Nathan Holmes v Allan Coon ATF At Coon & Sons Family Trust

[2015] FWC 5726

[2015] FWC 5726

FAIR WORK COMMISSION

DECISION

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

Nathan Holmes
v
Allan Coon ATF AT Coon & Sons Family Trust
(U2015/3897)

COMMISSIONER MCKENNA SYDNEY, 18 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 11 March 2015, Nathan Holmes (“the applicant”) lodged an application, made pursuant to s.394 of the Fair Work Act 2009 (“the Act”), seeking an unfair dismissal remedy in relation to his termination of employment as a farm hand with Allan Coon ATF AT Coon & Sons Family Trust (“Mr Coon” or “the respondent”).

[2] By way of short background, the applicant worked for many years for the respondent undertaking farm hand-type duties. Under rental arrangements made between the applicant and the respondent, the applicant and his family also resided in a property owned by the respondent. Certain issues arose which resulted, in due course, in Mr Coon successfully applying for an apprehended personal violence order (“APVO”) in relation to the applicant. Mr Coon’s grounds in support of the application for the APVO referred to, among other matters, alleged incidents concerning threats to his wife some three months before the application for the APVO was made in April 2015 as well as further alleged incidents in early February 2015; both such alleged incidents were apparently the subject of contemporaneous reports to the NSW police. It was following further alleged incidents in April 2015 that Mr Coon contacted the police, whereupon the applicant was detained in connection with the application for the APVO.

[3] In the initiating process lodged on 11 March 2015 (that is, prior to the application in April 2015 for the APVO, but after the earlier alleged incidents which had already been the subject of reports to the police), the applicant indicated the respondent had not provided him with any work since mid-January 2015 and that, in early-February 2015, the respondent had also served him with an eviction notice. In the initiating process, the applicant further indicated: “I have not been notified that I have been dismissed but I have not worked since mid-January 2015 and so I have formed the view I have been dismissed.”

[4] In the respondent’s (amended) employer’s response, the respondent objected to the application on a number of grounds. While there were three principal preliminary objections to the application (applicant a jurisdictionally-ineligible casual employee; no dismissal at the initiative of the respondent; and application out-of-time), this decision considers only the objection concerning late lodgement. In that regard, and consequent upon matters discussed in proceedings following the allocation of the file to me, I caused correspondence to be forwarded to the applicant given the application appeared to be out-of-time. In response, the applicant submitted the application was made within 21 days after the dismissal took effect, or, in the alternative, seeking that discretion be extended to allow a further period for the application to be made.

Applicant’s primary submissions - application not out of time

[5] The applicant submitted the application was made within 21 days after the dismissal took effect because, it was contended, the date of termination of the employment relationship was 4 May 2015, being the date the applicant was required to vacate the rental property - on the basis that the provision of accommodation was, the applicant submitted, an entitlement of his employment. In this regard, the applicant sought leave to amend the application because, it was submitted, the dismissal took effect on the day the applicant was required to vacate the accommodation provided to him as an entitlement of the employment relationship: In so submitting, the applicant referred to Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [14].

[6] The applicant submitted it is common ground that at no time had the respondent notified the applicant his employment has been terminated (with the respondent’s position being that the applicant informed the respondent he no longer wished to perform work for the respondent). The applicant’s position is that this alleged resignation is denied and, moreover, the applicant performed work for the respondent after the date of the alleged resignation.

[7] The applicant denies he threatened the respondent or the respondent’s family as described in the APVO narrative or at all. While the applicant did not oppose the making of the APVO, he denies the events described in the narrative to the APVO. The applicant was not legally represented in the APVO proceedings and thought the making of the APVO would not detrimentally impact on him.

[8] From the time the applicant rented premises from the respondent, it was submitted, it was a term of the applicant's employment contract that in exchange for his labour he would be paid a wage and be provided with accommodation. The notice to vacate did not require the applicant and his family to leave the rental accommodation until 4 May 2015; given the connection between the employment and the tenancy, it was submitted, the employment relationship subsisted until it was terminated by the respondent.

Applicant’s alternative submission - time should be extended

[9] The applicant’s submissions contended, in the alternative, that if it is not accepted the applicant lodged the application within 21 days after the dismissal took effect, the Commission should allow a further period for the application to be made.

[10] The applicant submitted this case is distinguishable from other cases where an application is simply made more than 21 days after the dismissal took effect and the circumstances are out of the ordinary course, special or uncommon: Ho v Professional Services Review Committee No 295 [2007] FCA 388. Here, the applicant delayed in lodging the application because he was not aware his employment had been terminated because the respondent never informed him of the dismissal. Given the consequences of coming to the view that his employment had been terminated, it took the applicant some time to form the view that he had been dismissed. The applicant had worked for the respondent for many years and for the overwhelming majority of the time there was a positive working relationship with the applicant considering himself to be like a part of the respondent’s family.

[11] It was submitted that the earliest possible date on which the applicant could be considered to have been dismissed was 19 January 2015, the last day on which the applicant worked for the respondent; if it is accepted the applicant's employment ended on 19 January 2015, the applicant would have had to lodge the application by 9 February 2015. It was submitted there is no prejudice to the respondent answering an application lodged on 11 March 2015 compared to an application lodged on 9 February 2015.

[12] The applicant submitted the application has merit such that it should be allowed to proceed. The applicant received no warnings from the respondent related to his workplace conduct or behaviour; the employment was terminated, it was submitted, when his partner raised concerns with the respondent about the applicant’s rate of pay.

Consideration

Application to amend effective date of termination of employment to post-date lodgement of application

[13] I turn first to the applicant’s primary submission that the application is not out-of-time, being a submission made in connection with a related application to amend the application so as to include a date of 4 May 2015 as the effective date of the termination of employment.

[14] I decline to accede to the application in response to the Commission’s correspondence concerning extension of time that leave be granted to amend the application to indicate an effective date of termination of employment of 4 May 2015.

[15] Even if I were to accept that any employment relationship and arrangements concerning renting accommodation from the respondent were, for example, co-extensive such that an employment relationship subsisted until the period of the notice of eviction expired on 4 May 2015, I would not, on any consideration of the matters raised by the applicant, exercise my discretion to allow the amendment of this application such that it proceeds on the basis that the termination of employment took effect on 4 May 2015 – namely, approximately two months after the application itself had already been lodged. In circumstances where I decline to grant leave to amend the application to include a date of termination of employment which would post-date the lodgement of the application by approximately two months, it is unnecessary to consider, for example, whether the application was made prematurely and whether I should waive any irregularity in the form or manner in which the application was made: Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [42].

Extension of time

[16] Based on what is before the Commission by way of materials and submissions, it is plain there are contested factual circumstances about what occurred in relation to the termination of employment. While accepting there are contested factual circumstances, the matter may be determined even accepting (but without so deciding) the matters advanced in applicant’s case at their highest. As such, I did not consider it necessary to invite the respondent to respond to the matters in the applicant’s submission concerning extension of time or list the matter for a hearing to determine contested matters.

[17] The application was lodged on 11 March 2015. It cannot be accepted any employment relationship was still on foot after the early part of February 2015 (perhaps even on an earlier date in January 2015) given the applicant last worked for the respondent on or about 18 January 2015. Further, surrounding circumstances which militate against a conclusion that the applicant could not reasonably have considered that an employment relationship was still on foot until sometime around the date of the lodgement of the application on 11 March 2015 include, as recorded in the narrative in support of the (much later) application for the APVO, that the applicant’s alleged conduct had to that date of lodgement by then already been the subject of two contemporaneous reports to the police. While the precise effective date of termination of employment is not entirely clear, it would appear to have occurred sometime in January 2014 – with the result the application was not made within time given it was lodged on 11 March 2015.

[18] The provisions of the Act relevant to extension of time read:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a 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.”

[19] Accepting the applicant’s submissions at their highest (but without so deciding the contested matter of the nature of the engagement and the like), the applicant submits he regularly worked as a casual for well-over a decade; and then, from on or about 19 January 2015, was not rostered for any work for weeks/months and, absent the provision of work, only then - presumptively around 11 March 2015 - eventually came to the view he had been dismissed. Putting aside consideration or determination of whether the termination of the employment in or around January 2015 was at the initiative of the applicant or the respondent, the reason for the delay focussed on the applicant’s submission he was not aware his employment had been terminated.

[20] The matter as to whether the applicant first became aware of the dismissal after it had taken effect is, again, mingled with the circumstances of the absence of the performance of any work from on or after about 19 January 2015 and whether the termination of the employment came about at the initiative of the applicant or the respondent.

[21] There is nothing to suggest the applicant took any action to dispute the (alleged) dismissal, other than lodging this application.

[22] As to prejudice to the employer (including prejudice caused by the delay), the applicant submitted there is no prejudice to the respondent answering an application lodged on 11 March 2015 compared to an application lodged on 9 February 2015, but I conclude the delay of approximately a month would carry with it the usual prejudicial exigencies for the respondent.

[23] As to the merits of the application, there are competing contentions - which are relevantly indeterminable at this stage on what is before me - with the result merit tends to be a neutral consideration in the assessment of whether there are exceptional circumstances.

[24] Lastly, it does not appear that the applicant’s materials raise any issues going to fairness as between the applicant and other persons in a similar position.

Conclusion

[25] In Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13], the Full Bench considered the meaning of “exceptional circumstances”:

“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.”

[26] The Commission may allow a further period for the application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set-out in s.394(3) of the Act. Nulty provides guidance to the meaning of exceptional circumstances. Here, the matters relied on by the applicant (including the contention that the applicant was not aware he had been dismissed in the period from the cessation of work in January 2015 to around the date of lodgement of the application on 11 March 2015, together with other matters he addressed) have not satisfied me there are exceptional circumstances.

[27] As such, the application is dismissed.

COMMISSIONER

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