Mr Stewart Riddle v Bellagon Pty Ltd T/A Romeo's Retail Group Foodland

[2018] FWC 7066

[2018] FWC 7066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Stewart Riddle
v
Bellagon Pty Ltd T/A Romeo's Retail Group Foodland
(U2018/9492)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 19 NOVEMBER 2018

Application for an unfair dismissal remedy – extension of time - no exceptional circumstances – application dismissed

[1] Mr Stewart Riddle has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his alleged dismissal by Bellagon Pty Ltd trading as Romeo’s Foodland (‘Romeo’s Foodland’ or ‘the employer’). He claims to have been dismissed on 30 July 2018, effective that day. He claims not to have been aware of his dismissal until 13 August 2018.

[2] His application was filed with the Commission on 14 September 2018.

[3] There is a dispute about the date Mr Riddle’s employment ceased. Romeo’s Foodland say it ceased on 26 July 2018. Further, Romeo’s Foodland say it ceased not by dismissal but by abandonment of employment.

[4] Irrespective of whether Mr Riddle’s employment ceased by dismissal or abandonment of employment, the FW Act requires applications of this type to be filed within 21 days of an alleged dismissal taking effect.

[5] On either contention, the application made by Mr Riddle is out of time. On Mr Riddle’s case, it is was filed 46 days after his dismissal took effect, making it twenty five (25) days out of time. On Romeo Foodland’s case, it was filed 50 days after his employment ceased, making it twenty nine (29) days out of time. For reasons that follow, I find that Mr Riddle’s employment ceased (whether by dismissal or by abandonment) on 26 July 2018, making the application twenty nine days out of time. On either case, the application can only proceed if an extension of time is granted.

[6] Mr Riddle seeks an extension of time. Romeo’s Foodland opposes the application and the application for an extension of time.

[7] On 29 October 2018 I directed that the extension of time issue be dealt with at a telephone hearing scheduled for 15 November 2018. I directed Mr Riddle and, if the employer sought fit, Romeo’s Foodland to file materials on the extension of time issue. I received email communication from Mr Riddle dated 1 November, 5 November and 13 November asserting his position on the extension of time issue albeit not in the form requested in my directions. I received materials from the employer on 13 November 2018.

[8] On 31 October 2018 and 5 November 2018 I received requests from the employer for an adjournment of proceedings on the basis that a prospective witness (its Human Resources Manager, Mr Angelo Mignone) would be absent overseas on the scheduled hearing date due to pre-arranged leave. Mr Riddle opposed these requests. I declined these requests on 2nd and 5th November 2018 indicating however that I would consider adjourning proceedings after taking Mr Riddle’s evidence should the employer seek such an adjournment. That opportunity was afforded to the employer during proceedings on 15 November which it declined, having called an alternate witness, Ms Olivia Cirillo a Payroll Officer.

[9] By letter of 8 November 2018 and an application dated 14 November 2018 the employer sought to have Mr Riddle’s application dismissed under section 399A (or in the alternative section 587) of the FW Act on the grounds that the applicant had not complied with Commission directions associated with the filing of materials, had not presented evidence to support his extension of time request as directed and that the application had no reasonable prospects of success.

[10] I conducted a telephone hearing on 15 November 2018 on both Mr Riddle’s application for an extension of time and on the employer’s application for dismissal under sections 399A and 587.

[11] I granted the employer permission to be legally represented.

[12] For reasons delivered on transcript on 15 November 2018 I dismissed the employer’s application under section 399A and section 587. I do not repeat my reasons here other than to indicate that whilst Mr Riddle did not produce a witness statement as directed, he was not a non-responsive applicant, had (as a self-represented applicant) provided the Commission and the employer with sufficient detail of the grounds on which he sought the extension of time, and that any apparent prejudice to the employer could be mitigated by appropriate adjournments during proceedings should they be sought. I accepted that Mr Riddle did fail to attend the scheduled conciliation conference before a Commission appointed conciliator on 12 October, and was non-responsive in the lead up to that conciliation. However he did contact the conciliator on 15 October 2018 and claimed that he had failed to attend because of a sick grandmother.

[13] I then proceeded to deal with the extension of time issue. At the conclusion of proceedings I reserved my decision, which I now deliver.

[14] I heard oral evidence from Mr Riddle. I received into evidence an affidavit of Ms Cirillo and heard oral evidence from Ms Cirillo. In arriving at this decision I also have regard to the materials in and attached to Ms Cirillo’s affidavit, to Mr Riddle’s application and to the employer’s response to Mr Riddle’s application, as well as Commission records which were received by or made known to the parties prior to and during proceedings.

Consideration

[15] The provisions of the FW Act governing whether an extension of time should be granted are set out in section 394(3):

“394 Application for unfair dismissal remedy

…

(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.”

[16] Mr Riddle’s application can only proceed to determination on the merits if he can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 which stated:

“[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.”

[17] I now consider each of the factors set out in section 394(3) of the FW Act.

Reason for the delay (section 394(3)(a))

[18] Mr Riddle advances two reasons for the delay.

[19] Firstly, he says that he was unaware that he was dismissed until 13 August 2018.

[20] Secondly, he says that he tried to lodge an application online on 13 August 2018 and believed he had done so, only to learn on 14 September that he had not done so.

[21] It is well established that an applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances warranting an extension of time. 2

[22] The first and the second reasons advanced require me to make findings on contested facts. I have heard Mr Riddle’s evidence on both matters. I find his evidence on these issues unconvincing. It is inconsistent with documentary evidence before me (including business records and Commission records), was self-serving and largely implausible. I prefer to rely on the employer’s evidence (including its business records) and the Commission’s records. I do so notwithstanding that Ms Cirillo’s evidence included hearsay in the absence of Mr Mignone being called. That hearsay largely relates to business records. Under the rules of evidence (to which I am not bound but consider a useful guide) an exception for such records applies.

[23] Formal notification of the cessation of Mr Riddle’s employment occurred in an email sent by the employer’s Human Resources Manager Mr Mignone at 1.53pm on Thursday 26 July 2018. 3 That email followed two earlier emails sent by Mr Mignone at 8.35am on 9 July 2018 and at 10.08am on 12 July 2018.4 The email of 12 July advised as follows:

“Once again, I request that you respond to this email by close of business Friday the 13th of July 2018. If you do not respond to this email we will assume that you have abandoned your position and terminate your employment.”

[24] Each of these three emails was sent to the email address provided by Mr Riddle to his employer and to which Mr Riddle and the employer had previously corresponded successfully. 5 No response was received from Mr Riddle to any of these emails.

[25] Mr Riddle claimed that he did not receive these emails. His evidence was that they were probably sent to his junk folder and automatically deleted by his email settings after a month without being read. He provided no explanation as to why earlier emails sent by the employer, for example on 26 March 2018, to that same address were received in his inbox and read by him. Nor did he provide an acceptable explanation as to why he, as an employee who had not worked since March 2018 and who had been notified of the rejection of his WorkCover claim in June 2018, would not be actively seeking out or awaiting information from his employer about his employment status, including by monitoring his emails.

[26] I find on the balance of probabilities that each of these three emails were in fact sent to Mr Riddle and received by him. Whether he chose to open and read them was his business. In all probability, he did.

[27] In any event, after sending the second email (of 12 July) but receiving no response, the employer forwarded a hard copy of the emails of 9 July and 12 July to Mr Riddle’s home address by registered post. The employer says that its communication by registered post was delivered to that address by Australia Post on 16 July 2018. Mr Riddle denies that he received the delivery. The employer produced an Australia Post ‘Proof of Delivery’ for that parcel. 6 I am satisfied that exhibit OC5 is evidence of delivery. Mr Riddle claims that the signature acknowledging delivery given to Australia Post as reproduced in OC5 is not his signature. This is implausible. His evidence is that he lives at home alone. He had no explanation as to whose signature it was or could be. In cross examination he suddenly recalled that he was visiting his grandmother that day yet could not recall what day of the week he did so. His evidence on this point was unconvincing. I do not accept it. I do not need to be a handwriting expert on signatures (including those written by stylus on Australia Post devices) to be satisfied that the parcel was sent, was delivered to his address and was received and left for him or with him at that address. I find that the employer’s communication marked to his attention was in fact received at his home address on 16 July. Whether he chose to open and read it was his business. In all probability, he did.

[28] Despite the delivery by registered post and notwithstanding the employer’s request for communication of his intentions, Mr Riddle made no contact with Romeo’s Foodland. Mr Mignone’s email of 26 July 2018 then advised as follows: 7

“I have not received a response from you regarding the previous 2 emails, and a registered letter which has been signed as received at you last known address. As stated in both emails, your employment will be terminated effective immediately due to abandonment of employment.”

[29] Having found on the balance of probabilities that Mr Riddle received this email I conclude that Mr Riddle was aware that his employment had ended on 26 July 2018. I therefore reject Mr Riddle’s contention that he did not know of his alleged dismissal until 13 August 2018.

[30] I now turn to Mr Riddle’s second explanation for the delay; that he tried to lodge an application online on 13 August 2018 and believed he had done so, only to learn on 14 September that he had not done so.

[31] The evidence relied on to support this contention was Mr Riddle’s oral evidence together with a Commission form F80 for ‘Waiver of application fee’ which is dated 13 August 2018.

[32] Mr Riddle gave evidence that he did, prior to going online, speak to a Commission officer on 13 August 2018 and was told that he could make an unfair dismissal application online but that such applications would need to be made within 21 days of having been dismissed. I accept this evidence. It is plausible given my earlier finding that by this date he knew that his employment had ceased.

[33] I also accept that, at some stage, Mr Riddle completed a F80 form and dated it 13 August 2018. This does not however establish that it, let alone an application for unfair dismissal (F2), was made or attempted to be made on 13 August.

[34] The Commission’s electronic records indicate that Mr Riddle lodged an F2 application online on 14 September 2018 at 1031am. The Commission’s electronic records also indicate that Mr Riddle’s form F80 for ‘Waiver of application fee’ dated 13 August 2018 was received online by the Commission at that same time (14 September at 1031am).

[35] Whether or not Mr Riddle did attempt to lodge an F2 application or a F80 fee waiver application online on 13 August (as he claimed and which I consider to be a possibility) his evidence of what he did on that day does not demonstrate a level or urgency or concern about the status of his alleged online application. He claims that when he tried to send his online F2 application his desktop screen simply “went blank”. He claims that although he read the Commission’s online information about how to lodge the F2 form, he did not read the ‘frequently asked questions’ information on the Commission web site. Question 1 is as follows:

“How do I know if my application has been received?

You will receive an automated email confirming that your application has been successfully lodged. If you haven’t received an email or if you’re worried about any of the steps in the online process, you can call the Fair Work Commission on 1300 799 675 and our staff will check that your application has been received.”

[36] It is possible but unlikely that Mr Riddle would read the online instructions but happen to overlook this part. It is implausible that a person wanting to file an application whose desktop screen happens to “go blank” at the end of the process simply assumes the application has been sent and received without contacting the relevant authority or checking whether a receipt confirming lodgement will or has been sent.

[37] Mr Riddle’s evidence is that he did not receive a confirmation receipt from the Commission yet did not think it necessary to phone or contact the Commission. In failing to do so Mr Riddle did not act with reasonable attention to his interests let alone any urgency reflecting dissatisfaction with his employment having cease. He was indifferent to the nature of the proceedings he claims he had initiated.

[38] I therefore conclude that whilst Mr Riddle did in all probability contact the Commission on 13 August and receive information that he could lodge an unfair dismissal claim within 21 days of dismissal and whilst it is possible that Mr Riddle then went online and tried to do so, he failed to take any reasonable steps on that day or in the days following to ascertain if he had in fact made a claim. His presumption that he had done so was reckless. It was not until 14 September 2018, one month later, that Mr Riddle phoned the Commission and was advised by an officer that there was no record of a claim having been made in his name. He then lodged his application.

[39] There are thus two distinct periods of delay on Mr Riddle’s case: the period from 26 July 2018 until 13 August 2018 (the first period) and the period 13 August to 14 September (the second period).

[40] Given that Mr Riddle claimed that he did not know that his employment had ceased during this first period (a finding that I have rejected) he proffered no explanation for that delay. In any event, there is no evidence that Mr Riddle during this first period (whether he knew he was employed or dismissed) made any contact with the employer to ascertain his employment status. This despite knowing that he was not being allocated work, knowing that he had not worked since March 2018 and knowing that his WorkCover claim had been rejected in June 2018. In these circumstances Mr Riddle was taking no steps let alone active steps to either contest the employer’s failure to give him work or to contest the employer’s decision to cease employing him.

[41] In respect of the second period Mr Riddle’s evidence was that he “got side-tracked” after 13 August 2018 and was busy with netball commitments and applying for jobs.

[42] These are not acceptable explanations for the delay. It is not uncommon, indeed it is very common, that a dismissed employee will be likely to seek out new work whilst at the same time be considering their legal rights concerning unfair dismissal. Further, even leaving aside Mr Riddle’s evidence that his netball commitments were weekend commitments only not occupying him Monday to Friday, it is not uncommon that a dismissed employee will continue to pursue private interests after dismissal. Being pre-occupied with private interests is not an acceptable reason for delaying taking legal proceedings particularly in circumstances where Mr Riddle knew at least from 13 August that he had a legal timeframe of 21 days from dismissal applying to the exercise of unfair dismissal rights. His evidence was that he made no effort to calculate or compute when that 21 days would expire, even when told of the statutory limit. No other reasons for delay were offered other than “getting side-tracked”.

[43] The explanation for the delay, whether the whole or part thereof, provided by Mr Riddle is far from an acceptable reason. This is a factor that weighs heavily against granting an extension.

Awareness of the dismissal taking effect (section 394(3)(b))

[44] For reasons already expressed, I am satisfied that Mr Riddle was aware of his employment having ceased on 26 July 2018.

[45] This is a factor that weighs against granting an extension.

Action taken to dispute dismissal (section 394(3)(c))

[46] Other than one telephone call to the Commission on 13 August in which he was informed about the unfair dismissal jurisdiction and the statutory time frame for claims, there is no evidence before me that between receiving the emails of 9, 12 and 26 July or the registered post letter on 16 July that Mr Riddle took steps to seek out or secure advice about his alleged dismissal. Moreover, he took no steps at all to put his former employer on notice that a legal challenge to his dismissal was in contemplation.

[47] This is a factor that weighs against granting an extension.

Prejudice to the employer (section 394(3)(d))

[48] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances. However, there is no evidence that Romeo’s Foodland is likely to be prejudiced on account of an application not having been made by the due date. Whilst the time taken to deal with the extension of time issue could have been productively used to progress the application had it been filed within time, the elapse of that time period in this case has not created material prejudice.

[49] However, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension. 8

[50] On the facts in this case, I consider this to be a neutral factor.

Merits of the Application (section 394(3)(e))

[51] Mr Riddle’s application asserts that his alleged dismissal was unfair because the employer did not take steps to communicate with him whilst he was advancing his WorkCover claim, once he ceased active work in March 2018. In response the employer contends that Mr Riddle was not dismissed, that he abandoned his employment, that his WorkCover claim was rejected, and that in any event he had multiple warnings on his employment record.

[52] Whilst there is a jurisdictional hurdle associated with Mr Riddle’s claim which adds a degree of difficulty before the merits of any such claim can be considered, I have not heard evidence at this stage on these competing contentions. I am thus unable to draw any conclusion about the jurisdictional issue or the merits of the application.

[53] On the facts in this case, I consider this to be a neutral factor.

Fairness between persons in similar position (section 394(f))

[54] No evidence or submissions from Mr Riddle or Romeo’s Foodland raise issues of fairness with and between other persons.

[55] On the facts in this case, this is not a relevant factor.

Conclusion on extension of time

[56] The delay in lodgement of twenty nine days is significant particularly having regard to the 21 day statutory time limit.

[57] In considering whether exceptional circumstances exist, the conduct of Mr Riddle after dismissal is relevant but a reasonable explanation for the delay is not needed for the whole of the period or may in fact not be required at all if the circumstances are otherwise exceptional. 9

[58] The reasons for delay are unconvincing. They do not explain let alone adequately explain the delay or periods of the delay.

[59] Weighing the other factors, none lead me to conclude that the circumstances in this matter are exceptional.

[60] From at least 13 August, some eighteen days after his employment ceased, Mr Riddle knew that a 21 day time limit existed for filing claims but took no steps to follow up his purported attempt to lodge an online claim. He allowed another 31 days to pass before following up the issue and then filing his application. He was inattentive to his rights for lengthy periods of time and acted without urgency.

[61] Mr Riddle has not demonstrated that exceptional circumstances exist so as to warrant an extension of time.

[62] For these reasons, Mr Riddle’s application for relief under section 394 of the FW Act is out of time and the time period for lodgement has not been extended. Accordingly, his application is dismissed. An order to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

S. Riddle, on his own behalf

J. Love, with permission, for the Respondent

Hearing details:

2018.

Adelaide; by telephone.

15 November.

Printed by authority of the Commonwealth Government Printer

<PR702410>

 1   [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

 2   Carlene Daphne Smith v Canning Division of General Practice[2009] AIRC 959

 3   OC3

 4   OC1 and OC2

 5   For example, by email dated 26 March 2018 OC4

 6   OC5

 7   OC3 paragraph 1

 8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 9   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901; Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288