Mr Peter Hornidge v Cabways Pty Ltd T/A Taxi Staffing Services
[2014] FWC 1956
•28 MARCH 2014
[2014] FWC 1956 |
FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Hornidge
v
Cabways Pty Ltd T/A Taxi Staffing Services
(U2013/17875)
COMMISSIONER WILSON | MELBOURNE, 28 MARCH 2014 |
Reasons for Decision - application for relief from unfair dismissal - jurisdictional objection - whether extension of time should be granted
[1] The following are my edited reasons for decision, originally given in transcript at Melbourne on 14 March 2014.
[2] Mr Hornidge has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Hornidge’s application relates to the termination of his employment by Cabways Pty Ltd (Cabways) on or around 5 December 2013, and is date stamped by the Commission as having been received on Monday 30 December 2013.
[3] For the reasons set out below, it is necessary for the Commission to consider whether a further period should be allowed to Mr Hornidge for the making of an unfair dismissal application.
Background
[4] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
[5] The 21 days for lodgement does not include the date that the dismissal took effect 1. As a result, the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day2. Public holidays or weekends that fall during the 21 days will not extend the period of lodgement.
[6] In this particular instance, with the dismissal on 5 December 2013, the last day of the 21 day period was Thursday 26 December 2013, which was Boxing Day, a national public holiday. As a result, having been dismissed on 5 December 2013, Mr Hornidge’s application would need to have been made to the Commission no later than Friday 27 December 2013 in order for it to be within time (taking into account the fact that final day of the actual 21 day period fell on a national public holiday when the Commission was closed). Mr Hornidge’s application is therefore three days out of time.
[7] A conciliation conference of the parties has not been held since Cabways objects to the continuation of Mr Hornidge’s application, arguing it was made after the period allowed for in the Act. Mr Hornidge acknowledged this fact and seeks an extension of time pursuant to s.394 of the Act.
[8] The circumstances of Cabways terminating Mr Hornidge’s employment include the following;
- Mr Hornidge was employed with Cabways on or around November 1996 in the position of Training and Human Resources Manager. 3
- A discussion between Mr Hornidge and Mr Sikavitsis (the Managing Director of Cabways) took place on 2 December 2013, during which Mr Hornidge’s future was discussed. 4 Notwithstanding the discussion of Mr Hornidge’s future and alternative employment arrangements, the Respondent did not rely upon that date for Mr Hornidge’s termination.5
- Instead, the parties agree the termination of Mr Hornidge’s employment was in meeting on Thursday 5 December 2013, when a letter was provided to Mr Hornidge. The letter is attached to Mr Hornidge’s application and is dated 4 December 2013.
- The letter states the following;
- Mr Hornidge then left the premises of the Company on that day.
“ ...
As you are fully aware, the training school arm of the company will cease to exist in its current form as the TSC has clearly stated that training and testing of drivers will resemble that which is undertaken for those wishing to obtain a Victorian drivers licence. Testing will be undertaken by an independent body such as VicRoads.
The changes instigated by the TSC will take effect from 1 January 2014. This is what we have been told. However, it is clear that there could well be changes that we may not be aware of as the TSC are working through the issues of major changes to the current system and format.
We have been challenged by the Government and TSC to alter and adapt to the new changes and challenges or perish under our current business structures. It is obvious that we are facing the greatest challenges ever seen and felt in the Victorian taxi industry by the reforms. We expect our staffing requirements to alter significantly over the next several months as we attempt to reposition ourselves.
...
The position of Human resource and Training Manager has been made redundant as a result of this decision that has been forced onto us as of close of business on Monday 2nd December 2013”.
[9] Mr Hornidge’s witness statement and evidence indicates the following events and action after his dismissal;
- In the week of 9 December 2013, Mr Hornidge attended the offices of both the Commission and the Fair Work Ombudsman, and he made enquiries to a couple of legal firms. 6
- Mr Hornidge was aware of the 21 day period. 7
- Evidence is that Mr Hornidge was conscious to:
- By the weekend of 21/22 December 2013, Mr Hornidge formed the view that nothing was likely to come of those discussions within a reasonable time period. 9
- Mr Hornidge determined to file an unfair dismissal application on the weekend of 21/22 December 2014 and endeavoured to do so. 10
(1) follow up about his entitlements; and
(2) work out a means with Cabways by which he could obtain further work. 8
[10] Cabways opposes the granting of an extension of time on the basis that no exceptional circumstances exist. Cabways argue that Mr Hornidge could have lodged his application by fax if the Commission portal was not working. 11
Legislative scheme
[11] Relevant to the Commission’s consideration of this question are the provisions in s.394 of the Act:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;
“[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”. 12
Consideration
[13] In considering whether I am satisfied there are exceptional circumstances which might lead to allowing a further period for the application to be lodged, I turn to consider each of the criteria set out in subsection 394(3) of the Act.
1. The reason for the delay
[14] Mr Hornidge’s evidence is that his application for unfair dismissal was mailed by him to the Commission in an Australia Post Express Post envelope on Monday 23 December 2013, 13 which was within the period allowed. The Commission’s file includes the envelope in which the application was received. Mr Hornidge’s evidence includes that he confirmed with the postal officer the expected delivery for the envelope was the next working day and, in the absence of alternative evidence, I am satisfied that it was so posted on Monday, 23 December.
[15] The evidence then shows that the application was received in the Commission at 8am on Monday, 30 December 2013. In relation to that, and as I explained to the parties at the commencement of these proceedings, I have been advised by officers of the Commission that on Friday, 27 December 2013 there was a skeleton staff roster within the Melbourne office only and that, in effect, only two staff were at the Commission in Melbourne to assist members of the public who might come to the premises or who might ring in. Other than that, the day was a public service holiday in terms of the enterprise agreement applying to staff of the Commission 14. I have been advised that on Friday, 27 December, there was no postal delivery to the Commission and that the next postal delivery did not occur until Monday, 30 December 2013, which is when Mr Hornidge’s application was received.
[16] Mr Hornidge’s evidence also indicates that there was some communication between him and Mr Sikavitsas in the period after his dismissal, particularly between 9 and 20 December 2013. 15 Mr Hornidge’s evidence in this regard is that he was motivated to ascertain both whether or not there could be an ongoing relationship between him and the company, and clarifying and remedying his belief that he had not been paid correctly upon termination. His evidence indicates that at some point in the week of 20 December 2013, he formed the view that such ongoing relationship with Cabways was unlikely to form. His evidence particularly was that over the weekend of 21 and 22 December 2013 he formed a view that he needed to make an application for unfair dismissal.16
[17] In rebuttal, the evidence of Mr Sikavitsas and the submissions of Mr Lambert, his advocate, indicated that the company took the view that a relationship was probably unlikely to have formed in that period and that, in any event, the company was critical of Mr Hornidge for not filing an unfair dismissal application at an earlier date.
[18] In considering this criterion, I find on the basis of the evidence provided and the submissions that the reason for the delay was twofold. First of all, Mr Hornidge had a reasonable belief that there might be some prospect of obtaining ongoing work with the company and it was only at a particular point that he formed the view that it was unlikely to occur. Secondly, the other reason for the delay was the difficulties with the postal service and, in particular, the difficulties with the staffing in the Commission on Friday, 27 December.
2. Whether the person first became aware of the dismissal after it had taken effect
[19] It is not in dispute that the dismissal occurred on Thursday, 5 December in the course of the meeting which Mr Hornidge attended and, as a result, the particular criterion does not arise for direct consideration by me.
3. Any action taken by the person to dispute the dismissal
[20] The evidence in this regard has been discussed. In particular, I take the parties to the actions of Mr Hornidge to come to the Commission and also to the Fair Work Ombudsman in the week of 9 December 2013. I also take the parties to the evidence given by Mr Hornidge to the effect that he made inquiries of a limited nature to legal firms but which he did not progress because of the anticipated cost associated with those actions.
[21] I find, however, that Mr Hornidge did not take direct action with Cabways to bring to their attention that he disputed the dismissal with them. I also take into account that Mr Hornidge’s evidence indicates that his motivation in that respect, as I have referred to, was twofold, to firstly remedy what he saw as the payment issue and, secondly, to obtain an ongoing relationship with the company.
4. Prejudice to the employer (including prejudice caused by the delay)
[22] While Cabways does not directly submit that there will be prejudice if an extension of time is granted, it is implicit within the submissions that there will be prejudice in dealing with the late application in circumstances where the need to do so has expired, and the relevant statutory framework of the Act is designed to create certainty for all involved.
[23] However, I find that in the event an extension of time is granted to Mr Hornidge the prejudice to Cabways will be principally the prejudice of the elapsed time between the date on which the termination of that employment took effect and the date on which the application was made. In this particular instance, the difference in that regard is a matter of days rather than weeks.
5. The merits of the application
[24] I note that the company, Cabways, put forward the view that the dismissal arose as a result of a redundancy and that it was a genuine redundancy. However, I note that there is insufficient material before me to test this, in particular whether the requirements of the modern award have been complied for it to be a genuine redundancy. In that regard I direct the parties’ attention to section 389(1):
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.”
[25] In his evidence, Mr Hornidge referred to an interchange with the Fair Work Ombudsman about whether or not his employment was covered by an Award. If so, it might be that there were obligations on the employer to consult about the redundancy in order for this to be considered a genuine redundancy 17. I note that the evidence of Mr Sikavitsas indicates that there were discussions in the meeting of 2 December 2013 which could well be construed as consultations. However, I make no finding about this issue because there is insufficient evidence before me on those points.
[26] As a result of that analysis I have not formed a view about the merits of the application. That in itself is not unusual for matters of this type.
6. Fairness as between the person and other persons in a like position
[27] This consideration may relate to fairness in matters of a similar kind currently before the Commission, or matters that have been decided in the past. The parties have not brought me to cases other than those which have been put forward by Mr Lambert. In particular, the Respondent referred to the matters of Cheval Properties Pty Ltd v Smithers 18 and Cuthbert v PRD Nationwide Werribee Real Estate.19
[28] However, no cases have been put directly addressing this issue of circumstances where the Commission postal arrangements may have contributed to the delay.
[29] In respect of the case of Cheval Properties, which also related to a late application over a Christmas period, the Full Bench stated
“...[The Applicant’s] reasons for her delay in making her unfair dismissal remedy application cannot be regarded as unusual or extraordinary in circumstances where she advanced no credible reason for her failure to make her unfair dismissal remedy application to FWA between 8 and 21 January 2010.” 20
[30] The significance of those dates is set out within the decision and, importantly, relate to the final day of the period in which an application could be made, being 8 January 2010. The Full Bench was critical that for the period after 8 January, there was no explanation that would satisfactorily explain why there had been a delay. That, in my view, is distinguishable from this particular case where the evidence clearly indicates that there was a posting of the application on Monday, 23 December which was within the period allowed by the Act.
[31] In the matter of Cuthbert v PRD Nationwide Werribee Real Estate, the applicant posted an application for unfair dismissal and mistakenly posted it into an incorrect mailbox, the red Australia Post mailbox rather than the yellow mailbox where next day delivery was guaranteed. As a result of that particular circumstance, and the factual matters before the Commission in that matter, the Commissioner took the view that he was not satisfied that these circumstances in isolation or when taken together can be considered to be exceptional.
[32] The Commissioner stated:
“[23] ... If Ms Cuthbert had acted to post the application shortly after she completed it on 16 October these issues would not have arisen in the first place. The fact she then, 12 days later, posted the express mail envelope in the wrong mail box undoubtedly again contributed to the subsequent delay in it being received. While she may have made a genuine attempt to file on time her decision to send the application by post; the delay in mailing until two days before the expiry of the 21 day period; and her decision to place the envelope in the wrong mail box, all contributed to the application being lodged out of time. They represent a failure to act in a timely way and a misjudgement which together, provide explanation for the application not being received within the 21 day time period”. 21
[33] The Commissioner then moved to dismiss the application.
[34] The significance of those matters is to draw out that there are plainly issues of fairness which need to be considered as between Mr Hornidge and others.
Decision
[35] In relation to Mr Hornidge’s particular application, I note the two factors which I have identified as being the reason for the delay: firstly, his motive to secure in some form an ongoing relationship between he and the company; and secondly, the circumstances relating to the Commission’s mail arrangements on 27 December.
[36] Drawing these matters together, it is my view that there are exceptional circumstances which would warrant the granting of an extension of time. I have referred to the reasons for the delay and, in respect of the two matters which I have found as being the reasons for the delay, I find that the more compelling of the matters, the one which tips the balance in this particular matter, are the circumstances of the Commission’s mail arrangements on 27 December 2014. This was a circumstance where the applicant had posted his application on Monday, 23 December. It is a circumstance where he appears to have sought reassurance from Australia Post that indeed it would be next-day delivery. There was nothing on the evidence which would indicate to him that something to the contrary was said.
[37] In the ordinary course of events it may be considered that the applicant could rely upon the guarantee given by Australia Post to the effect that there would be next-day business delivery within the metropolitan area in Melbourne. I take into account Mr Lambert’s submission that, given the time of year, it may be a unlikely for that guarantee to be properly exercised. Even bearing in mind that particular caveat, I note that it would ordinarily be expected to be delivered, if not on 24 December, certainly on 27 December. However, I note that there was no mail delivery at the Commission on that day and, accordingly, the first possible time by which the application could be provided to the Commission was on Monday, 30 December 2014.
[38] For these reasons, I am satisfied there are exceptional circumstances in the manner envisaged by s.394(2) of the Act for the grant of a further period to Mr Hornidge for the making of an application for an unfair dismissal remedy.
[39] An order extending the period of time in which Mr Hornidge may make his application was issued on 17 March 2014.
COMMISSIONER
Appearances:
Mr P Hornidge on his own behalf
Mr R Lambert for the Respondent
Hearing details:
2013.
Melbourne:
March 14.
1 Acts Interpretation Act 1901 (Cth), s.36(1)
2 Ibid., s.36(2); see Hemi v BMD Constructions Pty Ltd[2013] FWC 3593
3 Exhibit A1, para 1.
4 Ibid., para 3.
5 Respondent’s Submissions dated 7 March 2014, para 4.
6 Exhibit A1, paras 17 - 18.
7 Ibid., para 24.
8 Ibid., paras 16, 19, 21 and 24.
9 Ibid., para 24.
10 Ibid., paras 25 - 29.
11 Respondent’s Submissions dated 7 March 2014, para 12.
12 Nulty v Blue Star Group, 2011, 203 IR 1 at [13].
13 Exhibit A1, para 27.
14 The enterprise agreement refers to it being “an additional other holiday during the respective Christmas/New Year periods”
15 Ibid., paras 19 - 22.
16 Ibid., para 24.
17 See Livingstones Australia v ICF (Australia) Pty Ltd T/A IC Frith & Associates[2014] FWCFB 1276, at [49]
18 2010 FWAFB 7251, (2010) 197 IR 403.
19 [2014] FWC 675.
20 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 409.
21 Cuthbert v PRD Nationwide Werribee Real Estate [2014] FWC 675, [23].
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