Paul Canning v UHK Pty Ltd T/A Usher & Son Painting Contractors
[2018] FWC 5952
•4 DECEMBER 2018
| [2018] FWC 5952 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Canning
v
UHK Pty Ltd T/A Usher & Son Painting Contractors
(U2018/5934)
| DEPUTY PRESIDENT DEAN | SYDNEY, 4 DECEMBER 2018 |
Application for an unfair dismissal remedy – extension of time.
On 7 June 2018 Mr Paul Canning made an application to the Fair Work Commission pursuant to s.394 the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by UHK Pty Ltd T/A Usher & Son Painting Contractors (UHK).
It is not disputed that the last day Mr Canning worked for UHK was 7 February 2018. Mr Canning’s application, lodged on 7 June 2018, was made some 99 days outside the 21 day period prescribed by s.394(2) of the Act.
The matter was allocated to me to determine whether Mr Canning should be granted an extension of time for the filing of his application.
At the time his application was filed, Mr Canning was represented by Mr Lewis Smith of Unfair Dismissals Direct. On 3 September 2018, Unfair Dismissals Direct ceased to act for Mr Canning.
On 24 August 2018 UHK filed an application pursuant to s.587 of the Act to dismiss Mr Canning’s application (the dismissal application) on the basis of its claim that the application has no reasonable prospects of success.
The matter was listed for hearing of the application for an extension of time and the dismissal application on 26 September 2018. At the hearing, Mr Canning appeared on his own behalf and Mr C Radcliff, having been granted permission pursuant to s 596 of the Act, appeared on behalf of UHK.
Application for an Extension of Time
Section 394(3) of the Act provides:
(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.
In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances rests with Mr Canning.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd [1] where 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.”
I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
Mr Canning was initially represented by Unfair Dismissals Direct, who filed this application on his behalf.
The response to the question on the Form F2 “Are you making the application within 21 calendar days of your dismissal taking effect?” was as follows:
“1. The Applicant concedes that this application has been made three (3) months and ten (10) days out of time, and respectfully requests the Fair Work Commission (Commission) allow a further period of time, pursuant to paragraph 366(1)(b) of the Fair Work Act 2009 (Cth.) (the Act), for this application to be made.
2. The Applicant relies on the existence of exceptional circumstances, including representative error, which ground an extension of time, and submits that it would be manifestly unfair on the Applicant should it refuse to exercise its discretion to extend time.
3. On 23 February 2018, the Applicant consulted Dismissals Direct Pty Ltd (Unfair Dismissals Direct), the Applicant’s representative, by telephone, stating that he wished to challenge the Respondent’s decision to terminate his employment.
4. On 27 February 2018, Mr Smith, Industrial Relations Specialist with Unfair Dismissals Direct, contacted the Applicant via telephone seeking the provision of further information in respect of the termination of his employment.
5. On 27 February 2018, the Applicant formally engaged Unfair Dismissals Direct via email as his paid agent.
(i)On 27 February 2018, Unfair Dismissals Direct contacted the Applicant via email stating that work had commenced on drafting the Applicants claim and that payment of the Administration Charge would be required prior to filing the matter;
(ii)On 28 February 2018, the Applicants statutory timeframe expired;
(iii)On 01 March 2018, the Applicants wife Sonya Canning notified Unfair Dismissals Direct that she has paid the administration charge that day;
(iv) On 07 March 2018, the Applicant contacted Unfair Dismissals Direct via email asking whether he was required to provide any additional information.
6. The Applicant attempted to contact Unfair Dismissals Direct on the following dates:
(i) 28 March 2018 (telephone);
(ii) 10 April 2018 (telephone);
(iii) 06 June 2018 (email – requesting an update on the status of his matter).
7. On 07 June 2018, upon making enquiries internally Unfair Dismissals Direct immediately realised a representative error, became aware of non-filing and took immediate steps to remedy.
(i) As the administration charge was not paid on time, the claim was not filed within the statutory timeframe. However, it was paid on 1 March 2018 and could have been filed on or after 1 March 2018.”
In an email to my chambers on 22 August 2018, Mr Canning provided details of a bank transfer to Unfair Dismissals Direct on 1 March 2018. At the hearing, Mr Canning gave evidence that his credit card details were provided to Unfair Dismissal Direct by telephone on 27 February 2018.
Mr Canning stated that he was never given an explanation from Unfair Dismissal Direct as to why his application was not filed within time.
It is clear from the application and Mr Canning’s evidence that the delay was caused by Unfair Dismissals Direct. Mr Canning took reasonable steps after he engaged Unfair Dismissals Direct to follow-up in relation to his application.
Mr Canning gave evidence that he felt ‘very let down’ by Unfair Dismissals Direct. Notwithstanding that 98 out of the 99 day delay was caused by Unfair Dismissals Direct, no effort was made by the firm to assist him in seeking an extension of time. Instead, Unfair Dismissals Direct discontinued acting for Mr Canning and sought to extract its fee from him. It subsequently made an offer to Mr Canning to waive its invoice on the condition that Mr Canning produced evidence that he had discontinued his unfair dismissal application. In addition, the Commission made a number of attempts by email and telephone to contact Unfair Dismissals Direct, however the calls and emails were not returned. The conduct of Unfair Dismissals Direct is concerning to say the least.
There is an acceptable reason for the delay, that being representative error. However, error by an applicant’s representative is only one of a number of factors to be considered in deciding whether or not an extension of time should be granted.
Whether the person first became aware of the dismissal after it had taken effect
Mr Canning submitted that his dismissal took effect on 7 February 2018.
UHK submitted that there was no dismissal, and said that the last contact it had with Mr Canning was 7 February 2018. It submitted that Mr Canning was employed on a casual basis and was not required to provide notice. UHK stated it thought Mr Canning had found work elsewhere.
Whilst there is a question over whether Mr Canning was in fact dismissed by UHK, there is no dispute that employment relationship ended on 7 February 2018. This weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
Mr Canning contacted Unfair Dismissals Direct on 23 February 2018 and provided them with the information to make an application for unfair dismissal. It is his evidence that he contacted Unfair Dismissals Direct to provide his credit card details for payment on 27 February 2018 and made enquiries as to the status of his application by both telephone and email but did not receive a response. This weighs in favour of the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
While the delay in this case is some 99 days, there was no evidence that the delay would cause prejudice to UHK. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of granting an extension of time.
The merits of the application
For the purpose of determining whether to grant an extension of time for Mr Canning to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[2]
UHK submitted that Mr Canning was not dismissed. It submitted that a Project Manager of UHK called Mr Canning to commence work on a new project however Mr Canning did not return the calls. It submitted that as Mr Canning was employed on a casual basis it was assumed that he abandoned his position or had found alternative employment.
Mr Canning submitted that he received a text message indicating UHK would contact him regarding starting on a new site shortly after 7 February 2018. He claims not to have heard from anyone from UHK after that.
On the material before me, I am unable to make a final determination of the merits in this matter. However, my view based on the material before me is that Mr Canning does not have a strong case. I consider that this weighs against a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[3] considered this criterion and said ‘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.’[4]
I do not consider that there are other relevant persons in a similar position to Mr Canning. I therefore find this to be a neutral consideration.
Conclusion
Despite the conduct of Unfair Dismissals Direct in dealing with Mr Canning’s application, on balance, when considering the matters in s.394(3) as a whole, I am not satisfied that there are exceptional circumstances which would warrant my granting an extension of time to Mr Canning. On this basis, the application is dismissed.
An order to that effect will issue with this decision.
To the extent I need to deal with UHK’s dismissal application under s.587, given I have not extended time, that application is dismissed.
DEPUTY PRESIDENT
Appearances:
P. Canning on his own behalf.
C. Radcliff for UHK Pty Ltd T/A Usher & Son Painting Contractors.
Hearing details:
2018.
Sydney (By telephone)
September, 26.
<PR700750>
[1] [2011] FWAFB 975.
[2] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[3] [2015] FWC 8885.
[4] Ibid at [29].
Printed by authority of the Commonwealth Government Printer
0
0
0