Nathan Ninyette v BGC Contracting Pty Ltd

[2017] FWC 2381

[2017] FWC 2381

FAIR WORK COMMISSION

DECISION

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

Nathan Ninyette
v
BGC Contracting Pty Ltd
(U2017/59)

COMMISSIONER WILSON MELBOURNE, 2 MAY 2017

Application for an unfair dismissal remedy - extension of time for lodgement of application.

[1] This matter concerns an application made by Nathan Ninyette alleging unfair dismissal against his former employer, BGC Contracting Pty Ltd. Mr Ninyette’s application was received in the Fair Work Commission on Wednesday, 4 January 2017, however the document itself is dated 28 December 2016. Mr Ninyette’s application discloses that the date upon which his dismissal took effect was 12 December 2016.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 1 day out of time, after allowing for the need to extend the period by one day to take account of the 21^st day after dismissal taking effect being a public holiday.

[3] The matter was also the subject of an application by the Respondent for the substantive application to be dismissed pursuant to s.399A of the Act, which permits the Commission to dismiss applications upon application by a respondent employer for the reason that, amongst other things, an applicant has unreasonably failed to comply with a direction of the Commission relating to their application. In this particular matter, after a conciliation could not take place because of his failure to attend, the matter was listed for determination of the question of an extension of time and Mr Ninyette was directed to file submissions and other material pertaining to that question. When he did not do so by the specified date, 22 February 2017, BGC Contracting sought dismissal of Mr Ninyette’s application. After inquiring into the circumstances of the matter, and taking into account a response received from Mr Ninyette, I determined that I could not be satisfied that he had unreasonably failed to comply with the Commission’s directions to file material. In particular, it became evident as a result of his response that the Commission’s Directions had been sent to an incorrect email address which omitted a digit from the address, albeit an inaccuracy contained on the original application form submitted by Mr Ninyette. Since I could not be satisfied that Mr Ninyette was aware of the Directions I determined the application under s.399A should be dismissed.

[4] As a result, the matter proceeded to a hearing by me to determine the matter of whether an extension of time should be granted to Mr Ninyette for the making of his application.

[5] In this decision, I have considered whether an extension of time should be granted to Mr Ninyette and, for the reasons set out below, I am satisfied that a further period should be allowed for the making of his application.

[6] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[7] The Respondent, BGC Contracting, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[8] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence and submissions of Mr Ninyette, the Applicant, and his partner Lindy Boyd, and the submissions made on behalf of the Respondent. In the hearing I conducted for this matter, Mr Ninyette appeared on his own behalf, assisted by Ms Boyd. BGC Contracting was represented by its solicitor, Duncan Fletcher, from K & L Gates, who was granted permission by me to represent his client pursuant to the provisions of s.596(2)(a) of the Act (relating to the efficiency that may be brought to the matter, taking into account its complexity).

BACKGROUND

[9] Mr Ninyette was engaged by BGC Contracting to work in its mining operations and had been in such employment from 8 October 2012. His employment was subject to the BGC Contracting Mining Employees Enterprise Agreement 2012. 3

[10] He was unfortunate enough to have sustained an injury to his shoulder in early 2016 which apparently led to him being away from work for a considerable period. The injury appears to have been the subject of an extensive workers’ compensation history. BGC Contracting’s Employer Response Form notes that during 2016 the workers’ compensation claim was finalised but that the employer’s insurer advised Mr Ninyette that it would not cover the cost of surgery now apparently required to his shoulder.

[11] In any event, the Applicant was away from work between 2 March 2016 and 25 November 2016. BGC Contracting note about this absence that it was a period of approximately seven months of leave without pay and that during that time Mr Ninyette’s position had been kept open for him. The company also asserts that Mr Ninyette did not comply with his obligations under the enterprise agreement’s requirements for notification to the company about his absences. The Respondent’s Employer Response Form sets out the following relevant material about matters that occurred during 2016;

“4. On the 28 November 2016 the Respondent received a medical certificate stating that the Applicant would be absent from work until 30 October 2017 due to shoulder cuff tendinosis with a tear.

5. The Respondent arranged a meeting with the Applicant on 9 December 2016 to discuss the Applicant's intentions to return to work and his failure to notify BGC of his absences within the correct timeframe. The Applicant was advised he could bring a support person.

6. A meeting was held by phone conference on 9 December 2016 with the following people in attendance, Adrian Swarbrick - Project Manager, Chelsea Haven - Employee Relations Advisor, Duncan Fletcher - Respondent's Legal Representative, Steven Blyth - Applicant's Legal Representative, Nathan Ninyette - The Applicant, Lindy - The Applicant's partner.

7. The Applicant was provided an opportunity to respond to all matters.

8. The Applicant denied that he had failed to notify the Respondent within the required timeframes and stated he was not in breach of the Agreement.

9. When the Respondent discussed with the Applicant if he had any intention to return to work prior to 30 October 2017, the Applicant stated that he should be able return to work once he has had surgery. When asked for more detail, the Applicant stated that "it's up to your insurer". This response corresponds with a conversation that held place between the Applicant and Mal Jory - Superintendent on or around 27 June 2016 where the Applicant suggested that he would not be coming back to work until Zurich (the Respondent's insurer) paid for an operation to fix his shoulder.”

[12] A second meeting between the company representatives and the Applicant and his representatives took place on 12 December 2016. Amongst those who attended were Mr Ninyette, his partner, Ms Boyd, and his solicitor, Steven Blyth. The solicitor who appeared for the Respondent in these proceedings, Mr Fletcher, also attended the meeting on behalf of BGC Contracting. The Employer Response Form records the following about this meeting;

“13. The Respondent advised the Applicant that the response in relation to the Applicant's intention to return to work indicated that the Applicant had no intention to engage in a return to work process in any capacity and that the Respondent did not find it reasonable or practicable to allow the Applicant to continue to take leave without pay.

14. The Applicant's employment was then terminated effective immediately and the Applicant received payment in lieu of notice as per the conditions of the BGC Contracting Mining Enterprise Agreement 2012.”

[13] While Mr Ninyette’s solicitor, Mr Blyth, was in attendance at the 12 December 2016 meeting, he did not appear in these proceedings or otherwise provide material for the Commission to take into account. Mr Ninyette however was open about the advice he received from Mr Blyth about whether he should contemplate an unfair dismissal application, having been dismissed at the end of the 12 December meeting; that advice was that he should not worry about making such an application.

[14] However, after consideration of the matter between both Mr Ninyette and Ms Boyd, the Applicant decided to make an unfair dismissal application. Because he has literacy difficulties, Ms Boyd researched the matter for Mr Ninyette and located the relevant forms and other materials. Between the two they decided to make an application to the Commission for unfair dismissal before Christmas. Mr Ninyette’s evidence is that Ms Boyd assisted him to fill out the form before Christmas. Ms Boyd’s evidence was that she at least knew of the existence of a 21 day time period just before Christmas. Ms Boyd also said that they did not process an online lodgement since they did not feel safe putting their payment details online.

[15] Having filled the form out prior to Christmas, it was not posted until Wednesday, 28 December 2016. Both Mr Ninyette and Mr Boyd went to the post office to post the application form as well as to purchase a money order for the application fee. When they posted the application they paid for regular postage and not an express post envelope.

[16] The public holidays and other closures around the 2016 Christmas/2017 New Year period were that the Commission’s offices were closed on Monday 26, Tuesday 27 and Wednesday, 28 December 2016, but open for business on Thursday, 29 and Friday, 30 December. There was a further closure of the Commission’s offices on Monday, 2 January 2017 for reason of the New Year’s Day public holiday.

[17] Mr Ninyette’s application form was received in the Perth Registry on Wednesday, 4 January 2017.

[18] For the purposes of s.396 of the Act, Mr Ninyette is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to his circumstances, and no question of his dismissal being a genuine redundancy arises.

LEGISLATION

[19] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act;

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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

[20] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”;

“[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”. 4

[21] In considering whether an extension of time should be granted to Mr Ninyette, I am required to consider all of the criteria in s.394(3), which I now do.

1. The reason for the delay

[22] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 5 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.6 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.7

[23] Consideration of this criterion requires examination of whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application.

[24] In this regard it is relevant to explain that the 21 days for lodgement does not include the date that the dismissal took effect, and the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day. However, public holidays or weekends that fall during the 21 days will not extend the period of lodgement. 8 In the circumstances of this matter, the 21^st day after the date on which the dismissal took effect was Monday, 2 January 2017, meaning that the adjusted last day for lodgement was Tuesday, 3 January 2017.

[25] Mr Ninyette submits that the reason there was a delay by him in making his unfair dismissal application is because he “was instructed by my Lawyer at that time not to pursue the matter due to another claim through Work Cover which is still current”. 9 It is also apparent that he relies on being under the impression that the application form would arrive in time when he posted it on 28 December 2016.

[26] The “delay” to be considered in this case is the period it took after the prescribed period for Mr Ninyette to lodge his application. In all, that period was a total of 1 day. I find that Mr Ninyette’s explanation about the circumstances of the advice he received, together with the steps taken by him and his partner to only post the application form on 28 December 2016 as being his explanation for the delay in making an application to the Commission.

[27] The fact that a person knows little of their rights, or that they may have been seeking general advice about what to do, is neither unusual nor exceptional. Similarly, mere ignorance of the statutory time limit is not an exceptional circumstance. 10 In this case however Mr Ninyette had first of all been advised not to proceed with an unfair dismissal application and then needed to ask for assistance from his partner, both to ascertain his rights as well as to fill out the form and to then assist him in posting it. The combination of those factors is such that I consider them to be an acceptable reason for there being a delay by Mr Ninyette in making his unfair dismissal application.

[28] Accordingly, this criterion resolves in Mr Ninyette’s favour in my consideration of whether an extension of time for filing should be granted.

2. Whether the person first became aware of the dismissal after it had taken effect

[29] On the basis of the evidence before me, I am satisfied that Mr Ninyette first became aware of the termination of employment on 12 December 2016. This is therefore not a circumstance where the Applicant only became aware of his termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[30] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 11

[31] Other than asking his lawyer about making an unfair dismissal application, I am satisfied that Mr Ninyette took no substantive action to dispute his dismissal until the making of his application to the Fair Work Commission on 4 January 2017. Accordingly, this is a neutral factor in my consideration.

4. Prejudice to the employer (including prejudice caused by the delay)

[32] The delay in the filing of the application is 1 day. The Respondent does not claim that the delay in lodging the application causes it prejudice, other than the additional time and expense objecting to the extension of time.

[33] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond this usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 12

[34] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[35] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[36] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In Kyvelos v Champion Socks Pty Limited, decided under earlier legislation, the Full Bench articulated why such position is adopted;

“[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.” 13

[37] Instead of a detailed consideration of the merits of a matter, the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 14

[38] The merits of the application to which Mr Ninyette refers are that he was unfairly treated through the decision of BGC Contracting to dismiss him in December 2016 when his shoulder injury was unresolved at that time and still required surgery that the workers’ compensation insurer would not fund.

[39] There is insufficient material presently before the Commission to draw any conclusions about the prospects of success of this argument. It is therefore a neutral factor in my consideration of the matter of an extension of time.

6. Fairness as between the person and other persons in a similar position

[40] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 15 The question of general fairness as between all applicants would likely resolve in favour of Mr Ninyette, with a predisposition to take into account the vagaries of the Christmas/New Year post. In relation to the question of fairness as between applications arising out of the same employer, there is no other person presently before the Commission dismissed by the same employer for the same underlying issue.16

[41] Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Ninyette.

[42] For these reasons, I grant an extension of time pursuant to s.394 of the Fair Work Act 2009 and will issue an order that the time for Mr Ninyette to file his unfair dismissal application made pursuant to s.394 of the Act be extended until 4 January 2017.

COMMISSIONER

Appearances:

Mr N Ninyette on his own behalf.

Mr D Fletcher, K&L Gates, for the Respondent.

Hearing details:

2016.

Melbourne (by telephone):

18 April.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].

 3   AE897757.

 4   Nulty v Blue Star Group, 2011, 203 IR 1 [13].

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

 6   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409.

 7   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 8   see Hemi v BMD Constructions Pty Ltd[2013] FWC 3593 and Kristia Cahill v Bstore Pty Ltd[2015] FWCFB 103, citing Acts Interpretation Act 1901 (Cth) ss.36(1) and (2).

 9   Email from Applicant, dated 29 March 2017.

 10   Nulty v Blue Star Group, 2011, 203 IR 1 at [14].

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

 12   Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].

 13 (2000) Print T2421 [14].

 14   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 15   Wilson v Woolworths [2010] FWA 2480 [24]‒[29].

 16   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 [38].

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