Mr Wade Anthony Miller v Keystone Project Management Pty Ltd Wade Hastie

[2022] FWC 3325

[2022] FWC 3325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Wade Anthony Miller
v

Keystone Project Management Pty Ltd - Wade Hastie

(U2022/10383)

DEPUTY PRESIDENT LAKE BRISBANE, 19 DECEMBER 2022

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

1. Mr Wade Miller (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to a dismissal of his employment by Keystone Project Management Pty Ltd (the Respondent). 

1. The Applicant began his employment sometime around 2008. It is uncontentious that the Respondent terminated the Applicant’s employment on 5 October 2022 and his application was lodged with the Commission on 27 October 2022.

Was the application lodged within time?

1. Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

1. The Applicant lodged his application on 27 October 2022. He accepts that his application was made some 1 day outside of the 21 days required under s.394(2) of the Act.

1. The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.

The Applicant’s submissions

1. The Applicant’s submissions may be summarised as follows.

1. The Applicant states that he lodged the wrong application form on 26 October 2022 filing a Form F3 – Employer Response. The Applicant states he had a conversation with a staff member of the FWC and he was advised to complete a Form F3. He did so and sent the Application on the last day of the 21-day statutory time limit.

1. The Applicant was contacted by the Commission on the next day on 27 October 2022. The Commission advised the Applicant that he had completed an employer response form and as he was the employee who had been dismissed that he should complete a Form F2. The Applicant did so within hours of this error being identified. The F2 was received on the 27 October one day out of time.

1. The Applicant contends that his employment was terminated unfairly and seeks to have the matter heard in the Commission.

The Respondent’s submissions

1. The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions may be summarised as follows.

1. The Applicant was terminated summarily for theft and following discussion between the parties the termination was changed to a mutual separation and the sale of a vehicle negotiated.

1. The Respondent asserted that the Applicant had previously been given a written warning for bullying another employee, undertaking work in a private capacity whilst being employed using company assets and refused a reasonable management request to install a tracker in the vehicle he was using.

1. They contend that there are no merits to the Application and there are no reasons or exceptional circumstances whereby the Commission should grant an extension.

Consideration of whether a further period should be granted

1. Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(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 like position.”

1. The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1]  In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[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.”

1. Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

1. For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 394(3) of the Act.

1. Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.

Consideration

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

1. The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[5] the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

1. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

1. The Applicant claims that he was misinformed by the Commission as to which form to complete. He further says he was stressed and didn’t pay close attention to the form he was completing.

1. I have some doubts that a staff member of the Commission would provide incorrect information regarding which form to complete regarding an application for an unfair dismissal. The staff who receive the inbound calls regarding applications for unfair dismissals and general protections are well trained and have relevant material and resources to guide and assist members of the public with the process of making applications.

1. Nevertheless, the Applicant did provide all relevant information albeit via a different and incorrect form. Once the issue was identified by the Commission and brought to the attention of the Applicant, he immediately completed the correct form with the same information and submitted it within hours of the error being identified.

1. Section 585 of the FW Act states, “An application must be in accordance with the procedural rules (if any) relating to applications of that kind.” However, a number of decisions by the Full Bench⁶ have identified that non-compliance with s585 does not invalidate an application given the discretion under s586 which allows for:

‘Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

1. In a similar matter in Hambridge v Spotless Facilities Services Pty Ltd, ⁵ a dismissed employee attempted to file an unfair dismissal remedy application but used the wrong form. In this case a General Protections application form.

“[26] … The Commission is required by s.577(b) to perform its functions and exercise its powers in a manner that is ‘quick, informal and avoids unnecessary technicalities’. In this case, that requirement would operate to direct the Commission to look at the substance of the first application, not the form that happened to be used to make it. In substance, we consider that it was an unfair dismissal application: it was intended to be one, it was described as one in Mr Hambridge’s covering email, and its contents were concerned with contentions of unfairness in the dismissal rather than any cause of action for a contravention of Pt 3-1 of the FW Act. It must be acknowledged that Mr Hambridge attempted in the first application to respond to requests and questions concerning the general protections provisions of the FW Act, but it is apparent that he did so in an endeavour to complete a form which he understood at the time to be for an unfair dismissal remedy application.

1. The Applicant intended the Application to be one for an unfair dismissal and all the relevant material was included on the Respondents response form rather than the Employee application. It is clear that the Applicant did in substance make an application albeit through the incorrect form.

1. Following the above, I conclude that there was a reasonable explanation for the delay.

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

1. The Applicant became aware of his dismissal on 5 October 2022 by way of telephone and letter sent via email from the Respondent. This consideration therefore does weigh either in favour or against an extension of time.

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

1. The Applicant did contest the dismissal, there was evidence that a meeting occurred following the notification and the matter of the termination and reason for it was discussed by the parties.

1. This factor therefore does weigh in favour of an extension of time.

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

1. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.

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

1. In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. 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.”

1. However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’[9]

1. Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim.  Accordingly, I find this a neutral factor in this application.

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

1. The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]

1. The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

1. Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am satisfied that exceptional circumstances exist in this matter.

1. Accordingly, the matter will now be listed for further conference before myself in determining the merits of the matter.

DEPUTY PRESIDENT

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].

[5]   [2018] FWCFB 901.

[6] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

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

[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[9] Kyvelos v Champion Socks Pty Ltd (2022) AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 at [14].

[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].

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