Ricky Ohlsen v Winangakirri Aboriginal Corporation

[2019] FWC 802

[2019] FWC 802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ricky Ohlsen
v
Winangakirri Aboriginal Corporation
(U2018/10869)

COMMISSIONER JOHNS SYDNEY, 8 FEBRUARY 2019

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (Cth) (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Ricky Alfred Ohlsen (Applicant) a further period for lodgement of his application for an unfair dismissal remedy.

[3] The relevant circumstances (about which I make findings of fact) are as follows:

a) Mr Ohlsen commenced employment with Winangakirri Aboriginal Corporation (Respondent) on 29 May 2017.
b) Mr Ohlsen’s employment was terminated by the Respondent on 14 September 2018 with effect on 21 September 2018.
c) The Applicant remained in accommodation provided by the Respondent until 5 October 2018. The Applicant had internet access during this time.
d) To be within time Mr Ohlsen should have filed his unfair dismissal application on 12 October 2018.
e) He lodged a F2 application on 22 October 2018 (although it is signed 12 October 2018).
f) Therefore, the application was filed:

i. 31 days after the employment was terminated.
ii. 10 days after the 21 day time limit provided for in the FW Act.

[4] In his F2 application the Applicant acknowledged that his application was filed late. He explained the delay as follows:

“Had 3 weeks to pack my belongings by myself and cart them to current location by small trailer and twin cab Ute. 400 km round-trip. Over 300 km travelled during the period. Did not have the time to do this application within the 21 day calendar period. * had to clean house as well.”

The jurisdictional objection

[5] On 31 October 2018 the Respondent objected to the Commission exercising jurisdiction to deal with the Application because it was lodged later than the 21 days after the dismissal took effect. The Respondent noted that,

“The Applicant had access to the Internet while still living [on-site]’s and could have made his application within time.”

[6] On 11 December 2018 the Commission constituted by Deputy President Dean wrote to the Applicant seeking an explanation for the delay.

[7] The Applicant replied on 17 December 2018 (dated 15 December 2018). He wrote,

•  Due to my remote location was limited to be able to get advice or lodge my application about my termination.

•  I was informed by phone on the 14.09.2018 that my employment was been terminated with no reason given on the phone for my termination at this time I offer to stay on as caretaker for a few weeks, so I could find somewhere to move my gear to and find a place to live. Lisa explained she would contact bought members read this and she would call back, within 10 minutes Lisa called back to say the board would give me an extra two week in-house to find somewhere to move to. Was told I would receive an email with reason for termination. Email received that afternoon which letter attached explaining reasons. I also was only given one week notice of termination and I understand the standard termination notice two weeks’ notice as my employment contract is not have a termination clause in it. At no time is leading up to my termination was a given any or verbal warning about my performance, in the 14 months I had only one performance review on 6.03.2018. I was not given any warnings or repair man for this review.

•  My employment was completed on the 21.09.2018 which is when I hand all … keys (except house as had two weeks to pack and move from this day) fuel cards, credit card. As I was no longer an employee, I had no access to Internet to lodge my application. I spent the two weeks packing my dear to move to Cobar which is with my Ute and trailer which was a six hour round trip due to road conditions. I also spent time cleaning the house, so it was in a better standard than when I arrived on site to work. During this time, I was unable to access the Internet on my laptop to lodge application and was not aware that there was a 21 day timeframe to lodge application.

•  Once I was in Cobar, I was able to access Internet to lodge an application on 16.10.2018. The lodge my application, it was 24 days since my last day of employment which was 21.09.2018.

[8] On 21 December 2018 the matter was allocated to me. On that day I issued directions for the parties to provide submissions and witness statements in relation to the jurisdictional objection.

[9] The Applicant did not file any other material.

[10] On 27 December 2019 the Respondent filed some brief submissions. On 1 January 2019 the Chairperson of the Respondent, Stacey Meredith made a statement about relevant events. That was filed in the Commission on 9 January 2019.

[11] In short the Respondent contends that the Applicant has not demonstrated exceptional circumstances. In answer to the Applicant’s claim that he did not have an internet connection Ms Meredith provided copies of Facebook screen shots purporting to be posts made by the Applicant in the 21 day period after the termination of employment. The Commission was invited to reject the Applicant’s claim that he did not have an internet connection. As against the Applicant it was said, in effect, if the Applicant had an internet connection to post updates on Facebook he could have used that internet connection to lodge his unfair dismissal claim within the 21 day time period. There is some force in this submission.

[12] On 17 January 2019 and again on 29 January 2019 the matter was listed for a jurisdictional hearing. The Applicant represented himself. The Respondent was represented by Ian Geddes, Principal with Cater & Blumer Lawyers.

Legislative scheme

[13] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

(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.

[14] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  4

Consideration of s.394 criteria
Paragraph 394(3)(a) - The reason for the delay

[15] It is not contested that there were 31 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission. It was 10 days late.

[16] The Applicant says the reason for the delay was:

a) His remote location rendering it difficult for him to obtain advice,
b) In the 2 weeks between when his employment ceased (21 September 2018) and when he left the accommodation provided by the Respondent (5 October 2018) he was occupied moving, finding alterative accommodation and cleaning the accommodation provided by the Respondent.
c) He was unable to access the internet.
d) In the 3rd week after his employment was terminated (when in Cobar and when he could finally access the internet) he was attending to securing his living arrangements..

[17] I explored these reasons with the Applicant during the hearing. Before me the Applicant said repeated the issues concerning the need for him to pack, move, shift and clean

[18] Addressing each of the reasons for delay advanced by the Applicant I am not satisfied that any of them are exceptional for the following reasons:

a) Many Australians live and work in remote locations. It is not uncommon. A lack of access to advice is also regularly encountered. In any case if by asserting a difficulty in obtaining advice the Applicant is, in effect indicating that he did not know about the 21 day time limit it is well established that ignorance of the timeframe for lodgment is not an exceptional circumstance. 5
b) The fact that the Applicant was occupied moving, finding alterative accommodation and cleaning the accommodation provided by the Respondent is also not out of the ordinary. While not all employees have employer provided accommodation and, consequently, need to find alternative accommodation when their employment is terminated, it is not uncommon. In any case the Respondent gave the Applicant ample time to move. The fact that he prioritised moving rather than filing an unfair dismissal application is a matter for him.
c) I reject the claim that the Applicant was unable to access the internet in the relevant period such that it impacted upon his ability to file his claim within time. The Facebook screenshots clearly demonstrate that he had internet access. The fact that he prioritised Facebook updates over accessing the Commission’s website to make an online application is, again, a matter for the Applicant.
d) Finally, in in relation to the 3rd week after his employment, again, the fact that the Applicant prioritised his living arrangements does not give rise to an exceptional circumstance.

[19] I am not satisfied that any of the reasons for delay advance by the Applicant are exceptional.

[20] Therefore, this factor weighs against granting the Applicant a further period to make his application.

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

[21] It is uncontested that the Applicant first became aware of the dismissal on 21 September 2018.

[22] Therefore, this factor weighs against granting the Applicant a further period to make his application.

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[23] Other than file the present application late, the Applicant took no other steps to dispute the dismissal.

[24] The lack of action taken by the Applicant to dispute the dismissal weighs against granting the Applicant a further period to make his application.

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

[25] In Respondent points to the costs associated with having to defend an unfair dismissal application that is otherwise out of time. I take this to mean that the Respondent does not assert any exceptional prejudice other than the usual prejudice associated with delay.

[26] The prejudice asserted by the Respondent weighs is a neutral factor in relation to granting the Applicant a further period to make his application.

Paragraph 394(3)(e) - The merits of the application

[27] In the matter of Kornicki v Telstra-Network Technology Group 6the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. 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.” 7

[28] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[29] Accordingly, in conformance with the accepted practice in relation to jurisdictional hearings I do not in this decision embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[30] The substantive factual contest between the Applicant and the Respondent is whether (as the Respondent contends) the Applicant was “not working his required hours but drinking alcohol instead”. The Applicant contends there was no reason given to him in the telephone call on 14 September 2018 and that he was denied procedural fairness. These are not factual disputes that can be resolved at a jurisdictional hearing.

[31] For present purposes the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[32] If the Applicant can establish to the satisfaction of the Commission that there was not valid reason for the dismissal and that he was denied procedural fairness he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was harsh, unjust or unreasonable.

[33] Because the Applicant’s case is not without merit or lacking in any substance this factor weighs in favour of granting him a further period to make his application.

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

[34] The parties agreed that this factor is not relevant.

Conclusion

[35] When the s.394(3) factors are considered in totality, I am not satisfied that they demonstrate circumstances that are out of the ordinary course, or unusual, or special, or uncommon. Rather, the circumstances are regularly, or routinely, or normally encountered. Consequently, they are not exceptional circumstances.

[36] For the reasons set out above, on balance, the Commission is satisfied that there are not exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

[37] An Order to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr R Ohlsen, for Himself

Mr C Jeremy, solicitor for the Respondent

Hearing details:

17 & 29 January 2019

Sydney

Printed by authority of the Commonwealth Government Printer

<PR704728>

 1 Section 394(2)(a) FW 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) FW Act.

 3 [2011] 203 IR 1

 4 Ibid [13].

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

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

 7   Ibid.