Ricky Watson v Helping Hand Aged Care
[2020] FWC 2056
•22 APRIL 2020
| [2020] FWC 2056 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Ricky Watson
v
Helping Hand Aged Care
(U2020/3)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 22 APRIL 2020 |
Application for an unfair dismissal remedy – utilities officer – casual employee – extension of time – failure to provide timely separation certificate - no exceptional circumstances for late lodgement – application dismissed
[1] On 1 January 2020 Ricky Watson (Mr Watson or the applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his alleged dismissal by Helping Hand Aged Care (Helping Hand, the respondent or the employer).
[2] His application is opposed by Helping Hand, which raises three jurisdictional objections.
[3] There is a dispute as to whether Mr Watson was dismissed. Helping Hand claims that Mr Watson resigned on 9 December 2019. It also claims that Mr Watson, as a casual employee, was not dismissed. In response, Mr Watson claims that he resigned on 9 December 2019 but that it was a forced resignation and thereby a dismissal within the meaning of section 386(1)(b) of the FW Act. He says that as a casual employee he worked a regular and systematic roster entitling him to make the claim.
[4] There is no dispute that Mr Watson’s application is out of time. There is a dispute as to whether exceptional circumstances exist so as to warrant an extension of time. Mr Watson says that exceptional circumstances led to the delay.
[5] This decision only concerns Mr Watson’s application for an extension of time. The other two jurisdictional objections would be determined in separate proceedings if, but only if, the date for lodgement is extended.
[6] I heard the extension of time application by phone on 14 April 2020. Mr Watson appeared, at the appointed time. The employer did not appear as the relevant officer could not be located by its administrative staff. I determined in the interests of fairness to proceed with the hearing in the employer’s absence because:
• Notice of the hearing had been provided to both parties on 18 March 2020;
• The employer was aware of the application and had filed a response on 19 January 2020;
• After waiting fifteen minutes beyond the appointed hearing time, no adequate explanation had been given for the employer’s non-attendance;
• Mr Watson had filed materials as directed and attended the hearing as directed; and
• The employer had been given the opportunity, but was not compelled by my directions to attend the hearing and file materials.
[7] In order to provide a further measure of procedural fairness to the parties, at the conclusion of the hearing I directed that the audio transcript be provided to both parties (including the respondent) and invited either party, if they so wished, to make a further written submission within 48 hours.
[8] The employer subsequently apologised for not attending the hearing and lodged a written submission1. Thereafter, I reserved my decision.
[9] The factual narrative is largely uncontested. Mr Watson gave evidence which can generally be relied upon and was consistent with the written record.
The Facts
[10] I make the following findings.
[11] Helping Hand provides retirement living and aged care services nationally, including in Adelaide, South Australia.
[12] Mr Watson commenced employment with Helping Hand in February 2018 as a utilities officer. He was employed on a casual ‘on call’ basis at various sites. He worked a regular roster of generally 35 hours per week. As a utilities officer, he was responsible for maintenance activities.
[13] In October and November 2019 Mr Watson’s rostered hours were reduced, to somewhere around 15 to 20 hours per week, then none. Mr Watson became concerned at this reduction because he considered that his shifts were unreasonably allocated to another person, and because the consequential reduction in income compromised his capacity to support himself and his family.
[14] Mr Watson’s last full rostered shift was 19 November 2019. A shift that he had been rostered for on 22 November 2019 was cancelled.
[15] On Tuesday 26 November 2019 Mr Watson attended the workplace because he had regularly been rostered on Tuesday’s. He had an informal discussion with an administrative staff member in charge of rostering (Kay) and his manager. He was advised that he was not scheduled to work any shifts on the forward roster. He told Kay that in light of not being rostered, he would have to make a claim for unemployment benefits, for financial reasons.
[16] Mr Watson then made inquiries of Centrelink concerning unemployment benefits. He was advised by Centrelink that he needed to produce a separation certificate from his employer in order to progress a claim.
[17] On or about 28 November 2019 Mr Watson rang Helping Hand and spoke to Kay. He told her that he needed a separation certificate to advance his unemployment benefits claim. He was told that he would need to resign in order to have a separation certificate produced.
[18] On 3 December 2019 Mr Watson wrote to Helping Hand advising that he intended to claim unemployment benefits and urgently requested a separation certificate2.
[19] Helping Hand replied on 9 December 2019 in the following terms3:
“We can certainly arrange the Separation Certificate and send it to you via email. However, before we are able to proceed, can you please arrange to tender your official resignation from Helping Hand in Writing (either Letter or Email) to your manager? This will then commence the process of payroll organising the documentation you require for Centrelink.”
[20] That same day, 9 December 2019, Mr Watson replied by email4:
“Resignation Notice
Hi Kay and Louise
As requested in writing, here is my resignation.
I Rick Watson, tender my resignation from Helping Hand Aged Care.
Regards
Rick Watson”
[21] Mr Watson had no further contact with Helping Hand.
[22] Based on internet searches and advice from Centrelink, he believed that Helping Hand had an obligation to provide a separation certificate within 14 days5. He waited this period (until 23 December) for a certificate to arrive. None did. He considered that Helping Hand were unfairly causing hardship by delaying his ability to progress his Centrelink claim.
[23] Mr Watson did not contact Helping Hand. However, he commenced researching his rights via internet searches. Immediately following Christmas Day, on or about 26 December 2019 he located the Fair Work Commission web site and learned of the right to make an unfair dismissal claim. He became aware at that time that a forced resignation could be an unfair dismissal. He also learned that unfair dismissal claims needed to be filed within 21 days of a dismissal. He decided at that time (on or about 26 December) that he would make an application to the Commission, and he started preparing one.
[24] Over the course of the next five days Mr Watson kept working on his application. He did not file it by 30 December 2019 (the 21st day after his dismissal took effect) because it was still incomplete and not to a standard he thought appropriate. He kept working on his application on 31 December 2019 and 1 January 2020. It was not until the afternoon of 1 January 2020 that he considered his application to be in a satisfactory form. He then made an on-line lodgement at 4.07pm on 1 January 20206.
[25] The first Helping Hand heard from Mr Watson following his resignation email of 9 December 2019 was service of the unfair dismissal proceedings in January 2020.
[26] Helping Hand filed an employer response on 14 January 2020. It declined conciliation until the out of time issue was determined.
[27] It was not until 24 February 2020, over six weeks after receiving Mr Watson’s unfair dismissal application and some eleven weeks after he had requested a separation certificate and resigned, that Helping Hand sent Mr Watson a separation certificate (dated 13 February 2020)7.
[28] By this time Mr Watson was, in fact, in receipt of unemployment benefits. He had made a successful application to Centrelink without being required to produce a separation certificate. He had been in receipt of unemployment benefits from around the end of December 2019.
Consideration
[29] For Mr Watson’s application to fall within the Commission’s jurisdiction it is, for current purposes, necessary that:
• Mr Watson was dismissed within the meaning of section 386 of the FW Act; and
• Mr Watson was a person protected from unfair dismissal within the meaning of section 382 (and sections 383 and 384) of the FW Act; and
• Mr Watson’s application was filed within 21 days of his dismissal taking effect as required by section 394 of the FW Act (unless an extension of time is granted).
[30] As noted, it is appropriate to determine the extension of time issue firstly, and if necessary, then deal with the remaining jurisdictional and merit issues.
[31] The date of alleged dismissal (resignation according to the employer) is uncontested: it took effect on 9 December 2019. Although his last rostered shift was on 19 November 2019 (not 9 December), in the context of this matter I do not consider that Mr Watson ceased to be an employee (in the sense of being dismissed) at the conclusion of his last rostered shift. The employer’s email of 3 December 2019 seeking his resignation in order to provide the requested separation certificate is evidence that the employer considered an employment relationship to exist at that time, one from which Mr Watson needed to resign. I will calculate the date the alleged dismissal took effect as 9 December 2019, not 19 November 2019.
[32] Given that section 394(2) of the FW Act requires applications of this nature to be filed within 21 days, for Mr Watson’s application to proceed, he requires the Commission to grant an extension of time for the filing of his application. It was required to be filed by 30 December 2019. It is two days out of time.
[33] The provisions of the FW Act governing whether an extension of time should be granted are set out in section 394(3):
“394 Application for unfair dismissal remedy
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
[34] Mr Watson’s application can only proceed to determination on the merits if he can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time.
[35] The applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances warranting an extension of time.8
[36] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.9 A decision whether to extend time under section 394(3), and the analogous section 366(2), involves the exercise of a discretion.10
[37] I consider the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd11:
“[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.”
[38] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR.12
[39] I now consider each of the factors set out in section 394(3) of the FW Act.
Reason for the delay (section 394(3)(a))
[40] The reason for the delay in lodging an application is a factor that must be taken into account. 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.13
[41] 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.14
[42] It is important to recognise that the period of the delay that requires 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.
[43] That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.15
[44] Mr Watson’s explanations for the delay are twofold: that he was waiting to receive a separation certificate from his employer, and that he was researching and preparing his unfair dismissal claim.
[45] Whilst it is a requirement under social security legislation that an employer provide a dismissed employee a requested separation certificate, it is not a requirement that an employee be provided with one in order to make an unfair dismissal claim under the FW Act. Whilst I accept that Mr Watson, as a person without any specialist experience in these matters, may not have initially appreciated this distinction, the non-provision of the separation certificate prior to lodgement is not a convincing reason for the delay for the following reasons:
• Firstly, a separation certificate is not required to make an unfair dismissal application under the FW Act.
• Secondly, seventeen days after the alleged dismissal Mr Watson decided to make an unfair dismissal application in part because he had not been provided the certificate. At that point he was not operating on a mistaken belief that he needed the certificate to make a claim to the Commission; and
• Thirdly, whilst what an employer says in a separation certificate may be relevant to an unfair dismissal claim or may inform a dismissed employee intending to make a claim, there was in fact no relevant information about the termination of his employment that Mr Watson needed from the certificate in order to make the claim. He was not confused about how his employment had ceased. He knew that he had resigned on 9 December 2019 in circumstances where he had been asked to resign, and that he considered reduction in his working hours to have been unfair.
[46] Additionally, Mr Watson’s explanation that he was preparing his unfair dismissal application to an adequate standard is not a sufficiently convincing reason to weigh in favour of a conclusion that exceptional circumstances exist.
[47] It is commendable that a lay employee making a claim researches the unfair dismissal jurisdiction and provides as full and complete information as possible to enable the claim, once lodged, to be processed by the Commission and responded to by the employer. Mr Watson is to be commended, not criticised for his diligence in this regard.
[48] However, knowing that a statutory lodgement period of 21 days exists and then waiting until after that statutory period expires before lodging simply in order to complete an application to what one considers an acceptable standard is not an adequate explanation for failing to lodge the claim within time.
[49] This is what Mr Watson did from at least 26 December 2019 including during the two days beyond the statutory expiry period. There is no mitigating factor in such a delay other than that Mr Watson was a lay person inexperienced in these matters. He had at hand the information he needed to complete the unfair dismissal form F2. He had researched the matter in the days leading up to the expiry of the statutory period, he was not misled about his rights nor was he waiting to receive legal or industrial advice.
[50] Mr Watson did not show deliberate indifference to the statutory time frame, but simply let it bypass him in order to complete the application to a standard he considered appropriate.
[51] These conclusions weigh against a finding of exceptional circumstances.
Awareness of the dismissal taking effect (section 394(3)(b))
[52] Mr Watson was aware from 26 November 2019 that Helping Hand were not offering him shifts for the foreseeable future.
[53] By virtue of his written resignation and the communications leading up to it, Mr Watson was plainly aware from 9 December 2019 that his employment had ceased.
[54] This conclusion weighs against a finding of exceptional circumstances.
Action taken to dispute dismissal (section 394(3)(c))
[55] Mr Watson put Helping Hand on notice informally from 26 November 2019 and formally from 3 December 2019 that he would be claiming an unemployment benefit and seeking a separation certificate. However, although he made it known to Helping Hand on 26 November 2019 that he was not happy about the reasons why he was not being offered rostered shifts, he provided no indication that he would be disputing the alleged dismissal. Mr Watson made no contact with the employer after 9 December 2019, whether to follow-up the non-provision of the separation certificate nor to have his resignation rescinded and rostered shifts restored.
[56] This conclusion weighs against a finding of exceptional circumstances.
Prejudice to the employer (section 394(3)(d))
[57] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances.
[58] However, there is no particular prejudice to Helping Hand should the time for lodgement be extended. Helping Hand is a sizeable employer with capacity to deal with litigation of this type.
[59] Nonetheless, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension.16
[60] In the circumstances of this matter, this consideration does not weigh against granting an extension of time but is a neutral factor.
Merits of the Application (section 394(3)(e))
[61] Determining this matter would involve deciding two further jurisdictional matters, and if they were determined in Mr Watson’s favour, then merits and remedy.
[62] Each of these further matters could be efficiently dealt with in one hearing. The evidence on merits may not be extensive but it is not possible to know whether disputed facts would arise. Nor is it possible at this stage to assess whether Mr Watson’s employment ceased for a valid reason, even if his resignation was a forced resignation.
[63] In these circumstances, this consideration is a neutral factor.
Fairness between persons in similar position (section 394(f))
[64] No evidence or submissions from Mr Watson or Helping Hand raise issues of fairness with and between other persons.
[65] In these circumstances, this is not a relevant factor.
Conclusion on extension of time
[66] Mr Watson has a genuinely held grievance about how his employment came to an end, and, in particular, a well-founded grievance at not being promptly provided the separation certificate he requested. He also has a genuinely held view that, in circumstances where his hours were reduced to nil, it was not necessary for him to be asked to resign in order to be provided a separation certificate and make a Centrelink claim for unemployment benefits.
[67] Helping Hand’s failure to provide a separation certificate to Mr Watson in a timely way was extremely poor human resource practice. Although not fatal to his Centrelink claim, it caused Mr Watson delay in making that claim and this caused financial stress and understandable anxiety and frustration. It ultimately led to Helping Hand facing this entirely avoidable litigation had it acted in a timely way to Mr Watson’s request, a request which the employer had said on 9 December 2019 that they could “certainly arrange” to meet.
[68] Mr Watson acted in good faith, took the employer at its word when told that he needed to resign if he wanted a separation certificate, and initially trusted that the certificate would be sent within the legally required fortnight after his request. These factors, together with the employer’s inattention to his request, weigh somewhat in favour of granting an extension of time. However, for reasons mentioned above, the separation certificate was sought for a separate purpose (the Centrelink application, not the unfair dismissal application) and its non-provision within 14 days (by 23 December 2019) was not an acceptable reason for delay in filing this unfair dismissal application within 21 days (by 30 December 2019).
[69] Nor is the other reason for delay (preparing his application to a standard considered acceptable) an adequate explanation for bypassing the statutory time limit.
[70] Although the delay in lodgement is only two days, this is not insignificant given that the legislature has established a mandatory 21-day statutory time limit which can only be extended in exceptional circumstances.
[71] Overall, and notwithstanding the employer’s delay in providing the separation certificate, considering the matter as a whole, including all of the factors in section 394(3) of the FW Act, on balance I do not consider the delay to be attributable to exceptional circumstances. The overall circumstances are not sufficiently out of the ordinary course, unusual, special or uncommon so as to warrant an extension of the statutorily imposed time limit. I decline to extend the period for lodgement.
Conclusion
[72] As Mr Watson’s application is out of time and as the time for lodgement has not been extended I am unable to proceed with determining the second and third jurisdictional issues or the merits. The application is dismissed. An order 17 to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
R Watson in his own right
No appearance by the respondent
Hearing details:
2020
Adelaide, by telephone
14 April
Final written submissions:
15 April (by the respondent)
Printed by authority of the Commonwealth Government Printer
<PR718422>
1 Email 15 April 2020 2.18pm
2 A2 Attachment A Email 3 December 2019 2.24pm
3 A2 Attachment A Email 9 December 2019 11.29am
4 A2 Attachment B Email 9 December 2019 2.36pm
5 Section 199 of the Social Security (Administration) Act 1999 allows a person to request a separation certificate directly from their former employer; section 200(1) makes it an offence for an employer to not provide a separation certificate ‘as soon as practicable’ after receiving the request. Section 196 requires an employer to return the form within 14 days if the request is made by the Department of Human Services. In practice, the Department of Human Services form SU001.1811 ‘Employment Separation Certificate’ directs employers to “[c]omplete and return this form to the former employee or us within 14 days”, whether the request is made by the Department or the former employee
6 At the hearing of the matter on 14 April 2020, I granted leave for Mr Watson to amend certain dates in his application which had been wrongly specified (for example the date of alleged dismissal being 9 December 2019 not 9 December 2018)
7 A2 Attachment C Email 24 February 2020 11.20am; A2 Attachment D
8 Smith v Canning Division of General Practice[2009] AIRC 959
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
11 [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
12 [2019] FWCFB 2384 at [16] – [20]
13 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]
14 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
15 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
16 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
17 PR 718423
0
9
0