Mr Willem Schoonwinkel v Blunt Global Services Pty Ltd

[2019] FWC 1715

[2019] FWC 1715

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 365 - Application to deal with contraventions involving dismissal

Mr Willem Schoonwinkel
v
Blunt Global Services Pty Ltd
(C2018/5384)

DEPUTY PRESIDENT SAMS SYDNEY, 15 MARCH 2019

General Protections application involving a dismissal – application filed out of time – significant delay in filing – whether exceptional circumstances established – applicant’s medical condition – Commission not satisfied ‘exceptional circumstances’ established to exercise discretion in allowing extension of time – application dismissed.

BACKGROUND

[1] On 25 September 2018, Mr Willem Jocobus Adrian Schoonwinkel (the ‘applicant’) filed an application, pursuant to s 365 of the Fair Work Act 2009 (the ‘Act’) which seeks to have the Fair Work Commission (the ‘Commission’) deal with contraventions of the General Protections provisions of the Act in respect to his dismissal. This decision will deal with an application by the applicant to extend the time for filing his application, pursuant to s 366(2) of the Act, given that it is common ground the application was filed outside the statutory time limit of 21 days set out in s 366(1). The respondent to the application is Blunt Global Services Pty Ltd, the employer of the applicant from 15 September 2017 until the termination of his employment.

[2] There is a dispute between the parties as to the actual date of dismissal. The respondent’s position is that the applicant was advised by email on 2 May 2018, that as a result of his ongoing absence from work since around March 2018 due to a Workcover claim and despite numerous unsuccessful attempts to contact him, the respondent considered that he had abandoned his employment and his employment had ended on 13 April 2018. The applicant maintains that he did not receive the 2 May 2018 email until 12 July 2018, despite questioning the respondent about his employment status and having provided medical certificates for his confirmed absences from work throughout this period. The applicant further claimed he was unable to file his General Protections application until 25 September 2018, due to his ongoing psychological medical condition, arising from a workplace injury in December 2017, for which he was receiving ongoing psychological treatment.

[3] As will be evident from the above, whatever date of dismissal is correct, the application would still have been filed ‘out of time’, by either 126 days or 54 days. Accordingly, the applicant must satisfy the Commission that there were ‘exceptional circumstances’ which warrant the Commission extending the 21 day timeframe in which to file the application. At this juncture, I set out the terms of s 366 below:

366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[4] On 12 October 2018, the respondent, through its representative Craig Joy Workplace Consulting, filed a Representative Commencing to Act form (F53) and Form F8A – Response to General Protections application and indicated it would not consent to a conciliation conference convened by the Commission until its jurisdictional objection (the ‘out of time’ issue) was determined. As the matter was remitted to me for hearing of the jurisdictional objection, on 31 October 2018, I issued directions in preparation for a hearing on 9 January 2019. As both parties filed written submissions, but no witness statements for parties were asked if they objected to the matter being determined ‘on the papers’. There was no objection to that course and I proceeded to determine the ‘out of time’ issue on that basis, notwithstanding the disputed fact as to the actual date of dismissal.

SUBMISSIONS

For the applicant

[5] Understandably, given he is unrepresented, the applicant’s three-page submission refers to s 394(3)of the Act, rather than the relevant ‘out of time’ provisions in s 366(2) dealing with his General Protections application. As I will explain later, this mistake has no material impact, as the criteria under s 394(3) and s 366(2) and the principles to be applied by the Commission under both sections, are relevantly the same. I shall therefore approach the applicant’s submissions as to his referring to s 366(2) of the Act. However, one of the reasons relied on by the applicant relates to s 394(3)(b) which is not replicated in s 366(2).

[6] As to each of the other criteria in s 366(2) the applicant submitted that:

(a) The reason for the delay (s 366(2)(a)) was his ongoing mental illness, which impacted on his ability to undertake daily and routine tasks, including filing his General Protections application. He relied on the opinion of his treating psychiatrist, Dr Menon, dated 19 May 2018, who said ‘it appears that all his symptoms started from the assault at work (16 December 2017) and it has all the features of PTSD along with a depressed mood and symptoms of anxiety’. The doctor prescribed medication and recommended ongoing review. This was the only medical evidence provided by the applicant.

(b) The action taken by the applicant to dispute the dismissal (s 366(2)(c)) was the filing of the General Protections application;

(c) there would be no prejudice to the employer if the extension of time was granted (s 366(2)(d));

(d) comparable decisions of the Commission have granted extensions of time based on the delay caused by the mental illness of the applicant (s 366(2)(e)).

For the respondent

[7] It was submitted that the applicant’s recent submissions takes his case no further than his originating application. Despite the applicant claiming he did not receive the respondent’s email of 2 May 2018, a delivery confirmation records it was received on that day at his email address he was using at the time and is still using. On this basis, his general Protections application was received 146 days late or 125 days ‘out of time’. Even on his own case, the application was 50 days ‘out of time’.

[8] The respondent submitted that prior to 2 May 2018, consistent with the applicant’s labour hire arrangements, he was offered an alternative work location and start date, but he failed to appear and advised he was still considering the offer. He sought a doctor’s certificate declaring him unfit for work, but when the certificate was rescinded he then sought another different doctor’s certificate, which declared him unfit for duty until 13 April 2018; this time for reasons unrelated to work. The respondent claims that despite repeated phone and email messages to the applicant there was no response. On 7 May 2018, the applicant advised the respondent he was still unwell and would be seeing a psychiatrist. He made no mention of the 2 May email.

[9] The next contact was over two months later on 11 July 2018, when the applicant emailed the respondent seeking to have his tools returned and claiming he had heard nothing from the respondent, after sending several emails. The respondent said that no emails had been received from the applicant since 7 May 2018. On 12 July 2018, the respondent replied and included the 2 May 2018 email. The applicant claimed this was the first time he was made aware of it. He further claimed to have been unable to make phone calls or send emails, due to his medical condition, although the respondent noted that the doctor had not mentioned any incapacity to lodge a General Protections application.

[10] The respondent submitted that the applicant’s incapacity did not prevent him, on his own admission, from sending emails on 7 May and 11 July 2018 and from sending several other emails. He was also seeking a review of his Workcover claim during this time. He was unable to explain why he was able to undertake these activities, but not file his General Protections application.

[11] The respondent put that there was no merit to the applicant’s case, as he was not dismissed; rather, he had abandoned his employment. It was noted that as the applicant has provided no evidence and no witness statements, there was nothing for the respondent to respond to by way of its own evidence.

CONSIDERATION

Meaning of exceptional circumstances

[12] It must firstly be observed that the term ‘exceptional circumstances’ is found in both s 394(3) in respect to late unfair dismissal applications and s 366(2) of the Act in respect to General Protections applications. Moreover, the criteria which the Commission is required to take into account in both sections are relevantly identical (save for the exclusion of ss (b) where it otherwise appears in s 394(3)). It is a presumption of statutory construction, that where the same word or phrase is used consistently in legislation, it should be given the same meaning consistently, unless there is any exception to the contrary; see: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450. Thus, the principles underpinning decisions of the Commission made under both sections of the Act, are interchangeably applicable to applications made under s 394(3) or s 366(2).

[13] It must also be stressed that a finding of ‘exceptional circumstances’ is a classic exercise of discretion. This is apparent from the inclusion of the word ‘may’ in s 366(2). The discretion is only enlivened if the Commission is satisfied there are ‘exceptional circumstances’. That test has been said to be a ‘high hurdle’ for an applicant to overcome when seeking an extension of time; see: Qantas Airways Ltd v McCrae [2017] FWCFB 4033.

[14] In Johnson v Joy Manufacturing Co Pty Ltd [2010] FWA 1394, Lawler VP stated that the Commission would be cautious in adopting an overly stringent interpretation of what constitutes ‘exceptional circumstances’ in that it would be sufficient for an applicant to meet the relatively high hurdle of ‘exceptional circumstances’ where one, or more, or in combination, the criteria in s 366(2) establishes circumstances which are unusual, out of the ordinary, special or uncommon.

[15] In Nulty v Blue Star [2011] FWAFB 975a Full Bench of the Commission said at [13]-[14]:

‘[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.

[14]Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.’ 

[16] More recently, in Stogiannidis v Victorian Frozen FoodsDistributors Pty Ltd t/a Richmond Oysters[2018] FWCFB 901(‘Stogiannidis’) a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 which had concluded that for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay in filing. Until recently, this approach has been followed in numerous single member decisions. However, in Stogiannidis the Full Bench said at [33]-[44]:

[33] The respondent in Cheval Properties made an application to the then Fair Work Australia, out of time, for an unfair dismissal remedy in respect of the termination of her employment by the appellant. At first instance, the respondent explained her delay by reference to the following matters: the expectation that she would receive a letter from the appellant advising her of the reasons for her dismissal, although the respondent had been told by the appellant on the day of her dismissal that such a letter would not be provided; the hospitalisation of the respondent’s mother; and the incorrect filing of an unfair dismissal application in the jurisdiction of New South Wales, several weeks after the lapse of the statutory period for the filing of such a claim under State legislation. The Commissioner granted the extension of time, accepting the latter two matters as relevant to a finding that exceptional circumstances existed in relation to the application. The employer appealed against the decision to grant the extension of time.

[34] The appeal was upheld on the basis that the Commissioner erred in not considering the applicant’s failure to provide a credible reason for part of the delay in making her unfair dismissal decision:

‘Ms Smithers does not advance any reason for her delay between 8 January and 21 January 2010 in making her unfair dismissal remedy application to FWA, other than her expectation that there would be something else from Cheval about her dismissal after being told of it by them on 18 December 2009. However, her evidence that she held such an expectation is not credible given that on 18 December 2009 she asked Cheval for a letter stating the reasons for her dismissal and was told by them then that it would not be provided.

It is apparent from the Commissioner’s decision that in being satisfied there were exceptional circumstances, the Commissioner does not consider Ms Smithers’ failure to provide a credible reason for her delay between 8 and 21 January 2010 in making her unfair dismissal remedy application to FWA.

The Commissioner’s failure to take into account such a matter is an appealable error of the type set out in House v The King. Such a matter should have been a material consideration in the Commissioner’s decision as to Ms Smithers’ reasons for delay and whether she was satisfied there were exceptional circumstances.’

[35] Notably, the error identified on appeal was not that a credible explanation must be provided for the whole of the delay; rather it was that the Member at first instance had not taken into account the fact that part of the delay was unexplained.

[36] The Full Bench granted permission to appeal and reheard the applicant’s application for an extension of time. In rehearing that application the Full Bench said:

‘We are not satisfied our findings in respect of the matters in s.394(3)(a) to (f) of the FW Act constitute exceptional circumstances. Ms Smithers’ 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. Nor is there anything in our findings in respect of the matters in s.394(3)(b) to (f) that is unusual or extraordinary.’

[37] We acknowledge that the underlined words may suggest that absent a credible explanation for the entirety of the delay there could be no finding of exceptional circumstances. But to the extent that Cheval Properties may be said to be authority for such a proposition, it is, with respect, plainly wrong.

[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.

[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.

[41] The ‘reason for the delay’ is a factor that the Commission must take into account in deciding whether there are exceptional circumstances. A distinction may be drawn between the matters relevant to the determination of whether the circumstances can be properly characterised as exceptional (i.e. s.366(2)(a)-(e)) and the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.

[42] If we have correctly interpreted what is being said at [29] of the Decision, then the Commissioner has elevated what is merely a relevant factor into a decision rule so as to allow the automatic production of a solution. In deciding whether there are exceptional circumstances, thus enlivening the discretion to extend time, s.366(2) provides that the Commission must take into account certain matters (at s.366(2)(a)-(e)); but it is not for the Commission to impose an arbitrary limitation not expressed in the words of the Act.

[43] We acknowledge that there is a degree of ambiguity as to what is being said at [29] of the Decision. We note that the statement is made in the course of the Commissioner’s consideration of s.366(2)(a) and it may be read as saying that a credible explanation for the whole of the delay is necessary in order to conclude that s.366(2)(a) is to be treated as a factor weighing in favour of a finding of exceptional circumstances. But, with respect, that proposition is also incorrect.

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight. 

[17] I turn now to consider and make findings on each of the criterion under s 366(2) of the Act.

Reasons for the delay (s 366(2)(a)

[18] I do not accept the applicant’s submission that he did not receive the 2 May 2018 email until 12 July 2018. The documentary evidence established that the email was delivered to the email address the applicant was using at the time and continues to use to this day, including in emails to and from the Commission over several months. It is highly unlikely that he did not see and read the email when he was claiming to be sending ‘several’ emails to the respondent around the same time. Although there must be some doubt as to whether the 2 May 2018 email constituted an acceptance of the applicant’s alleged repudiation of his contract of employment, there can be no doubt that the respondent’s intention in the email was to regard the employment relationship at an end. This means that there were 146 days until 25 September 2018 before the application was filed, resulting in it being filed 125 days late. Even if I am wrong about this date, and the applicant’s submission is accepted, the application was still filed 71 days after 12 July 2018 and therefore 50 days late.

[19] While I accept the applicant was suffering from a psychological condition, the only medical evidence he provided was Dr Menon’s letter, dated 19 May 2018. Despite the Doctor recommending medication and ongoing consultation, the applicant provided no further details of medical consultations, let alone any deterioration in his condition, such as to require more active medical intervention or even hospitalisation after that date. Moreover, while the doctor noted that the applicant’s medical condition impacted on his capacity to undertake daily routine tasks, the Doctor did not expressly state that he was so incapacitated then, or at any subsequent time, such as to prevent him from filing his General Protections application.

[20] Further, there is an obvious inconsistency with the applicant’s submission that during the relevant period, he could not make phone calls or send emails when on his own evidence, he was doing precisely that, including pursuing his Workcover claim. Many dismissed employees suffer post dismissal stress, anxiety and feelings of isolation and social disengagement. However, I cannot be satisfied, from the applicant’s materials, that his experience in this regard was out of the ordinary or uncommon.

[21] On any objective view, the delay in filing was significant, during which there are large slabs of time where there was no explanation for the applicant’s failure to take any steps to prepare and file his General Protections application. This factor tells against a finding of ‘exceptional circumstances’.

Action taken to dispute the dismissal (s 366(2)(b))

[22] The applicant said the only step he took to dispute his dismissal was the filing of his General Protections application. In my opinion, this criterion requires more than just filing the initiating application. The section envisages that other steps should be taken to dispute the dismissal, from the date of dismissal to the filing of the application, in order for this factor to weigh in favour of the applicant. On the applicant’s own case, no other additional steps were taken by him to dispute the dismissal. This factor tells against a finding of ‘exceptional circumstances’.

Prejudice to the employer s 366(2)(c)

[23] While it might be said that prejudice to the employer is proportionally compounded by the length of the delay, (in this case significant), the respondent did not put any submissions about this criterion. Accordingly, I regard this is a neutral factor in this case.

Merits of the application s 366(2)(d)

[24] In considering the merits of the substantive application, the Commission is not in a position to make findings of fact on contested issues. This is particularly so in General Protections applications involving a dismissal, where apart from the rarely used consent arbitration powers of the Commission in s 369, the Commission’s only functions under Part 3-1 is to convene a conference, and in the event of unsuccessful conciliation issue a s 368 Certificate to that effect. This crucial step triggers the capacity of the applicant to pursue his/her case in the Federal Circuit Court of Australia or the Federal Court of Australia. That said, I refer to the observation of the Full Bench in Kyvelos v Champion Socks Pty Ltd Print T2421 (10 November 2000) per Giudice J, Acton SDP and Gay C, as to the sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an extension of time application:

[14] In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission's discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case. In these proceedings the allegation of representative error and the assertion that the termination was contested at the outset were both matters directly relevant to the case for late acceptance. As we have indicated earlier, it was open to the Commissioner to draw conclusions adverse to the appellant on those matters even though no evidence was called by either party. But for the reasons we have given it was not open to the Commissioner to make a finding that the substantive application had no merit.

[25] In this case, the only material before me is the applicant’s General Protections application and the employer’s response. Distilled from this material, it is obvious a significant preliminary issue in this matter is whether the applicant was, in fact, dismissed or he had repudiated his contract of employment by abandonment. This material does not suggest a prima facie conclusion one way or the other; even putting aside whether the employer had contravened the General Protections provisions of the Act. Accordingly, as to the merits of the application, I am not in a position to conclude whether this factor weighs for, or against a finding of ‘exceptional circumstances’.

[26] Taking into account all of the matters in s 366(2)(a)-(e) of the Act, and in balancing these matters with all the relevant circumstances set out in the parties’ submissions, I am not satisfied that there are ‘exceptional circumstances’ such as to allow a further period for the substantive application to be filed in the Commission. Accordingly, the Commission’s discretion in s 366(2) is not enlivened, and I dismiss the application to extend time. Orders giving effect to this conclusion will accompany the publication of this decision.

DEPUTY PRESIDENT

Appearances:

Mr W Schoonwinkel for himself.

Mr C Joy of Craig Joy Workplace Consulting for the respondent.

Final written submissions:

For the applicant 21 November 2018.

For the respondent 3 December 2018.

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