Paul Platts v David T Rabig Pty Ltd T/A Rabig Bulk Haulage
[2023] FWC 1191
•24 MAY 2023
| [2023] FWC 1191 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Platts
v
David T Rabig Pty Ltd T/A Rabig Bulk Haulage
(U2023/3670)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 24 MAY 2023 |
Application for an unfair dismissal remedy – extension of time – discretionary considerations – no exceptional circumstances – application dismissed
On 28 April 2023 Paul Platts (Mr Platts or the Applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to a dismissal by David T Rabig Pty Ltd t/as Rabig Bulk Haulage[1] (Rabig Bulk Haulage, the Respondent or the employer) which he alleges took effect on 17 January 2023.
Rabig Bulk Haulage filed a response on 5 May 2023.
Mr Platts’ application was made after the twenty-one days required by the FW Act. If the date dismissal took effect is the date stated by Mr Platts, the application is eighty days out of time. I deal with the date dismissal took effect below and find that the application is in fact thirty-two days out of time.
For the application to proceed it requires an extension of time. Mr Platts seeks that extension.
This decision deals with whether an extension should be granted.
I issued directions on 11 May 2023.
Materials were filed by Rabig Bulk Haulage. Mr Platts relied on the contents of his application.
I conducted a hearing by video on 18 May 2023.
Mr Platts gave evidence. Mr Daniels, Operations Manager, gave evidence for the employer. Both parties made submissions.
Included in the employer’s materials is a statement of a Ms Roberts. Ms Roberts was not present to give evidence. Her statement largely concerns incidental matters. I do not take it into account as it is not necessary to do so and as she was not present to be questioned on it.
Following the hearing I reserved my decision.
Facts
I make the following findings.
Rabig Bulk Haulage operates in the transport and logistics industry. It claims to be a small business for the purposes of the FW Act. It operates from Whyalla in regional South Australia.
Mr Platts was employed as a casual driver. He lives in Whyalla. He had worked approximately eighteen months until dismissed.
In early December 2022 Mr Platts was working at a client site at Cultana (Shamrock Civil Cultana Defence Force Project) when the client asked for Mr Platts to be removed from site. Mr Platts was provided a month by the employer to ‘sort himself out’.
Mr Platts resumed work on 9 January 2023. On 11 January 2023 an incident occurred on site whereby a truck he was driving was driven onto a steel beam causing significant damage to a tank.
Following the incident, Mr Daniels told Mr Platts that he was stood down from work and that the business would be in contact when it had more work for him.
Mr Platts did not work after 11 January 2023 (Mr Platts stated that his last day of work was 17 January 2023; I prefer the evidence of Mr Daniels that it was 11 January).
On 18 January 2023 the employer paid Mr Platts his final pay, for work up to 11 January.
Whilst employed, the employer had been making child support deductions from Mr Platts’ pay and remitting the same to Centrelink.
Mr Platts was not offered work and did not hear from the employer until 6 March 2023.
On 6 March 2023 Mr Platts was contacted by Centrelink and was advised that he had an outstanding child support debt as deductions were no longer being made by his former employer as the employer had advised the agency that he was no longer employed by them.
Mr Platts immediately (that day) telephoned Mr Daniels and asked what was going on. Mr Daniels told him that he was no longer an employee and for that reason child support deductions after January 2023 had not been remitted by the business. Mr Platts replied that if he was no longer employed then he needed an Employment Separation Certificate for Centrelink purposes. Mr Daniels agreed to provide one to him.
On 8 March 2023 the following text exchange occurred between Mr Platts and Mr Daniels:
· Mr Platts: “Hey I though u were gunna drop separation certificate an reference off bro???”
· Mr Daniels: “Hey mate I have your separation certificate. Ive been dealing with other shit. I’ll try to get it to ya 2morra”
· Mr Platts: “Cheers bro love ya wrk…”
On 9 March 2023 Mr Daniels hand delivered to Mr Platts a separation certificate (dated 7 March 2023).
The separation certificate stated that Mr Platts’ employment had ceased on 18 January 2023.
Having been told on 6 March 2023 that his employment had ceased, Mr Platts completed an unfair dismissal claim form on 8 March 2023 and dated it that day.
Mr Platts did not file his completed unfair dismissal form until 28 April 2023 (fifty-one days after 8 March).
Submissions
Mr Platts seeks an extension of time.
He relies on two reasons for the delay:
· that he did not know that he was dismissed until 6 March 2023; and
· between 8 March 2023 and 28 April 2023 he was spending time in Adelaide helping his partner look after her disabled nephew.
In response, Rabig Bulk Haulage submit that none of the reasons advanced constitute exceptional circumstances individually or collectively. It says that Mr Platts’ prospects in the litigation are poor as it had good reason not to offer him further work and in any event the contract he was working at had come to an end.
Consideration
Unfair dismissal applications must be made within twenty-one days of a dismissal taking effect unless time is extended.
Section 394(3) of the FW Act provides:
“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.”
Being out of time, Mr Platts’ application can only proceed if he establishes that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[2]
The test of “exceptional circumstances” establishes a “high hurdle” for an Applicant.[3] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[4]
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[5]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[6]
Status of the application
It is not in dispute that Mr Platts’ application is out of time. By how much is a relevant factor. This turns on when Mr Platts’ dismissal took effect.
Mr Platts submits that it took effect on 17 January 2023. The employer submits that it took effect on 18 January 2023.
A dismissal does not take effect until it is communicated to the person dismissed in clear and unambiguous terms[7] or where communication in those terms is reasonably accessible to the person dismissed.[8]
The employer can be rightly criticised for not following up with Mr Platts after 11 January 2023 to communicate that its decision not to offer further work after that date and make a final payment on 18 January meant that he had been dismissed. Although it is tolerably arguable that the dismissal took effect on 18 January 2023 after a final payment was made in the context of Mr Platts having been stood down as a casual a week prior for cause, the better conclusion is that the necessary level of clarity that the employment relationship had ended was not objectively apparent until the 6 March 2023 discussion between Mr Platts and Mr Daniels and the employment separation certificate that followed.
This being so, the application is thirty-two days out of time (allowing for twenty-one days from 6 March 2023, the delay period is between 28 March 2023 and 28 April 2023 inclusive).
If conversely the dismissal had taken effect on 18 January 2023, the application would be seventy-nine days out of time.
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[9] The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.[10]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[11] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[12]
I now deal with each of the reasons advanced by Mr Platts.
As to the first reason advanced by Mr Platts (not notified until 6 March 2023) I have taken this into account in calculating the delay period. The delay period in this matter is a shorter period than that advanced by either Mr Platts or the employer.
Whilst it is apparent from the evidence that Mr Platts did little if anything to advance his industrial rights in the nearly eight weeks that transpired between 11 January 2023 and 6 March 2023 until contacted by Centrelink, I need not weigh this against Mr Platts given my finding below.
The second reason advanced by Mr Platts is that between 8 March 2023 and 28 April 2023 he was spending time in Adelaide (and travelled between Adelaide and Whyalla) helping his partner look after her disabled nephew. He says that he was reliant on his partner to have the know-how to send the application electronically and that neither she nor Mr Platts could give priority to this until 28 April 2023.
It is not unusual or uncommon that an employee, including a dismissed employee, may need to attend to personal or family matters in the wake of being dismissed. There is no evidence before me to suggest that the demands on Mr Platts’ time or on the time of his partner in the delay period were such that an application already completed by Mr Platts could not have been emailed to the Commission by he or his partner. Mr Platts simply did not give sufficient priority or urgency to doing so. He was aware, from his own responses in the application form, that a twenty-one day period applied (and that he considered himself to be out of time).
Considered overall, the explanation for the delay does not weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
I have found that the dismissal did not take effect until Mr Platts was specifically told of the employment relationship having ended on 6 March 2023.
As the delay period has not been assessed earlier than that day, and as Mr Platts’ inaction prior to that day has consequently not been taken into account, this a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
Mr Platts took no action to dispute the dismissal until after being told by Mr Daniels on 6 March 2023 that his employment had ceased. Even though Mr Platts drafted an application in the two days that followed, he did not advise the employer of his intention (despite having the opportunity to do so given that he texted Mr Daniels on 8 March 2023 and Mr Daniels attended his house on 9 March with the separation certificate).
The employer was not aware of the application until 5 May 2023 after being contacted by the Commission.
This is a neutral consideration.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[13]
There is no material prejudice to Rabig Bulk Haulage by having to defend a late claim.
A claim would have to be responded to, involving time and cost. Being a small business, that impact may be disruptive on the Respondent. There may also be marginal impacts on the recollection of events by witnesses given the delay, but that is not unusual in litigation. Overall, the prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not of itself be a reason to grant an extension.[14]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would concern whether there was a valid reason for Mr Platts not being offered further casual work after the steel beam incident.
I have not heard evidence relating to the incident and there appears to be contested versions of relevant facts. Also, of potential relevance may be whether the contract the employer had for the relevant work ceased. Not having probed these matters, it is not possible to express a provisional view on whether the case has merit.
For the purposes of the extension of time issue, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
It is not submitted that the application for an extension of time gives rise to issues of fairness between Mr Platts and persons in similar positions.
This is not a relevant factor.
Conclusion
The period of delay being thirty-two days is significant in the context of a twenty-one day statutory period.
No factors weigh in favour of a finding of exceptional circumstances. The reason for delay during the delay period does not point to circumstances being exceptional. The late notice given to Mr Platts of the employment relationship having ended has been taken into account.
I am unable to conclude that the circumstances giving rise to the late filing were exceptional. Mr Platts had the opportunity to file promptly after 6 March 2023 but did not do so despite knowing that a time period existed (and believing that he may already be late).
He simply did not give his industrial interests sufficient priority or urgency.
There being no exceptional circumstances, the time for lodgement cannot be extended.
As Mr Platts’ application is out of time, it is unable to proceed. The application is dismissed. An order[15] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr P Platts, on his own behalf
Mr T Daniels, of and on behalf of David T Rabig Pty Ltd T/A Rabig Bulk Haulage
Hearing details:
2023
Adelaide (by video)
18 May
[1] Respondent name amended by consent, 11 May 2023
[2] Smith v Canning Division of General Practice[2009] AIRC 959
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[5] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[6] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[7] Mihajlovic v Lifeline Macarthur[2013] FWC 9804; Goodenough v CXN Transport Pty Ltd[2023] FWC 715, [32] and [34]
[8]Ayub v NSW Trains [2016] FWBFC 5500, [50]
[9] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[11] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[12] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[13] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[15] PR762061
Printed by authority of the Commonwealth Government Printer
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