Mr Patrick Reynolds v Bunnings Group Limited

[2020] FWC 775

[2020] FWC 775

FAIR WORK COMMISSION

DECISION

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

Mr Patrick Reynolds
v
Bunnings Group Limited
(C2019/5731)

DEPUTY PRESIDENT CROSS SYDNEY, 20 APRIL 2020

Application to deal with contraventions involving dismissal - jurisdictional objection - out of time consideration.

[1] On 13 September 2019, Mr Patrick Reynolds (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was employed, by Bunnings Group Limited (“the Respondent”). The Applicant commenced his employment with the Respondent on 12 May 2012. His dismissal took effect on 19 February 2019, and he was notified of his dismissal on that date.

[2] General protections 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 the date when the dismissal took effect, an application for a remedy should have been lodged by 12 March 2019. The application was therefore lodged outside of the time prescribed and was lodged 185 days after the last day on which such an application could have been made

[3] On 10 December 2019, a Directions Hearing was conducted to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his application (“the Application”) would be determined (“the Directions”). The Directions were issued that provided for a timetable for the filing of Outlines of Submissions from both parties addressing the out of time issue, together with any witness statements and other documentary material upon which each party intended to rely. The Directions also provided that the Application would thereafter be determined on the materials filed by the parties, unless an Application was made and granted for the hearing of evidence. In the Directions Hearing the parties were specifically directed to the provisions of s.366(2) of the Act, and they were advised to address the considerations outlined therein where appropriate.

[4] In accordance with the Directions:

(a) On 11 December, 2019, the Applicant filed an Outline of Submissions;

(b) On 24 January 2020, the Respondent filed an Outline of Submissions; and

(c) On 27 and 28 January, 2020, the Applicant filed an Outline of Submissions in Reply with ten Annexures, that were included in four emails.

Applicant’s Prior Unfair Dismissal Application

[5] Consideration of the Application necessarily involves an understanding of an Unfair Dismissal Application filed by the Applicant against the Respondent (“the UD Application”)

[6] On 8 March 2019, the Applicant’s former support person, Mr Polleycutt, filed the UD Application. The UD Application consisted of a 6-page Form F2 – Unfair Dismissal Application and a 5-page accompanying document titled ‘F2 point 3.2. Why was the dismissal unfair?’.

[7] I note that it was the Applicant’s case that he also simultaneously submitted a Form 8 General Protections Application Involving Dismissal on 6 March 2019 (“the March GP Claim”). The Applicant submitted:

a. Applicant lodged an F8 Application 6/3/19 The Administrative procedural advice from FWC was confused and as such the F8 was a duplicate of reasons F2 and referred directly to the F2 that was being submitted before the FWC in compliance of the procedures received;

b. An Application for unfair dismissal F2 lodged 6/3/19 along with the F8 in a. above.

c. Both F8 and F2 " Form" duplicates were instructed that the F8 was before the FWC in " Form" regardless, but as the Dismissal had taken place the F2 was the correct " Form" administered by the Reception in Civic of FWC.

[8] The March GP Claim that the Applicant claimed to have filed on 6 March 2019, apparently simply annexed the UD Application, and listed in answer to Questions 3.1 and 3.3 of the Form F8 “Please see attached document ‘F2. 3.2 Why is dismissal unfair?’”.

[9] On 11 April 2019, the parties attended a conciliation conference conducted by the Fair Work Commission. The matter did not settle and was subsequently referred to Deputy President Kovacic for determination.

[10] Between the time of allocation to the Deputy President and July 2019, the parties attended three Mentions/Conferences with the Deputy President and exchanged various emails regarding the programming and conduct of the matter. The last such mention occurred on 19 July 2019.

[11] Further, on 12 June 2019, the Respondent filed a previously foreshadowed application under s.399A of the Act seeking that the UD Application be dismissed on the basis that Mr Reynolds had “repeatedly failed to comply with directions” made by the Commission. In dismissing that application on 4 July 2019, Deputy President Kovacic observed: 1

“Finally, I would strongly encourage Mr Reynolds to contact Legal Aid ACT and/or the ACT Law Society’s pro-bono clearing house to see whether he may be eligible for assistance and/or support/advice in respect of his unfair dismissal application. Beyond this, Mr Reynolds should also, if he has not already done so, examine the range of information/material which is available on the Commission’s website, e.g. the Unfair Dismissal Benchbook, to assist him in preparing his submissions and any associated evidentiary material which he intends to rely on in support of his unfair dismissal application.”

[12] On 22 July 2019, the Deputy President issued the following direction:

“The Applicant, Mr Patrick Reynolds, is to advise the Fair Work Commission within 14 days (close of business Monday 5 August 2019) as to whether he wishes to proceed with his application for unfair dismissal remedy or alternatively seeks to discontinue his application.”

[13] The Respondent submits that on 22 July 2019, the Deputy President confirmed there was no record of a Form F8 – General Protections Application Involving Dismissal having been filed by or on behalf of the Applicant, and requested that the Applicant advise the Commission “as to whether he wishes to proceed with his application for unfair dismissal remedy or alternatively seeks to discontinue his application” (as set out in Directions dated 22 July 2019). The Respondent alleges that the Deputy President also warned the Applicant that were he to take that course, he would first have to be granted an extension of time by the Commission if he were to discontinue his F2 Application and pursue a general protections dispute instead.

[14] It would seem at the very least that the existence of the March GP Application was the subject of some agitation because on 19 August 2019, the Deputy President’s Associate emailed the Applicant. The relevant part of that email, with some deletions of addresses for privacy, was as follows:

From: Chambers - Kovacic DP <[email protected]>

Sent: Monday, 19 August 2019 11:59 AM

To: reynolds.patrick

Cc:

Subject: U2019/2581 - Reynolds, Patrick v Bunnings

Attachments: form_f50.pdf

Dear Mr Reynolds

I apologise for the delay in responding, the Deputy President is currently on leave.

The Deputy President notes the Commission has no record of Mr Reynolds filing a General Protections application.

The Deputy President infers from your responses of 22 July and 7 and 13 August 2019 that the Applicant intends to press his unfair dismissal application and directions will shortly be issued for a hearing.

If the Applicant does not wish to continue with his unfair dismissal application please sign the attached notice of discontinuance and return it to the Commission.

Kind regards,

[15] In the absence of discontinuance of the UD Application, it appears to have been understood that the Applicant intended to continue pursuing his F2 Application and on 23 August 2019, a Notice of Listing and Directions document was issued to the parties and stated (in part) as follows:

“1. The Applicant (Patrick Reynolds) is to file with the Commission and serve on the Respondent an outline of submissions and any evidentiary material (witness statements and other documentary material) on which it intends to rely by close of business on Friday, 13 September 2019.

2. The Respondent (Bunnings) is to file with the Fair Work Commission and serve on the Applicant an outline of submissions and any evidentiary material (witness statements and other documentary material) on which it intends to rely by close of business on Friday, 4 October 2019.

3. The Applicant (Mr Patrick Reynolds) is to file with the Fair Work Commission and serve on the Respondent any submissions and any evidentiary material (witness statements and other documentary material) in reply to the Respondent’s witness statements and documents by close of business on Friday, 11 October 2019.

4. The parties should refer to the information sheet attached which provides explanatory information about these directions.

5. If either party wishes to vary these directions, they can make an application to do so in writing directly to the Member's Chambers.”

[16] On 4 September 2019, the Deputy President’s Associate emailed the Applicant. The relevant part of that email, with some deletions of addresses for privacy, was as follows:

From: Chambers - Kovacic DP <[email protected]>

Sent: Wednesday, 4 September 2019 3:54 PM

To: reynolds.patrick

Cc:

Subject: U2019/2581 - Reynolds, Patrick v Bunnings

Attachments: Notice of Listing and Directions.rtf; form_f50.pdf

Dear Mr Reynolds,

I refer to our conversation on Monday in which you stated you were going to obtain legal advice regarding your options.

If you do not intend on proceeding with your F2 Application please advise Chambers or complete the attached F50 notice of discontinuance.

Should you wish to proceed with your F2 Application you are reminded that you are obligated to comply with the following Directions which were issued on 23 August 2019.

[17] On 6 September 2019, the Applicant emailed the Deputy President’s Associate. The relevant part of that email, with some deletions of addresses for privacy, was as follows:

From: Patrick Reynolds >

Sent: Friday, 6 September 2019 12:15 PM

To: Chambers ‐ Kovacic DP <[email protected]>

Subject: Copy of all orders in u2019/2581

Hi as discussed with counter staff at fwc office Canberra o need all orders made in this matter so that I can give them to solicitor who is advising me

Thks is an urgent matter and requires immediate attention. Regards Patrick Reynolds

[18] On 13 September 2019, the Applicant filed (but apparently failed to serve on the Respondent until 17 September 2019,) a Form F50 – Notice of Discontinuance (“the Form F50”). The Form F50 indicated the Applicant had decided to “Wholly discontinue this matter to pursue an alternate application.”

[19] On 16 September 2019 the Applicant filed a Form F8 – General Protections Application Involving Dismissal (with a significant number of attachments)(“the September GP Claim”).

Consideration

[20] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) of the Act provides:

“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).”

[21] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(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.”

[22] It is clear from the structure of s.366(2) 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.

[23] 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.366(2) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[24] 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] FWCFB 2149 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.”

[25] 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.” (Emphasis added)

[26] 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. 

[27] The position of the Applicant is that there was no delay. He says that the March GP Claim was filed on 6 March 2019, though I note that the UD Application, that was said to annexe the March GP Claim, was not filed until 8 March 2019. Nonetheless, as the dismissal date was 19 February 2019, any claim was required to be filed by 12 March 2019. Support for the Applicant’s contention can be derived from the answer to Question 1.6 in the UD Application, where he indicated, contemporaneously, that he had made another claim, being “Form F8 General Protections Application Involving Dismissal”.

[28] The Respondent identifies that the September GP Claim, which is the subject of this Application, was filed 185 days outside the statutory time limit. The Respondent denies there is any evidence of the filing of the March GP Claim.

[29] Other than the notation at Question 1.6 of the UD Application, there is no evidence supporting the actual filing of the March GP Claim. Nonetheless, I am not prepared to find that the Applicant has no acceptable explanation for all of the 185 day period of delay. That is because Mr Polleycutt, and not the Applicant, filed the UD Application. It appears likely that the Applicant may have understood that the March GP Claim had been filed for some period after March 2019.

[30] I do not accept, however, that the Applicant has an acceptable explanation for all of the 185 day period of delay. The Applicant and the Respondent had numerous dealings with the Commission during that period. It is tolerably clear that the issue of the non-existence of the March GP Claim, at least as a filed document, was being squarely raised, as was the associated issue of discontinuance of the UD Application.

[31] On 22 July 2019, Deputy President Kovacic was directly enquiring as to discontinuance, and noted in his email to the Applicant of 19 August 2019, that from the Applicant’s responses of 22 July 2019, and 7 and 13 August 2019, that the Applicant intended to press the UD Application. I am satisfied that the Applicant was aware from either the 19 July 2019 mention of the UD Application, or the 22 July 2019 correspondence from the Deputy President, that the non-existence of the March GP Claim was a live issue. I am further satisfied that from 19 August 2019, the issue of the non-existence of the March GP Claim, was put beyond doubt.

[32] There is no question as to the Applicant’s awareness of the 21 day period for filing applications. By 22 July 2019, it should have been readily apparent to the Applicant that for an abundance of caution a valid Form F8 should be filed. Transposing 22 July 2019, for the termination date, the 21 day period would expire on 12 August 2019, with the Application being filed 32 days after that date.

[33] Even if the Applicant required the absolute statement contained in the email of 19 August 2019, which I do not accept due to the many prior proceedings in the Commission, then transposing 19 August 2019, for the termination date, the 21 day period would expire on 9 September 2019, with the Application being filed four days after that date.

[34] While I accept that the Applicant has an acceptable explanation for a significant part of the 185 day period of delay, I find there is no acceptable explanation for the delay in application after 12 August 2019, or in the alternative 9 September 2019, particularly when in at least the latter stages of that span of dates the Applicant apparently had a Solicitor advising him. Accordingly, this factor weighs in the Respondent’s favour.

(b) Action taken by the person to dispute the dismissal

[35] The Respondent conceded that the Applicant did take action to dispute his dismissal by the UD Application. Accordingly, this factor weighs in the Applicant’s favour.

(c) Prejudice to the employer

[36] Regarding prejudice,the Respondent submitted:

“The Respondent submits Mr David Jameson, who was:

•  employed as the Respondent’s Complex Manager of the complex in which the Applicant worked at the time of dismissal; and

•  heavily involved at the time of and leading up to the Applicant’s dismissal is no longer employed by the Respondent.”

[37] The Applicant noted that he was aware Mr Jameson was no longer employed by the Respondent, apparently shortly after March 2019. He submitted, however:

“Despite the Respondents Lawyer asserting Mr Jamison will be available to attend any hearing in the matter before the relevant jurisdictional public body it is the Commission who ordered on this misrepresentation than the Application to make him lawfully appear was denied.”

[38] As a key witness for the Respondent is no longer employed by the Respondent, and so is less accessible than he would have otherwise been had the application been filed promptly, and noting the significant amount of time between the dismissal and the filing of the September GP Claim, the Respondent will be moderately prejudiced by the delay. This factor accordingly weighs slightly in the Respondent’s favour.

(d) Merits of application

[39] This is a general protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and that this action took place because of a prohibited reason.

[40] 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 (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“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.”

[41] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(e) Fairness between the person and other persons in a similar position

[42] The Applicant has submitted the following:

“e. Other persons in like position. The Fair Work Commission is encumbered with the Legislation to preside and meet. Those persons employed by the FWC should be able to consider the actions of a "registered lawyer " and that of a "registered organisation" to be some what authorities; reliable and substantive in consideration of matters before it.”

[43] I do not consider there to be other Applicants with comparable positions to be considered. This consideration is neutral.

Conclusion

[44] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight for the Respondent were acceptable reason for delay and prejudice to the Respondent. The only factor weighing in the Applicant’s favour was action taken to dispute the dismissal.

[45] I am persuaded therefore that, in the overall balance, there are not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

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<PR716712>

 1   [2019] FWC 4665.