Mr Stephen Carey v Comactivity Pty Ltd/GOC Retail

[2021] FWC 3529

[2021] FWC 3529

FAIR WORK COMMISSION

DECISION

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

Mr Stephen Carey
v
Comactivity Pty Ltd/GOC Retail
(U2021/4064)

DEPUTY PRESIDENT EASTON SYDNEY, 18 JUNE 2021

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

[1] Mr Carey was dismissed from his employment on 20 April 2021. Section 394(1) of the Fair Work Act 2009 (“the Act”) requires Mr Carey to apply for an unfair dismissal remedy within 21 days after his dismissal took effect, being midnight on 11 May 2021.

[2] At 7pm on 11 May 2021 Mr Carey began final preparations for filing his application online. Some formatting problems arose during the evening and Mr Carey decided not to file his application online that evening, and to instead file his application in person the next day.

[3] Mr Carey accepts that he could have completed the process online, in time, during the evening of 11 May 2021 and that he chose instead to file a better version of his application in person, out of time, the next day.

[4] Section 394(3) of the Act allows the Commission to grant a further period for an application to be made, but only if the Commission is satisfied that there are exceptional circumstances.

[5] Whilst I am sympathetic to Mr Carey’s plight, for the reasons that follow there is no proper basis upon which I can be satisfied that there are exceptional circumstances.

[6] This matter illustrates the importance of the “exceptional circumstances” requirement inserted into the Act some time ago. If the power to extend time was not limited to only exceptional circumstances then I would grant the extension. This matter also illustrates why applicants generally should file their application on time, even if the application is not perfect. When preparing a form to commence a proceeding, an applicant has got to make sure it’s right but should not wait for perfection.

Section 394 – Exceptional Circumstances

[7] The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances” (per s.394(3)). The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

“[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.

…

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[8] In considering whether there are exceptional circumstances, s.394(3) specifically requires the Commission to take into account the following:

“(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.”

[9] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 the Full Bench found that:

(a) generally the assessment of whether exceptional circumstances exist will require the consideration of all the relevant circumstances because even though no one factor may be exceptional, the factors considered in combination might support such a finding (at [17] and [38]);

(b) the obligation to “take into account” the matters set out in the statute means that each of those matters must be treated as a matter of significance in the decision-making process insofar as they are relevant (at [19]);

(c) no one factor need be exceptional in order to enliven the discretion to extend time (at [38]); and

(d) individual matters might not be particularly significant when viewed in isolation, but it is necessary to consider the matters collectively and to ask whether, collectively, the matters disclose exceptional circumstances (at [39]).

Reason for the delay (s.394(3)(a))

[10] When taking into account the reason for the delay the Commission invariably assesses whether the applicant has a credible or reasonable explanation for the delay. The Commission does so as part of the process of determining whether exceptional circumstances exist.

[11] A credible explanation for the whole of the period of the delay is not a condition precedent to finding exceptional circumstances exist - it is but one factor for the Commission to take into account. In other words, it is not essential that an applicant provide a credible explanation for the delay.¹

[12] That said, if an applicant does not have a credible explanation for the some or all of the delay the Commission is generally less likely to find that exceptional circumstances exist. Conversely a credible explanation for the entirety of the delay will usually support a finding of exceptional circumstances.

[13] The Commission must consider the reason for the delay over the whole of the period between the dismissal and the commencement of the proceedings, rather than just the period after the time limit has expired. 2

[14] Mr Carey’s explanation for his delay is as follows:

(i) he travelled to Adelaide to look after a sick family member for a period of five days;

(ii) he took time to obtain advice from a lawyer about whether the Commission was the best place to hear his matter;

(iii) over the period he thought very carefully about making his application and was considering making an application in either the Federal Court or the Anti-– Discrimination Board; and

(iv) on the night of 11 May 2021 he experienced formatting issues with the website and decided it would be better to file in person the next day.

[15] Mr Carey explained that:

(i) on day 3 (23 April) he downloaded the applicable forms and spent approximately four hours preparing an application;

(ii) on day 6 (26 April) he sought legal advice;

(iii) on days 11-15 (01-05 May) he travelled to Adelaide to care for a sick relative;

(iv) on day 20 (10 May) he “reviewed and completed the F2 Application prior to submission”;

(v) at 10:30am on day 21 (11 May) he phoned the Commission “to check when the cut-off time was for that day” and was told that it was possible for him to lodge the application in person but that an online application “would be preferred”;

(vi) from 7pm onwards on day 21, he attempted to lodge his application electronically but the following occurred:

“Stephen Carey decided to lodge the document electronically. Stephen Carey attempted to lodge it at 7pm. Stephen Carey understanding was that he could lodge the F2 Application and Attachments by Uploading the file. When he logged in, he noted the form required that he manually add the personal/business information and answers. Stephen Carey came to section 3.1 “Reasons given by the employer for the Dismissal” and Section 3.2 “Why was the dismissal unfair”. Stephen Carey attempted to copy and paste my answers to section 3.1 and 3.2 of the form the formatting was lost. There were 2 options open to Stephen Carey to manually enter the information (4 Hours Approx.) or submit the document live on the next day.”  3

(vii) on day 22 (12 May) he attended the Commission’s premises and filed his application in person.

[16] Mr Carey submitted that the formatting problems he experienced were exceptional. He submitted that “anyone computer literate knows that Online forms such as the FWC F2 Form regularly fail. Mr Carey has completed many government department forms and the ability to fail is built into their design.”

[17] I do not need to make any findings of fact about the propensity of online forms on government websites to “regularly fail.” Three points can be readily made about this submission: firstly, whatever propensity for failure is allegedly “built into the design” of the Commission’s website, there is no evidence that the website actually failed on the evening of 11 May. Mr Carey does not suggest that it did – in fact his submission is that the form was available for him to use but was not as easy to complete online as he was hoping. Secondly, it does not reflect well on Mr Carey’s decision to start his online application at 7pm on day 21 if he has in fact faced many failures on government websites in the past. Lastly, even if I assume that online government “forms such as the FWC F2 Form regularly fail”, and that Mr Carey knew this to be so, “regular” failures would not, as a matter of course, be extraordinary.

[18] As the Respondent correctly submitted: “This is not a case, like Johnson v Joy[2010] FWA 1394, where there was ‘a bona fide attempt to file an application through the FWA website within time, which was unsuccessful for reasons beyond the understanding of the applicant.”

[19] The Respondent also submitted that “distinct from this, the Applicant currently before the Commission made no actual ‘bona fide attempt’ to file. Rather, he considered the administratively simple process of entering some details again was too onerous and himself determined that it was (in the Applicant’s own words) ‘fair and reasonable’ to not comply with the 21-day time limit”. Whilst it is literally correct to state that Mr Carey did not make any actual attempt to file his application on 11 May, I do not accept the imputation that Mr Carey’s activities on 11 May lacked bona fides. Mr Carey was credible and honest in his dealings with the Commission and gave a truthful account of his actions in lodging his application. There was no mala fides in Mr Carey’s decision to not attempt to lodge an application on 11 May.

[20] None of the other aspects of Mr Carey’s reason for delay evidence extraordinary circumstances. Whilst it reflects positively on Mr Carey’s character that he travelled to Adelaide to provide care to a relative and respite for his brother, there is no aspect of this 5-day visit that I could regard as extraordinary. Similarly, it reflects positively on Mr Carey’s character that during the 21 days after his dismissal he promptly sought legal advice and gave considerable thought to whether to commence proceedings at all - many applicants would do well to do likewise. These matters do not support the existence of extraordinary circumstances.

[21] Overall, Mr Carey’s explanation for the delay weighs against a finding that there were exceptional circumstances.

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

[22] Mr Carey was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal (s.394(3)(c))

[23] Mr Carey took no steps to dispute his dismissal prior to making his unfair dismissal remedy application. This is not a factor that supports the existence of any exceptional circumstances.

Prejudice to the employer (s.394(3)(d))

[24] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[25] Given that the delay is very short, it is unsurprising that there is a lack of prejudice to the employer. In these circumstances the absence of prejudice to the respondent does not weigh in favour of a finding of exceptional circumstances. 4

Merits of the application (s.394(3)(e))

[26] The Act requires me to take into account the merits of the application in considering whether there are exceptional circumstances.

[27] Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice. 5 In this context it is sufficient that an applicant establish that his claim is not without merit.6

[28] In general terms Mr Carey’s case is not without merit, although it may not be particularly strong. The Respondent says that Mr Carey’s position was made redundant. Mr Carey does not agree that his position was redundant. On a cursory review of the material in Mr Carey’s F2 application it seems that much of Mr Carey’s attack upon the Respondent’s claim of redundancy is directed to whether or not the Respondent’s decision to make Mr Carey’s position redundant was commercially sound and genuinely made. As the Full Bench in Adams v Blamey Community Group[2016] FWCFB 7202 found, the Commission’s task is not to conduct a merits review of the Respondent’s decision to make the applicant’s job redundant:

“[14] Insofar as Ms Adams’ appeal challenged the findings made by the Senior Deputy President in relation to s.389(1)(a), it is necessary to state at the outset that consideration of whether the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the enterprise does not involve a merits review of the employer’s decision to make the person’s job redundant. It is not to the point that it may have been open to the employer to make a different operational decision which may have allowed the relevant employee’s job to be retained. As was stated in Low v Menzies Property Services Pty Ltd [2014] FWC 7829 at [16], “Whether it was objectively fair or justifiable to decide to abolish a position is beside the point, as long as the employer acted as it did because of changes in its operational requirements.” What s.389(1)(a) requires is for findings of fact to be made as to whether, firstly, the employer has made the decision that the relevant employee’s job is no longer required to be performed by anyone and, secondly, whether that decision was made because of changes in the operational requirements of the enterprise. If there was an ulterior motive for the decision - that is, if the real reason for the decision did not genuinely relate to any change in operational requirements, whatever the ostensible reason may have been - then it will not be possible to make the second finding of fact. However once these findings of fact are made, the element of the genuine redundancy definition contained in s.389(1)(a) is satisfied and no further inquiry is necessary.”

[29] The Respondent also referred to Mr Carey apparently entering into a Termination Agreement that purports to settle all claims Mr Carey might have against the Respondent. The Respondent describes this point as “not technically a jurisdictional objection” but one that the Commission will have to consider if the application continues.

[30] The most I can draw from this submission is that Mr Carey’s case is potentially weakened by the possibility that Mr Carey might have to overcome an objection the Respondent might make at some later point in reliance upon a Termination Agreement. The alleged Termination Agreement is not in evidence. I do not know if Mr Carey received any valuable consideration beyond his contractual and statutory entitlements in exchange for the apparent release he provided. The respondent’s F3 Response document states that “… this termination agreement prohibits the unfair dismissal claim from proceeding. At this stage the Respondent has not made an application to the Commission for dismissal of this application based on the terms of the Termination Agreement. It does, however, reserve its rights in respect of this matter.” The longer the Respondent waits before relying upon this apparent ‘knock out blow’ the less inclined the Commission will be to pay it any regard. This submission is not one that carries much weight in my deliberations. Mr Reaburn for the Respondent properly conceded as much at the hearing of the matter.

[31] I do not consider the merits of the present case point towards a finding that there are exceptional circumstances.

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

[32] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Carey and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[33] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Mr Carey, I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[34] In deference to Mr Carey I must indicate that but for the requirement to be satisfied that there are exceptional circumstances, I would be inclined to grant him an extension of time. Through the 21-day period he was diligent in taking steps to seek advice and to formulate his claim and also to think seriously and carefully about the wisdom of commencing proceedings altogether. His one mistake was to not file his (imperfect) application on 11 May in order to file a better quality of application the next day.

[35] The application for an extension of time is refused and Mr Carey’s substantive application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Stephen Carey on his own behalf as the Applicant
Mr Tom Reaburn of McCullough Robertson Lawyers on behalf of the Respondent

Hearing details:

2021.
Telephone hearing.
11 June 2021.

Printed by authority of the Commonwealth Government Printer

<PR730855>

1 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36].

 2   Diotti v Lenswood Cold Stores Co-op Society (t/as Lenswood Organic) (2016) 258 IR 110, [2016] FWCFB 349 at [31].

 3   Submission and Evidence of Mr Stephen Carey dated 22 May 2021.

 4   Miller v DPV Health Ltd [2019] FWCFB 6890 at [21] citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149at [38].

 5   Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [72].

 6   Thomas Cosgrove v Clarity Interiors[2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168.