Mr Paul Bevins v Go Nadia Pty Ltd T/A Go Nadia Pty Ltd

[2018] FWC 1619

[2018] FWC 1619

FAIR WORK COMMISSION

DECISION

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

Mr Paul Bevins
v
Go Nadia Pty Ltd T/A Go Nadia Pty Ltd
(U2017/11959)

COMMISSIONER JOHNS SYDNEY, 19 MARCH 2018

Application for relief from unfair dismissal - whether to extend time for lodging the application. .

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Paul Bevins (Applicant) a further period for lodgement of his application for an unfair dismissal remedy (UFD Application) in circumstances where his completed application was lodged on 9 November 2017, that being:

a) 23 days after his employment was terminated by Go Nadia Pty Ltd (Respondent) on 17 October 2017 and, consequently,

b) 2 days after the 21 day time limit provided for in the FW Act.

[3] To be within time the UFD Application should have been be filed on or before 7 November 2017.

[4] In his UFD Application the Applicant gave the following reasons for not lodging the UFD Application on time:

“I have tried to negotiate a return to work.

I was unaware I could make a claim.

I am computer illiterate and had to get somebody to explain things to me.

I live in an isolated area, etc.”

[5] On 22 November 2017 the Respondent objected to the Commission exercising its jurisdiction to deal with the UFS Application because it was lodged later than the 21 days after the dismissal took effect.

[6] Following a request from the Commission for additional information, on 5 February 2018 the Application wrote to the Commission in the following terms,

“My application was lodged after the 21 day period because I was trying to sort out the issue with my employer and he told me that he was looking into the matter and that he was trying to sort out the two different stories that he had been told. (between the supervisor Vic Otto, and myself) I am now aware that it was just a myth and he was just trying to distract me for the 21 day period to avoid having my voice heard in court, which I told him I would do if he wouldn’t listen to me, or bother to see the evidence that I had, backing my version of events.” 3

[7] On 8 February 2018 the matter was allocated to me. On that day I issued directions for the parties to file and serve any additional material that they sought to rely upon by 16 February 2018.

[8] On 16 February 2018 the Respondent filed two affidavits as follows:

a) Peter Charles Todd sworn 16 February 2018 4, and

b) Warren George Todd sworn 16 February 2018 5.

[9] On 19 February 2018 I conducted a hearing by telephone. At the hearing:

a) the Applicant represented himself, and

b) the Respondent was represented by Mr Warren Todd, Shed Manager. Later he was joined by telephone, by Mr Peter Todd, Farm Manager.

At the beginning of the hearing the Respondent had sought to be represented by Ms L McDonnell, an Associate with Ruddy Tomlins & Baxter, solicitors. Her application for permission to represent the Respondent was solely based on section 596(2)(a) of the FW Act. The Applicant opposed the Respondent being represented. Having heard from Ms McDonnell and having considered the material that had been filed in the matter was not satisfied that the matter was invested with sufficient complexity that I would be assisted in the efficient conduct of the matter if I granted the Respondent permission to be represented. Consequently, permission was denied.

Legislative scheme

[10] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[11] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 6 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  7

Consideration of s.394 criteria

Paragraph 394(3)(a) - The reason for the delay

[12] It is undisputable that there were 23 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[13] The UFD Application was 2 days late.

[14] In addition to the matters he asserted in the documents filed in advance of the hearing, before me the Applicant explained the reason for the delay was that he was trying to “sort out the issue with his employer”. He clarified that he meant Mr Peter Todd. In his Affidavit Mr Todd wrote,

“After the termination on 17 October, I did not see Bevins at out farm, nor have I had any conversations with him either personally or over the phone save and except for me running into him in the local supermarket and exchanging a hello.”

[15] I put this account to the Applicant and he confirmed he last spoke to Mr Peter Todd on 17 October. He said,

“He [Peter Todd] said we was going to – you know, I told him my version of events and, yes, he said he was just going to look into it because he only heard Vic Otto’s version of events which he believed to be true. When he put them to me, I said that, you know, there was not one word of truth about many of the things that Vic had told him. So he said, yes, he’ll look into it and try and sort something out.” 8

[16] When pressed about why he did not file his UFD Application on time, the Applicant said, “Because I trusted him.” 9 I asked if the Applicant had done any follow up with Mr Todd in the 21 days following the dismissal. He said, “No.”10 I queried why this was the case when the 21 day period was “ticking away”. He said, “I had no idea about that. I was unaware.”11 He also said that the situation leading to the dismissal “was a little bit overwhelming.”12 He also said that he “was pretty bedridden for a couple of weeks, anyway (following the dismissal).”13

[17] I then asked the Applicant how it was that he finally came to lodge his UFD Application. He explained,

“My father actually did it on my behalf because – yes, he rung me a couple of times in that three weeks and said, you know, “What’s happening with work?” I said, “Oh, I don’t know. Peter said he’s going to look into it and stuff.” It wasn’t until roughly three weeks later that my father had said, “It sounds like you’re getting played like a fool,” and he actually lodged the form on my behalf because he could see through, you know, sort of what was happening, whereas I was unaware.” 14

[18] In answer to the allegation that they were, in essence, stringing the Applicant along until the 21 day period expired, Mr Warrant Todd gave evidence that they too were not aware of the time limit. 15

[19] It has long been established that “ignorance of the timeframe for lodgement is not an exceptional circumstance.” 16 In the present matter, that is part of the explanation. The other part is that, following a conversation between the Applicant and Mr Peter Todd on the day of the dismissal the Applicant believed that Mr Todd would “look into” his version of events and the termination would be rescinded. The problem with this part of the explanation is that the Applicant took no action in the following weeks to follow up with Mr Todd. Even though the Applicant was injured and could not work, that does not mean that he could not follow up with Mr Todd in the intervening period. His failure to do so does not provide “an acceptable reason for the delay.”17

[20] Therefore this factor weighs against of granting the Applicant a further period to make his application.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[21] It is uncontested that the Applicant first became aware of the dismissal on 17 October 2017.

[22] Therefore this factor weighs against of granting the Applicant a further period to make his application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[23] The Applicant took the following action to dispute the dismissal:

a) he spoke with Mr Peter Todd, and

b) filed the present UFD Application.

[24] The limited action taken by the Applicant weighs against of granting him a further period to make his application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[25] In the hearing before me Mr Warrant Todd agreed that it was not going to make it any more difficult for the Respondent to defend the UFD Application when it was only 2 days late. 18

[26] The prejudice asserted by the Respondent weighs is neutral in relation to granting the Applicant a further period to make his application.

Paragraph 394(3)(e) - The merits of the application

[27] In the matter of Kornicki v Telstra-Network Technology Group 19the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. 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.” 20

[28] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[29] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[30] The substantive factual contest between the Applicant and the Respondent is whether there was a valid reason for the dismissal. The Applicant says he was sacked because he had a work related injury. Mr Warren Todd said “we weren’t aware that he still had an injury until after he was sacked.” 21 The Respondent alleges poor performance for some time and threat being made to a fellow employee. This is not a factual dispute that can be resolved at a jurisdictional hearing.

[31] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[32] If the Applicant can establish to the satisfaction of the Commission that the dismissal was connected to him having hurt his ankle at work and wanting to go home ill then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[33] That the Applicant’s case is not without merit or lacking in any substance weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[34] The parties did not make any submissions about this factor.

Conclusion

[35] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

[36] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Paul Bevins for himself.

Warren Todd for the respondent.

Hearing details:

2018.

19 February.

Sydney.

<Price code C, PR601294>

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3   Exhibit “A1”.

 4   Exhibit “R2”.

 5   Exhibit “R1”.

 6 [2011] 203 IR 1

 7 Ibid [13].

 8   Transcript PN72.

 9   Transcript PN76.

 10   Transcript PN78.

 11   Transcript PN80.

 12   Transcript PN84.

 13   Transcript PN88.

 14   Transcript PN90.

 15   Transcript PN233.

 16   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [14].

 17   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 18   Transcript PN155 - 156.

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

 20   Ibid.

 21   Transcript PN141.

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