Nicholas Buskariol v GPM Marine Constructions Pty Ltd
[2023] FWC 1407
•15 JUNE 2023
| [2023] FWC 1407 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Buskariol
v
GPM Marine Constructions Pty Ltd
(U2023/769)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 15 JUNE 2023 |
Application for an unfair dismissal remedy – application filed 21 days out of time – no exceptional circumstances – application dismissed.
Introduction
On 31 January 2023, Mr Nicholas Buskariol (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission). The Respondent to the Application is GPM Marine Constructions Pty Ltd (Respondent).
In his Application, the Applicant states “I was paid on 16 January 2023 after the scheduled annual shutdown, I presume my last date of employment is 16 January 2023.”
In its Form F3 Employer Response, the Respondent says that the Applicant voluntarily resigned (i.e. was not “dismissed” within the meaning of s.386 of the Fair Work Act 2009 (Act)) on 19 December 2022. In additional to making this jurisdictional objection, the Respondent raises a further three objections to the Application, as follows:
a) In accordance with s.394(2)(a) of the Act, the Applicant should have filed his Application by 9 January 2023 to be within the statutory 21 day time period for the filing of an unfair dismissal application (if the Applicant’s employment came to an end or took effect on 19 December 2022).[1] It follows that the Applicant has filed his Application out of time, or 22 days late, there are no exceptional circumstances, and the Application must be dismissed. In the alternative, it is also open to the Commission to find that the Applicant’s employment came to an end (or took effect) on 20 December 2022, meaning the application has been filed 21 days late, there are no exceptional circumstances, and the Application must be dismissed.
b) The Respondent is a “small business employer” as defined by s.23 of the Act. The Applicant commenced employment with the Respondent on 10 January 2022. Given his employment came to an end on 19 December 2022, he is not protected from unfair dismissal because he has not completed the “minimum employment period” under s.383 of the Act.
c) The Respondent (as a small business employer) has complied with the Small Business Fair Dismissal Code.
In Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[2] (Lisha Herc) the Full Bench stated as follows:
“[15] The question of whether an application … is made outside the required time, is not strictly a jurisdictional objection. Quite simply, an … application made outside the time required in s.394(2) [or s.36(1)(a)] is not validly made, unless and until, a further period has been granted. … Before any of the other jurisdictional objections can be considered, it is necessary that the question of the date the Appellant’s dismissal took effect (if the Appellant was dismissed) [be determined first].”[3]
It follows from the decision in Lisha Herc that it is necessary for me to put to one side the objections raised by the Respondent, and determine the date that the Applicant’s employment with the Respondent ended (i.e. took effect), and whether I should extend the time for the Applicant to file his Application. This decision thus concerns (and is limited to) whether the Application has been filed out of time, and if so, whether there are exceptional circumstances warranting the exercise of my discretion to extend the time for the Applicant to file his Application (see ss.394(2)(b) and (3) of the Act).
At the in-person hearing conducted on 3 May 2023, the Applicant appeared for himself, and Ms Ruth Nocka, Partner, Dentons lawyers, appeared with permission for the Respondent.
Factual findings
On the basis of the evidence tendered by the parties and given at the hearing, I make the factual findings that follow.
As at December 2022 and January 2023, the Respondent employed 11 employees. The Respondent is therefore a “small business employer” as defined by s.23 of the Act.
The Applicant commenced employment with the Respondent on 10 January 2022. In order to be protected from unfair dismissal, the Applicant must have remained employed by the Respondent (as a small business employer) for a minimum period of 12 months, i.e. until 10 January 2023.
On 19 December 2022, at around 2.00pm, the Applicant and Mr Greg Stockley, Director of the Respondent, had a verbal argument / altercation. Post this event, the Applicant left the Respondent’s workplace and has not returned since.
At around 4.15pm on 19 December 2022 the Applicant became aware that he had been locked out of the Respondent’s computer systems. The Applicant was advised by Ms Judy Drake, Financial Controller of the Respondent, that him being locked out of the Respondent’s computer systems had been done intentionally, at the direction of Mr Stockley.
On 20 December 2022, Ms Drake requested the Applicant return his work keys, and collect his personal belongings from the office.
Despite attempting to call and text Mr Stockley post 19 December 2023, Mr Stockley did not return the Applicant’s calls or texts. The Applicant also requested Ms Drake to ask Mr Stockley to call him, but Mr Stockley made no calls to the Applicant.
The Applicant was paid out his accrued termination leave entitlements on 16 January 2023.
Having regard to my findings at paragraphs [10] to [14] above, I find that the Applicant’s employment came to an end with the Respondent (or took effect) on 20 December 2022. In my view, given that the Applicant was made aware that he had been intentionally locked out of the Respondent’s computer systems, told to return his work keys and collect his personal belongings from the Respondent’s workplace, and was not having his calls or texts returned by Mr Stockley, it was (or ought to have been) wholly apparent to Applicant (or any reasonable person) that he was no longer employed by the Respondent as at 20 December 2022. In making this finding, I note that it is unnecessary for me, having regard to the Full Bench decision in Lisha Herc, for me to determine (in any final sense) whether or not the Applicant was “dismissed” by the Respondent on 20 December 2022 (i.e. it is enough that I have found that the Applicant’s employment came to an end (or took effect) on that date for the purposes of determining whether there are exceptional circumstances enlivening my discretion to extend the time for the Applicant to file his Application 21 days late on 31 January 2023).
I note that the Applicant contends that his employment came to an end on 16 January 2023 when he was paid out his accrued leave entitlements. In support of this contention, the Applicant says that he was never expressly told by Mr Stockley or Ms Drake that he was dismissed, or that his employment had come to an end. However, as I have already found, given that the Applicant was made aware that he had been intentionally locked out of the Respondent’s computer systems, told to return his work keys and collect his personal belongings from the Respondent’s workplace, and was not having his calls or texts returned by Mr Stockley, it was (or ought to have been) wholly apparent to Applicant that he was no longer employed by the Respondent as at 20 December 2022. As a matter of law, the fact that the Applicant was not paid out his accrued leave entitlements until 16 January 2023 cannot extend the actual date (or reality) that the employment relationship between the Applicant and the Respondent came to an end on 20 December 2022.
Legislation
Granting an extension of time requires me to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd (Nulty), in relation to the term “exceptional circumstances”, stated:
“[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 [21 day] time limit in s.366(1)(a) [or s.394(2)(a)] is not an exceptional circumstance…”[4]
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)], is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) [s.394(a) to (f)] and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
(emphasis added)
The matters that I need to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are outlined in s.394(3) of the Act, which reads:
“394 Application for unfair dismissal remedy
…
(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.”
Each of the individual matters under s.394(3) of the Act need to be considered separately, and in combination. The Applicant bears the onus of establishing the existence of exceptional circumstances.[5]
In Mohammed Ayub v NSW Trains[6], a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”.
Reason for delay[7]
On the issue of reason/s for delay, I adopt the principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[8] (Bianco Mamo), as follows:
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for the delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[9] An Applicant need not provide reasons for the entire period of a delay. Depending upon all of the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of a delay[10] (albeit this would be unusual).
The Applicant essentially says that he was not aware he had been dismissed until he was paid out his accrued leave entitlements on 16 January 2023. Apart from this, the Applicant proffers no reasons as to his delay in filing his Application, and identifies no incapacity that prevented him from filing his Application within time.
I do not accept that the Applicant has provided credible or “probative evidence” confirming that he was prevented (or unable) to file his Application within 21 days of the cessation of his employment with the Respondent on 20 December 2022. I thus conclude that the Applicant’s reasons for delay in this case are such that they weigh against any finding as to the existence of exceptional circumstances.
Whether the Applicant become aware of the dismissal after it had taken effect[11]
The Applicant was not advised that his employment had come to an end in any express terms by the Respondent. I consider this criterion to be a factor that weighs in favour of a finding as to the existence of exceptional circumstances in this case.
Action taken by the Applicant to dispute the dismissal[12]
The Applicant raised concerns as to the cessation of his employment with Mr Stockley and Ms Drake up to 22 December 2022, however, there does not appear to be any on-going attempts by the Applicant to communicate with the Respondent post that date (and prior to filing his Application on 31 January 2023). I thus consider this criterion to be a factor that weighs against any finding as to the existence of exceptional circumstances in this case.
Prejudice[13]
The next criterion to be considered is any prejudice to the Respondent occasioned by the 21 day delay. I am not aware of any such prejudice. Whilst the absence of prejudice is not uncommon, such absence is not a factor that automatically weighs in favour of a finding as to the existence of exceptional circumstances.[14] In this case, I treat this criterion as a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Merits[15]
The principles stated Kyvelos v Champion Socks Pty Ltd[16] (Kyvelos), albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … 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 … 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 … 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 …”.[17]
In Kornicki v Telstra-Network Technology Group,[18] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to an extension of time under the former s 170CE(8) of the (now repealed) Workplace Relations Act 1996. In that case, the Full Bench said, in respect to the merits of an application:
“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.”[19]
The merits of the Applicant’s case, by reference to the Applicant’s assertions as to his interaction with Mr Stockley on 19 December 2022 (witnessed by Ms Drake) constituting a constructive dismissal (or a resignation in the heat of the moment), and the Respondent’s counter assertions as to that interaction reflecting the Applicant’s voluntary resignation, were tested before me. However, it is not the role of the Commission to “embark [upon] a detailed consideration of an Applicant’s substantive case” for the purpose of determining whether or not to grant an extension of time to an applicant to lodge their application.[20] That said, in my view:
a) the Respondent did dismiss the Applicant from its employ. In other words, it is readily apparent that:
i.the Applicant indicated his intention to leave the Respondent’s employ during a very heated discussion or argument with Mr Stockley on 19 December 2022;
ii.Mr Stockley (wrongly) thereafter failed to clarify or communicate with the Applicant as to whether the Applicant subsequently maintained that intention to leave the Respondent’s employ (after emotions had cooled down);
iii.Mr Stockley (wrongly) accepted what he understood to be the Applicant’s resignation in circumstances where it had been proffered in the heat of the moment absent further conferral with the Applicant; and
iv.Mr Stockley (wrongly) instructed Ms Drake to immediately cut off the Applicant’s computer access (on 19 December 2022), and advise the Applicant to return his work keys and to collect his personal belongings from the Respondent’s workplace on 20 December 2023, all of which was directly communicated to the Applicant by Ms Drake, thus bringing the employment relationship to an end on 20 December 2023.
b) the dismissal of the Applicant by the Respondent on 20 December 2022 results in the Applicant not completing the 12 month minimum employment period with the Respondent (as a small business employer), resulting in the Applicant not being a person protected from unfair dismissal.
It follows from subparagraph (b) above, that the merits of the Applicant’s case display no prospects of success, in that even though the Applicant was dismissed in what seems to be an unfair (harsh, unjust or unreasonable) manner, unless he has completed the minimum employment period at the time of his dismissal by the Respondent, the Commission has no jurisdiction to hear and determine the Applicant’s Application (or claim for unfair dismissal). As a matter of straightforward logic (and law), I weigh the merits of the Application strongly against any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[21]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[22] Neither party made any relevant submissions as to this criterion. Accordingly, I consider that this criterion to be a neutral consideration that weighs neither for nor against any finding as to the existence of exceptional circumstances in this case.
Conclusion
Taking into account the criteria set out under s.394(3)(a)-(f) of the Act:
(a) three of the criteria, considered individually, points towards there being no exceptional circumstances; and
(b) one of the criteria, considered individually, points towards there being exceptional circumstances; and
(b) considering the requisite criteria on a collective basis, there is no basis for me to be satisfied that exceptional circumstances exist (i.e. three criteria weigh against any finding as to the existence of exceptional circumstances, one of the criteria points towards a finding as to the existence of exceptional circumstances, and the remaining criteria are neutral).[23]
On the basis of my reasons (and findings) set out in this decision, the lengthy 21 day delay in the filing of the Application, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of exceptional circumstances in this case. As a matter of law, I am therefore not in a position to exercise any discretion to grant the Applicant an extension of time to file his Application.[24] I dismiss the Application filed by the Applicant in these proceedings. An Order to this effect will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant (Mr Nicholas Baskariol), appeared for himself.
Ms Ruth Nocka, Partner, Dentons lawyers, appeared with permission for the Respondent.
[1] An unfair dismissal application must be made within 21 days after a dismissal takes effect, or in such further time as the Commission may allow. The 21 day period prescribed in s.394(2)(a) of the Act does not include the day on which the dismissal took effect.
[2] [2022] FWCFB 234.
[3] Ibid, at [15].
[4] [2011] FWAFB 975.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[6] [2016] FWCFB 5500.
[7] Section 394(3)(a) of the Act.
[8] [2021] FWC 3903.
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39].
[10] Ibid, at [40].
[11] Section 394(3)(b) of the Act.
[12] Section 394(3)(c) of the Act.
[13] Section 394(3)(d) of the Act.
[14] Miller v DPV Health Ltd [2019] FWCFB 6890, at [21] (citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149,at [38]).
[15] Section 394(3)(e) of the Act.
[16] (1995) 67 IR 298.
[17] Ibid, at 299 to 300.
[18] Kornicki v Telstra-Network Technology Group [1997] 140 IR 1, at 11 (PR3168, 22 July 1997, Ross VP, Watson SDP, Gay C).
[19] Ibid. See also Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [36].
[20] Kyvelos v Champion Socks Pty Ltd, Print T2421, at [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, cited in Byron Stephen Gill v IFM Services Pty Ltd[2021] FWC 5962, at [33].
[21] Section 394(3)(f) of the Act.
[22] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP at 151-152, [37].
[23] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[24] Noting the definition of “exceptional circumstances” set out in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, at [13].
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