forms and required some assistance from a family member in doing so.
[35] I am also satisfied that whilst Mr Swarbrick’s last shift was on 21 January 2021, the date his dismissal took effect was not until 22 January 2021. This is the date identified by both Mr Swarbrick and the employer in their F2 and F3.
[36] The application is fifty-nine days after the alleged dismissal took effect, being thirty-eight days beyond the statutory time-limit.
[37] I now consider each of the factors in section 394(3).
Reason for the delay (section 394(3)(a))
[38] The reason for the delay in lodging an application is a factor that must be considered. 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.7
[39] 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.8
[40] 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 the explanation for the delay is acceptable or credible.9
[41] Three reasons are advanced by Mr Swarbrick for the delay:
• he wants the fairness of his alleged dismissal tested;
• he had ongoing custody issues concerning his child on his mind; and
• he sent the completed F2 application once a family member helped him complete it.
[42] The explanations for the delay do not individually or collectively weigh in favour of granting an extension.
[43] While it appears that Mr Swarbrick is genuine in wanting the fairness of his alleged dismissal tested, nothing has occurred since the alleged dismissal to generate a heightened sense of unfairness. Mr Swarbrick’s sense of unfairness at the time of making his application is no different to the view he was able to form inside the 21-day period or the delay period.
[44] The reason why Mr Swarbrick did not file within 21-days, and took until 22 March 2021 to do so, was, according to his evidence:
“I spent two months wondering if I should take action”; and
“I was umming and ahhing about it for two months”.
[45] Indecision or time spent thinking about taking action against a former employer, without considerably more, is not an acceptable reason for extending a statutory time frame.
[46] Nor is the explanation that Mr Swarbrick was pre-occupied by his custody dispute and related legal issues. No doubt such matters are and were greatly stressful and distracting. However, the evidence is that this was an ongoing custody issue whilst Mr Swarbrick was employed by Woody’s and not a new issue emerging post-dismissal. Mr Swarbrick was not working in the two month period following dismissal. He had sufficient time and opportunity to make an unfair dismissal application. Mr Swarbrick spoke to family members about challenging the alleged dismissal in the delay period and had access to a family lawyer who could have, had he asked, referred him to others for employment advice.
[47] Whilst I recognise that Mr Swarbrick may have difficulty completing legal forms or getting access to the internet, this is no explanation for the delay in the delay period (12 February to 22 March). I have accepted that the application was made, albeit incomplete, by phone on 22 March 2021. The issue of difficulties in completing the hard-copy F2 in April 2021 do not bear on the reasons for delay in the delay period.
[48] Considered overall, the explanations for the delay, taken individually and collectively, do not weigh in favour of a conclusion of exceptional circumstances.
Awareness of the dismissal taking effect (section 394(3)(b))
[49] Mr Swarbrick was aware from a message received on 22 January 2021 that his employment would end if he did not turn up for work that day or contact the employer.
[50] That he was well aware of the dismissal taking effect from that date is a neutral consideration and does not weigh in favour of an extension of time.
Action taken to dispute dismissal (section 394(3)(c))
[51] Mr Swarbrick took no action to dispute his dismissal until his telephone call to the Commission on 22 March 2021. At best, he had been “umming and ahhing” about doing so. He accepted in evidence that he had not made an application prior to that date.
[52] The inaction does not weigh in favour of granting an extension of time.
Prejudice to the employer (section 394(3)(d))
[53] 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. 10
[54] If the time for lodgement is extended, Woody’s would have to further respond to the claim, involving time and cost. It is a small business. However, the nature of the prejudice is not unique.
[55] However, the absence of prejudice would not itself be a reason to grant an extension.11
[56] This is a neutral consideration.
Merits of the application (section 394(3)(e))
[57] A hearing will necessarily concern the preliminary question raised by Woody’s – whether Mr Swarbrick was dismissed or whether he abandoned his employment by not turning up for rostered shift or communicating with the employer about his circumstances.
[58] On merit, the matter will concern Mr Swarbrick’s attendance record, and conduct.
[59] I have not conducted a jurisdictional or merits hearing and none of these issues have been canvassed in any detail. It is not possible to form a view, even a provisional view, as to whether the merits of Mr Swarbrick’s case are strong or weak.
[60] In the circumstances, this is a neutral consideration.
Fairness between persons in similar position (section 394(f))
[61] No evidence or submissions from Mr Swarbrick or Woody’s raise issues of fairness with and between other persons.
[62] In the circumstances, this is not a relevant factor.
Conclusion on extension of time
[63] No factors weigh in favour of a conclusion of exceptional circumstances, individually or in combination.
[64] The period of delay (38 days) is considerable particularly bearing in mind the statutory time limit.
[65] The primary explanation for the delay, being a self-determined period of indecision, is weak.
[66] There being no exceptional circumstances, the time for lodging the claim cannot be extended.
Conclusion
[67] As Mr Swarbrick’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed further. The application is dismissed. An order12 to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr M Swarbrick, on his own behalf, with Ms B Swarbrick.
Mr S Wood, on behalf of, W J Wood Pty Ltd, with Ms J Wood.
Hearing details:
2020
Adelaide (by telephone)
31 May 2021
Printed by authority of the Commonwealth Government Printer
<PR730329>
1 Smith v Canning Division of General Practice[2009] AIRC 959
2 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
3 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
4 [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
5 Section 585 FW Act
6 Rule 9(4)
7 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288 at [35]-[45]
8 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
9 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
10 Brisbane South Regional Health Authority v Taylor [1996] HCA 25
11 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
12 PR730330
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