[2016] FWC 2138

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neil Thorogood
v
PALT Holdings Pty Ltd T/A Findlay Evans Waterproofing
(U2016/4480)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 APRIL 2016

Application for relief from unfair dismissal – extension of time not granted.

[1] Mr Neil Thorogood alleged that the termination of his employment by Findlay Evans Waterproofing was unfair.

[2] There was no dispute that the date of termination was Monday 18 January 2016 or that Mr Thorogood was notified of his termination on that day. He completed his unfair dismissal application and posted it on Monday 8 February 2016 and it arrived in the Melbourne registry of the Fair Work Commission on Thursday 11 February 2016.

[3] Mr Thorogood’s unfair dismissal application was therefore not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

[4] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[5] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

“[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." [Endnotes not reproduced]

[6] There was no factual dispute regarding the delay on the material filed and this was confirmed by both parties at the hearing. Mr Thorogood made oral submissions addressing the material he had filed and the elements of s.394(3) of the Act and Findlay Evans responded. It provided no material beyond that supplied with the Employer’s response to the application and did not seek to cross examine Mr Thorogood.

Paragraph 394(3)(a) the reason for the delay;

[7] There must be an acceptable reason for the delay in making the unfair dismissal application. 2 Mr Thorogood must provide a credible reason for the whole of the period that the application was delayed.3

[8] 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. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 4

[9] The Full Bench explained the correct approach by reference to the following example in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 5:

"For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."

[10] One of the reasons Mr Thorogood gave for the delay was that he did not discover there was a 21 day time period within which to make an application until he downloaded an application form on 3 February 2016. Mr Thorogood stated that he contacted Centrelink, the CFMEU, two law firms, Incolink, the Fair Work Ombudsman (FWO) and the Fair Work Commission to discuss his termination during the 18 January 2016 - 3 February 2016 period, but the 21 day requirement was not raised with him during these exchanges.

[11] Mr Thorogood’s lack of knowledge of the 21 day requirement during this period cannot be taken as indicative of an acceptable reason for the delay or an exceptional circumstance. Mere ignorance of the 21 day requirement is not an exceptional circumstance. 6

[12] I do not regard it as exceptional that it was not raised during his discussion with Centrelink and nor do I regard the fact that it was not raised in the discussions with the CFMEU and two law firms as giving rise to exceptional circumstances. The discussion with the CFMEU was very short. Assistance was not forthcoming because he was not a CFMEU member. One firm of lawyers simply referred him to the Law Institute of Victoria and the brief discussion with the other did not address the making of an unfair dismissal claim.

[13] Details of Mr Thorogood’s contact with Incolink were contained in the material he submitted. Email correspondence from 19 January 2016 was primarily directed towards his obtaining Incolink entitlements but it also included a statement from Mr Thorogood indicating he would be taking up an unfair dismissal case with the Fair Work Commission. Given the context of this exchange of correspondence, I do not regard the absence of a reference to the 21 day requirement as giving rise to exceptional circumstances.

[14] Mr Thorogood stated that when he contacted the FWO on the day he was terminated, he was advised to wait until he had received his payment in lieu of notice and annual leave before making any application. His expectation at that time, confirmed in an email he sent to Findlay Evans on 20 January 2016, appeared to be that he was going to receive these payments within days of his termination. The context for this contact seems to have been at least partly directed to the recovery of entitlements and this is a core function of the FWO. Given this and the timing of the contact, I do not regard it as exceptional that the 21 day requirement was not raised with Mr Thorogood at that time.

[15] In the same email from 20 January 2016, Mr Thorogood states he had been advised by the Commission to wait until his final payment was made before ‘launching’ an unfair dismissal claim. The email also indicates it was apparent to him that the genuineness of his redundancy was a possible basis for an unfair dismissal claim.

[16] Mr Thorogood also stated he contacted the Commission on 21 or 22 January 2016 and while the possibility of his termination being a non-genuine redundancy was raised, he was not advised of the 21 day requirement. If a conversation with the Commission was comprehensive enough to cover the possible basis of his claim, it would be surprising for the 21 day limit not to have been raised as well.

[17] Regardless, this contact with the Commission was made almost immediately post termination and it is clear from his email to Findlay Evans that Mr Thorogood knew then he could make a claim for unfair dismissal and a possible basis was whether his redundancy was genuine. Advancing his claim at that time was not dependent on him having received a final payment for notice and annual leave.

[18] Mr Thorogood received a payment from Findlay Evans on 2 February 2016 and stated that when it appeared that he had not received a payment in lieu of notice, he telephoned the FWO again and was advised to start his application. On Wednesday 3 February 2016, he downloaded and commenced completing an application form and it was only upon reading this form that he discovered there was a 21 day time period within which to make an application for unfair dismissal.

[19] Having become aware of the 21 day requirement on Wednesday 3 February 2016, a further 8 days passed before Mr Thorogood’s application arrived at the Commission on Thursday 11 February 2016. Mr Thorogood put forward a number of reasons for this.

[20] Mr Thorogood stated that he suffered from anxiety which inhibited his efforts to make his application. In particular, he stated that when he began filling in the Application form, he experienced periods of anxiety as a result of reliving both his redundancy and the ensuing correspondence with Findlay Evans. He said this required him to take breaks to allow his anxiety to subside. Mr Thorogood tendered a report dated 8 March 2016 of a treating psychologist, Dr Sophie Bibrowska. Dr Bibrowska did not give evidence at the hearing. Her report stated:

“This is to certify that Mr Thorogood explained, during his sessions of psychological counselling with me, the reasons for which he applied to the Fair Work Commission 23 days – instead of 21 – after dismissal from the waterproofing company where he was working as the operations manager.

Mr Thorogood stated that he was waiting to be paid what his ex-manager still owned [sic] him, in terms of hours he had worked before dismissal, part of the annual leave and the two weeks of payment in lieu of notice. The last day, he had worked for the waterproofing company was the 18^th January 2016. On the 3^rd February 2016 he was paid the remaining hours of work and annual leave, but not the payment in lieu of notice. Then he decided to apply to Fair Work Commission. To do so, he needed to organise the documents that constituted the evidence he was proposing to submit to Fair Work Commission. That had required for him a substantial amount of effort and also time.

The main psychological difficulty that Mr Thorogood reported experiencing in this period was a state of acute anxiety, following the circumstances of his dismissal. That state he described is, in my opinion, an expected response to the conditions of dismissal and would be likely to influence and slow down the task of putting in place the evidence for the Fair Work Commission.” 7

[21] The report states that Mr Thorogood did not decide to lodge an unfair dismissal application until 3 February 2016. Dr Bibrowska suggested the state Mr Thorogood described to her as being ‘an expected response to the conditions of dismissal’. As has previously been found, it is common for employees to suffer shock and trauma as a result of dismissal from employment 8 and it was said in Casey v Guardian Community Early Learning Centres:

“…stress and shock resulting from a dismissal is not an uncommon experience of persons who have been dismissed and does not generally provide a basis, without more, for an acceptable explanation for the delay.” 9

[22] While the report expresses the opinion that Mr Thorogood’s description of his state in response to the termination would likely have slowed him down, it is not evidence that he was incapable of taking any action during the period immediately following the termination or from 3 February 2016. That he needed to organise documents is not unusual and as has been outlined above, the material submitted by Mr Thorogood indicates he was actively making numerous inquiries in the days following his termination and it included details of animated exchanges with his former employer.

[23] Another reason cited by Mr Thorogood for the delay is his belief that he was required to lodge a signed, original copy of his application. However, he downloaded the Application form from the Commission’s website in order to make his application and the information accompanying a Form F2 - Unfair Dismissal Application downloaded from the Commission’s website in either ‘word’ or ‘pdf’ format includes in the same paragraph:

Lodge your application, along with any accompanying documents, with the Commission within 21 calendar days after your dismissal took effect. You can lodge your application by post, by fax or by email or in person at the Commission’s office in your State or Territory. You can also lodge online using the Commission’s eFiling service at

[24] It is because of this that I am not persuaded it would not have been apparent to Mr Thorogood that he could lodge the form electronically or by other means.

[25] As to the method of lodgement he adopted, he stated that he was not thinking straight when he sent the application to the Commission via registered post on 8 January 2016 and that he thought he had sent it via the fastest means available from a post office. However, regardless of the form of postage he chose, it was going to be received outside of the 21 day limit because he posted it on 8 January 2016.

[26] Finally, I do not consider Mr Thorogood’s reliance on public transport or his Centrelink commitments to constitute exceptional circumstances.

[27] For the reasons outlined above, I am not satisfied that Mr Thorogood has provided a reasonable explanation for the delay in lodging his application. This weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect;

[28] Mr Thorogood first became aware his dismissal when he was issued with a letter advising him of the termination of his employment on 18 January 2016. He was aware of the dismissal on the day it took effect and had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) any action taken by the person to dispute the dismissal;

[29] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 10

[30] Mr Thorogood pursued Findlay Evans for payment for notice but beyond lodging this application, he took no other action to dispute his dismissal. This weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(d) prejudice to the employer (including prejudice caused by the delay);

[31] Prejudice to the employer will weigh against granting an extension of time, 11 but Findlay Evans did not submit that there was any prejudice to it if an extension of time were granted. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.12

[32] As the delay in this case was only 3 days, I am satisfied that there would be no greater prejudice to Findlay Evans caused by Mr Thorogood’s application being dealt with now than there would have been had it been made within the 21 day time period. I consider this criterion to be neutral.

Paragraph 394(3)(e) the merits of the application;

[33] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group 13, it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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."

[34] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case" 14 for the purpose of determining whether to grant an extension of time to the applicant to make their Application. I have adopted this reasoning.

[35] Mr Thorogood submitted that his termination was not due to a genuine redundancy because he was offered to come back and work as a subcontractor. He also submitted that it was pre-meditated because he had previously had an altercation with Findlay Evans regarding payment.

[36] Findlay Evans submitted that Mr Thorogood was aware that it was in financial difficulty and that some other employees had also been made redundant. It submitted that his position was no longer required and his duties had been absorbed by Mr Paul Evans. It did not dispute that Mr Thorogood was offered work but submitted it was offered in order to help him and was not the same as the work he had been doing.

[37] I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I consider this criterion to be neutral.

Paragraph 394(3)(f) fairness as between the person and other persons in a similar position.

[38] The question of fairness as between the Applicant and other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm ,15 as follows:

“cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”

[39] There were no submissions that there were other persons in a similar position to Mr Thorogood. I consider this criterion to be neutral.

Conclusion

[40] Having taken into account the matters referred to in paragraphs [7]-[39] above, I am, on balance, not satisfied that there are exceptional circumstances warranting an extension of time for Mr Thorogood’s application to be made. Mr Thorogood’s circumstances were not out of the ordinary course, unusual, special or uncommon and he has not provided a reasonable explanation for the whole of the delay. None of the other criteria weigh in favour of a finding of exceptional circumstances and a lack of prejudice alone is insufficient to find exceptional circumstances.

[41]
Mr Thorogood’s application for an extension of time is refused and therefore his unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

N Thorogood on his own behalf.

N Smith for Findlay Evans Waterproofing.

Hearing details:

2016.

Melbourne:

March 11.

1 [2011] FWAFB 975.

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

3 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.

4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

5 Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].

6 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

7 Exhibit A1.

8 Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [10].

9 Casey v Guardian Community Early Learning Centres [2014]FWC 4002 at [16].

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

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

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

13 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

14 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

15 Morphett v Pearcedale Egg Farm[2015] FWC 8885 at [29].

Printed by authority of the Commonwealth Government Printer

Neil Thorogood v Palt Holdings Pty Ltd T/A Findlay Evans Waterproofing