Mr Ricky Driver v CPB Contractors Pty Limited

[2024] FWC 3250

[2024] FWC 3250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Ricky Driver
v

CPB Contractors Pty Limited

(U2024/11014)

DEPUTY PRESIDENT BUTLER BRISBANE, 22 NOVEMBER 2024

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed

1. Mr Ricky Driver, also known as Amon, says that his former employer, CPB Contractors Pty Ltd (“CPB Contractors”), unfairly dismissed him. He applied to the Fair Work Commission for a remedy in that regard. CPB Contractors has objected on the ground that Mr Driver applied out of time, and on other grounds. It also opposes the application on its merits.

1. It is common ground between the parties that Mr Driver’s employment started on 25 October 2023 and ended on 15 August 2024. Mr Driver applied to the Commission on 16 September 2024, eleven days out of time. The question presently before me is whether to allow Mr Driver an extension of time to apply.

The time limit

1. An unfair dismissal application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.[1]

1. The Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account:[2]

   (a)   the reason for the delay;

   (b)   whether the Applicant first became aware of the dismissal after it had taken effect;

   (c)   any action taken by the Applicant to dispute the dismissal;

   (d)   prejudice to the employer (including prejudice caused by the delay);

   (e)   the merits of the application; and

   (f)    fairness as between the Applicant and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

This application

1. CPB Contractors filed its response on 26 September 2024. I issued directions on 1 October 2024. Mr Driver did not provide materials as required by those directions. I listed the matter for mention on 16 October 2024 and issued further directions on that date.

1. After taking into account the parties’ views, I decided to determine the extension of time issue by way of a hearing. The hearing was listed for 22 October 2024. On Mr Driver’s application I adjourned the hearing to 6 November 2024, and it was ultimately held on that date.

1. Mr Driver gave evidence, as did Mr Matthew Papworth of CPB Contractors.

Submissions

1. Mr Driver relied on the argument set out in his application and did not file additional written submissions. CPB Contractors filed an outline of submissions. The parties made oral closing submissions at the hearing.

Consideration

1. I will now consider each of the matters set out above.

Reason for the delay

1. To be in time Mr Driver needed to apply by midnight on 5 September 2024. The delay ran from then until Mr Driver made the application on 16 September 2024, and that is the period to be considered. Circumstances arising before that period may also be relevant to the reason for the delay.[4]

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]

1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]

1. It was common ground between the parties that CPB Contractors sent a letter of demand to Mr Driver. The parties are in dispute as to whether Mr Driver received it on 4 September 2024 or 5 September 2024. 5 September 2024 was the last day of the 21 day period for filing an unfair dismissal claim in time.

1. Mr Driver says he received the letter at around close of business on 5 September 2024. He says it disclosed new evidence that had not previously been provided. Mr Driver argues that the provision of this letter on 5 September 2024 practically limited his ability to respond. He says that providing the letter on 5 September 2024 appeared “calculated to obstruct” his right to file an unfair dismissal claim, creating significant procedural unfairness.[7] He says he believes the delivery of this letter at this date and time shows the company’s intent to make sure he would not be able to defend himself through the Commission due to the 21 day time limitation.[8] This implies that Mr Driver did not decide to apply for an unfair dismissal remedy until he received this letter of demand.

1. CPB Contractors says the letter was issued on 4 September and was part of a separate process, not affecting any unfair dismissal claim.[9] I make no finding as to whether Mr Driver owed the monies that CPB Contractors demanded.

1. Mr Driver’s filed materials do not explain why he did not lodge his application online on the evening of 5 September, or why it took a further eleven days for him to lodge it.

1. The material does indicate that Mr Driver made an inquiry, of CPB Contractors, about unpaid wages on 16 September. He says he emailed Mr Papworth about it but has received no response.[10] I make no finding about whether any wages were owed.

1. Mr Driver was self-represented. As a matter of fairness, I included notes with the directions issued 1 October 2024 and 16 October 2024 asking parties to address the considerations in s 394(3). I also told the parties at the outset of the hearing that I expected to hear about the explanation for the delay. I raised this again with Mr Driver when he gave his evidence. He said that at the relevant time he was trying to find work, and was really struggling with that. He said it was hard to navigate through applying to the Fair Work Commission for the first time. And, he said “plus, my mental health.”

1. Mr Driver did not elaborate on this reference to his mental health in his evidence. No medical evidence was provided.

1. During closing submissions, Mr Driver also referred to the pressure of looking for work when he was the sole provider at home. His responsibility as sole provider was in evidence[11] and not contested.

1. In submissions Mr Driver also added that the letter of demand really got to him, and he was going through a tough time. I take the latter to be a reference to his mental health, which he referred to in evidence. Also, it is self-evident from the content of the letter of demand[12] that receiving it would have been distressing to someone in Mr Driver’s circumstances.

Did the Applicant first become aware of the dismissal after it had taken effect?

1. It was not in dispute, and I find, that Mr Driver was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action did Mr Driver take to dispute the dismissal?

1. Mr Driver says that when he was dismissed, he took it “on the chin” and went about looking for new employment.[13] He then received the letter of demand, either on 4 or 5 September 2024, but there is no evidence of his taking any action to dispute the dismissal at that time. Mr Driver says he made an inquiry about unpaid wages on 16 September 2024,[14] but there is no evidence that he disputed the dismissal in doing so.

1. I find that Mr Driver did not take any actions to dispute his dismissal before applying to the Commission on 16 September 2024.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. CPB Contractors properly conceded this issue. In the circumstances, the Respondent would not suffer any material prejudice if time was extended.

What are the merits of the application?

1. CPB Contractors raises a jurisdictional objection. Specifically, it argues that Mr Driver was not a person protected from unfair dismissal because he was not covered by a modern award, no enterprise agreement applied to him, and his earnings exceeded the high income threshold.[15]

1. There was no dispute on the evidence that Mr Driver’s total earnings, excluding superannuation, were $203,666,[16] and that Mr Driver was a supervisor.[17] His earnings put him above the high income which was $175,000 at the time of the dismissal. The CPB Contractors Pty Ltd Cross River Rail – Civil and Surface Works Greenfields Agreement 2019-2023 does not apply to supervisory personnel.[18] Deciding the objection would turn on the award coverage. The employer’s argument in that regard is not so persuasive that I would accept, at this stage, that the application would not survive the jurisdictional objection.

1. The parties’ materials deal with the merits of the substantive application. The merits turn on contested points of fact. Determining those contested points of fact would require hearing the evidence and hearing the parties’ submissions about it. Each party’s case is arguable. 

Fairness as between the Applicant and other persons in a similar position

1. Neither party brought to my attention any relevant matter concerning this consideration. I am unaware of any relevant matter specific to this application.

Whether there are exceptional circumstances

1. I am not satisfied that there are exceptional circumstances, taking into account the matters above.

1. The reasons for the delay do not support a finding of exceptional circumstances. It is usual for someone who has been dismissed to be looking for work. It is common for people of working age to have family responsibilities. Most people would be unfamiliar with tribunal proceedings, unfair dismissal applications, and the Commission. Mr Driver provided no medical evidence about his mental health. There is no basis to find that any mental health condition had a material effect on his ability to apply to the Commission. Receiving the letter of demand would have been distressing, but being in dispute with the former employer does not give rise to exceptional circumstances.

1. In this case the other matters – awareness of the dismissal, action taken to dispute it, prejudice to the employer, and merits – are neutral: they neither positively nor adversely affect my consideration of whether there are exceptional circumstances.

Conclusion

1. I am not satisfied that there are exceptional circumstances. There is no basis to allow an extension of time. Mr Driver’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

R Driver, the Applicant, on his own behalf
A Langford for the Respondent

Hearing details:

2024
Brisbane:
6 November.

[1] Fair Work Act 2009 (Cth) s 394(2).

[2] Ibid s 394(3).

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[7] Application, p 2.

[8] Exhibit A1, Statement of Mr Driver, at [9],

[9] Exhibit R1, Statutory Declaration of Mr Papworth, at [2].

[10] Exhibit A1, Statement of Mr Driver, at [10].

[11] Exhibit A1, Statement of Mr Driver, at [8].

[12] Exhibit R1, Statutory Declaration of Mr Papworth, Attachment 3.

[13] Exhibit A1, Statement of Mr Driver, at [8].

[14] Exhibit A1, Statement of Mr Driver, at [10].

[15] Fair Work Act 2009 s 382.

[16] Exhibit R1, Statutory Declaration of Mr Papworth, at [3].

[17] Exhibit R1, Statutory Declaration of Mr Papworth, at [5].

[18] Exhibit R1, Statutory Declaration of Mr Papworth, Attachment 5, CPB Contractors Pty Ltd Cross River Rail – Civil and Surface Works Greenfields Agreement 2019-2023, cl 2.3.

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