Niko Kordes v Aboriginal Family Support Services Limited
[2022] FWC 2725
•13 OCTOBER 2022
| [2022] FWC 2725 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Niko Kordes
v
Aboriginal Family Support Services Limited
(U2022/9337)
| COMMISSIONER PLATT | ADELAIDE, 13 OCTOBER 2022 |
Application for an unfair dismissal remedy – request for an extension of time – application refused.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Mr Niko Kordes a further period for his unfair dismissal application (the Application) to be made against Aboriginal Family Support Services Limited (AFSS). At the conclusion of the hearing on 12 October 2022, I determined to dismiss Mr Kordes’ application, on the basis that it was lodged out of time, and that there were not exceptional circumstances such that it was open to me to extend the period for him to lodge his application. The reasons for this decision are outlined below.
Background
Mr Kordes has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with AFSS which his form F2 unfair dismissal application advised took effect on 25 August 2022. It is noted that whilst the form F2 advised that the termination took effect on 25 August 2022, Mr Kordes later contended that his dismissal did not take effect until 31 August 2022.
The application was lodged on 19 September 2022. As such, if Mr Kordes’ dismissal took effect on 25 August 2022, the Application was lodged four days out of time. If, however, Mr Kordes’ dismissal took effect on 31 August 2022, the Application was lodged within time, and no extension of time is necessary.
On 26 September 2022, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 12 October 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties.
On 30 September 2022, the Respondent lodged a form F3 Employer Response which contended that the dismissal took effect on 25 August 2022 and pressed the jurisdictional objection that the Application was lodged out of time.
Both parties filed material in line with the directions. The materials filed were compiled into a Digital Court Book which was distributed to the parties prior to the hearing. I received all materials contained in the Digital Court Book, giving appropriate weight to evidence tainted by irrelevance, hearsay or opinion.
Hearing
A hearing was conducted by way of telephone conference on 12 October 2022. A sound file record of the telephone conference was kept. Mr Kordes represented himself at the hearing, whilst Mr Tom Earls was granted leave, unopposed, to represent the Respondent on the basis of s.596(2)(a) – complexity and efficiency. In order to ameliorate any unfairness to the Applicant as a result of this decision, the hearing was conducted by way of determinative conference.
Mr Kordes gave evidence at the hearing. His position is summarised as follows:
· The Applicant gave evidence that he was verbally advised of his dismissal at a meeting with Mr Philip Holland (Manager of Human Resources) and Mr Shane Catterall (Senior Manager, Residential Service) on 25 August 2022. The Applicant denies that he was told that his dismissal would take immediate effect.
· The Applicant received written confirmation of the dismissal by email on 31 August 2022. The Applicant contends that his dismissal took effect on the date that he received this email from Mr Holland.
· The letter (which is dated 30 August 2022 but was not sent until 31 August 2022) recounts the meeting which took place between the parties on 25 August 2022, and concludes by stating:
“…I now formally confirm that your employment with Aboriginal Family Support Services has been terminated with effect from Thursday 25 August 2022.”
· The Applicant stated that he had contacted ‘Fair Work’ via his mobile telephone on the 2nd of September 2022 requesting support, and that he was informed that an email with appropriate information would be sent to him in order to commence his application.
· The Applicant stated waited for the email but did not receive it.
· On 9 September 2022, the Applicant was provided with a link to the form F2 Unfair Dismissal Application by Mr Broski (his support person during the termination process and at the extension of time hearing).
· The Applicant was aware of the 21-day time limit but was under the misapprehension that the dismissal was not effective until confirmed in writing.
My Chambers contacted the Client Services team at the Commission in relation to the telephone call that the Applicant claimed to make on 2 September 2022. Client Services conducted a search of the Commission phone records and found no inbound calls from the Applicant’s mobile number between August and 10 October 2022.
The Respondent filed written submissions and a witness statement from Mr Holland. The Respondent’s position is summarised as follows:
· On 11 August 2022, the Respondent commenced an investigation into allegations of misconduct made against the Applicant. The Applicant was stood down pending the findings of the investigation and was invited to attend a meeting to discuss the allegations with Mr Holland and Mr Catterall on 25 August 2022.
· On 25 August 2022, the Applicant attended the meeting with his support person. The Applicant denied the allegations.
· Mr Catterall and Mr Holland adjourned the meeting for approximately half an hour to consider the Applicant’s responses and make further inquiries.
· After considering the Applicant’s responses and making further inquiries, the meeting resumed, and the Applicant was advised by Mr Catterall that he was summarily dismissed. Mr Holland’s position was that it was conveyed to the Applicant that his dismissal would take immediate effect.
· This decision was confirmed in writing and emailed to the Applicant on 31 August 2022.
· The Respondent contends that the communication of the Applicant’s dismissal at the meeting of 25 August 2022 was clear and unambiguous, and as such, the dismissal took effect on that day. As such, the Application could only proceed if an extension of time was granted.
· The Respondent submitted at the hearing that the Applicant simply had a legal misunderstanding as to the effective dismissal date, and that ignorance of the law is generally not a factor that gives rise to a finding of exceptional circumstances.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”
…
[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.”
Consideration
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[5] A dismissal can be communicated orally.[6]
The effective date of dismissal is that date on which the employee is aware that they have been dismissed, or has at least had a reasonable opportunity to become so aware.[7] The Applicant gave evidence at the hearing that he understood at the meeting on 25 August 2022 that he had been dismissed. The Applicant, who (despite being casual) worked every day (subject to a roster), did not work again after 25 August 2022. The test for determining when a dismissal takes effect is an objective one. The Applicant’s misguided belief that the dismissal would not take effect until it was confirmed in writing does not change the date of his dismissal.
I find that the dismissal took effect on 25 August 2022. As such, the application was lodged four days out of time, and requires an extension of time to proceed.
Paragraph 394(3)(a) - reason for the delay
The delay required to be considered is the period beyond the prescribed 21-day period for making 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 when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[8] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[9] the Full Bench explained the correct approach by reference to the following example:
“[31] 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.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[10]
“[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.
…
[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.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
The reasons for the Applicant lodging his application out of time were:
· His misguided belief that the dismissal took effect on 31 August 2022; and
· That someone from Commission’s helpline had told him that they would send him an email which explained to him how to lodge an unfair dismissal application, and he never received such an email.
The Applicant’s mistaken belief about the effective date of dismissal does not weigh in favour of an extension of time. It is well established that ignorance of law is not considered a credible reason for delay.[11]
I make no finding as to whether the Applicant contacted the Commission on 2 September 2022, and the contents of the telephone call if it occurred. Putting the Applicant’s case at its highest, if the Applicant was told by someone at the Commission that they would send him an email with a link to the Commission’s website to assist him in lodging his application, the Applicant still took no further action to progress his application. Effectively, the Applicant sat on his hands waiting to be provided with assistance. It is noted that the Applicant was advised by Mr Broski on 9 September 2022 about how he could lodge his application, but waited a further ten days before downloading the form F2 and lodging it with the Commission. The Applicant’s inaction contributed to the delay.
In my view, the Applicant has not provided a credible reason for the delay in filing his application. This factor weighs against the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
Mr Kordes was aware of the dismissal on the date it occurred. The fact that he had misunderstood the effective date of his dismissal does not change that fact.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[12]
The Applicant conceded that he took no further action to dispute the dismissal outside of lodging the application. This is a consideration against the granting of an extension of time.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[13] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[14]
There is no submission that the granting of an extension of time represents prejudice to AFSS. This is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment. The Applicant disputes the allegations of misconduct subject of his dismissal. Accordingly, I have regarded the merits as a neutral factor.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[15] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant.
An Order[16] reflecting this decision will be issued.
COMMISSIONER
Appearances:
N Kordes, the Applicant.
T Earls, for the Respondent.
Hearing details:
2022.
Adelaide (by telephone):
October 12.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]
[6] Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v
Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605
[7] Ayub v NSW Trains[2016] FWCFB 5500, [36].
[8] 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]
[9] [2016] FWCFB 349
[10] [2018] FWCFB 3288 at [35]-[45]
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[13] Ibid
[14] Ibid
[15] [2016] FWCFB 6963
[16] PR746740
Printed by authority of the Commonwealth Government Printer
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